Certification from the United State District Court for the Eastern District of Washington in Leslie Christensen et al., Plaintiffs, v. Royal School District No. 160 et al., Defendants, 156 Wash. 2d 62

¶[1 The United States District Court for the Eastern District of Washington has certified the following question to this court: Alexander, C.J. May a 13 year old victim of sexual abuse by her teacher on school premises, who brings a negligence action against the school district and her principal for failure to supervise or for negligent hiring of the teacher, have contributory fault assessed against her under the Washington Tort Reform Act for her participation in the relationship? Order of Certification to the Washington Supreme Court (Certification Order) at 1.

We answer “no” to the question, concluding that, as a matter of law, a child under the age of 16 may not have contributory fault assessed against her for her participation in a relationship such as that posed in the question. This is because she lacks the capacity to consent and is under no legal duty to protect herself from the sexual abuse. I ¶2 The stipulated facts, as set forth in the Certification Order, indicate that Leslie Christensen was born on July 7, 1987. She is the daughter of Gary and Kim Christensen.

In early 2001, Leslie was 13 years of age and a student in the eighth grade at the Royal School District’s Royal Middle School. During that school year, the District employed 26-year-old Steven Diaz as a teacher at Royal Middle School. The principal of Royal Middle School at that time was Preston Andersen. ¶3 On February 12, 13, 22, and March 30, 2001, Diaz engaged in sexual activity with Leslie, who was one of his students. This activity occurred in Diaz’s classroom.

According to Diaz, Leslie voluntarily participated in a relationship with him and in the aforementioned activity. ¶4 Leslie and her parents brought suit against Diaz, the Royal School District (District), and Principal Andersen in the United States District Court for the Eastern District of Washington. In their complaint, they claimed that Diaz sexually abused Leslie.

Damages were also sought against the District and Andersen based on the allegation that the District and its principal, Andersen, were negligent in hiring and supervising Diaz. f 5 In a responsive pleading, the District and Andersen asserted an affirmative defense that Leslie’s voluntary participation in the sexual relationship with Diaz constituted contributory fault under the tort reform act of 1981,

chapter 4.22 RCW. Leslie moved for partial

summary judgment on this issue, seeking to strike the affirmative defense. The trial court deferred ruling on the motion pending an answer from this court to the certified question set forth above. II ¶6 The certified question presents an issue of first impression. The parties assert numerous arguments in support of the answer they favor to the certified question.

Because we answer the question on narrow grounds, we need not address all of their arguments. ¶7 The Washington Legislature enacted the tort reform act of 1981 in order to “create a fairer and more equitable distribution of liability among parties at fault.” Laws of 1981, ch. 27, § 1 (codified at ch. 4.22 RCW). The act calls for the finder of fact to compare the respective fault of the claimant and defendant. RCW 4.22.005.

Although the act provides that contributory fault does not bar recovery, as was the case prior to the act’s adoption in 1981, contributory “fault” on the part of a claimant diminishes proportionally the amount of damages that the claimant can recover. Under the act, “fault” is defined as “acts or omissions . . . that are in any measure negligent or reckless toward the person or property of the actor or others” and includes an “unreasonable failure to avoid an injury or to mitigate damages.” RCW 4.22.015 (emphasis added).

A claimant’s “negligence relates to a failure to use due care for his [or her] own protection whereas a defendant’s negligence relates to a failure to use due care for the safety of others.” Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 238, 588 P.2d 1308 (1978). The District and Andersen seek to compare their alleged negligence in hiring and supervising Diaz to Leslie’s alleged failure to use care to avoid the abuse by “entering into or pursuing the relationship” with Diaz.

Br. of Resp’t at 20 n.6. ¶8 A showing of negligence requires proof of the following elements: (1) existence of a legal duty, (2) breach of that duty, (3) an injury resulting from the breach, and (4) proximate cause. See Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994); Prosser and Keeton on The Law of Torts § 30, at 164-65 (W. Page Keeton ed., 5th ed. 1984).

The existence of a legal duty is a question of law and “ ‘depends on mixed considerations of “logic, common sense, justice, policy, and precedent.” ’ ” Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001) (quoting Lords v. N. Auto Corp., 75 Wn. App. 589, 596, 881 P.2d 256 (1994) (quoting Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985))). ¶9 The District and Andersen argue that contributory fault applies in this case because Leslie had a duty to protect herself against sexual abuse by an adult, a duty she allegedly ignored by voluntarily engaging in a sexual relationship with Diaz.

We conclude that, as a matter of public policy, contributory fault does not apply in circumstances such as those described in the Certification Order. Our conclusion is compelled by two principal reasons. First, we are satisfied that the societal interests embodied in the criminal laws protecting children from sexual abuse should apply equally in the civil arena when a child seeks to obtain redress for harm caused to the child by an adult perpetrator of sexual abuse or a third party in a position to control the conduct of the perpetrator.

