LEEANN MITCHELL, Individually, and on Behalf of D.E., her Minor Child, Appellees,
CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, Appellant.
Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge.
Mother sued daughter's school district for damages daughter sustained in an after-hours, off-campus incident. A jury found the school district negligent.
David L. Baker, Cedar Rapids, and Terry J. Abernathy and Stephanie L. Hinz of Pickens, Barnes & Abernathy, Cedar Rapids, for appellant.
Brad J. Brady and Ann E. Brown-Graff of Brady & O'Shea, P.C., Cedar Rapids, for appellees.
The mother of a special education student sued the student's school district for damages the student sustained in an after-hours, off-campus sexual assault by another student. A jury found the school district negligent in failing to adequately supervise the special education student and awarded damages. We affirm the jury verdict.
I. Factual and Procedural Background.
In the fall of 2007, fourteen-year-old D.E. was a ninth-grade special education student at Cedar Rapids Community School District's Kennedy High School (Kennedy). D.E. has an IQ of 67 and was a Level II special education student at Kennedy that fall. As a special education student, D.E. had an Individualized Education Plan (IEP), which had been created by her mother and a team of education professionals at Kennedy. An IEP generally aims to make accommodations and provide support for students with disabilities. D.E.'s IEP revealed no special behavioral considerations and suggested she was capable of independently performing daily living skills except money management. D.E. was rarely, if ever, without direct adult supervision because of her diminished capacity, a fact established in the trial record but not expressly mentioned in her IEP.
Kennedy had two Level II special education teachers in the 2007– 2008 school year—Sarah Biedenbach and Sandy Colberg. D.E. Was Ms. Biedenbach's student in fifth period history and sixth period language arts classes that year. M.F., a nineteen-year-old twelfth-grade special education student, was Ms. Biedenbach's student in other classes that year.
Ms. Biedenbach had witnessed M.F. and D.E. spending time together that fall and had observed them engaging in physical contact including kissing. Ms. Biedenbach assumed the relationship between M.F. and D.E. was age-appropriate and could not recall signs indicating the contact was against D.E.'s will. She also could not recall any history of M.F. having behavioral problems.
While Ms. Biedenbach testified she made it a habit to speak to her students about relationships when she observed them, she could not recall specifically whether she had spoken to M.F. and D.E. about theirs. Ms. Biedenbach indicated that in addition to her general concern that any of her students in relationships might engage in sexual activity, she had specific concerns after witnessing M.F. and D.E. together at school that they were sexually active, were likely to be together if absent from class at the same time, and might engage in sex if left unsupervised.
On October 26, 2007, D.E. called her mother, LeeAnn Mitchell, from school and asked if she could ride the bus after school to her friend S.K.'s house. This was an unusual request as Mitchell or a grandparent usually drove D.E. to and from school and D.E. had never previously ridden the bus to S.K.'s house. D.E. and S.K. represented to Mitchell that S.K.'s mother would be home that afternoon. Mitchell gave permission and instructed that D.E. call when she arrived at S.K.'s home. The school day ended at 2:45 p.m. for D.E.; Mitchell expected she would receive D.E.'s call around 4 p.m. Although D.E. was not typically home alone without adult supervision, Mitchell did not attempt to confirm with S.K.'s mother the accuracy of D.E.'s representation that supervision would be provided that afternoon.
D.E. and S.K. decided to leave school on October 26 after their fifth period class and skip sixth period, despite not having permission to leave school during the school day. They left at approximately 1:45 p.m., just after the fifth period ended, and met up with M.F. shortly thereafter in the school parking lot. M.F. did not have a scheduled sixth period class and was on his way home at that time. M.F. lived with his grandparents about two and a half miles from Kennedy, and he intended to walk there that day as he did most days.
Kennedy had a computerized system in place for tracking students' attendance and absences. Typically, a teacher would document a student's absence on a computer in the classroom at the beginning of each class. If a student left school during the school day, and a parent had not called to authorize the early departure, the student's absence would be recorded as unexcused. In the evening of the same day, an automated messenger system would place a phone call to the parents of each student with an unexcused absence and reveal the periods missed by the student. As Kennedy relied on this automated system for recording and reporting absences, the school's policy did not require teachers to place personal calls alerting parents of their children's absences.
