MINOR v. ESCONDIDOUNIONSCHOOL DISTRICT

Filed 4/13/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and orders of the Superior Court of San Diego County, Yuri Hoffmann, Judge. Affirmed.

Andrea R. Leavitt and Patricia A. Lewis for Plaintiffs and Appellants.

Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jack M. Smith, Jr., and Paul V. Carelli IV for Defendants and Respondents.

In this action minor plaintiffs Austin B. and Jessica B. (together, plaintiffs), both of whom are minors who have a severe form of autism, allege that Shawn Tyler Priest, their preschool instructor in the Escondido Union School District (the District), engaged in abusive conduct against them while they were attending school.

We conclude on the plaintiffs' battery claim that the court did not err by including in its jury instructions and special verdict form the requirements for a finding of liability that (a) Priest intended to harm plaintiffs, and (b) his touching of them was unreasonable, within the context of a teacher's role in controlling the conduct of students, particularly autistic or other special needs children,.

We also conclude that the court did not err by (1) giving the jury a special verdict form on the negligence claim that did not to ask if nondefendant employees of the District were negligent; (2) granting nonsuit on the battery claim as to the individual District employee defendants (other than Priest); (3) granting nonsuit on the Ralph Civil Rights Act of 1976 (Ralph Act) claim (Civ. Code,  51.7); (4) granting nonsuit on the Tom Bane Civil Rights Act (Bane Act) claim (Civ. Code,  52.1); (5) excluding evidence of other alleged misconduct by Priest as to other students; (6) denying plaintiffs' request to reopen their case prior to granting nonsuit; (7) awarding defendants attorney fees under Code of Civil Procedure section 1038; and (8) awarding defendants expert witness costs under Code of Civil Procedure section 998. Accordingly, we affirm the judgment and the orders.

FACTUAL BACKGROUND

A. The Parties

Austin and Jessica are both severely disabled with autism. In January 2000, at the age of three, Austin B. and Jessica B. entered the District's special education preschool program at the Nicolaysen Center. Austin B. was enrolled in a class taught by Priest. Jessica B. was enrolled in a similar class taught by Bettina Ayala.

Priest began working for the District teaching standard education and later began working in special education. Priest was required to take two additional years of education to receive a special education credential.

Janice Zelasko was the principal of Nicolaysen during the relevant time period. Zelasko's duties included assisting teachers in reaching their goals with the autistic students and ensuring that the students were safe. Robert Leon was the District's assistant superintendent of human resources. Claudia Boyle was the director of special education services. Michael Caston was the District's superintendent.

B. Austin and Jessica's Disabilities

As persons with severe autism, Austin and Jessica's cognitive abilities are seriously impaired. Austin lost language skills at about age three. Jessica lost language skills at about 18 months. At age five, both children were functioning with mental ages under three years old. When they began preschool they exhibited many behaviors associated with autism: no verbal ability, biting themselves and others, head-banging, "bolting" (i.e., running, escaping), chewing on inappropriate objects, repetitive motion conduct, and flinging themselves to the floor and thrashing.

Joni Atkins, a District occupational therapist who worked at the Nicolaysen Center, discussed the "deep pressure" and other touching techniques necessary to soothe autistic children in general, and Austin in particular. She testified that Austin "craved" pressure on his body.

According to Atkins, Austin and Jessica showed some signs of improvement at Nicolaysen. Austin's biting was decreasing and his attention to task improving. There was also improvement in Jessica's learning and behavior.

Austin's mother testified that if Austin was exhibiting any kind of biting or head banging or was harming himself or others, she might use a bear hug or a touch to a shoulder or to his arm in order to calm him down. This was always done in a calming, soft way. Jessica's mother also testified that holding her against her will was necessary to calm Jessica. Jessica's mother even swatted her on her behind on occasion.

C. November 2001 Report

In early November 2001 staff member Pamela Hahn told Zelasko that she had concerns about Priest's conduct with children. Hahn did not identify the children involved and relayed a couple of general instances she had heard about, but did not describe the situation as abuse. Zelasko took the information from Hahn as "lots of hearsay of what other people were saying." Hahn did not give Zelasko the names of those persons who had concerns about Priest.

