Volume 74 — Washington Appellate Reports

<bold>[1] Schools — Students — Supervision — Duty — In General.</bold> A school district has a duty to exercise reasonable care to protect students from reasonably foreseeable dangers by controlling the conduct of its students while they are in school or engaged in school activities. <bold>[2] Schools — Students — Supervision — Duty — Reasonably</bold> <bold>Foreseeable Dangers — What Constitutes.</bold> The duty of a school district to protect its students is limited by the foreseeability of a danger. Whether a danger is reasonably foreseeable depends upon whether it is one which the district knows, or in the exercise of reasonable care should know, exists within the general field of dangers to students. The issue generally is one of fact. <bold>[3] Schools — Students — Supervision — Duty — Reasonably</bold> <bold>Foreseeable Dangers — Criminal Act by Another Student.</bold> Student to student harm, including criminal harm, is a risk which is reasonably foreseeable by a school district. The criminality of the harm does not alter the district's duty to be aware of the risk of student to student harm, of whatever nature, and to take adequate steps to prevent the harm. <bold>[4] Schools — Students — Supervision — Duty — Reasonably</bold> <bold>Foreseeable Dangers — Reputation as Disturbed Student.</bold> A school district which is aware of a student's disturbed, aggressive nature has a duty to take specific, appropriate procedures for the protection of other students. The appropriateness of the district's protective actions is determined by the reasonable person standard, <italic>i.e.,</italic> did the district exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances? Whether the district should have anticipated the specific harm caused by the student is not determinative of whether or not the district acted appropriately. <bold>[5] Judgment — Summary Judgment — Affidavit — Expert Opinion —</bold> <bold>Effect.</bold> An affidavit containing expert opinion on an ultimate issue of fact generally is sufficient to create a genuine issue of fact for purposes of contesting a summary judgment motion. <bold>[6] Witnesses — Privileges — Psychologist-Client Privilege —</bold> <bold>Confidentiality — Necessity.</bold> The psychologist-client privilege<page_number>Page 50</page_number> is inapplicable when it is manifestly apparent that the communication between a psychologist and a client was not intended to be confidential.

<bold>[1] Evidence — Opinion Evidence — Expert Testimony — Scientific</bold> <bold>Acceptance — Frye Standard — Applicability.</bold> The standard for admitting novel scientific evidence established by <italic>Frye v.</italic> <italic>United States,</italic> 293 F. 1013 (D.C. Cir. 1923), requiring the scientific theory or principle to have achieved general acceptance in the relevant scientific community, does not apply in civil cases. <bold>[2] Evidence — Opinion Evidence — Expert Testimony — Scientific</bold> <bold>Acceptance — Test.</bold> The admissibility of novel scientific evidence in a civil case is governed by ER 702 and ER 703. For purposes of ER 702: "scientific" implies a grounding in the methods and procedures of science; and "knowledge" connotes derivation from the scientific method, <italic>i.e.,</italic> more than a subjective belief or unsupported speculation. <bold>[3] Evidence — Opinion Evidence — Expert Testimony — Scientific</bold> <bold>Acceptance — Assistance to Trier of Fact — Factors.</bold> An expert's testimony based on scientifically valid reasoning or methodology "will assist the trier of fact to understand the evidence or to determine a fact in issue" under ER 702 if the reasoning or methodology properly can be applied to the facts in issue. In making this determination, a court should consider: whether the theory or technique can be and has been tested, has been subjected to peer review and publication, and is generally accepted; and the known or potential error rate of the particular scientific technique. <bold>[4] Evidence — Opinion Evidence — Expert Testimony — Scientific</bold> <bold>Acceptance — Methods or Conclusions.</bold> The admissibility of novel scientific evidence in a civil case under ER 702 depends on the scientific validity of the principles and methodology<page_number>Page 551</page_number> used by the expert, not on the persuasiveness of the expert's conclusions. <bold>[5] Evidence — Opinion Evidence — Weight — Determination.</bold> The weight to be given conflicting opinion testimony is a decision for the trier of fact. <bold>[6] Evidence — Opinion Evidence — Expert Testimony — Scientific</bold> <bold>Acceptance — Causation — Absence of Studies — Effect.</bold> The absence of definitive laboratory studies establishing causation affects the weight but not the admissibility of novel scientific evidence in a civil case so long as the expert's techniques and methodologies are scientifically sound. <bold>[7] Evidence — Opinion Evidence — Expert Testimony — Factual</bold> <bold>Basis — Reliance by Experts — Necessity.</bold> The requirement of ER 703 that the facts or data underlying an expert's opinion be of a type reasonably relied on by experts in the particular field applies only to facts or data that are not otherwise admissible in evidence.

