Anderson v. Soap Lake Sch. Dist.

This opinion Was filed for record
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SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MICHELE L. ANDERSON, a single person, No. 93977-2
Indiviclually and as the Administrator of the
ESTATE OF SHEILA M. ROSENBERG, En Banc

Petitioner,
V. Filed AUG 0 9 :2018

SOAP LAKE SCHOOL DISTRICT, GRANT
COUNTY, GRANT COUNTY SHERIFF'S
DEPARTMENT, and CORPORAL ALLAN
SLEEPER, and JOHN DOE(S),

Respondents.

WIGGINS, J.—Michele Anderson suffered the tragic and heartbreaking loss of her

daughter. Sheila Rosenberg, following the irresponsible actions of Rosenberg's high

school basketball coach, Igor Lukashevich. Lukashevich invited Rosenberg to his home

where he poured and drank shots of vodka with her. Shortly after leaving Lukashevich's

home, Rosenberg was killed along with her boyfriend, Pavel Turchik, in a car accident.

Anderson marshals a number of claims against Lukashevich's employer. Soap Lake

School District(Soap Lake or the district). But she fails to marshal sufficient evidence to

support her claims. We conclude that the trial court properly granted summary judgment

to Soap Lake, and we affirm the Court of Appeals.
Anderson v. Soap Lake Sch. Dist. et at.
No. 93977-2

FACTS AND PROCEDURAL HISTORY^

I. The Accident

Rosenberg was killed in a single-car accident after leaving the home of her high

school basketball coach, Lukashevich. The evening before the accident, Rosenberg and

her boyfriend, Turchik, texted one another about meeting at Lukashevich's house.

Turchik texted Rosenberg that he was at the school playing basketball and then planned

on going over to Lukashevich's home. Rosenberg replied,"Ha nice!! What's at [IJgorst^^?
. .. Oh yeah my ice[ ]cream! L[aughing] m[y] a[ss] o[ff]." Rosenberg then asked Turchik,

"What[a]re you guys doing there?" Turchik replied, "We[']re getting wasted th[a]ts wh[a]t

we[']re doin[g]!"

A couple of hours later, Lukashevich texted Rosenberg, asking her to come to his

house. He texted, "Got your ice cream." Rosenberg replied, "Did you?!" Lukashevich

answered, "Yea bring [V]ictoria'^^ and come over." Rosenberg then responded, "Kkk!!!!

Will do!"

Before Rosenberg went over to Lukashevich's house, she and Turchik met up at

another party, where they both drank alcohol. Rosenberg arrived at this first party with a

^ Since this case is a review of a grant of summary judgment, "we consider all facts and make all
reasonable factual inferences in the light most favorable to the nonmoving party," here, Anderson.
Scrivener V. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). As a result, the following facts
are presented according to Anderson's description of events.
^ "Igor" refers to Lukashevich.
^ Anderson did not present evidence about the identity of "Victoria."
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

"half-gallon of Monarch Vodka." Lukashevich was also at the party drinking beer. After a

noise complaint, the "cops" came to the residence and told the partygoers to quiet down.'*
Rosenberg and Turchik left that party together and drove to Lukashevich's home.

When they arrived, Ruby and Catrina Langley® were already at the house. Both Ruby

and Catrina had lived in the city of Soap Lake and knew Rosenberg and Turchik. Thus,

of the four people at Lukashevich's house—Turchik, Ruby, Catrina, and Rosenberg—

Rosenberg was the sole member of the Soap Lake girls' basketball team present.

Ruby and Catrina noticed that Rosenberg was visibly intoxicated when she arrived

at Lukashevich's home after midnight. Lukashevich was also drinking at his house. While

Ruby and Catrina were there, they saw Lukashevich drink a beer and vodka mixed with

cranberry juice. After Rosenberg arrived, she and Ruby ate ice cream from

Lukashevich's freezer. Lukashevich also poured two shots of vodka, one for himself and

one for Turchik. Lukashevich, Turchik, and Rosenberg then each drank a shot together.®

Turchik and Rosenberg left Lukashevich's house in Turchik's car shortly thereafter.

Turchik was driving 99 miles per hour when he left the road and hit a driveway

culvert. The vehicle rolled several times, ejecting both Rosenberg and Turchik.

Rosenberg was killed immediately: Turchik died a few days later. At the time, Turchik

had an estimated blood alcohol content of 0.175, and Rosenberg had an estimated blood

alcohol content of 0.20. Both were minors.

^ it is disputed whether a police officer visited the party. The deputy who allegedly came to the
residence denies having done so. However, the owner of the house and host of the party stated that
"cops" came to the house and told the occupants to quiet down because of a noise complaint.
® Ruby was 19 years old and Catrina was 20 years old.
® According to at least one account, Rosenberg's shot was already poured when she arrived.
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

II. Lukashevich's Hiring. Training, and Supervision

Lukashevich was hired by Soap Lake to coach the high school girls' varsity

basketball team. Lukashevich had no college degree, no certifications in teaching or

education, and no child development or physical education training. His main

qualifications were that he had piayed basketball for six years in middle school and high

school and lived in the city of Soap Lake. He had also previously worked as assistant

coach to the junior varsity boys' basketball team. He had attended a general training for

first aid and CPR(cardiopulmonary resuscitation). At the time, Lukashevich was 22 years

old. With these modest credentials, Lukashevich met the necessary qualifications for

high school coaches listed in the Washington Interscholastic Activities Association's

(WIAA)^ handbook:

The Coach Must Satisfy the Following Requirements:

1. Be a high school graduate or have completed a graduation
equivalency diploma(GED) program, except as in d. below.

a. Be at least 21 years of age to be a head coach.

b. Be at least 19 years of age to be an assistant coach
except as in d. below.

c. Hold a valid current First Aid Certification and "hands-
on" CPR Certification or be enrolled in a First Aid
Certification and "hands-on" CPR Course.

Soap Lake required Lukashevich to list any criminal history, and he indicated that he had

never been convicted of or charged with a crime. Soap Lake also submitted

^ The WIAA is a private, nonprofit organization that promulgates rules for athletics programs in 800
member high schools and middle/junior high schools across Washington. ^ See About Us, Wash.
Interscholastic Activities Ass'n, httD://www.wiaa.com/subcontent.aspx? SeclD=283 (last visited
Aug. 1, 2018).
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

Lukashevich's fingerprints for a background check. Lukashevich passed both the

Washington State Patrol's and Federal Bureau of Investigation's checks.

Before the start of the basketball season, Kevin Kemp, the school principal and

athletic director, and Lukashevich's direct supervisor, met individually with Lukashevich.

They discussed uniform and equipment inventory. Kemp also discussed the importance

of creating a positive and supportive culture.

Kemp did not remember giving a copy of the district employee handbook to

Lukashevich and did not review the information in the handbook with him. To ensure that

Lukashevich complied with the handbook policies, Kemp occasionally made impromptu

visits to basketball practices.

In addition to the handbook, the school also required review of and agreement to

the Soap Lake "Activities Code." Before student athletes could participate in school-

sponsored sporting events, they and their parents or guardians were required to sign

and return the Activities Code. The Activities Code prohibited consumption of alcohol

and attendance at events where alcohol is present:

• Participants may not possess, imbibe, or ingest, alcohol in the form of
beer, wine, liquors, or distilled spirits.

• Participants may not attend an event where alcohol is present.

In addition to the Activities Code, the WIAA also requires member schools, like Soap

Lake, to adopt regulations discouraging student use of alcohol:

18.24.0 USE OF ILLEGAL SUBSTANCES - School and WIAA rules and
regulations are intended to discourage the use of alcohol . . . .

18.24.1 Alcohol and tobacco - Each WIAA member school shall adopt
reasonable rules and regulations pertaining to the use of alcohol or tobacco
products that are specific to the middle or high school levels.
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

Kemp did not remember reviewing these policies prohibiting student consumption of

alcohol with Lukashevich. Instead, to discuss the Activities Code, Kemp held an annual

meeting with all the coaches at the beginning of the sports season, where he went over

inventory, transportation, paper work, and practice schedules. He did not review the

Activities Code item by item, instead focusing on academic excellence and attendance.

Before the accident, Kemp knew that Lukashevich had once asked Kemp for

permission to take the team out for pizza in Ephrata. Kemp knew of no school policy

about such an event and said that Lukashevich would not need to seek authorization to

meet his students for a team party or to personally pay for a pizza party. Kemp also

acknowledged that Lukashevich "had the luxury" to treat students to an ice cream social

to reward and motivate their performance during basketball games and practices.

After Rosenberg's and Turchik's deaths, Kemp recommended that Soap Lake not

renew Lukashevich's coaching contract. Kemp stated that after the accident he felt that

it was best to "bring in somebody new to get a fresh start." The district also received

information that Lukashevich's name "was brought forth during the investigation" of the

students' deaths, and it did not renew Lukashevich's position.
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

III. Legal Challenges

Anderson, individually and as administrator of Rosenberg's estate, sued Soap

Lake.® Anderson brought claims of negligent hiring and retention, negligent training and

supervision, negligent protection of a student, vicarious liability, and breach of contract.

At the trial court, Anderson twice moved for a continuance to gather more evidence,

including the deposition of Kemp. The trial court granted both continuances to allow the

case to be determined on the merits. However, because Anderson still failed to present

sufficient evidence of her claims against Soap Lake after the continuances, the trial court

granted summary judgment in favor of the district.

The thai court concluded that there was no evidence that differences in the

school's hiring or supervision techniques would have prevented Rosenberg's death. The

court also reasoned that the event at Lukashevich's house was not a school event, that

Lukashevich was a "rogue teacher" acting "contrary to his authority and . .. unrelated to

his work," and that there was no nexus to the district. Finally, the trial court found that

the Activities Code was not a legal contract giving rise to a heightened duty to monitor

and supervise student athletes while they were away from campus.

