Opinion
B313331
05-10-2023
I.A., a Minor, etc., Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Law Offices of Fahad Sharif, Fahad Sharif and Roger L. Wilkerson III for Plaintiff and Appellant. BDG Law Group, Michele M. Goldsmith and Jason J. Barbato for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV08232 Jon R. Takasugi, Judge. Affirmed in part, reversed in part and remanded with directions.
Law Offices of Fahad Sharif, Fahad Sharif and Roger L. Wilkerson III for Plaintiff and Appellant.
BDG Law Group, Michele M. Goldsmith and Jason J. Barbato for Defendant and Respondent.
STRATTON, P. J.
After I.A. was shot in the head by a gun brought to his seventh grade science class by a fellow student, he brought this action against the Los Angeles Unified School District (LAUSD) for negligence and premises liability. He now appeals from the trial court's order granting summary judgment in favor of LAUSD and resulting judgment. We reverse the judgment, and the order granting summary judgment, but affirm summary adjudication on the cause of action for premises liability and on the issues of whether Sal Castro Middle School (Sal Castro) should have conducted more or better random weapons searches of its students and should have specifically searched defendant Christina, the student who brought the gun to school. We reverse the necessarily included summary adjudication of the issues related to LAUSD's duty to supervise Christina in the classroom where the gun discharged, including the issues of breach and causation. We reject LAUSD's contention that we should affirm the trial court's order on the alternate basis that LAUSD is immune from liability. We remand the matter for further proceedings.
Hereafter, we refer to students by their first names and adults by their full or last names.
BACKGROUND
On February 1, 2018, at about 8:00 a.m., I.A. arrived at Sal Castro Middle School for his science class taught by Sherry Zelsdorf. Also present in the classroom were Ashrah, Christina, and other unidentified students. According to Ashrah, during class Christina told him that she had brought a gun to class and asked if he wanted to see it. He said that he did not. Christina kept "calling out" to Ashrah to look at the gun, which Christina was displaying to other students. Ashrah kept working on his classwork. He heard a female student tell Christina to "stop" and "put it away." Ashrah heard a male student make a remark, then heard a loud noise and felt pain in his right wrist. He had been shot. I.A., who was seated close to Christina, was working on an assignment, when his vision became blurry and he realized there was blood in his eyes. He later realized that he had been hit in the head by a bullet.
It is undisputed that Ashrah and I.A. were injured by bullets discharged from the gun brought to class by Christina. For purposes of summary judgment, there is no evidence that the discharge was intentional. According to the Los Angeles Police Department (LAPD) arrest report, two other students and Zelsdorf were struck by possible fragmentation from the bullets. Zelsdorf suffered an injury to her forehead. All were taken to local hospitals.
LAPD officers heard the broadcast about the shooting at about 8:55 a.m. According to the arrest report, when they arrived at the school, their attention was directed to Christina. The officers found a .9 mm handgun in her waistband and arrested her. While at Rampart station, Christina spontaneously stated, "I didn't mean for anybody to get hurt, it's all my fault. I didn't know the gun was loaded."
I.A. filed a personal injury action against LAUSD, Christina, and her father. His separate cause of action for general negligence against Christina and her father is not at issue in this appeal. I.A. alleged two causes of action against LAUSD, the first for premises liability based on a dangerous condition of public property of which LAUSD had actual and constructive notice and the second for general negligence. The second cause of action for general negligence alleged that LAUSD negligently "owned, operated, managed, maintained, supervised, controlled and inspected" Sal Castro Middle School and that I.A. was injured when another student "was allowed, unsupervised, to bring a loaded 9mm firearm onto school premises and into the classroom" where the firearm discharged and injured I.A. The cause of action also alleged that LAUSD "negligently hired, retained, trained, instructed, supervised and authorized DOES 1 to 20 . . . to manage, maintain, control, supervise, and inspect said public middle school" at the time of the gun incident.
After LAUSD brought its motion for summary judgment, I.A. sought and obtained permission from the trial court to file a second amended complaint (SAC) for the purpose of specifying which statutory duties LAUSD had breached. He relied on Government Code section 815, Education Code section 44807, and other unspecified statutory provisions. LAUSD then filed an amended motion for summary judgment, which the trial court granted.
