Blake School facilitated a student athletic trip and a Blake student and 16 year-old recently licensed driver lost control of his car, crossed the centerline, crashed into JeanAnn and Gary Fenrich, killing Mr. Fenrich and badly injuring Ms. Fenrich. Was the accident “foreseeable” to the school? Was “the specific danger…objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility”?
The Minnesota Supreme Court recently confronted the question of whether Blake could be liable to the Fenrich couple based on the student’s having caused the fatal accident.
The Court, over a dissent, held that there remained an issue for trial as to whether the school’s own conduct (not the student’s conduct) was “misfeasant,” meaning wrongful and potentially triggering liability to the Fenriches.
The [Blake] head coach strongly encouraged the entire team to participate in the Nike meet and 14 team members registered. The [Blake] assistant coach paid the bulk registration fee. The [Blake] coaches were active in preparation for the meet, including the assistant coach attending one of the practices and recruiting a volunteer coach to run them.
The assistant coach also took active responsibility for coordinating transportation to, and lodging at, the Nike meet. As he put it, “we all drove down as a team.” He expressly approved the plan to have [the student] —and not [the student’s] father or another adult—drive team members and the volunteer coach more than 200 miles to Sioux Falls. The assistant coach decided that the volunteer coach, a teenager, would ride with T.M. But he did not give the volunteer coach any safety instructions—such as to sit in the front seat, to pay attention (rather than be distracted by electronic devices), and to make sure that [the student] drove responsibly. Nor did the assistant coach give any instructions to [the student] except, during a break, to “keep it safe and keep rolling.” Based on these facts, a reasonable factfinder could conclude that the school’s own conduct was misfeasant.
The Minnesota Supreme Court decision was not unanimous. Justices Anderson and Gildea dissented on the issue of whether the school “owed a duty” to the Fenriches and whether the accident was “foreseeable” to the school.
The dissent (by Justice Anderson) argued that the school officials’ conduct (described above) “cannot even be described as active conduct generally.” (See here at p. D-4.) And the dissent went further, arguing that this was not a “close case” as to whether the accident was “foreseeable” to the Blake School. Was “the possibility of an accident was clear to the person of ordinary prudence”?
It is clear from the dissent that Justices Anderson and Gildea’s concern is the expansion of liability to schools and others. Justice Anderson expressed concern that “[a]ll extracurricular, and co-curricular, activities, are now guaranteed a gimlet-eyed review by the school’s lawyers.”
We think this concern is exaggerated, if not unfounded. There are far too many other decision-makers, stake-holders, factors, and considerations involved. We do not think it is realistic to posit that this change (if it is, in fact, a change at all) in Minnesota law will have a material effect on school decision-making on these activities. More likely, it theoretically could result in a slight upward adjustment in institutions’ insurance premiums.
Ultimately, the decision is worth study as it underscores the indeterminacy of legal decisions and the elasticity of concepts like “misfeasance vs. non-feasance” or “foreseeability.”