MEMORANDUM OF POINTS AND AUTHORITIES
I) DUTY OF CARE, CAUSATION AND FORESEEBILITY
To establish negligence a claimant must establish that the defendant had the duty
of care, there was breach of the duty, causation and injury resulted from the breach. In
the case of Perna v. Conejo Valley Unified School Dist, 143 Cal.App.3d 292, 192
Cal. Rptr. 10 (Cal. Ct. App. 1983), the Plaintiffs were minors, Regina and Royce
Perna. They brought the action for negligence against the Conejo Valley Unified
School District through their guardian ad litem, Judy Perna. The court was asked to
decide whether a school district may be held liable for injuries suffered by a student
off school premises and after school hours when those injuries are the result of the
school’s negligence while the student was on school premises. We hold that in such
circumstances the school district may be held liable.
According to the court in the preceding matter, school districts are not legally
responsible for accidents that students may suffer once they have been released from
school or before they arrive at school. (Kerwin v. County of San Mateo (1959) 176
Cal.App.2d 304 [ 1 Cal.Rptr. 437] .) Further, the court relied on the Education Code
section 44808 provides in part that "[n]notwithstanding any other provision of this
code, no school district, city or county board of education, county superintendent of
schools, or any officer or employee of such district or board shall be responsible or in
any way liable for the conduct or safety of any pupil of the public schools at any time
when such pupil is not on school property. . . ."
The school district thus contended that no cause of action can be stated against the
school district. It also argued that while liability may attach in cases when the
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accident occurs on school property and during school hours, or when a student is
injured off school property but during school hours, it should not attach in this case
where the student was not on school property and was injured during hours when
school was not in session.
Plaintiffs’ cause of action, however, was directed at the school district’s conduct
while plaintiffs were still on the school premises. Negligence is ascribed to the school
district as a result of the conduct of the teacher in keeping the students after school.
Case law in California has established that school districts have a duty to exercise
ordinary care in supervising students on the school premises. If a school district
should be negligent in this regard they are liable for injuries proximately caused by
their negligence.
Similarly, SAUSD and RSCCD had the duty to protect and properly supervise
students on the school grounds (as put forth above and also as put forth in Education
Code § 234-234.5, Education Code § 44807, Education Code §§ 32280-32282,
32286, 32288, 49079 and California Code of Regulations, Title 5 Section 5552). All
of the Defendants also owed a duty of care to Plaintiff JANE G.R. DOE because the
said Defendants knew that by providing education to minors, they were charged with
the safety and well-being of Plaintiff JANE G.R. DOE. California law mandates that
school districts, administrators, staff, and teachers have a duty to supervise students
and to enforce rules and regulations to protect them.
Moreover, Schools providing instruction to high school students are required to
comply with California Education Code (“CEC”), Section § 32280 et. seq., dealing
with the preparation of “safe school plans.” These plans address violence prevention,
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among other things. Defendants SAUSD and RSCCD and DOES 1 through 10 are
required to develop the Model Safe School Plan for use as a template in the
preparation of safe school plans for each of the District’s schools that provide
instruction to high school students. CEC § 32280 provides that schools, “develop a
comprehensive school safety plan that addresses the safety concerns identified
through a systematic planning process. …a “safety plan” means a plan to develop
strategies aimed at the prevention of, and education about, potential incidents
involving crime and violence on the school campus.” All of the Defendants owed a
duty of care to Plaintiff JANE G.R. DOE because said Defendants knew that by
providing education to minors, they were charged with the safety and well-being of
minor students.
In Calandri v. Ione Unified School District (1963) 219 Cal.App.2d 542 [ 33
Cal.Rptr. 333], a student was injured in his home by a toy cannon he had built as a
school project during his shop period. It was alleged that the failure of the teacher
during the school period to warn the student of the dangers involved in loading the
cannon was a proximate cause of the injury which occurred later off the school
premises. The appellate court held that issues relating to defendant’s negligence and
proximate cause were questions of fact for the jury.
Accordingly, in the current case, the Defendant SAUSD and RSCCD and DOES 1
to 10, owed Plaintiff a legal duty. Such legal duty required said Defendants to act
with reasonable care when: (1) supervising students; (2) protecting Plaintiff while at
MCHS / Santa Ana College and in the care of the said Defendants; (3) providing a
reasonably safe environment and adequate supervision of Plaintiff; and (4) providing
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the appropriate training on the responsibilities and procedures for students in the care
of the Defendants SAUSD and RSCCD and DOES 1 to 10.
The Defendants also had a duty to enact and enforce sufficient policies and
procedural rules and regulations prescribed for schools; to execute reasonable control
over students necessary to protect the health and safety of the students; and to
maintain proper and appropriate conditions conducive to learning. Moreover, the
defendants were required to and failed to exercise careful supervision of the students
during school hours and to continue to provide supervision before, during and after
school. This duty extended to all areas of the MCHS / Santa Ana College campus.