A few days later Zelasko told Priest it had come to her attention that staff members were beginning to become concerned about the manner in which he was handling children. She asked Priest about how he was lifting students because it was reported that he was being too rough lifting students and setting them down. She also conveyed to Priest a report that he was holding a child's thigh too tightly in order to keep the child sitting. Zelasko discussed better strategies for Priest to lift up a child using both hands with support under the arms, and they discussed him being vigilant about what could be misconstrued as too much pressure or force on his students.

According to Zelasko, Priest was very surprised, and he expressed concern that anything he had done would have been perceived as inappropriate. He was agreeable to her suggestions, seemed receptive and sincere in listening to her concerns, and he was adamant that he would be careful in how his actions could be perceived by others. After speaking to Priest, Zelasko increased the number of times she was in his room, she observed him when he did not know she was doing so, she walked into his classroom when his back was to her and he did not know she was there, she looked out the window and stood in the hallway as children were entering school, and she talked to Priest on several occasions about "how things were going." Between the November 2001 report and the end of January 2002, Zelasko did not receive any reports of misconduct by Priest from the other staff.

E. January/February 2002 Reports of Alleged Abuse

At the end of January and the beginning of February 2002, Nicolaysen staff, including Ayala, Hahn, and Barbara Starr reported that Priest was engaging in abusive conduct when responding to his students' behaviors. They alleged that between November 2001 and February 2002 Priest engaged in actions that included bending a child's hand back to force the child to stand or sit, pinching a child, clinging to a child's hand so tightly to prevent them from bolting that his own knuckles turned white, holding their wrist/hand while walking with them in a way that would cause discomfort if they attempted to escape, using too much pressure on a child's hand when the student was engaged in an activity such as coloring, applying unreasonable pressure on a child's neck, putting pressure on a child's shoulders to the point where they would cry, stepping on children's fingers and feet, and tossing children through the air. Several of these alleged instances of abuse were reported to have been directed at Austin. One incident was reported as having been directed at Jessica when he was allegedly observed bending her hand back to force her to leave a room.

E. School's Response to Reports of Alleged Abuse

Zelasko met with Priest to address the reports of alleged abuse. She counseled him to cease and desist any type of inappropriate behavior "if it had been going on," and she told him to confer with her every day about concerns he might have with students. Zelasko filed a report with Child Protective Services (CPS) alerting it to possible abuse of students by Priest.

F. Priest's Testimony Regarding His Actions

At trial Priest denied harming any child at Nicolaysen Center. He denied inflicting pain on any student. He denied ever shaking a child.

As to Austin, he stated that he guided his hand through a coloring activity, but denied ever using pressure points to cause pain. Priest denied putting so much pressure on Austin's hand that his own knuckles turned white. Priest would place his hand on a child's shoulder or around their neck to "motor them through activities." Priest denied ever pinching Austin and testified that he never applied pressure to Austin to exert a response from him. He also testified he never stepped or stood on Austin's fingers. He denied ever bending Austin's wrist back. He admitted to putting his hand on Austin's thigh, but not applying force. He denied ever holding Austin above his head. He denied that Austin would flinch or cower when he approached Austin.

As to Jessica, he denied handling her in any way that caused injury to her. He denied picking up Jessica or Austin in a manner that compressed their diaphragms.

Priest explained that he did pinch Jessica, but only "as a gesture of what a pinch was" in order to teach her not to pinch other students. Jessica's mental age at the time was about 12 months. At the same time he pinched her, he told her, "No pinching." He did not leave a bruise on Jessica. Priest also admitted that he picked up Austin and threw him into a plastic ball pit, not to hurt him, but because Austin liked it. Austin was never hurt by the conduct. Priest admitted that he motored Austin through a stretching activity, but he did not physically force him through it.

Priest testified that the education of his students required touching, but that he never intentionally harmed any child. Priest stated that he would use physical approaches with children to help them pay attention to the task at hand and get them through an activity. He described in detail the deep pressure touching that was necessary to calm Austin. He would use heavy touching, hugs, and pressure on different parts of his body. Austin appeared to enjoy this. As part of Austin's "sensory diet" plan, there would be "touching; partaking in different textures; different feeling things; wearing different textures; different textiles; different weights; participating in different environments; dealing with different parts of his body, such as rubbing specialized utensils on his lips and gums" because he had a "very narrow tolerance for some textures," it was "calming," and it would allow him to "participate more independently in his environment by widening the gap of things he was willing or able to do, to feel, and to touch, to smell, [to] taste."