Although Kennedy's policy did not require it, Ms. Biedenbach and Ms. Colberg typically took additional measures upon discovering a student's absence. Recognizing potential safety concerns faced by her students if absent from school without authorization and unsupervised, Ms. Colberg would call a student's parent upon discovering the student had left the building early without an excuse. Ms. Biedenbach's response to an unauthorized absence of a student was slightly different. She would (1) ask other students in class if they knew the missing student's whereabouts, (2) contact the main office to determine if school personnel had additional information, (3) contact the teacher of the student's prior class, and (4) contact campus security providing notice if the student was missing without excuse or authorization. Both Ms. Biedenbach and Ms. Colberg typically took these steps not mandated by the Kennedy policy even if the student's IEP indicated no specific behavioral problems and required no specific responsive action in the event of an unexcused absence.
The absences of D.E. and S.K. from their sixth period classes were recorded in Kennedy's computer system that afternoon. The record does not reveal whether Kennedy personnel took any other action that day in response to D.E.'s absence. Ms. Biedenbach does not recall placing a call to the school's attendance office or inquiring of other students or school personnel that day about the circumstances of D.E.'s absence.
Mitchell's expert, Dr. Bainbridge, opined Kennedy should have taken—and other schools would have taken—additional steps to find D.E. and prevent her from leaving early that day, including: (1) having a paraprofessional monitor D.E. when she was not in the classroom, (2) providing electronic alarms at the nonmain exit doors deterring unauthorized student departures during passing periods, (3) locating security officers around the school's perimeter to question students leaving campus early during the school day, (4) notifying Mitchell immediately upon the discovery of D.E.'s unexcused absence, and (5) promptly alerting the police that D.E. had gone missing.
After they departed the Kennedy campus that afternoon, M.F., S.K., and D.E. set out toward M.F.'s grandparents' house. At some point along the street fronting Kennedy, they encountered J.I., a former Kennedy student, who was driving a car. They accepted J.I.'s offer of a ride to M.F.'s grandparents' house.
D.E. and M.F. stayed at his grandparents' home for approximately twenty minutes and then walked a few blocks to the home of M.F.'s friend, V.M., arriving there around 4:00 p.m. V.M. was a tenth-grade special education student at Kennedy that year. M.F. and D.E. asked V.M. if they could go inside, but V.M. demurred and instead suggested they could enter his garage. M.F. and D.E. entered the garage and remained for about twenty minutes. M.F. raped D.E. in the garage while V.M. watched from a window and shot at D.E. with a BB gun. M.F. and D.E. then left V.M.'s around 4:45 p.m. and walked toward S.K.'s house.
At around the time M.F. and D.E. had arrived at V.M.'s, Mitchell received a call from J.I., informing her that D.E. had left her backpack with him. J.I. failed to provide Mitchell any details of D.E.'s whereabouts or any other information. Mitchell, alarmed, drove to S.K.'s house, arriving there before M.F. and D.E. Having not found D.E. at S.K.'s house, Mitchell drove toward the Kennedy campus. By the time Mitchell reached Kennedy, she received a call from M.F. and D.E. revealing they had arrived at S.K.'s house. Mitchell drove back immediately to retrieve them, delivered M.F. to his home, and then took D.E. home.
D.E. did not tell Mitchell what had happened that afternoon until early May 2008. Upon learning the details from D.E., Mitchell took D.E. to the police department and filed a report. M.F. eventually pled guilty to sex abuse in the third degree for committing a "sex act" when "the other person is fourteen or fifteen and the person is four or more years older than the other person."
In November 2009, Mitchell sued Kennedy for negligence, individually and on D.E.'s behalf, alleging Kennedy had breached a duty of reasonable care in one or more of the following ways: (1) failing to adequately supervise D.E., (2) failing to timely notify Mitchell of D.E.'s unauthorized absence from school, (3) failing to adequately monitor D.E.'s attendance at school, (4) failing to take appropriate and immediate action upon the discovery of D.E.'s absence from school, (5) failing to provide adequate security to prevent special education students from leaving the school campus without authorization, and (6) failing to maintain an adequate system of monitoring special education students during the school day.
A jury trial was held in November 2011. At the close of the evidence, Kennedy moved for directed verdict on all issues "based on the fact that the conduct complained of in this case by M.F. was beyond the scope of the Defendant's liability." After some discussion among the court and counsel about the court's proposed jury instructions, Kennedy objected to certain specifications of negligence submitted by the court to the jury. The jury returned a verdict for D.E., finding $500, 000 in damages and apportioning seventy percent fault to Kennedy and thirty percent to D.E.
