Becker v. WhittierUnionHigh School Dist.

Filed 8/30/07 Becker v. Whittier Union High School Dist. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Chris R. Conway, Judge. Affirmed.

Lund & Caplan and Richard A. Caplan for Plaintiff and Appellant.

Lynberg & Watkins, Ric C. Ottaiano and Courtney L. Hylton for Defendant and Respondent.

_____________________________

Daniel Becker appeals from a judgment against him in his personal injury action, and the trial courts orders denying his motions for a new trial and judgment notwithstanding the verdict. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

At approximately 4:00 p.m. on September 3, 2003, appellant, riding a motorcycle, collided with Russell Rayne Crick, a 15-year-old member of the Santa Fe High School cross-country team. Crick and two other boys from the team were running across a busy street, not at an intersection. Appellant sustained injury to his left shoulder as a result of the accident.

Appellant brought the underlying action for negligence against Crick and the Whittier Union High School District. Santa Fe High School is part of the Whittier Union High School District. Crick settled with appellant, and the action against him was dismissed pursuant to the settlement. Appellant proceeded to trial against the school district. His principal theory was that cross-country coach Hector Vasquez failed to adequately supervise the runners, and this lack of supervision was a substantial cause of the accident.[1] A disputed issue at trial was whether the practice run was scheduled, since it occurred the day before the start of fall classes. The jury requested and received additional instruction specifying that if the practice was unscheduled, the school district was not liable.

In a special verdict, the jury found no negligence by respondent, and did not decide appellants comparative fault. The trial court denied appellants motion for judgment notwithstanding the verdict and motion for a new trial. This appeal followed.

DISCUSSION

Appellant argues the jurys conclusion that respondent was not negligent, lacks evidentiary support and that his motions for judgment notwithstanding the verdict on liability and for a new trial on damages should have been granted.

The scope of appellate review of a trial courts denial of a motion for judgment notwithstanding the verdict is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jurys conclusion and where so found, to uphold the trial courts denial of the motion. (Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730, quoting Pusateri v. E.F. Hutton & Co. (1986) 180 Cal.App.3d 247, 250.) An appellate court must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jurys verdict. [Citation.] (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510, quoting Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603.)

There was conflicting testimony during trial as to whether the practice run was scheduled by the coach or was an impromptu run initiated by the students. During deliberation, the jury asked the court: Is the school liable for voluntary practices? With the agreement of counsel, the court responded: If the subject practice was in fact scheduled by the school, even though it was voluntary in nature, that is, the runners could elect to participate or not participate, then the school has a duty to exercise reasonable care to control and protect the students participating. If, however, the practice was not scheduled, that is, it was a truly impromptu run by the students themselves, then there is no duty on the part of the school. And, therefore . . . you must decide whether or not you feel and believe and find that this was a scheduled practice and then, secondly, whether or not under the circumstances, if so, did the school district exercise reasonable care to control and protect the students who participated.

Appellant contends the evidence presented at trial was insufficient to support the jurys conclusion that the cross-country practice was unscheduled. To the contrary, the evidence supports the jurys implied finding that the run was unscheduled. Coach Vasquez testified that he did not schedule a practice because he was busy preparing for fall classes and attending meetings. Stephen Hendry, the athletic director at the high school, confirmed the practice was unscheduled. Vasquez testified he was in a meeting when he first learned the students were going to run; he took a break to talk to the runners. Vasquez testified he usually held summer practices around 6:00 p.m.; the accident occurred around 4:00 p.m. Vasquez testified he thought the students ran that day to prove their dedication to the team.

Appellant attempts to negate Coach Vasquezs testimony by claiming it lacked foundation as to his personal knowledge, and his reliance on custom was unfounded since he was in his first year as cross-country coach. We find no merit to these arguments. On direct examination, when asked by defense counsel if the practice on September 3, 2003 was scheduled, Vasquez answered, No. When asked how he knew that, he responded in part: Usually those three days or two days prior to the beginning of the school year I dont schedule practices because Im going to be very busy, plus I know that everybodys going to be there the first day of school and then we can start practice.

Evidence Code section 1105 provides: Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom. During trial, there was no objection to Vasquezs testimony regarding the custom for scheduling practices. At the time of the accident, Vasquez had been working as a coach and teacher in the school district for three years, and had coached high school sports for almost 10 years. He properly testified regarding his custom for coaching high school sports in general. On appeal, we defer to the trier of fact on issues of credibility. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)

Appellant argues even if the practice was unscheduled, the students were indisputably under the immediate and direct supervision of Coach Vasquez and he failed to exercise reasonable care under the circumstances. Education Code section 44808[2]provides in relevant part: Notwithstanding any other provision of this code, no school district . . . 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, unless such district . . . has undertaken to provide transportation for such pupil 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 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 . . . .

