Opinion
A141927
10-15-2015
A.G., Plaintiff and Appellant, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-12-525137)
Plaintiff A.G. appeals following the trial court's order granting summary judgment to defendant San Francisco Unified School District (District) in her negligence lawsuit. We affirm.
BACKGROUND
In September 2011, plaintiff was a freshman at one of the District's high schools (the high school). During class, she left the classroom to use the restroom, with permission and a hall pass from her teacher. On her way back to class, a boy told her he thought she was cute and proposed they walk around the high school together. Plaintiff—who did not know the boy and had not seen him at school before, but believed he was a student—agreed. The pair walked around the high school together for approximately 30 minutes and then entered a school stairwell. Up to this point, plaintiff's conduct was willing and voluntary.
The stairwell was lighted but hidden from open view by a closed door. Once inside the stairwell, the boy sodomized plaintiff and stole her necklace. Plaintiff did not scream or call for help during the incident, which lasted from one to five minutes.
Plaintiff sued the District for negligence. The District moved for summary judgment. The District submitted a declaration from an administrator at the high school stating: (1) on the day of the alleged assault, the high school had on campus six full-time security guards, approximately 150 teachers and staff, and a handful of other employees; (2) the high school had 112 operating surveillance cameras, although the cameras do not cover all parts of the stairwells; and (3) no other similar sexual assaults have been reported or are known to have occurred at the high school. The District also submitted excerpts of plaintiff's deposition testimony, including testimony that the stairwell was lit with working lights and she was unaware of other students who had been raped at the high school or harmed in the school's stairwells. Plaintiff opposed the motion, submitting the entirety of her deposition testimony, a declaration by counsel describing surveillance video footage of plaintiff and the alleged assailant in the hallway before and after the assault, and certain of the District's discovery responses. The trial court granted the District's motion and this appeal followed.
Plaintiff alleged a second cause of action against the District but does not appeal the trial court's adverse ruling with respect to that cause of action.
DISCUSSION
"A defendant moving for summary judgment 'bears the burden of persuasion that "one or more elements of" the "cause of action" in question "cannot be established," or that "there is a complete defense" thereto. [Citation.]' [Citations.] The defendant also 'bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.' [Citation.] Where, as here, the burden of proof at trial is by a preponderance of the evidence, the defendant must 'present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not . . . .' [Citation.] If the defendant carries this burden, the burden of production shifts to the plaintiff 'to make a prima facie showing of the existence of a triable issue of material fact.' [Citation.] The plaintiff must present evidence that would allow a reasonable trier of fact to find the underlying material fact more likely than not." (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1326 (Jennifer C.).)
"On appeal we conduct a de novo review, applying the same standard as the trial court. [Citation] Our obligation is ' " 'to determine whether issues of fact exist, not to decide the merits of the issues themselves.' " ' [Citation.] We must ' "consider all of the evidence" and "all" of the "inferences" reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.' " (Jennifer C., supra, 168 Cal.App.4th at p. 1326.)
"[A] school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, 'analogous in many ways to the relationship between parents and their children.' [Citations.] Because of this special relationship, imposing obligations beyond what each person generally owes others under Civil Code section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. This principle has been applied in cases of employees' alleged negligence resulting in injury to a student by another student [citations], injury to a student by a nonstudent [citations] and . . . injuries to a student resulting from a teacher's sexual assault [citation]." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869-870, fn. omitted.) A plaintiff must prove that any breach of this duty was the cause of the plaintiff's injury. (Id. at p. 876.)
Three cases discussed by the parties illustrate the duty and causation requirements. In Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 (Dailey), a student died after being injured while "slap boxing" with another student in the gymnasium during lunchtime. (Id. at pp. 745-746.) The boxing had been going on for 5 or 10 minutes and a crowd of approximately 30 students was watching. (Id. at p. 746.) The school permitted students to use any part of the campus during lunchtime once they had finished eating, but supervision of the gymnasium was left to the discretion of the teacher "in the gym office" at the time. (Id. at pp. 746, 750.) The staff member in charge on the day in question did not monitor the gymnasium. (Id. at pp. 746-747, 750.) School personnel knew that slap boxing was "a normal activity" for students and also knew it could become dangerous. (Id. at p. 746.) The Supreme Court reversed a directed verdict in favor of the school district, finding evidence of negligent supervision: The school lacked a plan for supervising the students and did not in fact supervise them during the incident in question; " 'a reasonably prudent person would foresee that injuries of the same general type would be likely to occur in the absence of adequate safeguards' "; and reasonable additional measures would have prevented the injuries, as there was evidence that if a staff member patrolled the area the students would not have started slap boxing in the first place and if the in-progress match had been witnessed by a staff member it would have been stopped. (Id. at pp. 750-751 & fn. 7.)