Anderson appealed, but the Court of Appeals affirmed the trial court in an

unpublished decision. See Anderson v. Soap Lake Sch. Dist, No. 33889-4-lli, slip op. at

1 (Wash. Ct. App. Nov. 22, 2016) (unpublished),

https://www.courts.wa.gov/opinions/pdf/338894_unp.pdf. The Court of Appeals held that

® Anderson also sued Grant County, Grant County Sheriff's Office, and the police officer who
allegedly responded to the noise complaint about the first party that Rosenberg attended on the night
of the accident. These parties were dismissed on summary Judgment and are not involved in this
appeal.
Anderson v. Soap Lake Sch. Dist et al.
No. 93977-2

Soap Lake was not negligent in its hiring, supervision, or training of Lukashevich. Id. at
6. It further held that the gathering at Lukashevich's home "was so distant in time and

place from any normal school activity that it was outside the district's authority," thus
precluding any vicarious liability. Id. at 4. Finally, the Court of Appeals concluded that

the Activities Code was not a legal contract and that the school district could not be held

liable for any "breach" of that agreement. Id. at 5.

Anderson filed a petition for review of the Court of Appeals decision with this court,

which we granted.

STANDARD OF REVIEW

"We review a trial court's grant of summary judgment de novo." Scrivener v. Clark

Coll., 181 Wn.2d439,444, 334 P.3d 541 (2014)."Summary judgment is appropriate only

when there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law." /d.; see also CR 56(c).

ANALYSIS

We affirm. At one level, it may seem that Lukashevich's actions were so extremely

indifferent to the risk of injury to Rosenberg that someone must be liable for Anderson's

claims. But Anderson did not choose to bring an action against Lukashevich. Instead,

Anderson brought a number of claims against Soap Lake, each of which has its own set

of elements that must be proved before the school district can be held liable for the

actions of its employees. We first examine each negligence theory raised by Anderson

and then explore whether Soap Lake is vicariously liable for Anderson's losses. We

conclude by addressing Anderson's breach of contract claim.
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

Having carefully reviewed each of Anderson's claims, we conclude that Anderson

failed to present genuine issues of material fact, and Soap Lake is entitled to judgment

as a matter of law. Consequently, we hold that the trial court properly granted summary

judgment on all of Anderson's claims.

I. Evidence Admissibilitv

Soap Lake challenges for the first time the admissibility of the Douglas Phelps®

declaration, the Phelps supplemental declaration, and the Anderson declaration. Soap

Lake argues that these declarations are inadmissible because they are unauthenticated

and/or contain hearsay. "[Ejvidence submitted in opposition to summary judgment must

be admissible. Unauthenticated or hearsay evidence does not suffice." SentinelC3, Inc.

V. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40(2014)(citation omitted).

However, when reviewing an order granting a motion for summary judgment we

"will consider only evidence and issues called to the attention of the trial court." RAP 9.12

(emphasis added). At the trial court. Soap Lake objected only to the admission of the

police report. Thus, it did not call the admissibility of any other evidence "to the attention

of the trial court." Id. As a result, we consider the admissibility of the police report only.''°

® Douglas Phelps is Anderson's attorney.
Soap Lake also argues that because Anderson did not resubmit the Phelps declaration and the
Anderson Declaration in response to Soap Lake's motion for summary judgment, we may not
consider them under RAP 9.12. However, in the order granting Soap Lake's motion for summary
judgment, the trial court indicated that it considered the "Declaration of Doug Phelps, with
attachments," the "Declaration of Doug Phelps (Supp), with attachments," and "the entire court file
in reaching this decision." Thus, it is clear that the declarations were brought to the "attention of the
trial court," and that the trial court considered them when ruling on Soap Lake's motion for summary
judgment. RAP 9.12. Consequently, RAP 9.12 does not preclude us from considering the
declarations.
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

Id. While Soap Lake is correct that the police report is inadmissible,^'' most of the facts
contained in the police report are elsewhere in the record.''^ Thus, we confine our

analysis to the facts contained elsewhere in the record.

II. Negligence

Anderson makes three distinct negligence claims. First, she argues that Soap

Lake negligently hired and/or retained Lukashevich to coach the high school girls'

basketball team. Second, she argues that Soap Lake negligently trained and/or

supervised Lukashevich while he was coach. Finally, she argues that Soap Lake was

negligent in failing to protect Rosenberg from foreseeable harm. We conclude that

Anderson failed to present any genuine issues of material fact regarding these claims.

Consequently, Soap Lake is entitled to judgment as a matter of law. Thus, we hold that

the grant of summary judgment on Anderson's negligence claims was proper.

This court has held that police reports are inadmissible hearsay. "Police reports are a subjective
summary of the officer's Investigation, rendering them inadmissible." In re Dot. of Coe, 175 Wn.2d
482, 505, 286 P.3d 29 (2012). "Moreover, the victims' statements that make up the reports are an
additional level of hearsay." Id. In addition to their hearsay nature, police reports are inadmissible
without proper authentication. Police reports cannot be properly authenticated unless they are
accompanied by the seal of a public officer, a legal custodian's certification, or an affidavit signed by
someone with personal knowledge, such as the police officer. See Burmeister v. State Farm Ins.
Co., 92 Wn. App. 359, 367-68, 966 P.2d 921 (1998). Here, Phelps did not submit the police report
with a public officer's seal or with an affidavit of the police officer who wrote it. Instead, Phelps
personally attested to its authenticity. This was insufficient to authenticate the document. See id. at
367 (holding that an attorney "cannot testify to the authenticity or the contents of [a] police report
based on personal knowledge"). Thus, the police report was inadmissible under Rule of Evidence
(ER)901. See ER 802("Hearsay is not admissible except as provided by these rules, by other court
rules, or by statute."); ER 901(a)(requiring authentication or identification as "a condition precedent
to admissibility").
In addition, the trial court deemed the facts contained in the police report undisputed. It based this
conclusion on the fact that Soap Lake stated more than once that "[t]he facts are not in dispute."

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

A. Negligent Hiring and Retention

This court has not yet adopted a test for negligent hiring and/or retention of an

employee. We now adopt the test used by the Courts of Appeals: to hold an employer

liable for negligently hiring or retaining an employee who is incompetent or unfit, a

plaintiff must show that the employer had knowledge of the employee's unfitness or failed

to exercise reasonable care to discover unfitness before hiring or retaining the employee.

Scott V. BianchetHigh Sch.,50 Wn.App. 37,43, 747 P.2d 1124(1987); see also Carisen

V. Wackenhut Corp., 73 Wn. App. 247, 252, 868 P.2d 882(1994)("To prove negligent

hiring in Washington, the plaintiff must demonstrate that . . . the employer knew or, in

the exercise of ordinary care, should have known, of its employee's unfitness at the time

of hiring."). This holding parallels the rule in the Restatement (Second) of Torts § 307

(Am. Law Inst. 1965): "It is negligence to use an instrumentality, whether a human being

or a thing, which the actor knows or should know to be so incompetent, inappropriate, or

defective, that its use involves an unreasonable risk of harm to others." The difference

between negligent hiring and negligent retention is timing. Peck v. Siau, 65 Wn. App.

285, 288, 827 P.2d 1108 (1992). Negligent hiring occurs at the time of hiring, while

negligent retention occurs during the course of employment, id.

1. Negligent Hiring

Anderson first argues that Soap Lake was negligent when it hired Lukashevich to

be the high school girls' basketball coach. An employer negligently hires an employee

when it knew or should have known that the employee was unfit for the position. Scott,

50 Wn. App. at 43.

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

For example, In Carlsen, the Court of Appeals concluded that a company was

potentially liable for negligent hiring when It failed to check the background and

references of an employee who performed security functions. 73 Wn. App. at 254, 256-

57. Despite the employee's providing Incomplete and Inconsistent Information on his job

applications, the employer failed to conduct a background check, which would have

revealed the employee's criminal history. Id. at 256-57. The employer also did not

contact the employee's references to determine If he had a criminal history. Id. at 254.

Thus, the employer failed to learn of the employee's unfltness because It neglected to

more thoroughly check the employee's background. Id. at 257.

In contrast. In Scott, the Court of Appeals concluded that a school district did not

negligently hire a teacher. 50 Wn. App. at 43. The teacher was allegedly Involved In a

romantic relationship with a student and provided her alcohol. Id. at 40-41. However, the

parents of the student did not present any evidence suggesting that the teacher had a

history that made him unfit to teach at the school. Id. at 43. The court also concluded

that the hiring process employed by the school was reasonable. Id. 'Although certain

specific questions Identified by [the student's parents] were not asked," the court held

that the process was sufficient to discover whether an Individual was fit to teach at the

school. Id.

Here, Anderson argues that Soap Lake negligently hired Lukashevlch because he

was unfit to coach without a college degree, teaching or education certifications, or child

development training. Soap Lake knew that Lukashevlch did not have a college degree

or other teaching certifications. However, Lukashevlch met the required qualifications of

a high school coach promulgated by the WIAA: he had a high school degree, he was 22

12
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

years old, and he attended first aid and CPR training. Anderson fails to offer any

evidence or theory on how or why Lukashevich's level of education and training

constituted unfitness, especially when he met the minimum requirements of the WIAA,

a nonprofit organization that governs school athletics in over 800 schools across

Washington."'^

Neither did Anderson present any evidence showing how or why the WlAA's

qualifications for high school coaches are deficient. For example, she did not present

any evidence about why a college degree is necessary for a high school basketball

coach. Nor did she present any evidence on the certifications or training that

Lukashevich would have needed to make him fit. Thus, because Lukashevich met the

official minimum requirements of the position and Anderson failed to identify additional

training and certifications, there is no genuine issue of material fact that Lukashevich

was a fit candidate to be hired as the Soap Lake high school girls' basketball coach

based on his qualifications.

