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Torts: Foreseeability, Duty & Standard of Care in Protecting Students From Sexual Assault

Posted by Ted A. Schmidt | Dec 29, 2021 | 0 Comments

Hale v. Window Rock Unified School Dist., No. 1 CA-CV 21-0080 (App. Div. I, December 28, 2021) (J. Howe)

School's duty to protect students from sexual assault does not require proof assault was foreseeable

Plaintiff mother and plaintiff son sued the school district for three alleged sexual assaults perpetrated against the son by an eighth grade student at plaintiff's school. The essence of the claim was that the aggressor was a known violent student and that the school was negligent in providing security and supervision particularly as compared to the security and supervision employed at the neighboring high school. The school principal claimed in an affidavit that the school did provide reasonable security and supervision and had no notice that the alleged aggressor might assault plaintiff. The trial court granted defendant school district summary judgement, finding the plaintiffs failed to prove the district had notice of an unreasonable or recognizable  risk of harm to the son. The plaintiffs appealed and the Arizona Court of Appeals vacated the summary judgment and remanded the case. 

Here the trial court injected a foreseeability analysis into its determination that the district owed plaintiffs no duty.  Foreseeability is not a factor to be considered in determining the question of duty.  A school district has a special relationship with its students that requires the district to take reasonable steps to protect students from harm particularly while the students are on campus. Here that duty required the district to act reasonably in providing security and supervision to protect plaintiff son from sexual assault.  The question of foreseeability arises in the context of determining breach and causation, not duty and breach and causation, in most cases, as here, is a question for the fact finder making summary judgment inappropriate. Foreseeability in a breach and causation analysis focuses on “whether the injury was foreseeable, and not whether the plaintiff was foreseeable.”

Here the district owed a duty or reasonable care to plaintiff son and the conflicting facts regarding whether the alleged assaults were reasonably foreseeable to the district are questions for the jury.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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