Thus by failing to guarantee the safety of the Plaintiff, the Defendants created a
causal link between their omission and sexual assault of the Plaintiff.
Moreover, in the case of Torsiello v. Oakland Unified School Dist., 197
Cal.App.3d 41, 242 Cal. Rptr. 752 (Cal. Ct. App. 1987), the court was asked to
decide whether a school district may be held liable for injuries suffered by a student
off school premises and after school hours when those injuries resulted from the
alleged negligence of a school district employee under circumstances where (1) the
student was not going to or from school and (2) there was no misconduct on the part
of, or danger to the safety of, the student or other children present at the time of the
incident. The court held that the school district may not be held liable under these
circumstances. However, in the current case, the Plaintiff was within the school
premises hence the Defendants were bound to guarantee her safety.
II) INAPPLICABILITY OF IMMUNITY
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In the case of Barnhart v. Cabrillo Community College, 76 Cal.App.4th
818, 90 Cal. Rptr. 2d 709 (Cal. Ct. App. 1999), Plaintiffs Roy Dewey Barnhart III,
Masao Drexel, and Robert Zamora sued defendants Cabrillo Community College and
Jason Rene Larrieu for personal injuries suffered in an automobile accident. The
accident occurred while Cabrillo’s employee, Larrieu, was driving plaintiffs from the
college to Fresno City College to play an intercollegiate soccer match. The trial court
granted defendants’ motion for summary judgment on the basis of immunity pursuant
to Title 5, California Code of Regulations, section 55450 (hereafter, section 55450).
On appeal, plaintiffs contend that Education Code section 87706 (hereafter, section
87706) applies to this case and allows them to prove liability. We disagree and affirm
the judgment.
In the preceding case, the parties do not dispute the material facts. The issue is
simply whether section 55450 immunity applies to this case. "The meaning and effect
of statutory provisions is a matter for our independent review." (Service Employees
Internat. Union v. Board of Trustees (1996) 47 Cal.App.4th 1661, 1665 [ 55
Cal.Rptr.2d 484].) Under the California Tort Claims Act, "Except as otherwise
provided by statute: [¶] (a) A public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity or a public employee or any
other person." (Gov. Code, § 815, subd. (a).)
Government Code section 815.2, subdivision (a), is one such statute. It provides:
"A public entity is liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment if the act or
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omission would, apart from this section, have given rise to a cause of action against
that employee. . . ."
"Through this section, the California Tort Claims Act expressly makes the
doctrine of respondeat superior applicable to public employers. [Citation.] `A public
entity, as the employer, is generally liable for the torts of an employee committed
within the scope of employment if the employee is liable. [Citations.]’ [Citation.]
Under [Government Code] section 820, subdivision (a), `[e]xcept as otherwise
provided by statute . . ., a public employee is liable for injury caused by his act or
omission to the same extent as a private person.’ Thus, `the general rule is that an
employee of a public entity is liable for his torts to the same extent as a private person
[citation] and the public entity is vicariously liable for any injury which its employee
causes [citation] to the same extent as a private employer [citation].’ [Citation.]" (Hoff
v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932 [ 80 Cal.Rptr.2d 811,
968 P.2d 522].)
Section 87706 states that "Notwithstanding any other provision of this code, no
community college district, or any officer or employee of such district or board shall
be responsible or in any way liable for the conduct or safety of any student of the
public schools at any time when such student is not in school property, unless such
district has undertaken to provide transportation for such student to and from the
school premises, has undertaken a school-sponsored activity off the premises of such
school, has otherwise specifically assumed such responsibility or liability or has
failed to exercise reasonable care under the circumstances. [¶] In the event of such a
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specific undertaking, the district shall be liable or responsible for the conduct or
safety of any student only while such student is or should be under the immediate and
direct supervision of an employee of such district or board."
On the other hand, section 55450, subdivision (a), provides that the governing
board of a community college district may conduct "field trips or excursions in
connection with courses of instruction or school-related social, educational, cultural,
athletic, or college band activities to and from places. . . ." But subdivision (d), states,
in pertinent part: ". . . All persons making the field trip or excursion shall be deemed
to have waived all claims against the district or the State of California for injury,
accident, illness, or death occurring during or by reason of the field trip or excursion.
. . ."
A plain reading of section 87706 is that the section reaffirms the general, statutory
rule of vicarious liability for accidents occurring to students where the community
college district provides transportation to and from the school premises for an off-
premises, school-sponsored activity (or otherwise affirmatively assumes
responsibility for student safety) and the accident occurs while the student is or
should be under the supervision of an employee.
