High School Daredevil

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Benally v. Tacoma School District No. 10 (Washington)
(High School Student Leaning Over Railing Falls From Elevation; Triable Issue Regarding Condition of Premises Created Triable Issue of Material Fact and Trumped Application of Assumption of the Risk)

The plaintiff high school student and his friends congregated on a second story breezeway at Lincoln High School in Tacoma, Washington. His friends had previously warned plaintiff not to sit on the railing that protected students from falling approximately 20 feet to the ground below. Nonetheless, plaintiff sat on the railing during a lunch period, leaning backwards into space. As his friends had predicted, plaintiff lost his balance and fell to the concrete floor below, sustaining multiple serious injuries.

Plaintiff’s fall was linked to a square stone cap that sat on top of a pillar next to the stairs leading to the ground floor, which was described as a “heavy stone top.” In their depositions, two of his friends recounted that as plaintiff was leaning back, holding onto the stone cap with one hand and the railing with the other, the stone cap shifted as plaintiff fell. The school district filed a motion for summary judgment, which was granted by the court based upon primary implied assumption of the risk, and the plaintiff appealed.

The school district’s had been based on several grounds, including the arguments that (1) the railing was not in a dangerous condition, (2) plaintiff had assumed the risk of his behavior, (3) the school district had no notice the cap was loose or that students sat on the railing, and (4) plaintiff’s actions were the only proximate cause of his fall. In opposition to the motion, the plaintiff presented evidence that the stone caps had come loose before the incident. Plaintiff submitted three maintenance reports (two from 2000 and one from 2003) detailing repairs for loose stone caps. In addition, he offered deposition testimony from school district employees indicating that they remembered loose stone caps at the school. The depositions also contain some suggestion that the high school staff knew that kids sat on the railing and stood on adjoining benches. Plaintiff recalled school staff members telling students to stop horsing around when they would sit on the capstones or stand on the benches.

Addressing the assumption of the risk argument, the court noted that in order to establish primary implied assumption of risk, the school district was required to show that plaintiff (1) had a full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk. Application of the doctrine would relieve a duty of care and precludes negligence liability. The court further acknowledged that children from 6 to 16 are held to the same standard of conduct that a reasonably careful child of the same age, intelligence, maturity, training, and experience would follow. As such, minors are capable of assuming risks.

The court noted that the school district owed at least two duties to the plaintiff. First, because the school had a special relationship with its students, it needed to exercise such reasonable supervision as a reasonably prudent person would exercise under the same or similar circumstances. Second, the district owed a duty as a possessor of land (to avoid dangerous conditions on the land which could foreseeably cause harm).

The plaintiff argued that he faced three separate dangers. First, he faced a fall from a second story breezeway. Second, he faced the danger that the heavy stone cap might dislodge and cause injury. Third, he faced inadequate supervision. Addressing the first danger (the fall), the court noted that plaintiff was subjectively aware that his behavior exposed him to a fall. Although plaintiff argued that there is no direct evidence that he understood the risk of falling because he could not remember falling, there was clearly enough evidence to establish his knowledge of the danger (e.g. his friends warning him that he would fall and his reply that they should not jinx him). Plaintiff was aware of the danger and assumed the risk of falling.

Moving to the second danger (a loose stone cap), the court concluded that there was no evidence to suggest that plaintiff (or anyone for that matter) knew that the particular stone cap in question was loose. Assumption of the risk did not bar recovery for “unassumed risks.” As such, there was a genuine factual dispute over whether plaintiff subjectively knew the cap might shift or whether he voluntarily assumed that risk. It was foreseeable that someone might lean against the stone cap or use it to pull themselves up the steps. If the cap were to shift or fall, it could cause someone to fall down the stairs. Thus, the school owed a general duty to keep the caps secure. A reasonable juror could conclude that it was foreseeable that a student might use the cap for something other than decorative purposes. Thus, there was a genuine issue of material fact about whether plaintiff’s actions were foreseeable.

Regarding the third danger (inadequate supervision), the court concluded that there was a factual dispute because the record contained some suggestions that students often congregated on the breezeway and engaged in improper conduct. If such conduct was a common occurrence, the court stated that the school district might have had an enhanced duty of supervision to prevent students from horsing around over the 20-foot fall. Plaintiff’s experts asserted that the school’s supervision levels were inadequate, even though staff members, when aware of it, told plaintiff and other students not to stand on benches near the railing.

Finally, the school district argued that the shifting stone cap was not a proximate cause of plaintiff’s fall. While the court agreed that the evidence established a genuine issue of material fact as to what role, if any, the stone cap played in plaintiff’s fall, the court explained that cause in fact was a factual question for the fact finder. As such, it could not decide the issue as an issue of law.

In the end, the court concluded that there was no assumption of the risk, and that there were genuine issues of material facts regarding whether the stone cap and inadequate supervision were proximate causes in plaintiff’s injury. The ruling of the lower court was overruled and the case was remanded for trial.

NOTE: This case is a tough call. Other jurisdictions (such as California) may have perhaps allowed for the application of assumption of the risk to preclude liability despite the alleged minor defect in the premises. Whether or not the stone cap was loose or shifted, there was clearly no doubt that the plaintiff was aware of the potential for a fall and serious injury. Regardless of the stone cap, the harm suffered was clearly foreseeable and voluntarily assumed.

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