A.W. v. Lancaster County School District (Nebraska 2010)

Procedural History: CB’s mother sued the Lincoln Public Schools on CB’s behalf, alleging that LPS’ negligence permitted the assault to occur. The district court entered summary judgment for LPS, reasoning that the assault was unforeseeable. AW claims that the district court erred in finding that LPS did not owe a duty to protect CB from the danger of sexual assault and that the sexual assault was not reasonably foreseeable.

Facts: Joseph Siems entered Arnold Elementary School through the main entrance during lunchtime. After not signing in, he was observed by Olsen, a teacher, who proceeded to the office to see whether he had signed in. Two other teachers, Long and Peters, were in the hallway and told one teacher he needed to use the restroom. Long pointed out a restaurant that she knew to be empty, but did not watch Siems to see where he went next. Peters saw Siems come out of the restroom and go back down the hallway. She lost sight of him, but he apparently entered another restroom. After hearing from Olsen and Long reported Siems to the school secretary, she went to find the school administrator. In the meantime, CB, a 5-year-old student came back from the restaurant and said that there was a “bad man in the restroom,” who later reported that Siems pulled downs CB’s pants and briefly performed oral sex on him. School officials called the police, who arrived and took Siems into custody.

Issue: Did LPS have a legal duty to CB to protect him from the assault?

Was the assault reasonably foreseeable?

Rules: In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.

Under the Restatement 3d of Torts, foreseeable risk is an element in the determination of negligence, not legal duty. Courts should leave foreseeability to the trier of fact unless no reasonable person could differ on the matter.

LPS owed CB a duty to protect him against any reasonably foreseeable acts of violence on its premises.

Application: The LPS employees who saw Siems should have foreseen the danger that he represented, especially because Arnold Elementary School was located in a dangerous neighborhood, which should have put LPS on notice that a student could be sexually assaulted.

Because the attack at issue was foreseeable, the defendant had a duty.

Conclusion: The court was not persuaded to conclude that past criminal behavior in the vicinity of the school made it adequate to present a jury question that the security plan at the school was inadequate. However, after Siems had entered the building, reasonable minds could differ as to whether LPS’ response satisfied its duty of reasonable care. Reversed and remanded for further proceedings.

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