Taylor, Marvin & Lisa Huber, V. Kent School District

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TAYLOR HUBER, individually; MARVIN ) No. 81631-4-I
HUBER, individually; LISA HUBER, )
individually, ) DIVISION ONE
)
Appellants, ) UNPUBLISHED OPINION
)
v. )
)
KENT SCHOOL DISTRICT, a municipal )
corporation; KENDALL R. ANDERSON, )
JR. and JANE/JOHN DOE ANDERSON )
individually and the marital community )
thereof; A.N., a minor individual; JOHN )
NGUYEN and JANE/JOHN DOE )
NGUYEN, parents of A.N., individually and )
the marital community thereof; and JANE )
JOHN DOE KENT SCHOOL DISTRICT )
Supervisors and Officials, )
)
Respondents. )
)

HAZELRIGG, J. — Taylor, Marvin, and Lisa Huber seek reversal of an order

granting summary judgment for Kent School District and its employee Kendall

Anderson. They contend that the trial court erred in dismissing their negligence

claim. Because the Hubers did not make a prima facie showing of each of the

essential elements of a negligence action, we affirm.
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FACTS

On April 19, 2016, a small group of Kentwood High School students,

including Taylor Huber and A.N.,1 were playing touch football during physical

education (PE) class. A.N. had learned to play football in his middle and high

school PE classes, and Taylor2 had played touch football on an informal girls’

“Powderpuff” team the year before. PE teachers Kendall Anderson and Blake

Solomon were standing in the doorway of the gymnasium between the group of

students playing touch football on the field and another group that was playing

basketball inside. During the football game, A.N. collided with Taylor, breaking her

leg.

Taylor and her parents, Marvin and Lisa Huber, filed suit in King County

Superior Court against Kent School District, Anderson, A.N., and A.N.’s parents.

The Hubers brought claims of negligence, strict liability, and negligent hiring.

Kent School District and Anderson (collectively, KSD) moved for summary

judgment on the grounds that the Hubers could not prove causation to support

their negligence claim and that their other claims failed as a matter of law. The

court granted the motion and dismissed the Hubers’ claims of negligence, strict

liability, and negligent hiring with prejudice. The Hubers moved for reconsideration

of the dismissal of the negligence claims, which was denied.

More than a year later, the court conducted a bench trial on the claims

against A.N. and his parents. Taylor and A.N. both testified. The court concluded

1 Because A.N. was a minor at the time of the incident and is not a party to this appeal,

we refer to him by his initials.
2 For clarity, we will refer to the Hubers individually by their first names. We intend no

disrespect.

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that A.N. exercised ordinary care and was not negligent and that Taylor assumed

the risk of harm by engaging in touch football, a contact sport. The Hubers filed a

notice of appeal seeking review of the order granting summary judgment and the

order denying their motion for reconsideration. They did not appeal from the bench

trial.

ANALYSIS

We review summary judgment orders de novo, engaging in the same inquiry

as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wn.2d 199,

205, 471 P.3d 871 (2020). Because we perform the same analysis, we consider

only the evidence and issues raised before the trial court. RAP 9.12; Wash. Fed’n

of State Emps., Council 28 AFL-CIO v. Office of Fin. Mgmt., 121 Wn.2d 152, 157,

849 P.2d 1201 (1993).

“The purpose of summary judgment is to avoid a useless trial when there is

no genuine issue of any material fact. If, however, there is a genuine issue of

material fact, a trial is necessary.” LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d

299 (1975). The court views all facts and inferences in favor of the nonmoving

party when determining whether an issue of material fact exists. Ranger Ins. Co.

v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). “A genuine issue of

material fact exists where reasonable minds could differ on the facts controlling the

outcome of the litigation.” Id.

The moving party bears the initial burden to show the absence of an issue

of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182

(1989). If the moving party successfully carries that burden, the burden then shifts

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to the non-moving party to set forth specific facts rebutting the moving party’s

contentions and showing that a genuine issue of material fact exists for trial. Pac.

Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 351, 144 P.3d 276

(2006); Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 12–13, 721

P.2d 1 (1986). The party opposing summary judgment “may not rely on

speculation, argumentative assertions that unresolved factual issues remain, or in

having its affidavits considered at face value.” Seven Gables Corp., 106 Wn.2d at

13. A motion for summary judgment should be granted “only if, from all evidence,

reasonable persons could reach but one conclusion.” Sea-Pac Co. v. United Food

& Commercial Workers Local Union 44, 103 Wn.2d 800, 802, 699 P.2d 217 (1985).

“Where different competing inferences may be drawn from the evidence, the issue

must be resolved by the trier of fact.” Johnson v. Spokane to Sandpoint, LLC, 176

Wn. App. 453, 457–58, 309 P.3d 528 (2013).

I. Collateral Estoppel

As a threshold issue, KSD contends that collateral estoppel bars review of

the issues raised by the Hubers on appeal.