2. Negligent Retention

Negligent retention '"consists of... retaining the employee with knowledge of his

unfitness, or of failing to use reasonable care to discover it before . . . retaining him.'"

Peck,65 Wn. App. at 288(quoting Scott, 50 Wn.App. at 43). Anderson argues that Soap

Lake negligently retained Lukashevich because of his disregard for and violation of

school policies regarding students and alcohol. However, there is no evidence that Soap

Lake knew or should have known that Lukashevich was unfit in this respect.

See About Us, Wash. Interscholastic Activities Ass'n, http://www.wiaa.com/ subcontent.aspx?
SeclD=283(last visited Aug. 1, 2018).

13
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

Anderson did not present any evidence that Lukashevich previously gave alcohol

to minors during his tenure as assistant coach of the junior varsity boys' basketball team.

Nor did she present any evidence that Lukashevich had a history of serving alcohol to

minors. Instead, Anderson argues that Soap Lake failed to adequately check into

Lukashevich's background because Kemp did not recall whether he had contacted

Lukashevich's references. Even assuming that no one checked Lukashevich's

references, Anderson presented no evidence showing that Lukashevich's references

knew that Lukashevich gave alcohol to minors or that this was a fact that Soap Lake

would have reasonably discovered had it contacted Lukashevich's references. Cf.

Carlsen, 73 Wn. App. at 256-57 (noting that a more thorough check into an employee's

background would have revealed a prior juvenile and criminal record).

She also argues that Soap Lake failed to follow up with Lukashevich after he left

some questions unanswered on his application. Those questions asked whether he had

been found to have physically, sexually, or financially abused other individuals, including

minors. However, Lukashevich answered these same questions on another application

form submitted to Soap Lake.

In addition, Soap Lake ran a background check on Lukashevich with the

Washington State Patrol and the Federal Bureau of Investigation, both of which cleared

him. Lukashevich indicated that he had never been convicted of a crime, and his

background check did not uncover anything that would indicate Lukashevich was unfit

to be a basketball coach. It is not logical to infer that Soap Lake unreasonably failed to

discover evidence of unfitness in these circumstances.

Even considering the facts and making all reasonable inferences in Anderson's

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

favor, Anderson did not present a genuine issue of material fact regarding whether Soap

Lake was negligent when it hired and retained Lukashevich. Although Soap Lake knew

that Lukashevich did not have a college degree or child development training, Anderson

failed to present any evidence about how these gaps in Lukashevich's qualifications

made him unfit to coach high school basketball. Lukashevich was qualified under the

WIAA standards. Anderson also failed to present any evidence tending to show that

Soap Lake knew or should have known that Lukashevich disregarded and violated the

school's alcohol policies. None of the inquiries now suggested by Anderson would have

revealed facts that would lead a reasonable person to conclude that Lukashevich was

unfit to be a coach for a youth team.

B. Negligent Training and Supervision

Anderson next claims that Soap Lake failed to train Lukashevich on the school's

alcohol policies and about off-campus social events with the basketball team. She also

claims that Soap Lake failed to adequately supervise Lukashevich. However, Anderson

failed to present genuine issues of material fact on these claims. As a result, we hold

that Soap Lake was entitled to summary judgment as a matter of law.

1. Evidence of Soap Lake's Negligence

An employer may be liable for negligently training or supervising an employee.

Niece v. Eimview Grp. Home, 131 Wn.2d 39, 51, 929 P.2d 420(1997). For schools, this

duty requires that they "exercise ordinary care in the supervision of [their] teachers."

Scott, 50 Wn. App. at 44. Anderson focuses on the following facts.

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

First, Kemp"''' did not remember giving a copy of the district employee handbook

to Lukashevich, nor did he review the information in the handbook with him. Second,

Kemp could not recall how often he made impromptu visits to practices to supervise

Lukashevich. Third, Kemp failed to train Lukashevich on the school's alcohol policies.

Instead, when he met with the coaches, Kemp focused on inventory, transportation,

paperwork, and practice schedules. Beyond the logistics of coaching. Soap Lake does

not appear to have trained or supervised Lukashevich in regard to how he interacted

with students. Even if it had been negligent for Soap Lake to fail to ensure that

Lukashevich received a copy of the employee handbook and knew of the school's policy

that student athletes may not attend events where alcohol is present, our inquiry cannot

end here.

2. Lukashevich Was Not Acting within the Scope of His Emolovment

Even if we assume that Anderson presented sufficient evidence to create a

genuine issue of material fact regarding the reasonableness of Soap Lake's training and

supervision of Lukashevich, we still must determine whether Lukashevich was acting

within the scope of his employment. This is because an action based on negligent

training and supervision "is applicable only when the [employee] is acting outside the

scope of his employment." Restatement(Second) of Torts § 317 cmt. a (emphasis

added). If the employee is acting within the scope of his employment, then an employer

is "vicariously liable under the principles of the law of Agency" instead. Id. Thus, to

survive summary judgment on her negligent supervision claim, Anderson must present

Kemp was the principal, athletic director, and Lukashevich's direct supervisor.

16
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

a genuine issue of material fact that when Lukashevich served alcohol to students at his

house, he was acting outside the scope of his employment. Niece, 131 Wn.2d at 51-52.

Here, Anderson appears to confuse the standard for a negligent supervision claim

with the standard for a vicarious liability claim. Thus, she argues that Lukashevich was

acting within the scope of his duties. To determine whether her negligent supervision

claim may proceed, we must evaluate whether Lukashevich was acting within the scope

of his employment.

Whether Lukashevich was acting within the scope of employment depends on

whether he was "was fulfilling his . . . job functions at the time he . . . engaged in the

injurious conduct." Robe! v. Roundup Corp., 148 Wn.2d 35, 53, 59 P.3d 611 (2002). An

employee is not fulfilling his job functions when his conduct '"is different in kind from that

authorized, far beyond the authorized time or space limits, or too little actuated by a

purpose to serve the master.'" Id. (quoting Restatement(Second)of Agency § 228(2)

(Am. Law Inst. 1958)). Anderson makes two main arguments that Lukashevich was

acting within the scope of his employment.

First, Anderson claims that Lukashevich invited Rosenberg over to his home for

ice cream as a reward for her performance on the basketball team. However, beyond

Anderson's assertion, there is simply no evidence in the record to support this theory.

Although Lukashevich texted Rosenberg that he had bought ice cream for her and that

she should come over, he did not mention the Soap Lake girls' basketball team or the

reason for buying Rosenberg ice cream, or connect the invitation to his house to his role

as coach in any way. In light of Turchik's message that the purpose of going to

Lukashevich's home was to "get[ ] wasted," we do not find it a reasonable inference to

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

conclude that the Ice cream was a reward for Rosenberg's basketball performance

based on the other evidence present In the record.

Second, Anderson points to the fact that Kemp knew that Lukashevlch previously

planned to meet off campus with his basketball players and appeared to have explicitly

permitted him to do so. We conclude that the mere fact that Lukashevlch previously took

his team out for pizza with the school's knowledge Is Insufficient to create a genuine

Issue of material fact about whether Lukashevlch was acting within the scope of his

employment. Anderson failed to present any evidence showing that Lukashevlch's duties

as coach extended to serving a student athlete Ice cream and shots of vodka while

entertaining her at his home with her boyfriend and two former students. The school

district explicitly prohibited student athletes from consuming alcohol. No other members

of the basketball team were Invited or present at the party. The party was far removed

from the school and traditional extracurricular activities—It occurred after midnight In a

private residence. Anderson did not present any evidence tending to show that Kemp,

Soap Lake, or Lukashevlch believed that he was acting within the scope of his

employment.

Considering the facts presented and making all reasonable Inferences In favor of

Anderson, there are no genuine Issues of material fact that Lukashevlch was acting

outside the scope of his employment. Therefore, Anderson's claim Is properly brought

as one for negligent supervision rather than vicarious liability. Restatement(Second)

OF Torts § 317 cmt. a. As a result, we continue our analysis of whether Anderson

presented genuine Issues of material fact to survive summary judgment on her negligent

supervision claim.

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No. 93977-2

3. Knowledge of the Need for Supervision

A duty of supervision extends to acts beyond the scope of employment when the

"employer knew, or in the exercise of reasonable care should have known that the

employee presented a risk of danger to others." Niece, 131 Wn.2d at 48-49. This test

requires the following elements:

'"A master Is under a duty to exercise reasonable care so [as]to control his
servant while acting outside the scope of his employment as to prevent him
from Intentionally harming others or from so conducting himself as to create
an unreasonable risk of bodily harm to them, If

'"(a) the servant

'"(I) Is upon the premises In possession of the master or upon
which the servant Is privileged to enter only as his servant, or

'"(II) Is using a chattel of the master, and

"'(b) the master

"'(I) knows or has reason to know that he has the ability to
control his servant, and

"'(II) knows or should know of the necessity and opportunity
for exercising such control.'"

Id. at 51 (quoting Peck, 65 Wn. App. at 294 (quoting Restatement(Second)of Torts

§ 317)). "Washington cases have generally Interpreted th[ls] knowledge element to

require a showing of knowledge of the dangerous tendencies of the particular employee."

Id. at 52(emphasis added).

Here, the record does not show that Soap Lake knew or should have known that

Lukashevlch would serve alcohol to student athletes. As discussed supra, Anderson

presented Insufficient evidence to create a genuine Issue of material fact that Soap Lake

knew or should have known that Lukashevlch was a danger to students because he was

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Anderson v. Soap Lake Sch. Diet, et al.
No. 93977-2

prone to serve them alcohol. Anderson also failed to present any evidence that Soap
Lake knew or had reason to know that it had the ability to control Lukashevich in his

home after midnight on a weekend.