At times he would put his hand on Austin's shoulder and squeeze it as part of the deep pressure technique. Although he would use firm pressure, he never did this with the intent to cause pain. This would cause Austin to disengage from what was distracting him and then engage in the task to which he should be paying attention. Austin would not cry when Priest did this, but did so when they began an activity in which he did not want to engage.

Priest also put pressure on Austin's thigh area. He did not do this with the intent to hurt Austin, but to get his attention. He would also have Austin wear a weighted vest as it was calming to him. The vest would help him "focus and center by having the pressure on his body . . . it would call his attention to that pressure and perhaps filter out some of the other things that he was sensing at the time. And by filtering them out [it] would allow him to focus more precisely on tasks . . . ."

Priest also worked with Austin's parents to use the deep pressure or joint compression techniques when Austin was having tantrums at home. When his parents did so, it appeared to have some effect in calming Austin. Priest also used these techniques when Austin arrived at school, and he would hold Austin when he was leaving with his parents in the evening until he calmed down.

Priest did not use deep pressure techniques on Jessica, as he did not interact with her much. Priest was not on Jessica's "team."

G. Testimony of Emilia Velasco

Emilia Velasco was a teacher's aide who worked with Priest for a year while Austin was in his class. She testified Austin liked sensory touching a lot. Velasco never saw Priest slam Austin down onto any surface, step on Austin's hand, grab Austin and lift him above his head, bend Austin's hand back, pinch Austin around the neck, or hurt Jessica in any way. She had no concerns about Priest doing something inappropriate with his students.

PROCEDURAL BACKGROUND

Austin and Jessica filed separate but largely identical lawsuits that were consolidated by the superior court for discovery and trial. The original complaints alleged causes of action against the defendants for (1) violation of section 1983 of title 42 of the United States Code; (2) violation of the Unruh Civil Rights Act (Unruh Act) (Civ. Code, 51); (3) violation of the Bane Act (Civ. Code,   52.1); (4) violation of the Ralph Act (Civ. Code,  51.7); (5) violation of the ADA; (6) violation of section 504 of the Rehabilitation Act of 1973; and (7) negligence. The complaints were later deemed amended to add an eighth cause of action for battery against all defendants.

After the court partially granted defendants' motion for summary judgment/summary adjudication of issues, the case proceeded to trial only on the causes of action for battery, negligence, and violation of the Unruh Act. During trial it was clarified that plaintiffs' claims under the Unruh Act were actually claims being brought under the Bane Act, which prohibits "threats, intimidation or coercion" designed to prevent a person's exercise or enjoyment of their constitutional or statutory rights, and the Ralph Act, which declares that all persons have the right to be free from violence or intimidation because of their disabilities. (Civ. Code,  51.7, 52.1.)

Following plaintiffs' case-in-chief, the court granted defendants' motion for nonsuit as to the Ralph Act and the Bane Act claims and also granted a motion for nonsuit as to the battery claim against the individual defendants, with the exception of Priest.

The claim for battery as against Priest and negligence against all defendants proceeded to verdict. The jury returned a unanimous verdict in favor of the defendants on each cause of action.

In responding to the first question on the special verdict form on battery, the jury found that Priest did not touch Austin or Jessica with the intent to harm or offend. On the negligence claim, the jury found that none of the individual defendants was negligent with respect to either Austin or Jessica.

The District moved for recovery of attorney fees incurred in defending the Ralph Act and Bane Act claims under Code of Civil Procedure section 1038, which allows a public entity to recover attorney fees from plaintiffs who file a frivolous action, where the defendant obtains dismissal by summary judgment, directed verdict or nonsuit. The court granted the motion, awarding the District $24,982.76 in attorney fees. The court also awarded defendants their costs, including expert witness fees under Code of Civil Procedure section 998.

Plaintiffs also appealed from the judgment and from the orders awarding attorney fees and costs.

