PLAINTIFFS' TRIAL BRIEF
filed with the SUPERIOR COURT, FRANKLIN COUNTY, WASHINGTON
Jan. 22nd 2003
HIGH, Plaintiffs, vs.
PASCO SCHOOL DISTRICT, Defendants.

TRIAL ISSUES - # 11

Should the jury be instructed on forseeability as an issue of causation as well as an issue in the determination of the school district's duty?

Instructing the jury on forseeability as an issue of causation as well as an issue in determining duty is improper.

The District pleaded as an affirmative defense that Jared High's act of firing a gun at his own head was an intervening cause which supercedes any negligence of the District.  That defense, and any separate jury instruction on intervening cause, are inappropriate to the facts and law of this case.  Failure to take reasonable steps to control the conduct of a violent bully gives rise to a risk that the bully will attack another student and cause physical, emotional and psychological harm.  Both sides agree that Jared High committed suicide from developing a major depressive condition, an accepted psychological diagnosis.  Suicide is certainly an extreme consequence of emotional and psychological harm, but it is by no means unforseeable or outside the general risk of harm created by an ineffectively disciplined, aggressive bully.

An intervening act will supersede the defendant's negligence only when it is so highly extraordinary or unexpected that it can be said to fall outside the realm of reasonable forseeability as a matter of law. Jones v. Leon, 3 Wn.App. 916, 478 P.2d 778 (1970). Generally, an intervening cause is superseding only where (1) it brings about a different type of harm than otherwise would have resulted from the defendant's conduct, or (2) operates independently of the situation created by the defendant's conduct. Campbell v. ITT Imperial Corp., 107 Wn.2d 807, 813, 733 P.2d 969 973 (1987). An act does not become unforeseeable simply because it is an intentional or even criminal act on the part of a third party. Eckerson v. Ford's Prairie School Dist. No. 11 of Lewis County, 3 Wn.2d 475, 484-85, 101 P.2d 345, 350 (1940), quoting Restatement of Torts, § 449, at 1202.

The central issue in the intervening, superceding cause analysis is forseeability. The District is expected to argue at trial, as it did on summary judgment, that Jared High's act of suicide was not forseeable by the District. Such argument is improper. It is clear that the test is whether the general risk of harm was forseeable, not the precise chain of events which lead to the ultimate occurrence. The pattern jury instruction on intervening concludes with the following paragraph:

It is not necessary that the sequence of events or the particular resultant occurrence be forseeable. It is only necessary that the resultant harm fall within the general field of danger which the defendant should reasonably have anticipated.

WPI 12.05

One of Washington's leading cases on intervening, superceding cause analysis is McLeod v. Grant County School Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d 360 (1953), discussed in the summary judgment briefing. See, Plaintiffs Memorandum in Opposition to Motion for summary Judgment, p. 25. In that case, during noon recess, several school boys carried the twelve year old plaintiff into a darkened room, where she was forcibly raped by two of the group of boys. She cried out for help, as Jared High, but no adult was around to hear her plea. Her legal complaint was dismissed by the trial court. On appeal, the school district's defense was that the cause of her harm was the intervening acts of the boys who raped the plaintiff. In reversing and remanding for trial, the Supreme Court analyzed the issues:

It seems to us, however, that counsel unjustifiably restrict the issue when they ask us to focus attention upon the specific type of incident which here occurred-forcible rape. Whether forseeablility is being considered from the standpoint of negligence or proximate cause, the pertinent inquiry is not whether the actual harm was of a danger which was expectable. Rather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.

(McLeod, at 321)

The court then quoted from Professor Harper, Law of Torts, from a prior decision:

It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent. The sequence of events, of course, need not be forseeable.  The manner in which the risk culminates in harm may be unusual, improbable and highly unexpectable, from the standpoint of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability...

In this matter, the issue of forseeability is an element of whether the District owed a duty to Jared High to prevent the assault by Andrew S.  The question is whether physical and emotional injury are within the general risk of harm from the failure of a school district to take reasonable disciplinary steps to prevent an aggressive and violent student from attacking other students. To instruct the jury on the same subject again, as an issue of proximate causation, is misleading and confusing, and gives undue emphasis to that element of the case. It also invites improper argument by the defense that the District had no reason to suspect that Jared High, in particular, would commit suicide.

RESPECTFULLY SUBMITTED this 22nd day of January, 2003.

RICHTER-WIMBERLEY, P.S.
By: Jay E. Leipham, WSBA # 4961
(Attorney for Brenda High)
 

HEAR JARED'S VOICE - PLAY - From an interview with Pasco School District investagators concerning the assault.  This is a recording of a recording and it isn't real clear, but worth the download effort.  Jared had a real mellow voice.   Note: If you have a slow load wav, wait for it to load entirely and then play again from the start.   5 minutes long

 

TRIAL ISSUES http://www.jaredstory.com/trial_brief01.html http://www.jaredstory.com/trial_brief02.html http://www.jaredstory.com/trial_brief03.html http://www.jaredstory.com/trial_brief04.html http://www.jaredstory.com/trial_brief06.html http://www.jaredstory.com/trial_brief08.html http://www.jaredstory.com/trial_brief09.html http://www.jaredstory.com/trial_brief10.html http://www.jaredstory.com/trial_brief11.html

HIGH v. PASCO SCHOOL DISTRICT PLAINTIFFS' TRIAL BRIEF & FACTUAL BACKGROUND The Complaint for Damages THE SETTLEMENT The Rest of the Story The Assault Suicide - The Forseeable Consequences of Bullying Why the Pasco School District wouldn't help Jared   NEW in O7

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