DISCUSSION
LAUSD sought summary judgment, or in the alternative summary adjudication, on six grounds: 1) Government Code section 845 provides LAUSD with immunity; 2) LAUSD cannot be held vicariously liable under Government Code section 815.2; 3) the SAC does not identify any mandatory duty that could support a direct liability claim against LAUSD under section Government Code section 815.6; 4) LAUSD did not owe a special duty of care because it was not foreseeable that Christina would bring a weapon to school and discharge it accidentally; 5) even if there were a special duty, the undisputed facts show that LAUSD and its employees were reasonable in preventing the criminal possession and use of handguns on the school campus and 6) premises liability based on a dangerous condition of public property requires a physical defect in the property.
We review the order granting defendant's motion for summary judgment/adjudication de novo. In doing so, we apply the same rules the trial court was required to apply in deciding the motion. (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 138 (J.H.).) When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff's causes of action that is addressed in the motion, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) If a defendant's presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that contrary to the defendant's presentation, a triable issue of material fact actually exists as to those elements or the defense. Summary judgment is properly granted only "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
We strictly construe declarations of the moving party, and liberally construe those of the opposing party. We resolve doubts as to whether summary judgment should be granted in favor of the opposing party. (J.H., supra, 183 Cal.App.4th at p. 139.) We do not resolve issues of fact. We consider whether contradictions in the evidence, or inferences reasonably deducible from the evidence raise a triable issue of material fact. (Aguilar, supra, 25 Cal.4th p. 856.) We affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment. (J.H., at p. 139.)
As the trial court correctly recognized, liability against a public entity is wholly statutory. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Negligence liability against LAUSD must therefore be based on the breach of a mandatory duty. (Ibid.)
The trial court found that the SAC was "premised on the argument that LAUSD breached its duty to supervise students while on school premises during the school day. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 512, noting, 'Although a school district is not an insurer of its pupils' safety . . . our cases have long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care . . . [citations].')"
We would put it more strongly. "The law regarding the duty of supervision on school premises is very, very well established. 'It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.] The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect.'" (J.H., supra, 183 Cal.App.4th at p. 139, italics added.) This duty originates from Education Code section 44807. (See M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517 (M.W.).)
After correctly identifying LAUSD's duty to supervise, the trial court concluded, "The inquiry at the heart of this motion therefore is whether a reasonable jury would be able to find that LAUSD failed to exercise reasonable care in supervising students in its charge." The trial court's ruling on this issue, however, is not entirely clear. After considering evidence of LAUSD's safety measures, the court found that LAUSD offered evidence which "supports a reasonable inference that Plaintiff's injury was not caused by Defendant's breach of duty, because Plaintiff's injury was not foreseeable. Christina had made no specific threat against Plaintiff, guns had never been discovered as contraband at the school, and the head of security stated that there was no evidence that Christina posed a physical threat to any student. . . . Accordingly, the burden shifts to Plaintiff to disclose a triable issue of fact." The court then found that "[e]ven taken in the light most favorable to Plaintiff, this evidence fails to disclose a triable issue of fact as to whether Plaintiff's injury was foreseeable."
The court next stated: "Moreover, whether LAUSD breached a duty does not turn on 'whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendant's conduct,' but rather turns on whether LAUSD's supervision was lacking to the extent that it made sufficiently likely that a student would bring and discharge a gun on school grounds. (Ballard [v. Uribe (1986)] 41 Cal.3d [564,] 572, fn. 6.)" The court then concluded I.A.'s evidence did not support an inference that the school was on notice that violent weapons were being brought onto campus. The court added that evidence of past violent behavior "is insufficient to show foreseeability where the harm in question[] 'occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation.' (See Thompson [v. Sacramento City Unified School Dist. (2003)] 107 Cal.App.4th [1352,] 1369.)" The court then found I.A.'s evidence did "not support a reasonable inference . . . that Christina's prior conduct should have put LAUSD on notice that she would bring a loaded gun to school. Plaintiff did not submit any evidence to suggest Christina had ever threatened to bring a gun to school[.]" The court then concluded "Plaintiffs evidence fails to support a reasonable inference that his injury was foreseeable, such that LAUSD breached its duty to exercise reasonable care in supervising students in its charge. (Hoyem, supra, 22 Cal.3d at p. 512.)"