DISCUSSION

I. INSTRUCTIONS AND SPECIAL VERDICT FORM ON BATTERY

Plaintiffs contend that the court erred in its jury instructions and special verdict form on battery because (1) both the jury instructions and special verdict form required them to prove as an element of battery that Priest's touching of Austin and Jessica was unreasonable; and (2) the special verdict form also required the jury to find that Priest intended to harm or offend plaintiffs. We conclude that, within the context of a teacher's role in controlling the conduct of students, particularly autistic or other special needs children, the instructions and special verdict form were not erroneous.

A. Background

The court instructed the jury on the elements of battery under a modified version of the Judicial Council of California Civil Jury Instructions (CACI) No. 1300 (Battery):

"Each plaintiff claims that defendant, Shawn Priest, committed a battery. To establish this claim, each plaintiff must prove all of the following: [] 1. That defendant, Shawn Priest, intended to touch the Plaintiff; [] 2. That defendant, Shawn Priest, touched the plaintiff; and [] 3. That the plaintiff was harmed or offended by defendant, Shawn Priest's conduct; [] and [] 4. That the touching was unreasonable." (Italics added.)

Next the jury was given CACI No. 1320 (Intent),as follows: "Defendant, Shawn Priest, acted intentionally if he intended to commit a battery or if he was substantially certain that a battery would result from his conduct."

The special verdict forms that the court used for Austin and Jessica were modified versions of CACI Verdict Form No. 1300 (Battery), which, in their original form asked whether Priest intended to "harm or offend" Austin and Jessica, and which added the question whether Priest's touching was unreasonable:

"Question No. 1: Did Shawn Priest touch [Austin/Jessica] with the intent to harm or offend him? [] . . . 

"Question No. 2: Was the touching reasonable under the circumstances? [] . . . 

"Question No. 3: Was [Austin/Jessica] harmed by the touching?" (Italics added.)

The jury answered question No. 1 "[n]o" as to both Austin and Jessica and therefore did not answer the remaining two questions.

B. Standard of Review

The standard of review for alleged instructional error is the prejudicial error standard. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1459-1460.) Similarly, the adequacy of the special verdict form is reviewed for prejudicial error. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 938-939.) Under this standard, the judgment must be affirmed unless the appellant can show an error that was so prejudicial a miscarriage of justice occurred. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)

C. Analysis

Appellants first assert that the special verdict form on the battery cause of action was erroneous because an intent to harm is not at issue where the touching is nonconsensual or otherwise unlawful. They also assert that the court's instruction that the touching must be unreasonable in order to find battery, and the addition to the special verdict form of this element was error. These contentions are unavailing.

Restatement Second of Torts, section 13 provides:

"An actor is subject to liability to another for battery if [] (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and [] (b) a harmful contact with the person of the other directly or indirectly results." (Italics added.)

Relying in part on section 13 of the Restatement Second of Torts, CACI No. 1300, defining the elements of battery, and VF-1300, the CACI special verdict form for battery, both require that there be an "an intent to harm or offend" the victim. (See coms. to CACI No. 1300 & VF-1300.) Therefore, in the ordinary case it is appropriate and, indeed required, that the jury be instructed that to be liable for battery, a defendant must intend to harm or offend the victim.

Relying on Lopez v. Surchia (1952) 112 Cal.App.2d 314 (Lopez), plaintiffs assert that intent to harm is not an element of battery in this case because the touching was unlawful as (1) it was not consented to because appellants did not have the mental capacity to consent; and (2) the touching violated California law.

In Lopez, the defendant's son was fighting with a trespasser on the defendant's property. The defendant shot his gun in the direction of the fighting, but missed, hitting the trespasser's friend who was nearby. (Lopez, supra, 112 Cal.App.2d at p. 316.) The friend sued the defendant for battery. The court concluded that the plaintiff need not show an intent to harm because the firing of the gun was an unlawful act. Because the act was unlawful, all that was necessary was for plaintiff to show an intent to do the act, i.e., fire the gun. (Id. at p. 318.)

