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A.W. v. Lancaster County School District 0001

Citation. A.W. v. Lancaster County Sch. Dist. 0001, 784 N.W.2d 907, 280 Neb. 205, 2010)
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Brief Fact Summary.

A.W. (Plaintiff) sued Lancaster County School District 0001 (Defendant) after her son, C.B., was sexually assaulted by a stranger on school grounds. The district court granted Defendant’s motion for summary judgment on the grounds that the assault was not foreseeable.

Synopsis of Rule of Law.

The duty of due care is a legal standard that is not based upon the foreseeability of harm.


Joseph Siems entered Arnold Elementary School in Lincoln, Nebraska during lunchtime. He walked past the main office without signing in as a visitor and without being noticed by the office workers. A teacher saw him and asked if he needed help. When Siems ignored her, the teacher went to the office to see if he had signed in. Two other teachers, who were supervising a group of first graders, saw Siems in the hallway. One approached Siems while the other stayed with the students. Siems told the teacher he needed to use the restroom. The teacher pointed out a restroom that she knew no children were in and told Siems to go to the office when he finished using the restroom. No one saw Siems exit this restroom and walk down to another restroom closer to the school’s entrance. Meanwhile, the teachers went to the office to report the incident. At the same time, C.B., Plaintiff’s 5 year-old son, came back from a trip to the restroom and informed his teacher that a “bad man†had been in the restroom who had briefly performed oral sex on C.B. The office administrator found Siems in the bathroom with no children present. She initiated a “Code Red†lockdown of the school and called 911. A custodian detained Siems until police arrived. Plaintiff sued the school. The district court granted Defendant’s motion for summary judgment, finding that: 1) Defendant did not owe a duty to protect C.B. from sexual assault, 2) the sexual assault of C.B. was not foreseeable, and 3) Defendant took reasonable steps to protect against foreseeable acts of violence on school grounds. Plaintiff appealed.


Is a duty of due care based upon the foreseeability of harm?


(Gerrard, J.) No. The duty of due care is a legal standard that is not based upon the foreseeability of harm. In order to prevail on a negligence claim, the plaintiff must show that the defendant owed a legal duty to the plaintiff, that the defendant breached that duty, that the breach caused injury, and that damages resulted. Plaintiff’s arguments boil down to one question—was Siem’s assault of C.B. reasonably foreseeable? Many courts have based the question of whether a duty exists on whether the harm was foreseeable. If the risk was reasonably foreseeable, the duty of due care exists. This approach treats the foreseeability of harm as a question of law, like the existence of a legal duty. However, the existence of a legal duty is a question of law and whether a breach of that duty occurred is a question of fact. Previous opinions by this court have conflated the existence of the duty and the breach of that duty. Foreseeability depends on factual circumstances and cannot be what determines whether a duty exists. The Restatement (Third) of Torts follows this approach, stating that foreseeability is an element in determining if negligence occurred, not an element of whether a duty exists. In order to find whether a duty exists, the court must look to the law. The fact finder determines whether appropriate care was exercised by assessing the foreseeable risk at the time of the alleged negligence. Here, it is clear that Defendant owed C.B. a duty of reasonable care. The duty to protect students is a well-established legal standard under the Restatement (Second) and the Restatement (Third) of Torts and the applicable case law. The question of whether Siems’ assault was reasonably foreseeable is one of fact that will be determined based on what the Defendant’s employees knew, when they knew it, and whether a reasonable person would infer form those facts that there was a danger. Plaintiff’s evidence of past criminal behavior in the area is not enough to challenge adequacy of the security plan. However, after Siems entered the building, reasonable minds could differ about whether Defendant’s initial failure to notice him and respond to his presence satisfied its duty of reasonable care. Several employees saw him, thought he was out of place, responded, but did not ensure he did not make contact with a child. Reasonable minds could differ as to whether Siems’ assault of C.B. was foreseeable and, therefore, Plaintiff is entitled to a full trial. Reversed and remanded. 


The court took care to distinguish between the duty of due care, which is a legal standard of appropriate behavior, and foreseeability, which is a factual question about whether the risk of harm was foreseeable by a reasonable person. Here, there was no question that the school owed a duty of reasonable care to C.B. The question of whether the harm to C.B. was foreseeable was a factual question that should be decided by a jury. If the jury finds the harm was foreseeable, the duty will have been proven breached. If not, then the duty was not breached and the negligence claim fails.

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