A plain reading of section 55450 is that the section overrides the general, statutory
rule of vicarious liability and immunizes a community college district from liability
for accidents occurring during field trips or excursions to participants thereof.
Plaintiffs’ position was that section 87706 applied to this case so as to make
operative against defendants the general, statutory rule of vicarious liability. They
point out that section 87706 contemplates transportation to a "school-sponsored
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activity." They urge that their trip to the soccer match fits within this definition. They
conclude that section 87706 is a specific statute applicable to the circumstances. They
further contend that section 55450 is a mere regulation that cannot alter or impair the
scope of a statute. (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1081 [
230 Cal.Rptr. 413].)
The defendants’ position, on the other hand, was that section 55450 applied to this
case so as to make them immune from liability. They point out that section 55450
contemplates "field trips or excursions" in connection with athletic activities. They
urged that plaintiffs’ trip to the soccer match fits within this definition. They
concluded that section 55450 is a specific statute applicable to the circumstances.
They bolstered this point by claiming that plaintiffs’ participation on the soccer team
was voluntary in the sense that they were not required to travel to away games in
college-provided transportation or even attend away games in the first instance.
The Plaintiffs countered that, at the very least, there exists a triable issue of fact as
to whether their participation on the soccer team was voluntary, pointing to their
declarations in which they stated that they believed attendance at away games was
mandatory because their grades would otherwise suffer.
Moreover, in the case of Castro v. Los Angeles Bd. of Education, 54
Cal.App.3d 232, 126 Cal. Rptr. 537 (Cal. Ct. App. 1976), the original complaint
alleged that the death of decedent, a high school student, occurred while he was
participating with his R.O.T.C. unit in a field trip within California which was
organized by and under the supervision and control of agents, representatives and
employees of respondent board of education, and that his death occurred as a result of
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their negligence. Respondent’s first demurrer to the complaint (which objected in
substance to a misjoinder of parties) was sustained with leave to amend. The first
amended complaint restated the cause of action, and the proper parties were joined.
Respondent then demurred to the first amended complaint, alleging failure to state a
cause of action in that Education Code section 1081.5 as amended specifically
exempted respondent from any liability for injuries or damages, including death,
sustained by a student during a field trip or excursion. Appellants again amended their
complaint by deleting the words "field trip" and substituting therefor the words
"summer camp, bivouac, or summer training." Respondent’s demurrer to the second
amended complaint alleged that section 1081.5 was still applicable. The court agreed,
sustained the demurrer without leave to amend, and dismissed the action pursuant to
Code of Civil Procedure section 581, subdivision 3.
(1) The question before the court was whether subdivision (d) of Education
Code section 1081.5, providing respondent with immunity from liability, is
applicable. The portion of the section in question states: "All persons making the field
trip or excursion shall be deemed to have waived all claims against the district or the
State of California for injury, accident, illness, or death occurring during or by reason
of the field trip or excursion. All adults taking out-of-state field trips or excursions
and all parents and guardians of pupils taking out-of-state field trips or excursions
shall sign a statement waiving such claims."
In order to answer this question, the court commenced its analysis with the
general statutory provision imposing liability upon a governmental entity.
Government Code section 815.2, subdivision (a), provides: "A public entity is liable
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for injury proximately caused by an act or omission of an employee of the public
entity within the scope of his employment if the act or omission would, apart from
this section, have given rise to a cause of action against that employee or his personal
representative." As stated in 4 Witkin, Summary of California Law (Torts, § 94, pp.
2396-2397), "This basic provision carries over the respondeat superior liability
previously imposed on school districts, making it applicable to all public entities.
Hence, the decisions applying the Educational Code provision are still good law: `The
pattern of vicarious liability for employees’ negligence is essentially identical under
both statutes. We have found no evidence indicating an intention on the part of the
Legislature to alter the duty to provide supervision of students while on school
grounds, the standard of care required of those undertaking to provide supervision, or
the amount of evidence necessary to support a finding of negligence. . . .’
The court further stated that "In the event of such a specific undertaking, the
district . . . shall be liable or responsible for the conduct or safety of any pupil only
while such pupil is or should be under the immediate and direct supervision of an
employee of such district. . . ."
Accordingly, in the present instance, the obligation imposed by section 87706
extends to the defendants since the Plaintiff was within the school premises when the
heinous act happened. The law establishes a mandatory duty of care owed by each
Defendant to Plaintiff JANE G.R. DOE so as to provide her with responsible and
appropriate supervision and protection while the Plaintiff attended MCHS / Santa
Ana College. Each Defendant failed to do so. Defendants SAUSD and RSCCD,
SAUSD and RSCCD administrators, and DOES 1-10 are therefore, liable for the
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injuries proximately caused to the Plaintiff for their breach of these mandatory duties,
pursuant to Government Code §815.6.
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