However, this case is distinguishable from Lopez because, as we shall discuss, post, teaching autistic children by touching and guiding them is not unlawful, and students, by attending school, consent to some touching necessary to control them and protect both their safety and the safety of others. Indeed, plaintiffs did not contend at trial that Priest could not touch them at all. Rather, they argued that some of the touching exceeded what was proper and constituted child abuse. Because we are presented with the unique situation of a teacher/pupil setting, where it is undisputed that some touching was necessary to control and guide those students, both an intent to harm and the reasonableness of the touching were at issue and the instructions and special verdict form on battery were not erroneous.

The Restatement Second of Torts, section 147 provides:

"(1) A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education. [] (2) One other than a parent who has been given by law or has voluntarily assumed in whole or in part the function of controlling, training, or educating a child, is privileged to apply such reasonable force or to impose such reasonable confinement as he reasonably believes to be necessary for its proper control, training, or education, except in so far as the parent has restricted the privilege of one to whom he has entrusted the child." (Italics added.)

Comment f to subsection 2 provides that this privilege applies to public school teachers: "The rule stated in this Section applies to any person other than a parent who is exercising the parental function of controlling, training, and educating a child. It applies to persons to whom the law has given complete or partial charge of such matters. Thus, it includes a guardian appointed by a court to take charge of the person of the child, the officers of a state orphanage or reformatory home, the teachers and other officials in a public school to which the parent is required to send his child for education, and one to whom the child is bound by poor guardians or some other public body authorized so to do." (Rest.2d, Torts,  147, com. f, p. 267, italics added.)

Although this Restatement section has not been specifically adopted in this state by statute to provide such a privilege to school teachers in civil actions for battery, it does find recognition in Education Code^[1]section 44807, which provides such a privilege in criminalprosecutions for battery: "Every teacher in the public schools shall hold pupils to a strict account for their conduct . . . . A teacher . . . shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessaryto maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning. The provisions of this section are in addition to and do not supersede the provisions of Section 49000." (Italics added.)

Moreover, our Supreme Court has recognized the common law rule of "in loco parentis," and section 44807's codification of that rule, in a case involving school officials' liability for a nonstudent's injuries resulting from the actions of a student off-campus: "The relationship between school personnel and students is analogous in many ways to the relationship between parents and their children. At common law, '[s]chool officials are said to stand in loco parentis, in the place of parents, to their students, with similar powers and responsibilities. [Citation.]' [Citation.] Moreover, by statute, we measure school personnel's criminal liability for exercising physical control over students by the standard applicable to parents. ([] 44807.) Given these similarities, any duty that school employees owe off-campus nonstudents should at least be no greater in scope than the duty that parents owe third persons." (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 935, fn. omitted (Hoff).)

Because this state recognizes that, both under the common law and by statute, in a school setting a teacher stands in loco parentisto his or her students, the teacher may maintain that degree of control over a student that is "reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning." ( 44807.)This is particularly true where, as here, the students are autistic children that admittedly need, and in some circumstances desire, touching to calm, guide and control them. If the reasonableness of the touching was eliminated as an element of battery in such circumstances, that could lead to a form of strict liability for battery as to special education teachers that engage in therapeutic touching of students. The court did not err in requiring that the jury find that Priest's touching be unreasonable.

Nor did the court err in utilizing the standard CACI special verdict form that asked the jury whether Priest intended to harm or offend plaintiffs. As Education Code section 44807 and section 147 of the Restatement Second of Torts, provide, if the touching was reasonably necessary, it was not "unlawful," and therefore the rule laid out in Lopez, supra, 112 Cal.App.2d 314 is inapplicable. Moreover, it is not correct, as plaintiffs argue, that plaintiffs were incapable of consenting to being touched because of their disabilities. Their parents, by enrolling them in school, consented to their teachers assuming the role of standing in loco parentisas to plaintiffs, including consent to reasonable touching necessary to guide and control them in the school environment.

In support of their contention that Priest's actions were unlawful, plaintiffs rely on this state's ban on corporal punishment, codified in section 49001, which provides:

"(a) For the purposes of this section 'corporal punishment' means the willful infliction of, or willfully causing the infliction of, physical pain on a pupil. An amount of force that is reasonable and necessary for a person employed by or engaged in a public school to quell a disturbance threatening physical injury to persons or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil, is not and shall not be construed to be corporal punishment within the meaning and intent of this section. Physical pain or discomfort caused by athletic competition or other such recreational activity, voluntarily engaged in by the pupil, is not and shall not be construed to be corporal punishment within the meaning and intent of this section. (b) No person employed by or engaged in a public school shall inflict, or cause to be inflicted corporal punishment upon a pupil. Every resolution, bylaw, rule, ordinance, or other act or authority permitting or authorizing the infliction of corporal punishment upon a pupil attending a public school is void and unenforceable." (Italics added.)