Collateral estoppel, also known as issue preclusion, “bars relitigation of an

issue in a subsequent proceeding involving the same parties.” Christensen v.

Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004). The

doctrine “may be applied to preclude only those issues that have actually been

litigated and necessarily and finally determined in the earlier proceeding” to ensure

that the parties “had a full and fair opportunity to litigate the issue.” Id. at 307. For

collateral estoppel to apply, the party seeking to use it must establish that “(1) the

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issue decided in the earlier proceeding was identical to the issue presented in the

later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3)

the party against whom collateral estoppel is asserted was a party to, or in privity

with a party to, the earlier proceeding, and (4) application of collateral estoppel

does not work an injustice on the party against whom it is applied.” Id.

KSD argues that the trial court’s unchallenged findings of fact and

conclusions of law from the bench trial against A.N. bar the Hubers’ claims on

appeal. The Hubers respond that collateral estoppel does not apply because the

doctrine requires the existence of two separate actions and there is only one case

before this court for review. Even if two actions were not required, the Hubers

argue that collateral estoppel would not apply because the issues and parties were

not identical.

Application of collateral estoppel is not appropriate here. As noted above,

on review of summary judgment, we consider only the materials and issues raised

before the trial court on summary judgment. RAP 9.12. The bench trial against

A.N. did not occur until more than a year after the trial court decided KSD and

Anderson’s motion for summary judgment. Because we stand in the shoes of the

trial court on review, we do not consider the court’s subsequent factual

determinations and legal conclusions.

II. Additional Evidence

KSD also contends that the Hubers’ appeal improperly relies on evidence

and arguments that were not submitted to the superior court until the Hubers filed

their motion for reconsideration. It argues that we should not consider pages 285

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to 356 of the clerk’s papers (the materials submitted with the motion for

reconsideration) and should disregard any portion of the Hubers’ appeal that refers

to or relies on that section of the record. The Hubers respond that “[t]he evidence

and issues identified in Hubers’ Motion for Reconsideration were called to the

court’s attention during summary judgment proceedings” and request that we apply

the principle of liberal construction to look past the erroneous citations to the later

submitted parts of the record.

Again, the appellate court will consider only the evidence and issues called

to the attention of the trial court on review of a summary judgment order. RAP

9.12. To the extent that the materials submitted by the Hubers on reconsideration

and cited in their opening brief are duplicative of materials that were before the trial

court on summary judgment, we will consider those materials on review. Relying

on the principle that decisions on the merits are preferred whenever possible, we

decline to reject the Hubers’ arguments on this basis. See RAP 1.2.

III. Summary Judgment

The Hubers contend that the court erred in granting summary judgment on

the issue of negligence3 because they presented a prima facie case of negligence

by KSD. The elements of a negligence claim are (1) that the defendant owed a

duty of care to the plaintiff, (2) that the defendant breached that duty, (3) injury to

the plaintiff resulted, and (4) the defendant’s breach was the proximate cause of

the injury.4 Hoffstatter v. City of Seattle, 105 Wn. App. 596, 599, 20 P.3d 1003

3 The Hubers do not seek review of the dismissal of their claims for strict liability,
negligent hiring, or negligent supervision.
4 The element of damages is not contested.

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(2001). To avoid summary judgment on a negligence claim, a plaintiff must make

out a prima facie case concerning the essential elements of their claim. Boguch

v. Landover Corp., 153 Wn. App. 595, 609, 224 P.3d 795 (2009). At the summary

judgment stage, the level of proof required to establish a prima facie case is

minimal. Fulton v. Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 152, 279 P.3d

500 (2012). However, “[a] claim of liability resting only on a speculative theory will

not survive summary judgment.” Marshall v. Bally’s Pacwest, Inc., 94 Wn. App.

372, 381, 972 P.2d 475 (1999). “The issues of negligence and proximate cause

are generally not susceptible to summary judgment.” Ruff v. King County, 125

Wn.2d 697, 703, 887 P.2d 886 (1995). “Whether there has been negligence . . .

is a jury question, unless the facts are such that all reasonable persons must draw

the same conclusion from them, in which event the question is one of law for the

courts.” Hough v. Ballard, 108 Wn. App. 272, 279, 31 P.3d 6 (2001).

“School districts have the duty ‘to exercise such care as an ordinarily

responsible and prudent person would exercise under the same or similar

circumstances.’” N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 430, 378 P.3d 162

(2016) (quoting Briscoe v. Sch. Dist. No. 123, Grays Harbor County, 32 Wn.2d

353, 362, 201 P.2d 697 (1949)). Because of the custodial relationship between

districts and students, the duty of ordinary, reasonable care is “enhanced,” and

“school districts have a duty ‘to anticipate dangers which may reasonably be

anticipated, and to then take precautions to protect the pupils in its custody from

such dangers.’” Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 277, 428

P.3d 1197 (2018) (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d

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316, 320, 255 P.2d 360 (1953)). This “includes the duty to protect their students

from the foreseeable risk of harm the students may inflict on each other.” N.L.,

186 Wn.2d at 430. “As long as the harm is ‘reasonably foreseeable,’ a school

district may be liable if it failed to take reasonable steps to prevent that harm.”