Second, the idea that a student has a duty to protect herself from sexual abuse at school by her teacher conflicts with the well-established law in Washington that a school district has an enhanced and solemn duty to protect minor students in its care. We elaborate on this reasoning hereafter.

A f 10 Although the District and Andersen contend that a 13-year-old is capable of consenting to sexual relations, the legislature has rejected this notion in the criminal arena by adopting statutes which provide that an adult is guilty of a felony if he or she engages in sexual activity with a minor, even if the child victim “consented” to engage in the sexual conduct. See RCW 9A.44.073-.096 (statutes pertaining to child rape, child molestation, and sexual misconduct with a minor). Simply stated, such conduct is a strict liability offense in Washington. See State v.

Knutson, 121 Wn.2d 766, 775, 854 P.2d 617 (1993). The obvious purpose of these criminal statutes is to protect persons who, by virtue of their youth, are too immature to rationally or legally consent. See State v. Clemens, 78 Wn. App. 458, 467, 898 P.2d 324 (1995) (citing State v. Dodd, 53 Wn.

App. 178, 181, 765 P.2d 1337 (1989)). ¶11 While we acknowledge that the cause of action which has generated the instant certified question is a civil case and not a criminal case, the notion that minors are incapable of meaningful consent in a criminal law context should apply in the civil arena and command a consistent result. Our conclusion is in accord with rulings in several other jurisdictions that have addressed an issue similar to the one before us now. See Mary M. v. N. Lawrence Cmty. Sch.

Corp., 131 F.3d 1220 (7th Cir. 1997) (finding no distinction between criminal law and civil law in holding that as a matter of law, a 13-year-old student could not welcome the advances of a 21-year-old school employee); Jane Doe ex rel. Roe v. Orangeburg County Sch. Dist. No. 2, 335 S.C. 556, 518 S.E.2d 259 (1999) (holding that a child’s consent to sexual abuse is inadmissible in a civil case on the issue of liability for the same public policy reasons in the state’s statutory rape laws); Bohrer v. DeHart, 943 P.2d 1220 (Colo. Ct.

App. 1996) (holding consent inadmissible as a defense in civil case because of the power imbalance between a child victim and a religious counselor); Wilson v. Tobiassen, 97 Or. App. 527, 534, 777 P.2d 1379 (1989) (holding that a minor’s incapacity to consent under criminal law extends to civil law).

It would, in our view, be a peculiar rule that consent by a child could be a viable defense against civil liability when the exact conduct does not provide a defense to a defendant in a criminal case. ¶[12 The District and Andersen contend that contributory fault applies because “Washington has a long history of holding children responsible for their comparative negligence” and that Leslie had a duty to protect herself against sexual abuse but failed to do so. Br. of Resp’t at 11. In support of this contention, they cite several cases where contributory fault has been applied against a child. Id,.

Although the District and Andersen correctly pointed out that Washington does apply contributory fault and the duty of protecting oneself to children in some instances, the cases that they cite are not germane to our inquiry, as none involve sexual abuse. The act of sexual abuse is key here. As indicated above, our public policy is directed to protecting children from such abuse. B ¶13 The District and Andersen argue, additionally, that Diaz’s intentional conduct is not relevant on the issue of their own alleged negligence and that their fault, if any, should be compared with Leslie’s fault.

The flaw in this argument is that the District’s and Andersen’s failure to supervise and control Diaz’s intentional conduct is central to the District’s and Andersen’s duty to protect Leslie. ¶14 In a similar case from another jurisdiction, a child victim of sexual abuse sued a church, its bishop, and the diocese. The plaintiff alleged that the defendants negligently hired, supervised, and retained a priest despite their knowledge of the priest’s pedophilic disposition.

The Pennsylvania Superior Court, an appellate court, held that the doctrine of contributory negligence did not have any application because the acts of sexual molestation were intentional and it was those acts which “must be compared.” Hutchison ex rel. Hutchison v. Luddy, 2000 PA Super. 316, 763 A.2d 826, 848 ¶ 93. The Pennsylvania court went on to say that “comparative negligence [was] only an appropriate consideration in matters where there is negligence on the part of both the plaintiff and the defendant involved in causing the harm that results, not where the conduct of one is willful." Id. (emphasis added).

The court reasoned that to hold otherwise would “ ‘be the equivalent of characterizing the sexual molestation of children as a negligent act caused by being in the wrong place at the wrong time instead of characterizing it as an intentional act resulting from the repugnant conduct of the molester.’ ” Id. ¶ 92 (quoting Erie Ins. Exch. v. Claypoole, 449 Pa. Super. 142, 673 A.2d 348, 356 (1996)).