This code section does not support plaintiffs' position. As the statute specifies, to be considered corporal punishment, the teacher must willfully inflict physical pain. This is consistent with an instruction that Priest intended to cause harm or offense.

Thus, as long as the touching was not "unreasonable" and did not amount to a "willful infliction of physical pain," it would not be unlawful.

Moreover, the court did give the jury an instruction that (1) provided the definition of corporal punishment contained in Education Code section 49001; and (2) stated that no teachers in public schools were allowed to inflict corporal punishment on students. Therefore, appellants were free to argue to the jury that Priest "willfully inflicted pain" on them, satisfying the intent to harm element, and that because it constituted corporal punishment, the touching was also unreasonable.

Appellants, in their briefs and at oral argument, assert that because the evidence at trial concerning Priest's conduct demonstrated that his actions were unlawful as a matter of law, the court could not place an intent to harm element in the special verdict form. However, our review of the record shows that the evidence was in sharp dispute over the propriety of Priest's actions, and he vehemently denied any wrong doing. Moreover, following oral argument we requested further briefing from the parties, asking whether appellants ever moved for a directed verdict (or brought any other motion) at trial requesting a finding that Priest's conduct was unlawful as a matter of law. The further briefing and our own review of the record confirms that appellants made no such request.

Further, given the conflicts in the evidence concerning Priest's conduct, if appellants wanted the jury to resolve the issue of the lawfulness of Priest's conduct they should have proposed a special verdict form that (1) in the first question asked if Priest's conduct was unlawful (i.e., that it constituted prohibited corporal punishment); and (2) instructed the jury that if their answer to that question was in the affirmative, they need not answer the question whether Priest intended to harm appellants. However, the only special verdict form proposed by appellants was one that simply asked whether Priest (1) committed a battery on appellants; and (2) if plaintiffs suffered any harm as a result the battery.

Finally, even assuming the instruction and/or special verdict form on battery were in any way erroneous, the error was not prejudicial. The jury found in favor of Priest on appellants' negligence claim. Because they were only required to find that Priest failed to use "reasonable care" to prevent harm to appellants in order to find him liable on that claim (see CACI No. 401), it is not reasonably likely that the jury would have found him liable for the intentional tort of battery but for the alleged errors in the battery instructions and special verdict forms.

II. SPECIAL VERDICT FORM ON NEGLIGENCE

Appellants contend the court erred in failing to include on the negligence portion of the special verdict form the instruction that if any District employee was negligent, the District was negligent. Specifically, appellants assert this question was necessary "because the Defendants adopted the position that the other nondefendant teachers (Hahn, and Ayala, who had left the District by the time of trial, and Starr, who became [a] substitute teacher) were at fault for not having reported to law enforcement the suspected child abuse of [Plaintiffs], and the District was not responsible for those teachers' negligent failure to make law enforcement reports as required under California Penal Code [section] 11166." We reject this contention

A. Background

On their negligence claim, plaintiffs requested a special verdict form that, in addition to asking the jury to decide if any of the named defendants were negligent, also asked whether "[a]ny other employee of [the District], including but not limited to Pamela Hahn, Barbara Starr, Bettina Ayala or any aide" was negligent. (2 AA 222, 224.) The court refused that special verdict form and instead gave one that only asked the jury, in question No. 4, if any of the named defendants were negligent. The next question, question No. 5, on both the given and refused special verdict forms, told the jury: "If you answered 'yes' to any of the persons in question [No.] 4, you are required to find [t]hat [the District] was negligent. But, if you did not check 'YES' to any of the persons in question [No.] '4', check 'NO' to the right." The jury checked "No" in question No. 4 as to each named defendant. Accordingly, the jury also checked "No" for question No. 5 as to the District's liability.

Story continued as Part II ..

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^[1] All further statutory references are to the Education Code unless otherwise specified.