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STEVENS v. DES MOINES SCHOOL DIST.2/22/1995
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
Restatement (Second) of Torts § 449. This is the rule that applies in this case.
Comment b to section 449 states:
The happening of the very event the likelihood of which makes the actor's conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other's exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.
Instruction No. 24 should not have been given under the facts of this case. The gist of the plaintiffs' claim was that the defendant had a duty to control the students, warn of danger, and supervise the premises. If a breach of that duty occurs and assault is committed on a student as a result, it would be ironic to consider the assault as a superseding cause excusing the school from the effects of its own negligence.
Obviously the defendant cannot be relieved from liability by the fact that the risk, or a substantial or important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 303-04 (5th ed. 1984).
Case law also supports this view. For example, in Titus v. Lindberg, 49 N.J. 66, 228 A.2d 65 (1967), a nine-year-old student sued a principal and board of education for injuries inflicted by another student. The school argued that, even if a lack of supervision were assumed, the offending student's deliberate conduct rather than negligent supervision was the sole proximate cause of the injury .
The court rejected this argument because
presumably [the jury] found that conduct of the type engaged in by [the other student] was reasonably to be anticipated and guarded against and that [the defendant's] failure to do so was a substantial factor in the occurrence. That being so, there was ample basis for finding proximate causation [528 NW2d Page 120]
and holding [the defendant] liable in addition to [the other student].
Id. at 75, 228 A.2d at 70.
In Dailey v. Los Angeles Unified School District, 2 Cal.3d 741, 470 P.2d 360, 87 Cal.Rptr. 376 (1970), a student died from "slap boxing" at the school. The plaintiff alleged negligent supervision, and the issue was whether the blow by the other contestant was a superseding cause of the injury . The court ruled that it was not.
The fact that another student's misconduct was the precipitating cause of the injury does not compel a conclusion that negligent supervision was not the proximate cause of [the student's] death. Neither the mere involvement of a third party nor that party's wrongful conduct is sufficient in itself to absolve the defendants of liability, once a negligent failure to provide adequate supervision is shown. Nor is this a case in which the intervening conduct of the other student is so bizarre or unpredictable as to warr
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