<bold>[1] Certiorari — Statutory Review — Actions Subject to Review —</bold> <bold>Quasi-Judicial Decision — Judicial Function — Factors.</bold> In determining whether a decision of a local legislative body is legislative rather than quasi-judicial in nature so that the decision is not subject to judicial review by means of a writ of review under RCW <cross_reference>7.16.040</cross_reference>, a court evaluates the particular circumstances of the case and applies the following factors: (1) could a court have been charged with making the decision initially? (2) is the decision one that courts historically have made? (3) does<page_number>Page 669</page_number> the decision involve a response to changing conditions through the enactment of general legislation of prospective application rather than the application of existing law to facts for the purpose of declaring or enforcing liability? and (4) does the decision resemble the ordinary business of courts? <bold>[2] Zoning — Judicial Review — Statutory Certiorari —</bold> <bold>Applicability.</bold> A local legislative body's adoption of a countywide zoning code is a legislative, rather than a quasi-judicial, act; it is not subject to judicial review by means of a writ of review under RCW <cross_reference>7.16.040</cross_reference>. <bold>[3] Certiorari — Constitutional Review — Review — Appellate</bold> <bold>Review — Record — Agency Record.</bold> When reviewing a trial court decision on a constitutional writ of review, an appellate court reviews de novo the record of the governmental entity that made the decision subject to the writ, not the record of the trial court. <bold>[4] Certiorari — Constitutional Review — Role of Trial Court.</bold> A trial court reviewing a governmental entity's decision by means of a constitutional writ of review performs an appellate, not a fact-finding, role. <bold>[5] Certiorari — Constitutional Review — Findings of Fact —</bold> <bold>Effect.</bold> A trial court reviewing an agency's decision by means of a constitutional writ of review may not substitute its evaluation of the facts for that of the agency; it is usually bound by the agency's determination of the facts; and its findings of fact are surplusage. <bold>[6] Certiorari — Constitutional Review — Review — Scope.</bold> Review of a legislative decision by means of a constitutional writ of review is very narrow in scope. A court must determine whether the agency violated the petitioner's fundamental rights by making a decision that is illegal or manifestly arbitrary and capricious, <italic>i.e.,</italic> an unreasoning decision made without consideration and in disregard of the facts. <bold>[7] Environment — SEPA — Governmental Action — Judicial Review —</bold> <bold>Standing — Test.</bold> A party has standing to challenge a decision under the State Environmental Policy Act of 1971 (RCW 43.21C) if: (1) the party's allegedly endangered interest is arguably within the zone of interests protected by the act and (2) the decision will cause the party specific and perceptible harm. A threatened injury must be immediate, concrete, and specific to support standing; it cannot be merely conjectural or hypothetical.<page_number>Page 670</page_number> <bold>[8] Environment — SEPA — Impact Statement — Necessity — Negative</bold> <bold>Determination — Review — Standard of Review.</bold> A determination of nonsignificance under the State Environmental Policy Act of 1971 (RCW 43.21C) is reviewed under the clearly erroneous standard. The determination will be upheld under that standard unless the reviewing court, after reviewing the entire record in light of the policy of the act, is left with a definite and firm conviction that a mistake has been made. <bold>[9] Environment — SEPA — Impact Statement — Necessity — Prior</bold> <bold>Impact Statement — Effect.</bold> Once an environmental impact statement has been prepared for a major action, a later related major action does not require a new or revised environmental impact statement if no new developments have intervened since the statement was prepared. <bold>[10] Municipal Corporations — Ordinances — Publication — Full</bold> <bold>Text or Summary — Penalty Provisions.</bold> The requirement of RCW <cross_reference>65.16.160</cross_reference>(2) that a section of a local ordinance regarding penalties must be published in full and may not be summarized does not apply when a different statute permits the local governmental entity to publish only a summary. <bold>[11] Counties — Land Use Controls — Planning Enabling Act — Map</bold> <bold>— Absence — Prejudice.</bold> The fundamental rights of a party challenging the adoption of a development code pursuant to the Planning Enabling Act (RCW 36.70) are not violated by the failure to adopt a map referenced by the code; the absence of a map may render the code incomplete and unenforceable, but the absence does not prejudice the challenger.