As we explain below, we do not agree with this analysis or the trial court's conclusions.
A. General Negligence
I.A. contends the trial court framed the issues in this matter incorrectly. We agree.
"A special relationship is formed between a school district and its students resulting in the imposition of an affirmative duty on the school district to take all reasonable steps to protect its students. This affirmative duty arises, in part, based on the compulsory nature of education." (M.W., supra, 110 Cal.App.4th at p. 517.) "The principles pertaining to a school district's duty to supervise students are well established. 'It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.] The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect.' [Citations.]" (Ibid.)" 'What is ordinary care depends upon the circumstances of each particular case and is to be determined as a fact with reference to the situation and knowledge of the parties.' (Bellman v. San Francisco H.S. Dist. (1938) 11 Cal.2d 576, 582 .)" (J.H., supra, 183 Cal.App.4th at p. 140.)
Because a special relationship exists between a school district and its pupils, LAUSD has a general duty to protect the students in its care. A court may examine the Rowland factors "to decide whether policy considerations justified] excusing or limiting' that duty to protect." (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 218 (Brown), quoting Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 628.) Here, there are no policy reasons to excuse a school district's general duty to protect students on school grounds during the school day.
These factors include "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)
The Rowland factors may also be considered in determining the scope of the duty to protect. (Brown, supra, 11 Cal.5th at p. 218, citing C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 877.) The scope of that duty to protect is a question of law for the court. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Olsher).)
The duty analysis developed by the California Supreme Court "requires the court in each case (whether trial or appellate) to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake." (Olsher, supra, 41 Cal.4th at p. 1214.)" 'This frames the issue for the court's determination by defining the scope of the duty under consideration.'" (Ibid.)" 'Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed.'" (Ibid.) While other Rowland factors may come into play in a given case, "the balance of burdens and foreseeability is generally primary to the analysis." (Ibid.)" 'The more certain the likelihood of harm, the higher the burden a court will impose on a [defendant] to prevent it; the less foreseeable the harm, the lower the burden a court will place on a [defendant].'" (Ibid.) "When a public agency is involved, additional factors include the extent of the agency's powers, the role imposed on the agency by law, and the limitations imposed on it by budget." (Thompson v. Sacramento City Unified School Dist., supra, 107 Cal.App.4th at p. 1365.)
The trial court in this case did not perform such an analysis. We must and do undertake this analysis on appeal. We begin by noting that there are, in effect, two sets of duties here. The first is LAUSD's general duty to protect students from harm, in this case to prevent students from bringing dangerous weapons, including but not limited to firearms, onto campus; the second is its duty to protect students once a particular individual does succeed in bringing a gun onto campus.
1. Student Searches
LAUSD identified the steps it took at Sal Castro Middle School to prevent students from bringing dangerous weapons on campus. As required by LAUSD policy, Sal Castro posted signs warning that dangerous weapons were prohibited on campus, and persons were subject to search for such weapons. Sal Castro's guidance counselor Angel Lares, together with other staff members, conducted random searches of students in classrooms; this search was of an average of six students in one randomly selected classroom. The selected students and their belongings were then moved to either Lares's office or a vacant classroom for the search. Lares and his assistants used a handheld metal detector for the search.
In opposition to summary judgment, I.A. contended Sal Castro personnel knew their search efforts were ineffective and weapons were being brought onto campus, and there was discussion of the need to do more. The record cites provided to support these contentions do not do so. But while I.A. criticized Sal Castro's search efforts as insufficient generally, he did not provide any specifics of how the efforts were ineffective or identify any specific ameliorative steps the school should have taken. At most, he implied that more searches should have been conducted by someone with more formal training in security.
Ashrah's declaration does state that Christina brought a knife to school, and taking this claim as true, this shows that a weapon was brought onto campus undetected before February 1, 2018. Ashrah, however, provides no details about the knife, and it is not possible to tell from the record whether this knife might have had an innocent purpose, such as for eating or use in a woodworking class.
We note LAUSD is correct that Government Code section 845 provides it with immunity from claims that it should have provided police officers or their functional equivalent. (Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1463.) I.A., however, has not specifically claimed that LAUSD should have provided police officers or security guards to conduct the weapons searches, and training non-security school personnel to perform effective searches would be consistent with his ameliorative proposal. Thus, this claim would not be barred by section 845. (See ibid.)