The dissent wrongly focuses on the general dangers of teachers possibly giving

alcohol to students. Dissent at 6-7. Yet, to meet the requirements of Restatement

(Second) of Torts § 317(b), Washington courts have "require[d] a showing of knowledge

of the dangerous tendencies of the particular employee." Niece, 131 Wn.2d at 52

(emphasis added). We discussed this rule in Niece, where the record failed to show that

the employer knew or should have known that an employee would sexually assault

residents. Id. Instead, the plaintiff "base[d] her negligent supervision claim on more

general factors." Id. We noted that the plaintiff's argument based on these general factors

"appear[ed]to be an expansion of the existing cause of action for negligent supervision."

Id. We declined to address the merits of the plaintiff's negligent supervision claim

because her broad theory of negligent supervision "also establish[ed]. . . negligence in

failing to protect [the plaintiff] from all foreseeable harms." Id. Thus, because we had

already concluded that the plaintiff could proceed with her negligent protection claim, her

broad negligent supervision claim "collapse[d]" into her negligent protection claim. Id.

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No. 93977-2

We agree with the majority's reasoning in A/Zece."'® When based on general

dangers, like those the dissent advances here, a claim that an employer should have

supervised its employee when he or she was acting outside the scope of employment

collapses into a negligent protection claim. Id. Thus, to meaningfully distinguish a

negligent supervision claim from a negligent protection claim, we require a plaintiff

alleging negligent supervision of an employee to show that the employer knew or should

have known of the dangerous tendencies of a particular employee. See, e.g., Thompson

V. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), review denied 123 Wn.2d

1027, 877 P.2d 694 (1994); Peck, 65 Wn. App. 285.

This rule does not give "a free pass" to school districts when different employees

cause harm to students. Of. Dissent at 13. Instead, in instances where there is no

evidence that the school district knew or should have known about the dangerous

tendencies of a particular employee, plaintiffs are free to rely on general factors of

foreseeable harm to establish a negligent protection claim. See Niece, 131 Wn.2d at 52.

For example, in N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 425-27, 378 P.3d 162

(2016), the school principal knew of the particular dangers of the student who caused

another student harm. She knew that the perpetrator was "a registered sex offender who

To craft its proposed new rule regarding negligent supervision of employee claims, the dissent
relies on cases discussing negligent protection ciaims, sometimes referred to as negligent
supervision of a student, not negligent supervision of employee claims. See, e.g., dissent at 12(citing
McLeod V. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d 360 (1953)). Thus, this
proposed new rule is unsupported by our case law that actually addresses the relevant claim here.
The dissent also offers no supporting citation for its contention that the questions presented by a
negligent supervision of an employee claim are "therefore similar to the reasonable foreseeability
question" in negligent protection claims, id. at 11. Such a rule would "be an expansion of the existing
cause of action for negligent supervision." Niece, 131 Wn.2d at 52. As a result, we decline to adopt
the dissent's proposed rule regarding negligent supervision of employee claims.

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Anderson v. Soap Lake Sch. Dist et al.
No. 93977-2

had previously sexually assaulted a younger girl who had been about [the victim's] age

at the time." Id. at 425-26. Despite this knowledge, the principal failed to comply with a

district policy that required principals to inform the teachers of a student's sex offender

status. Id. at 427. She also failed to take measures that would have helped the student

avoid students "two or more years younger than him[self]." Id. In contrast, here,

Anderson presented no facts that the school district knew or should have known that

Lukashevich would give alcohol to students and allow them to drive intoxicated. Without

any facts to support that the school district knew or should have known of the particular

dangerous tendencies of Lukashevich, Anderson cannot survive summary judgment on

this claim.

The dissent also claims that "the school was aware of the risk that its underage

students were drinking," creating genuine disputes of material fact about Soap Lake's

duty to supervise Lukashevich. Dissent at 7. Even if this were indeed the case, we fail

to see how or why this "support[s] the allegation that the school district knew or should

have known of the necessity and opportunity for exercising control over [Lukashevich]"

while he acted outside the scope of his employment. Id. As discussed above, to establish

a negligent supervision claim, a plaintiff must demonstrate that an employer knew or

should have known of the dangerous tendencies of a particular employee. The general

danger of underage drinking does not establish this knowledge on behalf of the school

district."'® Rather, the risk of underage student drinking would be relevant to Anderson's

The dissent mistakenly relies on ER 407 to support its claim that the Activities Code showed that
Soap Lake knew that its students were drinking alcohol. Dissent at 7 n.3. But ER 407 concerns
subsequent remedial measures. Here, the Activities Code was in place before Rosenberg was
injured. Thus, the rationale underlying ER 407 is inapplicable here.

22
Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

negligent protection claim, not her negligent supervision claim. The dissent collapses the
elements required for a negligent supervision claim and a negligent protection claim—

the very danger that we recognized in Niece. 131 Wn.2d at 52("The same evidence that

would establish [the employer's] negligence under a broad theory of negligent

supervision will also establish its negligence in failing to protect [a victim] from all

foreseeable harms. [The] cause of action for negligent supervision thus collapses into

[the] negligence claim based on [the employer's] breach of its special relationship duty

of care."). Thus, the risk of underage drinking is not a material fact defeating summary

judgment. To hold otherwise, as the dissent would have us do, would expand the duty

of supervision into the home of each teacher or school employee. There is no support

for such an approach.

Consequently, Anderson fails to present a genuine issue of fact that Soap Lake

knew or should have known that it needed to exercise control over Lukashevich while he

was acting outside the scope of his employment. We affirm the grant of summary

judgment on Anderson's negligent training and supervision claims.

0. Negligent Protections^
Anderson next claims that Soap Lake was negligent in its duty to protect

Rosenberg. To prevail on her claim that Soap Lake negligently failed to protect

Rosenberg from harm, Anderson must meet one of two standards. Because Anderson

Courts have also referred to this claim as "negligent supervision of [a] student." See, e.g., Scott,
50 Wn. App. at 44 (formatting omitted).

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Anderson v. Soap Lake Sch. Diet et al.
No. 93977-2

fails to present a genuine issue of material fact regarding either option, we affirm the

grant of summary judgment to Soap Lake on this issue.

"[Sjchool districts have 'an enhanced and solemn duty' of reasonable care to

protect their students."^® N.L, 186 Wn.2d at 430(quoting Christensen v. Royal Sch. Dist.

No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005)). They must "protect the students in

their custody from foreseeable dangers." Id. at 431. An injury may be foreseeable even

if it occurred off school grounds or involved an intentional tort. Id. at 434-35 ('"[A] school

district may owe a duty to its students, despite the fact that injury occurred off of school

grounds and outside of school hours.'" (alteration in original) (quoting Stoddart v.

Pocatello Sch. Dist. # 25, 149 Idaho 679, 684, 239 P.3d 784 (2010))); see also Niece,

131 Wn.2d at 50 ("Intentional or criminal conduct may be foreseeable unless it is 'so

highly extraordinary or improbable as to be wholly beyond the range of expectability.'"

(quoting Johnson v. State, 77 Wn. App. 934, 942, 894 P.2d 1366 (1995))). As long as

the harm was "within the general field of danger which should have been anticipated," it

is foreseeable. Niece, 131 Wn.2d at 50.

While "'the essential rationale for imposing a duty [on school districts] is that the

victim is placed under the control and protection of. . . the school, with resulting loss of

control to protect himself or herself . . . it does not follow that the victim must be in the

school's custody at the time of the injury tor the duty to have existed." N.L., 186 Wn.2d

The duty of Soap Lake to protect Rosenberg from foreseeable harms "is much broader than its
duty as an employer to control its employees." Niece, 131 Wn.2d at 52. We have previously held that
"[t]he same evidence that would establish . . . negligence under a broad theory of negligent
supervision will also establish . . . negligence in failing to protect [an individual] from all foreseeable
harms." Id.

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at 433-34 (internal quotation marks omitted)(quoting N.K. v. Corp. of Presiding Bishop

of Church of Jesus Christ of Latter-Day Saints, 175 Wn. App. 517, 532, 307 P.3d 730

(2013)). "'[T]he relevant inquiry is to the location of the negligence rather than the

location of the injury.'" Id. at 435 (quoting Stoddart, 149 Idaho at 685). Thus, "where a

duty arises and a breach of that duty occurs while a student is in a school district's

custody, then whether the scope of that duty extends to incidents off campus will depend

on whether such incidents were foreseeable to the school district." Bell v. Nw. Sch. of

Innovative Learning, 198 Wn. App. 117, 124, 391 P.3d 600 (2017). As a result,

'"[fjoreseeability is the most important variable in the duty calculus.'"^® N.L., 186 Wn.2d

at 434 (quoting Eisei v. Bd. ofEduc., 324 Md. 376, 386, 597 A.2d 447 (1991)).

Based on these principles, we have held that a school district may be liable for

students' injuries that occur off campus in two circumstances; (1) when the student's

injury occurs at an off-campus event that was planned or supervised by a district

employee and that event is sufficiently connected to an official extracurricular activity

such that the school district has custody of the student or (2) when the school district

was negligent while the student was in its custody and the student's off-campus injury

was a foreseeable result of that negligence. We conclude that Anderson fails to present

genuine issues of material fact under either option.

"'[Fjoreseeability is normally an issue for the jury.'" N.L., 186 Wn.2d at 436 (alteration in original)
(internal quotation marks omitted) (quoting Taggart v. State, 118 Wn.2d 195, 224, 822 P.2d 243
(1992)).

