Butler v. Palmdale School Dist.

Filed 10/25/06 Butler v. Palmdale School Dist. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y. Jackson, Judge. Reversed.

Hindin & Abel and Bruce David Abel for Plaintiff and Appellant.

Carpenter, Rothans & Dumont, Martin L. Carpenter, and Justin Reade Sarno for Defendant and Respondent.

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Appellant through his guardian ad litem appeals from a judgment after the court determined in a bench trial that he should take nothing in this personal injury case against respondent Palmdale School District. Appellant contends the court erred in using his negligence to bar his recovery from the district. We reverse for further proceedings.

FACTS AND PROCEDURAL HISTORY

In November 2001, appellant was a 12-year-old seventh grade student at respondent’s Juniper Intermediate School in Palmdale, California. One afternoon while leaving the school campus, he injured his leg when he tried to show off to his friends by jumping over what might have been a Halloween decoration made of chicken wire lying on the sidewalk outside the school. Following his accident, he sued the school district for the injury to his leg, alleging negligence (including negligent supervision) by the district, premises liability, and dangerous condition of public property.

After a three day bench trial, the court issued a written tentative decision concluding appellant was completely responsible for his injuries. Noting that a number of other students had passed by the object without trying to jump over it, the court found appellant’s attempt to leap over it violated his duty to exercise the due care expected from a child of his age, intelligence, and experience. The court entered judgment for the district. This appeal followed.

DISCUSSION

Causation ordinarily is a factual question to be resolved by the finder of fact. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207, 210.) Here, the court found appellant’s failed attempt to leap over the object on the sidewalk was the sole proximate cause of his injuries. Having concluded appellant bore all the blame, the trial court expressly declined to address appellant’s claim that the district was liable for negligent supervision.

The court’s failure to reach the negligent supervision claim was error. The court erred because appellant’s absence of due care did not preclude the court from additionally finding, if the evidence so warranted, that the district failed to adequately supervise him.^[1] Society expects of an individual student no more care than is appropriate for a reasonably careful child of the same age, intelligence, knowledge and experience. (Daun v. Truax (1961) 56 Cal.2d 647, 654; CACI 402.) Schools have a duty to supervise students in part because society presumes youthful inexperience leads children to foolish, or even dangerous, conduct. Thus, the fact that a child’s injuries might result from “boisterous behavior“ does not preclude a finding of negligence by the school. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 748-749.) As our Supreme Court explained, “Supervision . . . is required, in part, so that discipline may be maintained and student conduct regulated. Such regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm.” (Id. at p. 748.)

Here, evidence from the trial permitted, although did not compel, finding negligent supervision. Several adults were responsible for supervising the children as they left the campus, including a supervisor at the campus gate, a vice principal on the sidewalk, and possibly a deputy sheriff. As students flowed out of the gate, several dozen children walked past the metal object without incident. Appellant decided to be different, however, and tried to jump over it.^[2] Notwithstanding appellant’s contribution to his injury, that so many children encountered an object susceptible of causing injury with no supervising adult doing anything to remove the object or shoo away the children permits, but does not compel, the inference that the adults were inattentive. “[I]neffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.” (Id. at p. 747, citations omitted.) Consequently, the court should have addressed whether the possible inattention of school personnel contributed, if at all, to the circumstances allowing appellant’s ill-fated leap. As our Supreme Court explained, “Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence.” (Id. at pp. 748-749, citations omitted..)

We therefore remand this matter to the trial court for it to determine whether the district breached its duty to supervise appellant. If it finds a breach, the court must then determine what portion, if any, of appellant’s injuries were caused by that breach and the damages suffered by appellant. In remanding, we do not mean to suggest how the court should resolve the foregoing questions, only that they cannot be ignored.

DISPOSITION

The judgment is reversed. Appellant is to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

I concur:

COOPER, P. J.

FLIER, J.

I respectfully dissent because I think it is not conceivable that the trial court would have entered judgment for respondent if it had thought that respondent was in any way responsible for appellant’s injury. I find that the trial court considered all of the theories in the case, including negligent supervision, and resolved that theory adversely to appellant. For this reason, I would affirm the judgment.

FLIER, J.

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^[1] If the court had not expressly stated it was not addressing appellant’s claim for negligent supervision, we might have presumed the court also concluded the district was not negligent when it found appellant entirely responsible for his injuries. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928; In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238.) However, the court’s express statement of not reaching the issue rules out such a presumption.

^[2] Appellant denies having tried to jump over the object, and argues on appeal that there was insufficient evidence for the court to find he did. He is mistaken. A school bus driver testified he saw appellant fall while trying to leap over the object. The testimony of a single witness, if believed by the trier of fact, can constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 396.) Here, the trial court credited the bus driver’s testimony, and rejected appellant’s description of how he hurt himself as “somewhat questionable” and “unlikely.” The court’s credibility findings bind us, and consequently we pass on appellant’s contention of insufficient evidence. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated with regard to its construction of the Permit Streamlining Act [Stat.1998, ch. 283, § 5].)