Hendrickson, 192 Wn.2d at 276 (quoting McLeod, 42 Wn.2d at 320). “[T]he danger

incurred from playing games inherently dangerous for the age-group involved, or

likely to become dangerous if allowed to be engaged in without supervision” is a

foreseeable danger from which districts should protect their students. Briscoe, 32

Wn.2d at 362.

To prevail on a claim for negligence, a plaintiff must prove that the alleged

breach of duty was a proximate cause of the injury. Hartley v. State, 103 Wn.2d

768, 777, 698 P.2d 77 (1985). “A proximate cause is one that in natural and

continuous sequence, unbroken by an independent cause, produces the injury

complained of and without which the ultimate injury would not have occurred.”

Attwood v. Albertson’s Food Ctrs., Inc., 92 Wn. App. 326, 330, 966 P.2d 351

(1998). There may be more than one proximate cause of an injury. Smith v. Acme

Paving Co., 16 Wn. App. 389, 396, 558 P.2d 811 (1976). “The plaintiff need not

establish causation by direct and positive evidence, but only by a chain of

circumstances from which the ultimate fact required is reasonably and naturally

inferable.” Attwood, 92 Wn. App. at 331. “Causation is usually a jury question,”

and it becomes a question of law “only when the causal connection is so

speculative and indirect that reasonable minds could not differ.” Mehlert v.

Baseball of Seattle, Inc., 1 Wn. App. 2d 115, 119, 404 P.3d 97 (2017).

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The Hubers appear to argue that Anderson breached his duty of care in two

different ways, both resulting in Taylor’s injury. First, they contend that Anderson’s

failure to directly supervise the football game was a proximate cause of the injury

because it “started the chain of circumstances resulting in Ms. Huber’s injuries.”

The Hubers argue that their “theory of proximate cause-in-fact is based upon

Anderson’s own acts and omissions in allowing a group of his students to play a

game of touch football without his direct supervision in spite of foreseeable

dangers.” They argue that A.N.’s negligence or lack thereof is irrelevant because

“it was Anderson’s negligence that made possible [A.N.]’s collision with Ms.

Huber.”

KSD responds that the Hubers’ theory of causation “is directly defeated by

[A.N.]’s deposition testimony that, even if a teacher had been standing on the field,

he still would have made a dive to catch the ball.” It argues that “no expert can

contradict [A.N.] as to his state of mind” and “[a] jury cannot be asked to speculate

on this point.” KSD also argues that “[n]one of the students claim that the game

was ‘intense’ or that any player was acting in such a way that a teacher’s presence

on the field would lead them to change their behavior.” Therefore, it contends, “the

proximity of Coach Anderson is irrelevant.”

Although the Hubers point to their expert’s opinion that the injury would

probably not have occurred if Anderson “had stopped the game and directly

supervised” the students, this opinion does not explain how the injury would have

been prevented by Anderson’s presence on the field. The evidence shows that

Anderson was aware of the ongoing football game and that the students were

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familiar with the rules of touch football. The Hubers have not pointed to any

evidence in the record indicating that Anderson’s failure to “directly supervise” the

game led to an unsafe game continuing after it should have been stopped. Even

assuming that Anderson breached his duty of care by allowing the students to play

touch football without supervising from the sidelines, the only evidence in the

record indicating that any failure to “directly supervise” the students resulted in

Taylor’s injury is plainly speculative.

The Hubers also appear to contend that Anderson breached his duty by

failing to instruct the students not to dive at other students’ legs. They argue that

A.N.’s testimony that he would have made the same play if Anderson was on the

sideline is not dispositive on the issue of proximate cause, pointing to A.N.’s

testimony that he “would have just left the ball and let it hit the ground” if Anderson

had specifically told them not to dive for balls around others’ legs. However, the

Hubers have not established that Anderson breached his duty to exercise

reasonable care by failing to instruct the students not to dive to catch balls near

the legs of other students. A.N. testified that the teachers told the students to “be

safe and [not] hurt anyone.” Even if Anderson knew that A.N. tended to make

diving catches or “play too hard,” reasonable care would not require so specific an

instruction.

The Hubers did not present a prima facie case of negligence, and the trial

court did not err in granting summary judgment for KSD.5

5 Because we find that the Hubers did not present a prima facie case of negligence, we do
not consider KSD’s alternative argument that the Hubers’ claim is barred by implied primary
assumption of risk.

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Affirmed.

WE CONCUR:

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