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Anderson v. Soap Lake Sch. Dist. et al.
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1. School Event and Custody

First, a school district may be liable when the student's injury occurs at an off-

campus event that was planned or supervised by a district employee and that event is

sufficiently connected to an official extracurricular activity such that the school district

has custody of the student. For example, in Chappel v. Franklin Pierce School District,

No. 402, 71 Wn.2d 17, 17-18, 426 P.2d 471 (1967), a student was injured during an off-

campus initiation ceremony for the Franklin Pierce High School Key Club. The initiation

ceremony had been planned and scheduled by the faculty advisor and Key Club

members. Id. at 19. In addition, the Key Club was "authorized, approved, accepted, and

faculty supervised by the high-school authorities as an extracurricular student

organization for several years." Id. at 18. The initiation ceremony "had become

somewhat traditional with the chapter," had long been conducted off campus with

physical activity, and "had been so carried on with the knowledge, approval, and

supervision of the faculty advisor, and without objection by the school administration or

school district authorities." Id. at 18-19. Thus, because "the school administration ha[d]

assumed supervisory responsibility over the organization which, in turn, extends to tacit

approval of and faculty participation in planning and supervising off-campus initiation

ceremonies," we remanded the case for further proceedings. Id. at 24.

In contrast, in Coates v. Tacoma School District No. 10, 55 Wn.2d 392, 399, 347

P.2d 1093 (1960), we affirmed the dismissal of a complaint seeking damages against a

school district. The plaintiff, a student, was injured in a car accident after he left an

initiation ceremony for a club that "had no curricular or no representative extra-curricular

connection with the school." Id. at 396-97. There was "no allegation that the school

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

district appointed a teacher or an employee to supervise the members of the

organization." Id. at 394-95. Instead, the ceremony was not authorized, supervised, or

attended by school authorities. Id. at 395. As a result, "the event causing the injuries

[was]so distant in time and place from any normal school activity" that the school district

could not be held liable. Id. at 399.

Here, there is no question that Lukashevich planned and supervised the event at

his home. However, Anderson did not present a genuine issue of material fact that the

event was a school activity such that Soap Lake exercised custody over Rosenberg. No

other member of the high school girls' basketball team was present at Lukashevich's

house with Rosenberg. Neither was there any evidence that Rosenberg's presence at

the home was somehow related to Rosenberg's role on the team. Anderson presented

no evidence that the district knew of the activity or that Lukashevich held the activity as

part of his duties as basketball coach. Thus, we conclude that the "gathering at

Lukashevich's home was [too] distant in time and place from any normal school activity"

to impose liability on Soap Lake. Anderson, slip op. at 4.

2. Foreseeable Off-Campus Iniurv

Second, a school district may be liable for a student's injury off campus when the

school district was negligent while the student was in its custody and the student's off-

campus injury was a foreseeable result of that negligence. For example, in N.L., we held

that a school district had potential liability for a student's off-campus rape. 186 Wn.2d at

426. The school district knew that the perpetrator was "a registered sex offender who had

previously sexually assaulted a younger girl who had been about [the victim's] age at the

time." Id. at 425-26. Despite this knowledge, "the principal did not inform . . . teachers,

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No. 93977-2

coaches, or relevant staff" of the student's sex offender status. Id. at 427. The school

district had a policy that required the principal to inform the student's teachers of his sex

offender status. Id. The principal also did not develop a safety plan or take other measures

that would have helped the student avoid students "two or more years younger than him."

Id. Thus, although the victim left campus with the student before she was raped, the fact

that students have been skipping class "'[s]ince at least the days of Huck Finn and Tom

Sawyer,"' made her injury potentially foreseeable. Id. at 436 (alteration in original)(quoting

Hoyem v. Manhattan Beach City Sch. Dist, 22 Cal. 3d 508, 520, 585 P.2d 851, 150 Cal.

Rptr. 1 (1978)). As a result, we remanded the case for the jury to consider the issue of

whether the rape fell within the scope of the school district's duty. Id.^°

Here, Anderson did not present a genuine issue of material fact that Soap Lake

was negligent while Rosenberg was in its custody or that her injury was foreseeable.

Unlike the plaintiff in N.L., Anderson failed to present sufficient evidence of on-campus

negligence. As discussed supra, she presented insufficient evidence to support her

claims that Soap Lake negligently hired, retained, trained, or supervised Lukashevich.

Anderson also failed to present any evidence that Rosenberg's injuries were

foreseeable. She lacks evidence to support her allegation that it was foreseeable that

See also Bell, 198 Wn. App. 117. In Bell, the Court of Appeals noted that a school district was
potentially liable for the sexual assault of a student which occurred off campus. Id. at 127. A special
education student left a school district bus while it was parked in front of her school. Id. at 119. She
went to the library, met a stranger, and agreed to go to the stranger's apartment. Id. at 120. The
stranger sexually assaulted her at his apartment. Id. The Court of Appeals held that as a matter of
law, the school district had custody of the student because the school made a '"positive handoff'" of
custody to the school district bus driver. Id. at 127. Thus, the district owed a duty of care to the
student and was potentially liable for the off-campus harm that occurred after the district employee
let the student leave the bus. Id.

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Lukashevich would invite Rosenberg over to his house and serve her alcohol after

midnight on a Friday. Nor was it foreseeable that Lukashevich would then allow

Rosenberg to leave his home in a vehicle with an intoxicated driver. Contrary to the

dissent's contention, the district's notice that Lukashevich held one off-campus pizza

party does not make Rosenberg's injuries foreseeable. Dissent at 17. The directive for

coaches to create a "positive" and "supportive" culture with student athletes also does

not lead to a reasonable inference that the "school district authorized the social event at

the coach's home." Dissent at 17-18. Neither does the principal's contention that

Lukashevich could take his team out for pizza lead to a reasonable inference that "the

coach . . . was allowed to give them individual and team treats whenever he wanted."

Dissent at 16. Anderson's allegations are simply insufficient to create a genuine factual

dispute about whether Rosenberg's injuries were foreseeable. As a result, the trial court

properly granted summary judgment.

In sum, Anderson failed to present sufficient evidence to create issues of fact that

Soap Lake acted negligently when it hired and supervised Lukashevich or that the harm

to Rosenberg was reasonably foreseeable. Even considering all the facts and making all

reasonable inferences in Anderson's favor, we conclude that Soap Lake "had no way to

anticipate the danger or exercise its supervision over . . . Rosenberg at midnight on a

Friday." Anderson, slip op. at 4. Soap Lake hired Lukashevich to coach the girls'

basketball team. He was qualified to coach according to WIAA standards. In accordance

with those standards, Soap Lake also required its student athletes to agree not to

consume alcohol. Anderson presented no evidence that Soap Lake knew or should have

known that Lukashevich would serve alcohol to Rosenberg or Turchik or let them drive

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Anderson v. Soap Lake Sch. Dist. et al.
No. 93977-2

away from his home intoxicated. Instead, it explicitly forbade teachers from consuming
alcohol on campus around students. While Soap Lake knew that Lukashevich previously

took the basketball team out for pizza at least one time, there is no evidence that it

otherwise endorsed or tacitly approved of Lukashevich inviting student athletes over to

his home for alcohol after midnight on a weekend. It is not reasonable to infer that the

team pizza party made the injuries Rosenberg suffered foreseeable. Consequently, we

affirm the grant of summary judgment on Anderson's negligent protection claim.

III. Vicarious Liabilitv

Anderson alternatively argues that Soap Lake is vicariously liable for the harm

caused by Lukashevich's serving alcohol to Rosenberg. Because there is no genuine

issue of material fact whether Lukashevich was acting within the scope of his

employment, we conclude that summary judgment was appropriate.

Vicarious liability "imposes liability on an employer for the torts of an employee

who is acting on the employer's behalf."^"' Niece, 131 Wn.2d at 48. The scope of

employment limits the vicarious liability of an employer. Id. When an employee pursues

a personal objective, rather than the employer's purpose, the employer cannot be held

vicariously liable. Id. However, an employee's "intentional or criminal conduct is [not] per

se outside the scope of employment. Rebel, 148 Wn.2d at 53. Rather, "[a]n

employee's conduct will be outside the scope of employment if it 'is different in kind from

2'' "The causes of action for negligent hiring, retention, supervision and training are analytically
different from vicarious liability." Evans v. Tacoma Sch. Dist. No. 10, 195 Wn. App. 25, 47, 380 P.3d
553, review denied, 186 Wn.2d 1028 (2016). "They are based on the concept that the employer's
own negligence Is a wrong to the Injured party. Independent from the employer's liability for Its
employee's negligence Imputed by the doctrine of respondeat superior." Id.
Cf. Evans, 195 Wn. App. at 38("Washington courts uniformly have held as a matter of law that an
employee's Intentional sexual misconduct Is not within the scope of employment.").

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No. 93977-2

that authorized, far beyond the authorized time or space limits, or too little actuated by a

purpose to serve the master.'" Id. (quoting Restatement(Second)of Agency § 228(2)).

Thus, "[t]he proper inquiry is whether the employee was fulfilling his or her job functions

at the time he or she engaged in the injurious conduct." Id.

As discussed supra, Anderson presented no genuine issues of material fact that

Lukashevich was acting within the scope of his employment. The school district clearly

did not authorize its employees to serve students alcohol. Instead, it had policies in place

prohibiting student athlete consumption of alcohol. It is unreasonable to infer that Soap

Lake viewed furnishing alcohol to a member of the team at Lukashevich's home as within

the scope of his employment. Even if we consider all the facts and reasonable inferences

in Anderson's favor, Anderson fails to present a genuine issue of material fact that

Lukashevich was acting within the scope of his employment. Consequently, we affirm

the grant of summary judgment on Anderson's vicarious liability claim.

IV. Breach of Contract

Finally, Anderson argues that the Activities Code, under which student athletes

agree to not consume alcohol or visit places where alcohol is present, was a contract of

adhesion. Specifically, she argues that because Soap Lake required Rosenberg to agree

not to consume alcohol or attend events where alcohol was present, it breached its duty

to protect Rosenberg from harm when Lukashevich provided alcohol to her. We conclude

that the Activities Code is not a contract on which Anderson can bring a claim.