Following the verdict, Kennedy moved for judgment notwithstanding the verdict, or in the alternative a new trial, asserting (1)Kennedy did not owe D.E. a duty of care, (2) D.E.'s injuries were outside the scope of Kennedy's liability, and (3) Kennedy's failure to call the police could not have been a cause in fact of D.E.'s injuries and thus should not have been submitted to the jury as a specification of negligence.
The district court denied Kennedy's posttrial motion. The court's ruling concluded in pertinent part: (1) Kennedy failed to raise the duty issue in its motion for directed verdict and thereby waived error, (2)whether D.E.'s injuries were within Kennedy's scope of liability was an issue for the jury, and (3) Kennedy waived error—again by failing to raise the matter in its motion for directed verdict—on its claim that any failure to call the police was not a factual cause of D.E.'s injuries.
II. Scope of Review.
The district court's ruling on Kennedy's motion for judgment notwithstanding the verdict that Kennedy waived error on its no-duty claim is reviewed for errors at law. See Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). We review rulings on motions for directed verdict for correction of errors at law. Iowa R. App. P. 6.907; Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa 1998). In ruling on the posttrial motions, we view the evidence in the light most favorable to the nonmoving party. Van Sickle Constr. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010).
Kennedy raises three issues on appeal, contending: (1) a school district owes no duty to protect students from a third party outside the school day, off school grounds, and not during a school activity, (2) the trial court erred in denying Kennedy's motions for directed verdict and judgment notwithstanding the verdict because the harm caused was not within Kennedy's scope of liability as a matter of law, and (3) the trial court erred in including among the submitted specifications of negligence Kennedy's failure to call the police.
A. Preservation of the No-Duty Argument.
The parties dispute whether Kennedy's duty argument was preserved below. Mitchell contends Kennedy's motion for directed verdict, the jury instruction colloquy, and the district court's ruling on the motion failed to address the duty issue. Instead, Mitchell asserts, duty was first raised in Kennedy's motion for judgment notwithstanding the verdict, and thus was not preserved for appellate review. Kennedy responds that its motion for directed verdict, while failing to use the word "duty, " was sufficiently specific to put the district court on notice of the nature of its protest. Further, Kennedy contends, the jury instruction colloquy brought the court's attention to the issue of whether Kennedy owed D.E. a duty of care with regard to "risks that occurred while plaintiff was not at school or during school."
It is well-settled that a party fails to preserve error on new arguments or theories raised for the first time in a posttrial motion. Field v. Palmer, 592 N.W.2d 347, 351 (Iowa 1999). A motion for judgment notwithstanding the verdict must stand on grounds raised in the motion for directed verdict. Id. at 350. Accordingly, we look to the contents of Kennedy's motion for directed verdict in identifying the issues preserved for our review. See Pavone v. Kirke, 801 N.W.2d 477, 487 (Iowa 2011).
Although our error preservation rules are not designed to be hypertechnical, Griffin Pipe Prods. Co. v. Bd. of Review, 789 N.W.2d 769, 772 (Iowa 2010), we require that the nature of any alleged error be timely brought to the attention of the district court, Summy v. City of Des Moines, 708 N.W.2d 333, 338 (Iowa 2006). Further, claimed errors must be raised with some specificity in a directed verdict motion. Id. General averments in a motion for directed verdict will not typically maintain particular issues for the district court's further consideration in ruling on motions for judgment notwithstanding the verdict. See Ragee v. Archbold Ladder Co., 471 N.W.2d 794, 797–98 (Iowa 1991).
Here, Kennedy's motion for directed verdict stated in its entirety:
[T]he Defendant would move for a directed verdict on all the issues in this case based on the fact the conduct complained of in this case by [M.F.] was beyond the scope of the Defendant's liability. The evidence in this case has shown that this incident occurred off school grounds, after school hours, did not in any way, shape, or form involve an employee of the Cedar Rapids Community School District; was certainly not the type of incident that could be reasonably foreseen as to logically follow from the fact that a student might skip school.
As a result, under the Restatement (Third) of Torts, the Thompson v. Kaczinski case, Royal Indemnity and Hill v. Damm, we believe the Defendant is entitled to a directed verdict in its favor. Thank you.
As noted, the district court denied the motion, finding substantial evidence supported each element of Mitchell's claim. ...