At the time of the incident, LAUSD's evidence showed that no guns or knives had been found in these searches, and only three items were found which had the potential to be used as weapons: a box cutter, pepper spray and a fidget spinner shaped like a Ninja star, with pointy edges. Thus, there was very low foreseeability that a student would bring a dangerous weapon such as a gun onto Sal Castro's campus. At the same time, the burden of more searches would have been substantial. LAUSD policy mandated that the searches be conducted at varying times throughout the school day to avoid predictability, and this necessarily entailed interrupting classes. It would almost certainly have required more personnel as well. Lares was not only responsible for any searches conducted of students based on reasonable suspicion, but he was the school guidance counselor as well, and had many duties in that capacity. Thus, we decline to find that LAUSD had a duty to conduct more random searches of students for weapons.
This finding is limited to the Sal Castro campus in early 2018, at or before the time of the February 1, 2018 shooting in this case.
I.A. did contend that Sal Castro should have conducted a search of Christina on the day of the incident because she presented a heightened risk. I.A. did not identify what exactly that risk was, but in context, we understand I.A. to mean a heightened risk of possessing and/or using a dangerous weapon. We will treat this as a proposed ameliorative step of searching students who present such a heightened risk of possessing or using a dangerous weapon. Assuming for the sake of argument that Sal Castro had such a duty, the issue would become one of breach of that duty.
On appeal, I.A. goes a step farther and contends that LAUSD should have removed Christina from Sal Castro because she was a well-documented violent student. I.A. does not discuss the legal or administrative requirements for removing a student from a school, or explain how Christina's behavior met the requirements for removal, and so he has forfeited this claim. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [we may disregard conclusory arguments not supported by pertinent legal authority or that fail to disclose the reasoning by which appellant reached the conclusions he wants us to adopt].)
Breach is normally a question of fact, but there is no evidence in this case which would create a triable issue of fact as to whether LAUSD should have been aware that Christina posed such a risk, and thus should have searched her. There is no evidence that she had threatened to bring a gun to school or had previously brought a gun to school. While there is evidence that Christina was a bully who threatened other students, there is no evidence that she actually committed serious violence against a student. Lares acknowledged that Christina had "smacked . . . or hit a boy," but he knew no other details. I.A. described her throwing things at the back of his head during class, trying to trip him, kicking his shoes and shoving him when she was close by. These minor incidents are not enough to create a triable issue of fact concerning whether Christina presented a heightened risk of bringing a gun or other dangerous weapon to school. Ashrah did state that Christina had brought a knife to school in the past and showed it to other students, but there is no evidence of the type of knife nor any indication whether it might have had an innocent purpose. There is also no evidence that she did anything more than display the knife. Further, even assuming for the sake of argument that LAUSD should have been aware of such an incident, this incident did not occur immediately before the gun incident, and the incident alone does not give LAUSD justification to search Christina daily for the rest of the school year. Put differently, some period of time passed after Christina displayed the knife, with no repetition of the knife display, and no escalation in her misbehavior. Thus, the earlier display of a knife did not justify searching Christina on February 1, 2018 when she arrived at school.
Lares had a discussion with Christina the day before the incident and had earlier decided to schedule a meeting with Christina's father about her. His discussion with Christina was prompted by his impression that she was sad. Christina did state she was going to try and change. The meeting with Christina and her father was to discuss Christina's lack of respect towards adults, her work habits, and her attendance. There is no doubt Christina was a troubled student with behavioral problems. To the extent I.A. is relying on these discussions to show Christina presented a heightened risk of possessing a dangerous weapon on the day of the incident, he has not offered any evidence that troubled students like Christina present such a risk. Nothing in this exchange shows Christina presented a heightened risk of violence on the day of the incident, or the day before. Summary adjudication on the search issues was proper.
2. Classroom Supervision
The second duty issue is LAUSD's duty once Christina actually brought the gun into a classroom. The trial court did not address this issue directly, but did discuss at length that it was not foreseeable that Christina would bring a loaded gun to school and stated that "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." This analysis conflates issues of duty, breach and proximate cause, two of which are normally issues of fact.