"A contract is a promise or a set of promises for the breach of which the law gives

a remedy, or the performance of which the law in some way recognizes as a duty." Corbit

V. J.I. Case Co., 70 Wn.2d 522, 531, 424 P.2d 290 (1967)(quoting Restatement of

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No. 93977-2

Contracts § 1 (1932)). When a contract is unconscionable, the court may exempt a

party from the terms of a contract. Zuver v. Airtouch Commc'ns, Inc., 153 Wn.2cl 293,

303-04, 103 P.3d 753 (2004). A contract may be procedurally unconscionabie if it is

adhesive. Id. at 304. A contract is adhesive when it meets the following three factors:

"'(1) whether the contract is a standard form printed contract, (2) whether it was

"prepared by one party and submitted to the other on a 'take it or leave it' basis," and (3)

whether there was "no true equality of bargaining power" between the parties.'" Id.

(quoting Yakima County(W. Valley) Fire Prot. Dist. No. 12 v. CityofYakima, 122 Wn.2d

371, 393, 858 P.2d 245 (1993)(quoting Standard Oil Co. of Cal. v. Perkins, 347 F.2d

379, 383 n.5 (9th Cir. 1965)).

While Anderson is right that the Activities Code technically meets the factors of

adhesion,^^ this fact does not support her breach of contract claim. The factors of

adhesion mereiy help the court determine whether a contract is proceduraily

unconscionable. See id. Procedural unconscionability permits a court to exempt a party

from the terms of a contract. Id. at 303-04. Here, Anderson does not seek to be exempted

from the terms of the Activities Code. Instead, she seeks to sue Soap Lake for breaching

the Activities Code. Thus, whether the Activities Code is adhesive does not answer the

question of whether Anderson may sue Soap Lake for breaching the Activities Code.

The Activities Code meets all three factors of adhesion listed in Zuver. The Activities Code was a
standard printed form, it was prepared on a take it or leave It basis, and the school district and student
athletes and their parents or guardians have unequal bargaining power. Zuver, 153 Wn.2d at 304
(quoting Yakima Fire Prot. Dist. No. 12, 122 Wn.2d at 393); see aiso Wagenbiast v. Odessa Sch.
Dist. No. 105-157-166J, 110 Wn.2d 845, 855, 758 P.2d 968(1988)(concluding that a contract was
adhesive because "[s]tudent athletes and their parents or guardians have no alternative but to sign
the standard release forms provided to them or have the student barred from the program").

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Rather than deciding if the Activities Code was an adhesive document, we must instead

decide if it was a valid contract.

To bring a claim for breach of contract, a party must point to a separate duty

contained in the contract that is different from the duties already imposed by law on the

parties. Bank of Am. NT & SA v. David W. Hubert, PC, 153 Wn.2d 102, 124, 101 P.3d

409 (2004)("An action sounds in contract when the act complained of is a breach of a

specific term of the contract, without reference to the legal duties imposed by law on that

relationship."). Thus, "[w]here an offeree is under a preexisting duty created or imposed

by law to do what he does, the offeree's performance will not suffice as consideration for

a unilateral contract." Multicare Med. Ctr. v. Dep't of Soc. & Health Servs., 114 Wn.2d

572, 584-85, 790 P.2d 124 (1990).

Here, the Activities Code did not create any duties relevant to Anderson's claims

different from those already imposed by law on Soap Lake and Rosenberg. In the

Activities Code, a student athlete agrees to abide by certain policies, including abstention

from alcohol. If a student fails to comply with the Activities Code, he or she may be

suspended from play. In turn. Soap Lake implicitly agrees to provide the athlete an

opportunity to play a team sport.^'^ Anderson claims that the Activities Code goes beyond

the opportunity to play, imposing a heightened duty of care on Soap Lake to protect

Rosenberg from harm caused by alcohol. However, Soap Lake already has a duty to

protect its students from harm—whether from alcohol or other sources. See N.L., 186

Wn.2d at 430. It is also already illegal to provide alcohol to minors. See RCW

We have previously held that "public school students have no fundamental right to participate in
interscholastic athletics." Wagenblast, 110 Wn.2d at 853.

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No. 93977-2

66.44.270(1)("It Is unlawful for any person to sell, give, or otherwise supply liquor to any

person under the age of twenty-one years or permit any person under that age to

consume liquor on his or her premises or on any premises under his or her control."). As

a result, the Activities Code does not create a duty of protection beyond that which the

law already imposes on Soap Lake. Consequentiy, because Anderson does not have a

valid claim for breach of contract, we affirm the grant of summary judgment to Soap Lake

on this claim.

CONCLUSION

In conclusion, whiie the alleged actions of Lukashevich are inexcusabie, we affirm

the dismissal of Anderson's claims against the district. Anderson did not present genuine

issues of materiai fact about whether Soap Lake acted negligently by hiring, retaining,

training, or supervising Lukashevich or by faiiing to protect Rosenberg from the harm

she suffered. We affirm summary judgment on Anderson's vicarious iiability ciaim

because Anderson did not present a genuine issue of material fact about whether

Lukashevich was acting within the scope of his employment. Finally, we affirm summary

judgment on Anderson's breach of contract claim. Anderson cannot bring a breach of

contract claim because the Activities Code did not create any new duties on behalf of

Soap Lake to protect Rosenberg. The Court of Appeals is affirmed.

34
Anderson v. Soap Lake Sch. Dist et al.
No. 93977-2

WE CONCUR.

35
Anderson v. Soap Lake School District, No. 93977-2
(Gordon McCloud, J., dissenting in part)

No. 93977-2

GORDON McCLOUD, J. (dissenting in part)—The head coach of the girls'

varsity basketball team at Soap Lake High School invited one of his players to his

home at midnight on a Friday night. She accepted. He served alcohol to her and her

high-school-student boyfriend. They drank. Both students then died in a drunk-

driving crash after leaving the coach's home. The young man was driving; the young

woman was the passenger. The young woman's mother filed this lawsuit alleging

five claims against the school district:(1)breach ofcontract,(2)negligent hiring and

retention of the coach,(3) vicarious liability for the coach's actions,(4) negligent

supervision ofthe coach, and(5)negligent protection ofthe students. The trial court

dismissed all five claims on summary judgment, CR 56.

I agree with the majority that the trial court properly dismissed the plaintiffs

breach of contract, negligent hiring and retention, and vicarious liability claims.

Despite having over a year and a half to conduct discoveiy, the plaintiff failed to

present any evidence that the coach was unqualified to coach or that the school
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

district knew or had reason to know that the coach posed an undue risk of harm to

its students. Thus, there were no facts to support the plaintiffs negligent hiring or

retention claims. I further agree with the majority's conclusion that the school

district's athletic code did not place a contractual duty on the district to monitor

student consumption of alcohol at all times, day and night. The athletic code

required student athletes to maintain good grades, attend class, refrain from

committing crimes, and abstain from alcohol, tobacco, and illegal drugs as

conditions of participating in school athletics; but it did not place an affumative

contractual duty on the district to ensure that the student athletes complied with those

conditions. Finally, I agree with the majority that the act of furnishing alcohol to

underage students fell outside the coach's scope ofemployment,so the district is not

vicariously liable for that act.

I disagree, however, with the majority's decision to affirm dismissal of the

plaintiffs negligent supervision and negligent protection claims. Although the

evidence was certainly thin,^ when viewed in the light most favorable to the

'I agree with the majority that the reviewable evidence includes the unauthentieated
text messages between the student athletes and the eoaeh discussing their activities that
night, but not the police report. The trial court's summary judgment order states that the
court "reviewfed] the ease record to date" and "reviewed and considered the entire court
file in reaching [its] decision," which includes the text messages that the plaintiff attached
to an affidavit that she filed in response to an earlier motion. Clerk's Papers(CP) at 498.
The school district failed to object to the trial court's consideration ofthose text messages.
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

plaintiff,^ it presents material questions of fact on the following issues: whether the
school district knew there was a problem with underage drinking among high school

students and student athletes; whether the district authorized the coach to meet with

individual students off campus when it tasked the 22-year-old head basketball coach

with fostering a "positive" and "supportive" culture with his student athletes and

gave the coach blanlcet authorization to treat those student athletes to meals and

socials off campus and after hours; and whether the district failed to instruct the

coach that he could not furnish or have alcohol around the student athletes at such

off-campus events. Those questions are sufficient to survive summary dismissal of

the negligent supervision and negligent protection claims. I therefore dissent in part.

"Failure to make such a motion [to strike evidence contained within an affidavit] waives
deficiency in the affidavit if any exists." Lamon v. McDonnell Douglas Corp., 91 Wn.2d
345, 352, 588 P.2d 1346(1979)(citing Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d
874, 431 P.2d 216 (1967); 10 CHARLES Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2738 (1973)). In contrast, the school district did raise a
hearsay objection to the superior court's consideration of the police report. Verbatim
Report ofProceedings (Oct. 9,2015) at 54. I agree with the majority that the police report
constitutes inadmissible hearsay. Majority at 9 n.l 1 (citing In re Det. ofCoe, 175 Wn.2d
482, 505,286 P.3d29(2012)).

^ On summary judgment, the court considers all facts and reasonable inferences in
the light most favorable to the nonmoving party. Mikkelsen v. Pub. Util. Dist. No. I of
Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)(citing Young v. Key Pharm.,
Inc., 112 Wn.2d216, 226, 770 P.2d 182(1989)).
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

Analysis

Negligence

The majority is certainly correct that the coach was acting outside the scope

of his employment when he furnished alcohol to the student athletes so the plaintiff

cannot hold the school district vicariously liable for the coach's acts. But that does

not immunize the school district from all tort liability. Instead, the school district

remains liable for harm caused by direct breaches of its own duties. Reviewing the

evidence in the light most favorable to the plaintiff, the plaintiff has presented

enough evidence to survive a motion for summary judgment on whether the school

district breached its own duties to supervise and train its employees and protect its

students.'

