Metropolitan News-Enterprise


Tuesday, July 15, 2003


Page 1


District Held Liable for Sexual Assault on Student in Bathroom


By KENNETH OFGANG, Staff Writer/Appellate Courts


School districts have a duty to protect their students, and in particular special education students, from being assaulted on campus during the early morning when the school is open but classes have not yet begun, the Fifth District Court of Appeal has ruled.

The justices Friday affirmed a judgment for more than $2.3 million against the Panama Buena Vista Union School District in southwest Bakersfield. The district was held liable for failing to protect a student who was attacked by another pupil in one of the school’s bathrooms between 7 and 7:45 a.m., when according to testimony little adult supervision was provided.

That lack of supervision made an attack upon a defenseless student not only foreseeable, but “virtually inevitable,” Justice Rebecca Wiseman wrote for the court.

The incident occurred at Earl Warren Junior High School near the end of the 1996-97 school year. The perpetrator of the assault was identified as a fellow special education student, who said he saw the victim, identified only as M.W., being dropped off at school, then lured him into the bathroom and sodomized him.

The perpetrator, a boy named Chris who had been previously disciplined for defying teachers and other offenses, including punching and teasing M.W., said he committed the assault because was “uptight” and “wanted to have sex that morning.”

It was also disclosed that the same boy had committed a less-violent sexual assault on M.W. two months earlier but that the attack was not reported at the time because the victim was scared.

The victim’s mother, who taught in the district, said she typically dropped her son off between 7:15 and 7:20 on her way to work. She said she was never warned against doing so, and believed her son was being supervised once he entered the school.

But witnesses testified there was little adult oversight of students who arrived that early. The school’s normal routine, they said, was that gates were unlocked at 7 a.m., bathrooms were unlocked sometime prior to 7:45, teachers were expected to be on duty at 7:45, and the school day began at 8:15.

The student body consisted of more than 500 members, the majority of whom arrived after 7:45, the principal testified. The principal said there had been no incidents of reported early-morning violence on campus before the event that provoked the lawsuit.

Evidence was presented that the minor was in constant fear as a result of what had happened, and had exhibited symptoms of severe emotional distress; he was hospitalized twice, including following a suicide attempt after students locked him in a portable toilet in April 1999.

He eventually moved into a residential living facility, and the case went to trial in late 2000. The jury agreed that the district breached a duty to supervise its pupils, rejecting the district’s argument that it had no duty to prevent what it said was an unforeseeable event.

Wiseman, writing for a divided appellate panel, agreed that the district owed M.W. a duty of reasonable supervision, and that there was substantial evidence that the duty was breached and that the breach was a legal cause of the plaintiff’s injuries.

A duty of reasonable supervision has long been imposed on California school districts, Wiseman said, in part because school attendance is compulsory. The Panama district, the justice said, breached that duty by not assigning a specific adult to supervise the behavior of students who were on campus between the opening of the gates and the time that teachers were expected to arrive.

The attack was foreseeable, Wiseman went on to say, even though there had been no similar incidents. She noted that the victim was particularly vulnerable, adding that the perpetrator’s lengthy disciplinary record established he “was clearly a troubled child and the District knew it.”

While officials may not have been specifically aware the attacker was on campus at the early hour, the justice added, there was testimony that his bus privileges had been suspended, that his father had been dropping him off before the gates even opened, and that he should have been noticed because of the very small number of pupils present that early in the day.

“It is not necessary for the District to have foreseen that an act of sodomy could have occurred,” Wiseman wrote. “...The fact that a particular act of sodomy in a school bathroom may have been unforeseeable does not automatically exonerate the District from the consequences of allowing students, particularly special education students, unrestricted access to the campus prior to the start of school with wholly inadequate supervision. Such conduct created a foreseeable risk of a particular type of harm-an assault of a special education student.”

Justice Thomas Harris concurred in Wiseman’s opinion, and wrote separately to emphasize the extent to which the district’s knowledge of the perpetrator’s past record made the assault foreseeable.

Justice Herbert Levy dissented, acknowledging that the plaintiff had “suffered grievous harm” but arguing that there was nothing in the perpetrator’s record that suggested he would commit a sexual assault.

Chris, Levy noted, had been suspended for things like fighting and cursing. Holding the district liable for failing to prevent him from committing rape, the dissenting justice argued, “expands the concept of duty to the point of essentially imposing strict liability on school districts for the criminal conduct of any student with a discipline record that includes hitting and kicking other students.”

The case is M.W. v. Panama Buena Vista Union School District, 03 S.O.S. 3703.


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