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School district cleared in alleged bus assault

The South Kitsap School District won a judgment in Kitsap County Superior Court last week requiring the parents of a developmentally disabled girl to pay the district’s court fees after the family had unsuccessfully sued the district alleging she had been abused on a school bus.

Rebecca Walton and Michael Ford sued the district in November 2002, alleging their then-10-year-old daughter had been touched inappropriately by a 7-year-old boy who sat next to her on a special education bus a year earlier.

In their suit, the plaintiffs claimed the district “failed to exercise ordinary care in the supervision and protection of children” and as a consequence their daughter was sexually attacked while riding home from Burley-Glenwood Elementary School on Sept. 13, 2001.

During the trial, which began in May, the jury was asked to consider five questions, beginning with whether or not they believed that “Johnny” — as he was called in the suit — inappropriately touched the victim.

If the jury found that he had, it would then consider the next questions, which included whether the members believed the incident was foreseeable, whether the school district was negligent, and, if so, was the negligence the cause of the assault.

However, the jury ruled after six days of testimony that the alleged abuse did not occur, therefore negating any question of the district’s liability.

Eric Roy, the defense attorney for the school district, said the jury deliberated for only 40 minutes.

“They felt it was an obvious case — and a frivolous case — that shouldn’t have been in court at all,” Roy said, “ (and) that even if something had happened, it wasn’t foreseeable.”

But the victim’s mother feels justice was not served because the jury reached its verdict without a crucial piece of evidence — namely a report compiled by a school counselor whose investigation concluded that the abuse had occurred.

On Sept. 14, the day after Walton called the school to report that her daughter had been assaulted, school interventionist Jerilyn Smith began her

investigation.

Smith interviewed the suspect and his grandmother, who was his guardian at the time, and then typed up a report she submitted to Langford and other school officials. In it she stated that, although the boy alternately confessed and then denied touching the victim, she believed that “(he) did touch the girl inappropriately and that he knows what he did was wrong ... and is denying everything.”

Smith also sent Langford a memo stating: “I have all of the necessary information and it appears from every perspective that the event occurred,” and that she believed the next necessary step would be to file a sexual harassment form.

According to court documents, Langford did contact Child Protective Services offices in both Tacoma and Kitsap County, and also documented the incident in a school district sexual harassment complaint form.

Complicating matters further, Smith died of cancer during January — before Walton’s lawyer Brett Purtzer could obtain a deposition about her investigation. Shortly before the trial began, Judge Ted Spearman granted the defense’s motion to suppress her findings.

“The jury never got to see her report,” Walton said. “She died, so (the judge) deemed it inadmissible, because she couldn’t show up in court, and say ‘this is my signature.’”

Roy, however, argued that there were several valid legal reasons why the jury should not hear Smith’s testimony. More important than the fact that she wasn’t available was the fact that her conclusions were “hearsay” and prejudicial, he said.

Purtzer explained said that the judge ultimately ruled Smith’s testimony inadmissible primarily because Walton’s suit alleged that the district should have known and prevented the alleged abuse, not just that the touching occurred, and that Smith’s investigation was conducted after the incident.

“It was unfortunate that we could not present that evidence, but we did the best job we could,” he said.

“Everything (the school district’s lawyer) did was legal, but was it ethical?” Walton said. “We can’t change the outcome of the trial now, but it would break my heart if this happened to someone else.”

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