A. The Plaintiff Showed That the School District Encouraged the 22-Year-
Old Coach To Foster Supportive Relationships with Student Athletes off
Campus but Failed To Instruct Him That He Could Not Have Alcohol
around Them; This Creates a Material Question ofFact about Whether the
School District Breached a Duty To Supervise and Train

The plaintiff contends that the school district was negligent in failing to

instruct the 22-year-old basketball coach that he could not provide alcohol to or have

alcohol around underage student athletes at any time. This negligent supervision

and training claim is based on the school district's duty to control its employees so
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

as to prevent them from harming others with whom they come into contact in the

worlqplace.

It is undisputed that the coach was an employee of the school district. An

employer-employee relationship, of course, is not enough to trigger the duty to

supervise and control. In addition, the plaintiff must show that the employer's need

to supervise arose while the employee was on the employer's premises and that the

employer knew or should have known certain things;

'"[An employer] is under a duty to exercise reasonable care so [as] to
control his servant... to prevent him from intentionally harming others
or from so conducting himself as to create an unreasonable risk of
bodily harm to them if
"'(a) the servant...
"'(i) is upon the premises in possession of the
[employer]
Hi

"'(b) the [employer]
"'(i)knows or has reason to know that he has the ability
to control his servant, and
"'(ii) knows or should know of the necessity .and
opportunity for exercising such control.'"

Niece v. Elmview Grp. Home, 131 Wn.2d 39, 51, 929 P.2d 420 (1997)(emphasis

omitted)(second alteration in original)(quoting PecA:v. Siau,65 Wn. App.285,294,

827 P.2d 1108 (1992)(quoting Restatement(Second)of Torts § 317(Am.Law

INST. 1965))).
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

All three prerequisites to the employer's duty to act were arguably present

here.

First, the teacher-student relationship between the coach and the female

student arose while the coach was on school grounds. Thus, the first element that

"the servant [be] upon the premises in possession ofthe [employer]" is supported by

evidence.

Second, a workplace policy barred teachers from having alcohol around

students. That workplace policy instructed teachers to behave as "exemplary adult

role models for all students" and prohibited them from possessing, using, or

distributing alcohol on school premises or off campus as part of any school activity.

Clerk's Papers (CP) at 465. This evidence could support a finding that the school

district knew or had reason to know that it had the ability to control the coach and

prohibit him from supplying alcohol to students. Thus, the second element—^that

the employer "knows or has reason to know that he has the ability to control his

servant"—is supported by evidence.

The third element is whether the employer "knows or should know of the

necessity and opportunity for exercising such control." Based on the workplace

policy barring teachers from having alcohol around students, a jury could conclude

that the school was aware of the risk that teachers might give alcohol to students.
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

CP at 465. And based on the school's student athletics policy—instructing athletes

that they "may not possess, imbibe, or ingest, alcohol in the form of beer, wine,

liquors, or distilled spirits" during their tenure on the high school team,"in or out of

season," as a condition of playing school sports, CP at 199-200—a jury could

conclude that the school was aware of the risk that its underage students might

drink.^ Viewed in the light most favorable to the plaintiff, these two policies support

the allegation that the school district knew or should have known of the necessity

and opportunity for exercising control over the coach and instructing him that he

could not have alcohol around his students.

A reasonable juror could therefore find that the school district had a duty to

supervise and train the coach about keeping alcohol away from students.

The plaintiff has also presented evidence from which a jury could conclude

that the school district breached that duty to train and supervise. The plaintiff

presented evidence that the school district hired a 22-year-old former student to

coach the girls' varsity basketball team and foster a "positive" and "supporting"

^ The majority claims it is illogical to rely on such documents, which the school
district required its students to sign, for the conclusion that the school district was aware
ofthe risk of underage drinldng. Majority at 22. The majority errs. Taking remedial steps
to prevent harm actually shows awareness of a potential harm to be avoided. That's the
whole reason that we need a rule to exclude subsequent remedial measures from evidence
(ER 407): without the rule, they would be relevant and admissible to show awareness of
the danger.
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

relationship with the student athletes, CP at 387-88. She presented evidence that the

district authorized him to meet with those student athletes after hours and off school

grounds. CP at 405-07. Finally, the plaintiff showed that the school district may

have failed to instruct the young coach that he could not furnish alcohol to students

while they were off campus. The principal in charge of supervising the coach could

not recall ever giving the coach a copy ofthe workplace policy barring teachers from

drinking around students. CP at 378. Nor could the principal remember discussing

that policy with the coach. CP at 388. Indeed, the school district failed to produce

any record documenting that the coach received that workplace policy, even though

the school district required teachers to sign a form acknowledging its receipt. CP at

465, 475. This all supports the inference that the coach was not given or instructed

on that policy.

There is also evidence to support the plaintiffs assertion that the school

district failed to instruct the coach about the ban on alcohol for student athletes. As

described above, the school district developed a student activities code specific to

student athletes that prohibited them from using drugs or alcohol on and offcampus.

Ifthey used drugs or alcohol,they were barred from participating in school athletics.

It was the coach's job to enforce the code. But there is evidence that the school

district may have failed to inform the coach about that code: the school principal

8
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

who was tasked with supervising and training the coach said that although it was

routine for him to discuss the student activities code with his coaches, he could not

recall discussing the code with this coach. CP at 390-92.

Whether the school district knew it had the ability to control the coach,

whether it knew of the need and opportunity to exercise that control, whether the

principal ever discussed the student activities code with the coach, whether the coach

was given a copy ofthe workplace policy or the student activities code, and whether

any of those possibilities suffice to discharge the school district's duty to supervise

and train the coach are all questions of fact. They preclude summary judgment

dismissal on the issues of negligent supervision and breach.

The school district argues that it had no duty to supervise the coach because

the coach was acting outside the scope of his employment. I agree with the school

district that the act of furnishing alcohol to underage students was too far removed

from the coach's duties as a basketball coach to fall within the coach's scope of

employment. But as the majority correctly observes, the fact that the coach was not

acting within the scope of employment is precisely the fact that triggers a possible

negligent supervision claim: "an action based on negligent training and supervision

'is applicable only when the [employee] is acting outside the scope of his
Anderson v. Soap Lake Sch. Dist, No. 93977-2
(Gordon McCloud, J., dissenting in part)

employment.'" Majority at 16 (alteration in original) (quoting Restatement

(Second)of Torts § 317 cmt. a).

I also agree with the majority that the school district could still be liable for

negligent supervision even though the coach furnished alcohol to the students at an

off-campus location—^his home. The school district's focus on the location where

the alcohol was furnished is misplaced. Our cases have held that "the focus is not

on where or when the harm occurred, but on where the [employer or its agents]

negligently caused the harm by placing its agent into association with the plaintiffs

when the risk was, or should have been, known." E.g., C.J.C. v. Corp. of Catholic

Bishop ofYakima, 138 Wn.2d 699, 724, 985 P.2d 262(1999). We reaffirmed that

approach just two years ago in N.L. v. Bethel School District, 186 Wn.2d 422,430,

378 P.3d 162(2016). To hold otherwise would absolve the school district ofliability

for its negligent acts on campus simply because the ultimate harm occurred off

campus—even where, as here, there is evidence that the school district breached a

duty to train and supervise the coach while he was on campus about how he should

behave around students.

The majority, however,concludes that the school district cannot be held liable

in this case, even if the district failed to instruct the coach on its alcohol-ffee

workplace policy and alcohol-ffee student activities code. Majority at 16. The

10
Anderson v. Soap Lake Sch. Dist, No. 93977-2
(Gordon McCloud, J., dissenting in part)

majority says these failures would not matter because "the record does not show that

Soap Lake knew or should have known that [this coach] would serve alcohol to

student athletes." Id. at 19. But the Restatement test(recited above)does not require

the employer to know that a particular employee will engage in a particular act for

the duty to supervise and train to attach. Instead, the Restatement asks more

generally whether the employer "knows or should know of the necessity and

opportunity for exercising... control" over the employee. Restatement(Second)

OF Torts § 317.

The "knows or should know" element is phrased in these more general terms

because the duty to supervise stems from several sources. It is certainly based in

part on the employer's relationship with and control over the employee. But it is

also based on the employer's ownership of and control over its premises and the

employer's relationship with those whom the employer places in contact with the

employee. See id. cmt. b. The "knows or should know" question is therefore similar

to the reasonable foreseeability question in that it takes more general circumstances

into consideration; it asks whether the employer knew or should have known that it

needed to exercise control over, supervise, and/or train the employee with regard to

student drinking. "[T]he pertinent inquiry is not whether the actual harm was of a

particular kind which was expectable"; "[rjather, the question is whether the actual

11
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

harm fell within a general field of danger which should have been anticipated."

McLeod V. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d 355

(1953) (citing Berglund v. Spokane County, 4 Wn.2d 309, 103 P.2d 361 (1940);

Fowler v. Harper & Francis H.Bohlen, Cases on the Law of Torts § 7, at 14

(5th ed. 1953); 2 Restatement of Torts § 435, at 1173 (Am. Law Inst. 1934));

Niece, 131 Wn.2d at 42,50(holding it was foreseeable that a nursing home caretaker

might sexually abuse a resident even though the defendant caretaker had a clean

criminal record and a clean employment history). Thus, even ifthe specific manner

in which the risk culminated in harm in this case was not absolutely predictable,'"if

the harm,suffered falls within the general danger area, there may be liability.'"

McLeod,42 Wn.2d at 321 (quoting Harper & Bohlen,supra, § 7, at 14).

Here, the general danger area was underage student drinking and driving,

particularly in a social context. No one seriously argues that it was unforeseeable

that a 22-year-old high school varsity basketball coach who regularly met with his

players after school at team practices, games, and other team social events might

give alcohol to his players. This is sufficient to satisfy the third element that the

school district "knows or should know of the necessity and opportunity for

exercising ... control" over the employee.