In M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508 (M.W.), an eighth-grade special education student with a third-grade mentality was sodomized by another student before the beginning of the school day. (Id. at pp. 512-514.) During this time of the day, students were allowed to be on campus but no adult was responsible for supervising them; parents were not informed of this lack of supervision. (Id. at pp. 519-520.) The assailant had been previously disciplined for teasing and punching the plaintiff, and the plaintiff had complained to school administrators and teachers multiple times about the assailant. (Id. at pp. 513-514.) The school principal testified that the sexual abuse of special education students was a concern. (Id. at p. 520.) The Court of Appeal concluded it was "reasonably foreseeable that, given the lack of direct supervision in the early morning hours, a special education student, such as the minor, was at risk for a sexual or other physical assault." (Ibid.) In addition, reasonable security precautions—such as precluding students from arriving on campus early or requiring all early-arriving students to congregate in a common area supervised by an adult—could have prevented the assault. (Id. at p. 521.)
A dissenting justice disagreed that the injury was reasonably foreseeable. (M.W., supra, 110 Cal.App.4th at pp. 526-529 (dis. opn. of Levy, J.).) --------
In Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352 (Thompson), the plaintiff was approached during lunch by another student who suggested someone in the bathroom might want to buy marijuana. (Id. at p. 1358.) The plaintiff voluntarily followed this student into the bathroom, where the student tried to rob the plaintiff. (Ibid.) The two students engaged in a fight immediately outside the bathroom, during which the plaintiff sustained injuries. (Ibid.) The school used a police officer and several campus monitors to patrol the school with hand-held radios; each monitor had a designated area. (Id. at p. 1360.) One of these monitors walked by the bathroom shortly before the fight started but did not notice anything; after seeing students moving toward the bathroom, the monitor returned to the area and found the plaintiff injured. (Ibid.) Only one and a half to two minutes had passed. (Ibid.)
The Court of Appeal affirmed the order granting summary judgment for the district. (Thompson, supra, 107 Cal.App.4th at p. 1357.) After rejecting the plaintiff's argument that the district was negligent for failing to suspend the assailant in connection with two unrelated prior incidents, the court turned to the district's general duty to protect. (Id. at p. 1369.) There was no evidence the assailant posed a threat to the plaintiff prior to the fight and no evidence the location of the fight was a dangerous area. (Id. at pp. 1369-1370.) The students intentionally removed themselves from the immediate view of school staff and "the events unfolded extremely quickly." (Id. at p. 1372.) "Short of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. [Citation.] When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery." (Ibid.)
Returning to the present case, plaintiff argues the District failed to meet its initial burden on summary judgment. We disagree. Although the District's evidentiary showing was minimal, it was sufficient. The District's security measures included multiple security guards and surveillance cameras. The assault took only minutes and occurred in a stairwell that was lighted but not in open view. No similar assaults had previously occurred on campus. This evidence, if undisputed, constitutes a prima facie showing that it was not reasonably foreseeable the District's existing security measures were inadequate to protect plaintiff from the assault and it was more likely than not that reasonable additional measures would not have prevented the assault. (See Jennifer C., supra, 168 Cal.App.4th at p. 1330 [school district's evidence was sufficient to meet its initial burden on summary judgment where it "tended to show that its employees had provided adequate supervision" and employees were not aware of similar incidents in the area in question]; M.W., supra, 110 Cal.App.4th at p. 519 [school district's " 'negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards' "].)
The burden then shifted to plaintiff to " present evidence that would allow a reasonable trier of fact to find the underlying material fact more likely than not." (Jennifer C., supra, 168 Cal.App.4th at p. 1326.) Plaintiff presents no evidence showing the assault was reasonably foreseeable. Plaintiff argues the District did not adequately patrol the hallways, monitor the security cameras, or control access to the school grounds, but presents no evidence that any enhanced measures would have prevented the assault. "When an injury occurs despite a defendant's efforts to provide security or supervision, it is relatively easy to claim that, ipso facto, the security or supervision provided was ineffective. Without more, such claims fail." (Thompson, supra, 107 Cal.App.4th at p. 1370.)
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
/s/_________
SIMONS, J.
We concur. /s/_________
JONES, P.J.
/s/_________
NEEDHAM, J.