Tuesday, December 9, 2008
Court of Appeal: Assault on ‘Special Needs’ Student was Foreseeable
By SHERRI M. OKAMOTO, Staff Writer
The Los Angeles Unified School District owed a duty of care to adequately supervise a “special needs” student who was sexually assaulted on campus, and to eliminate hidden areas where such victimization could occur, this district’s court of appeal ruled yesterday.
Reversing Los Angeles Superior Court Judge Joanne O’Donnell’s grant of summary judgment in favor of the school district, Div. Six explained that the maintenance of a “hidden location” where a 14-year old, identified by the opinion as Jennifer C., could be victimized satisfied the foreseeability factor of the duty analysis, even if the school was not aware of any prior sexual assaults or illegal activities taking place in the alcove beneath a flight of stairs on the Virgil Middle School campus.
A campus aide testified that on the day of the assault, she had checked the alcove, which was not visible from the campus, approximately once every six minutes during the lunch period, making her final check approximately three minutes before the end of the lunch period.
She said she returned about 14 minutes after the end of the lunch period and discovered the assault.
The school’s assistant principal testified that he was aware the alcove was a “problem area,” where students could attempt to evade school supervision, but there was no evidence that the school was aware of any sexual assaults or other illicit activity occurring during school hours in that alcove.
Jennifer C. filed suit against the school district for negligent supervision and maintaining a dangerous condition of public property.
In support of her claims, Jennifer C. introduced a declaration by Craig Cunningham, a previously qualified expert on school safety, who opined that Jennifer C. was particularly vulnerable to sexual assault by another student because of her disabilities and the school district should have known of her vulnerability.
Cunningham further opined that the school maintained a dangerous condition by failing to block off access to the alcove.
The school district filed a motion to exclude the declaration, which O’Donnell granted, finding that Cunningham lacked the qualifications to give an expert opinion on issues of special education, and that no evidence supported his contention that the school owed Jennifer C. a special duty based on her status as a special education student.
She later granted the school district’s motion for summary judgment.
Writing for the appellate court, Justice Kenneth R. Yegan explained that the “unique vulnerability” of special needs students makes it reasonably foreseeable that they may be victimized by other students.
“Where school officials allow a hidden area to be maintained on campus, it is foreseeable that other students may use the hiding place to take advantage of a ‘special needs’ student,” he continued.
Because the school had acknowledged the alcove was a problem area, Yegan reasoned that the school was on constructive notice that the location could be used for victimization, and that its maintenance of such a “hiding place” where a special needs student might be found rendered Jennifer C.’s assault foreseeable, even in the absence of prior similar occurrences.
Although he cautioned school officials are not the insurers of a special needs child’s safety, do not owe such a child a higher duty of care, nor are strictly liable for injuries sustained by such a student, Yegan suggested school officials “may need an incentive to drive compliance with the duty to provide adequate supervision.”
Yesterday’s decision, he wrote, “provides that incentive.”
The justice also criticized O’Donnell for taking a “very narrow and stingy view” of the expert declaration submitted in support of Jernnifer C.’s claims, concluding that the trial court had erred in excluding the evidence and further erred in granting the district’s motion for summary judgment because Cunningham’s declaration raised a triable issue of fact as to whether the school negligently supervised Jennifer C. and whether the alcove was a dangerous condition.
Mark Lieber of Steinbrecher & Associates represented Jennifer C. on appeal.
Firm principal Edward Steinbrecher said the court’s decision was “a real heads up to both public and private schools that they must take into account the needs of special needs students and the fact that they need to be supervised and that the premises need to be looked at in terms of dangerous conditions.”
He opined that schools “have to pay attention to the supervision of special needs children,” and the “potential dangerous conditions that will be misused or not appreciated by them.”
Calvin House of Gutierrez, Preciado & House represented the school district. He could not be reached for comment.
Presiding Justice Arthur Gilbert joined Yegan in his opinion. Justice Paul H. Coffee concurred in the result only.
The case is Jennifer C. v. Los Angeles Unified School District, B205903.
Copyright 2008, Metropolitan News Company