12
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

The majority contends that '"Washington cases have generally interpreted

th[e] knowledge element to require a showing of knowledge of the dangerous

tendencies of the particular employeey Majority at 19(quoting Mece, 131 Wn.2d

at 52). But Niece does not adopt this rule. Niece noted only that this narrow

interpretation was offered by the Court of Appeals in two cases, Thompson^ and
Peck, and concluded that that interpretation was not binding on this court. Niece,

131 Wn.2d at 52. We resolved Niece on different grounds. Id. We should not adopt

that employee-specific rule now. If we did, the school district would get a free pass

every time a different coach furnished alcohol to a student at that school. This is not

the rule in Washington.

In sum, the evidence that the school district knew of the risk that its student

athletes might be drinking offcampus,hired a very young coach, placed him in close

contact with student athletes who were about his age, and encouraged the coach to

meet with those student athletes offcampus and after hours, but never cautioned him

against having alcohol around those students supports the plaintiffs negligent

Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054(1993).

13
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

training and supervision claim. Together, that evidence suffices to defeat summary

judgment on the issues of duty and breach, CP at 404-07.^

B. The Plaintiff Argues That the School District Gave the Coach Blanket
Authorization To Treat His Players to Evening Socials off Campus; This
Creates a Material Question ofFact about Whether the School District Had
a Duty To Protect the Student Athletes While They Were at the Coach's
Home

School districts have a duty ofreasonable care to protect their students. N.L.,

186 Wn.2d at 430 (quoting Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62,

67, 124 P.3d 283 (2005)). This duty requires school districts "to anticipate dangers

which may reasonably be anticipated, and to then take precautions to protect the

pupils in its custody from such dangers." McLeod,42 Wn.2d at 320.^

^ The issues of causation and damages are not before us. The school district sought
summaryjudgment dismissal of the plaintiffs claims based solely on the absence of duty.
CP at 168-78, 295-305. This analysis is consequently restricted to the issue of duty and
the related issue of breach.

^ Dangers that school districts must anticipate and take precautions against include
the danger that young students will injure themselves while climbing on gymnasium fitness
equipment, Tardiffv. Shoreline Sch. Dist., 68 Wn.2d 164,411 P.2d 889(1966), the danger
that students will play too aggressively with each other during recess, Briscoe v. Sch. Dist.
No. 123, 32 Wn.2d 353, 201 P.2d 697 (1949), the danger that a darkened room under
gymnasium bleachers might be used for indecency between school boys and girls, McLeod,
42 Wn.2d at 322, and the danger that a student with a history of physically and sexually
assaulting younger female students might assault another female student, N.L., 186 Wn.2d
422.

14
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

This duty to protect students is different from the school district's duty as an

employer because it requires schools to anticipate and take precautions against

foreseeable harms, regardless of whether the harm arises from strangers, visitors,

other students, or its employees. See Niece, 131 Wn.2d at 49; Rodriguez v. Seattle

Sch. Dist. No. 1,66 Wn.2d 51,52-53,401 P.2d 326(1965)(citingMcZeo^/,42 Wn.2d

316; Briscoe v. Sch. Dist. No. 123, 32 Wn.2d 353,201 P.2d 697(1949); Rice v. Sch.

Dist. No. 302, 140 Wash. 189, 248 P. 388 (1926)). (In contrast, the duty to control

(or supervise) employees is limited to the foreseeable acts of employees.)

The "essential rationale" for imposing such a duty on school districts arises

from the school districts' status as temporary caretakers. NK. v. Corp. ofPresiding

Bishop ofChurch ofJesus Christ ofLatter-Day Saints, 175 Wn. App. 517, 532, 307

P.3d 730 (2013)(quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217,

228, 802 P.2d 1360 (1991)). Because the duty to protect students from foreseeable

danger is triggered by the school district's relationship with the student, the duty is

not necessarily limited by school hours or school premises; it can extend to school-

sanctioned, off-campus activities as well. Chappel v. Franklin Pierce Sch. Dist., No.

402, 71 Wn.2d 17, 24, 426 P.2d 471 (1967) (off-campus Key Club initiation);

Carabba v. Anacortes Sch. Dist. No. 103, 72 Wn.2d 939,435 P.2d 936(1967)(off-

campus wrestling match).

15
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

An off-campus event qualifies as a school-sanctioned event if the school

district expressly or tacitly authorizes it. A school district may have tacitly

authorized an off-campus event when (1) educational and cultural values inhere in

the normal activities of the extracurricular student body organization hosting the

event, (2) the school assigned a faculty member to supervise that student

organization, and (3)that faculty member was involved in planning or supervising

the subject event. See Chappel, 71 Wn.2d at 24. The fact that the organization is a

recognized student organization is not enough. Coates v. Tacoma Sch. Dist. No. 10,

55 Wn.2d 392, 396-97, 347 P.2d 1093 (1960). Educational and cultural values must

inhere in the normal activities ofthe organization. Id. The faculty member assigned

to supervise the organization must also be involved in planning the event. Rhea v.

Grandview Sch. Dist. No. JT 116-200, 39 Wn. App. 557, 559, 561, 694 P.2d 666

(1985).

Here, it is beyond dispute that high school basketball is an extracurricular

student activity. See Coates, 55 Wn.2d at 394. It is also beyond dispute that the

coach was assigned by the school district to supervise the girls' varsity basketball

16
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

team and that he was involved in planning the social event at his home. Text

messages between the coach and the two students confirm this.^ CP at 64-78.

^ Those text message exehanges between the male student (Pavel) and the female
student(Sheila) and the female student and the eoaeh (Igor) communicated the following:

[Unknown date and time]
Pavel: Wht u doin?
Sheila: With cookie, Leo & Stinus.... We wentto mcdonalds. What are
you doing?
Feb. 18, 2011 7:01 PM •
Pavel: At the school playin bball then goin to igors!
Sheila: Ha nice!! What's at igors? ... Oh yeah my icecream! Lmao
[(laughing my ass off)]
Pavel: U already forgot. . [Derogatory term.] Well nothin anymore I
guess haha
Sheila: What did I forget?
Pavel: I told u bout igors house [derogatory term]
Sheila: No you didn't tell me about his house haha you just said I should
come & I said yeah
What Are you guys doing there?
Feb. 18, 2011 7:29 PM
Pavel: Were getting wasted thts wht were doin!
Sheila: Haha ok! =)

CP at 67-69.

Feb. 18, 2011 9:58 PM
Igor: Got your ice cream
Sheila: Did you?!
Igor: Yea bring victoria and come over
Feb. 18,2011 10:18 PM
Sheila: Kkk!!!! Will do!

CP at 78.

17
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

The majority concludes that the after-hours social at the coach's home cannot

qualify as a tacitly authorized school event because it was not a team event. Only

one male and one female basketball player were present. I agree with the majority

that this was not a team event.

But the coach may have been authorized to host more than team parties. As

head coach for the girls' high school basketball team, the coach was tasked with

creating a "positive" and "supporting" culture with the student athletes. CP at 387-

88. A reasonable juror could interpret this directive to include fostering a positive

culture between student athletes as well as a positive culture between student

athletes and their coaches. Thus, there remains a question of material fact about

whether the school district authorized the social event at the coach's home.^

The fact that the social event occurred around midnight off campus does not

necessarily defeat liability either. Evidence suggested that the school district

authorized the coach to host evening gatherings off campus. CP at 404-06.

Evidence also showed that the coach was authorized to take the student athletes off

^ Just as my negligent supervision analysis is limited to the issue of duty, my
negligent protection analysis is also limited to the issue ofduty. See supra note 4. Whether
the school district reasonably discharged any duty it had to supervise or protect and whether
any violation of such duties proximately caused the student athletes' deaths are questions
I do not address. The issues of breach and proximate cause are not before us.

18
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

campus and was allowed to give them individual and team treats whenever he

wanted. Id. According to the high school principal, the coach had complete

discretion over these after-hours activities. The principal confirmed that the coach

was not required to obtain any extra authorization from the school and that this

blanket authorization included hosting an after-hours evening pizza party two hours

away from the school in Ephrata, Washington. CP at 405-07.

The school district argues that it cannot be held liable for the social event

because drinking alcohol has no extracurricular value. But a school district cannot

relieve itself of all potential tort liability on the grounds that a particular part of an

expressly or tacitly sanctioned activity possesses no educational or cultural value.

Chappel, 71 Wn.2d at 24. To hold otherwise would allow school districts to escape

liability completely because any act that causes injury can be deemed to lack

educational or cultural value. We have therefore held a school district potentially

liable for '"hazing"' activities conducted during an off-campus Key Club initiation

ceremony, even though the "'hazing'" activity had no educational or cultural value.

Id. at 19, 24. Likewise, a school district may be liable for rough "'horse play'" by

students during an off-campus lettermen's club initiation, even though "'horse

play'" might lack educational or cultural value. Sherwood v. Moxee Sch. Dist. No.

19
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

90, 58 Wn.2d 351, 360, 363 P.2d 138 (1961); id. at 360-61 (Hill, J., concurring in

result).

To be sure, school districts are not automatic insurers of their students' off-

campus safety. But when school districts voluntarily choose to sanction and

encourage off-campus student/coach activities, knowing that underage drinking

among high school students at off-campus events is pervasive and dangerous, our

case law requires that they act with reasonable care. In this case, the questions of

whether the district sanctioned the event at the coach's home, whether such

sanctioning triggered a duty to protect the students at the coach's home, and whether

the district's alcohol-ffee workplace and student activities policies satisfied that duty

are for the trier of fact to decide.

Conclusion

I agree with the majority's decision to affirm summaryjudgment dismissal of

the plaintiffs negligent hiring, negligent retention, breach of contract, and vicarious

liability claims. But I would reverse the summary dismissal of her negligent

supervision and negligent protection claims. I therefore dissent in part.

20
Anderson v. Soap Lake Sch. Dist., No. 93977-2
(Gordon McCloud, J., dissenting in part)

21