We agree with the reasoning of the Pennsylvania Superior Court that a defense of contributory fault should not be available to the perpetrator of sexual abuse or to a third party that is in a position to control the perpetrator. ¶15 Our conclusion that the defense of contributory negligence should not be available to the District and Principal Andersen is in accord with the established Washington rule that a school has a “special relationship” with the students in its custody and a duty to protect them “from reasonably anticipated dangers.” Niece v.

Elmview Group Home, 131 Wn.2d 39, 44, 929 P.2d 420 (1997) (citing McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 320, 255 P.2d 360 (1953)). The rationale for imposing this duty is on the placement of the student in the care of the school with the resulting loss of the student’s ability to protect himself or herself. Niece, 131 Wn.2d at 44. The relationship between a school district and its administrators with a child is not a voluntary relationship, as children are required by law to attend school. See McLeod, 42 Wn.2d at 319.

Consequently, “the protective custody of teachers is mandatorily substituted for that of the parent.” Id. ¶[16 In sum, because we recognize the vulnerability of children in the school setting, we hold, as a matter of public policy, that children do not have a duty to protect themselves from sexual abuse by their teachers. Moreover, we conclude that contributory fault may not be assessed against a 13-year-old child based on the failure to protect herself from being sexually abused when the defendant or defendants stand in a special relationship to the child and have a duty to protect the child. See Ellen M.

Bublick, Comparative Fault to the Limits, 56 Vand. L. Rev. 977, 1004 (2003).

Andersen and the District had a clear duty to protect students in their custody, and this duty encompassed the obligation to supervise and control Diaz. ¶17 In reaching the conclusion that we do, we are not unmindful of the dissent by Justice Sanders in which he says that contributory fault should be assessed against Leslie Christensen because the school district “did take steps to protect the female student [Leslie Christensen],” but that she “lied about her involvement with the teacher, thwarting the school district’s efforts to protect her.” Dissent by Sanders, J., at 83 (emphasis omitted).

As the Christensens’ counsel points out in a reply brief, that fact is disputed, was not stipulated to by the parties, and is not reflected in the Certification Order. Pis.’ Reply Br. at 1-2; see Certification Order at 2. Furthermore, we have not said in this opinion that the school district should be precluded from defending on the basis that it was not negligent. The fact that it may not, under Washington law, assert that the 13-year-old child was contributorily negligent should not bar it from claiming at trial that it was careful in hiring and supervising the child’s teacher and, thus, was without negligence.

If, indeed, the District was thwarted in its efforts to ascertain if Leslie Christensen was abused by her teacher, that fact would likely be relevant on the issue of its alleged negligence. That, though, is not a question before us. Rather, it is a question to be resolved in federal court. Ill f 18 In sum, we hold that contributory fault may not be assessed against a 13-year-old child when that child brings a civil action against a school district and school principal for sexual abuse by her teacher.

The child, in our view, lacks the capacity to consent to the sexual abuse and is under no duty to protect himself or herself from being abused. An opposite holding would, in our judgment, frustrate the overarching goals of prevention and deterrence of child sexual abuse. Accordingly, we answer no to the question propounded to us by the United States District Court. C. Johnson, Bridge, Chambers, Owens, and Fairhurst, JJ., and Ireland, J. Pro Tem., concur. The District, Andersen, and the dissent by Justice Sanders all direct our attention to Robinson v.

Lindsay, 92 Wn.2d 410, 413, 598 P.2d 392 (1979) (holding that when activity a child engages in is inherently dangerous, like operating dangerous machinery, the child should be held to an adult standard of care); Berry v. Howe, 39 Wn.2d 235, 238, 235 P.2d 170 (1951) (afErming the trial court’s finding that an 11-year-old caddy was guilty of contributory negligence for failing to protect himself from being hit in the eye by a golf ball); Brown v. Derry, 10 Wn.

App. 459, 464, 518 P.2d 251 (1974) (afErming the trial court’s holding that a 16-year-old was guilty of contributory negligence for injuries he sustained from riding on the trunk of a moving car while wearing a wetsuit). As the dissent observes, these cases “do not involve sexual conduct.” Dissent by Sanders, J., at 81-82. Justice Madsen concedes in her dissent that the teacher, Diaz, may not seek to have contributory fault assessed against his former student based on the student’s participation in a sexual relationship with him.

Justice Madsen concludes, however, that the District should not be precluded from asserting and proving that the student was at fault in not exercising “reasonable care for her own safety” or failing to “avoid injury or mitigate damages.” Dissent by Madsen, J., at 72. It would, in our view, be an unsatisfactory rule that such alleged failures by a child could be considered contributory fault as to one alleged tortfeasor (the District) and not to another (the teacher). RCW 4.22.015.

In our view, a child who has been sexually abused by her teacher should not have her recovery against her abuser, and those who had a duty to protect her from the abuse, diminished by any alleged failure to exercise reasonable care or otherwise avoid the injury.