Appellant focuses on the districts alleged fail[ure] to exercise reasonable care under the circumstances. His aim is on the wrong target. Section 44808 grants a district immunity unless a student was (or should have been) directly supervised during a specific undertaking. The language failed to exercise reasonable care under the circumstances, while set off by an or as if meant to be a self-sufficient basis for liability, has correctly been construed as requiring such failure during one of the mentioned undertakings. (Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 188-189 (Ramirez), quoting Wolfe v. Dublin Unified School Dist. (1997) 56 Cal.App.4th 126, 129.)

For the first time on appeal, appellant argues the off-campus run was a school-sponsored activity within the meaning of section 44808. A school-sponsored activity . . . is defined as an activity that requires attendance and for which attendance credit may be given. [Citation.] (Ramirez, supra, 105 Cal.App.4th at pp. 189-190, quoting Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 239.) In Ramirez, a school district advertised, recruited, encouraged, and convinced students and parents to participate in a summer camp, where the plaintiffs son died in a swimming accident. (Id. at p. 185.) The Ramirez court held that because the school district did not require attendance or provide credit for attending the camp, it was not school-sponsored, and the school district was not liable. (Id. at p. 190.) Similarly, there is substantial evidence in this case to support the conclusion the students elected to run even though there was no practice scheduled that day; attendance was not required and credit was not given for this activity. Because this practice was not school-sponsored, section 44808 immunizes the district from liability.

For the first time on appealin fact, at oral argumentappellant argues Vasquez specifically assumed responsibility for the students, within the meaning of section 44808, then failed to exercise reasonable care under the circumstances. Appellants opening brief refers to section 44808, but there is little argument regarding its specific application to this case. Appellants reply brief focuses on whether the practice was a school-sponsored undertaking, but does not discuss assumption of responsibility by Vasquez. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) For obvious reasons of fairness, it is not appropriate to rely upon points not mentioned in the parties briefs. (Transcontinental Ins. Co. v. Insurance Co. of the State of Pennsylvania (2007) 148 Cal.App.4th 1296, 1309.)

In any event, the argument lacks merit given the evidence in this case. Appellant argues Coach Vasquez should not have allowed the students to run a course that required them to cross a major intersection. He further claims Vasquezs act was one of misfeasance, not nonfeasance. However, a school districts duty to supervise its students does not extend to protect a nonstudent from injuries caused by a student off-campus. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1206, citing Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932 (Hoff).) In Hoff, a student known to have a good record recklessly drove out of the schools overflow parking lot, injuring a non-student pedestrian on a public sidewalk. The court held: [S]chool personnel who neither know nor reasonably should know that a particular student has a tendency to drive recklessly owe no duty to off-campus nonstudents. (Hoff, supra, 19 Cal.4th at p. 936.)

In this case there was no evidence that Coach Vasquez knew or had reason to know Crick, or any other member of the cross-country team, had a propensity for reckless behavior while running on city streets. Vasquez educated the students about safe conduct for off-campus runs. Vasquez testified that he was confident that the runners would obey the rules of the road. Crick testified that Vasquez specifically told the students to use crosswalks when crossing major streets. Crick also testified that when a coach was present on practice runs, the runners did not cross the street midblock. Because Vasquez did not know and could not reasonably have known that Crick or any other student would cross the street midblock during off-campus training runs, respondent owed no duty to appellant.

Finally, appellant seeks a determination he was not contributorily negligent as a matter of law. The complete defense of contributory negligence was replaced by a system of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 810. The jury was not asked to determine appellants comparative fault since it found respondent was not negligent. Appellant did not raise an objection to the special verdict form presented to the jury. Absent a finding of negligence on the part of respondent, the court cannot determine appellants comparative negligence. And absent a finding that respondent was negligent, there was no basis for the grant of a new trial on damages.

DISPOSITION

The judgment of the trial court and the orders denying plaintiffs motion for judgment notwithstanding the verdict and for new trial are affirmed. Respondent to have its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.

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[1] Hector Vasquez was not a party in the underlying action.

[2] All statutory reference are to this code unless otherwise indicated.