" 'Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.'" (C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 869.)
"The purpose of the law requiring supervision of students on school property is to regulate students' conduct 'so as to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars . . . .' [Citation.] As noted by the California Supreme C ourt, '[s]uch 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.' [Citation.]" (M.W., supra, 110 Cal.App.4th at pp. 517518.) Thus, even if the science teacher could not have foreseen that Christina would bring a loaded gun to class, she had at a minimum a duty to observe what was happening in the classroom to discover and prevent aggressive, disorderly and dangerous behavior by students, which behavior was foreseeable.
I.A.'s theory is that the evidence supported an inference that the science teacher was either aware of the gun and failed to act or that" 'by the exercise of ordinary care under the same circumstances a reasonably prudent person would have discovered" the gun, but the teacher failed to exercise such care. (Lilienthal v. San Leandro etc. Sch. Dist. (1956) 139 Cal.App.2d 453, 456-457 (Lilienthal).)
In the trial court and on appeal, seemingly to excuse the teacher's inaction or inattention, LAUSD relies on a statement in the LAPD arrest report that the gun was inside Christina's backpack when it discharged. This is a conclusion, and the basis for it is not clear from the record on appeal, given that the arrest report also states the weapon was found in Christina's waistband. We cannot tell if the backpack had physical markings (i.e., bullet holes) supporting this conclusion or if the LAPD was relying on the statement of students in the class. Christina does not appear to be their source. In short, there is no admissible evidence to support this claim. Even if there were such evidence, however, I.A. offered evidence showing that, at a minimum, Christina was displaying the gun before it discharged.
I.A. offered the declaration of Ashrah, who, as set forth above, described Christina's display of the gun and her statements about it, and the remarks of two other students. Viewing the evidence in the light most favorable to I.A., the party opposing summary judgment, this description supports an inference that Christina was discussing and displaying the gun for more than a few fleeting seconds, and for enough time for others in the classroom, potentially including the teacher, to have seen and heard her. In addition, the LAPD report showed that the science teacher had a forehead injury, supporting a reasonable inference that she was facing Christina at the time of the discharge. This injury could also support a reasonable inference that the teacher was in close proximity to Christina at the time of the discharge. This evidence is sufficient to create a triable issue of fact concerning whether the science teacher exercised due care in observing the classroom and whether in the exercise of such due care she should have or did learn that Christina had a gun. Put differently, we cannot agree with the trial court that as a matter of law events in the classroom unfolded so rapidly that supervisory personnel had no time to discover that Christina had a gun and/or to respond.
In Lilienthal, during an outdoor class, several students engaged in flipping a knife into the ground. Although the evidence was not consistent, it did show that several boys were involved in flipping the knife and each flipped the knife more than two times. (Lilienthal, supra, 139 Cal.App.2d at p. 456.) On the final flip, the knife "hit plaintiff's drawing board and bounced into the [plaintiff's] eye." (Ibid.) The teacher claimed that he did not see the knife flipping because he was looking down at his paper to read review questions to the class. (Id. at pp. 455-456.) The court of appeal found a jury could have disbelieved the teacher's denial, or if the jury believed the teacher, "they could have inferred that if he had used ordinary care in the use of his power of observation and his opportunity to observe he would have become aware of the knife throwing in ample time to put an end to it and thus could have avoided the accident." (Id. at p. 458.)
Lilienthal is far from the only case where a teacher either failed to observe or claimed not to have observed, dangerous activity occurring in the teacher's presence. In Mastrangelo v. West Side U. H. School Dist. (1935) 2 Cal.2d 540, a student was injured by an explosion caused by his selecting a wrong ingredient and mixing the ingredients in an improper manner in the chemistry class laboratory. (Id. at pp. 543-544.) The student testified that the chemistry teacher was there; he walked behind the student while the student was mixing the ingredient, and at the time of the explosion the teacher was 15 feet behind and looking towards the student. (Id. at pp. 546-547.)" 'From the foregoing evidence a reasonable inference may be drawn that the chemistry instructor saw the grinding of the ingredients in the iron mortar with the pestle, yet he failed to warn the boys against the danger of that method of mixing them.'" (Id. at p. 547.)
In Charonnat v. S. F. Unified Sch. Dist. (1943) 56 Cal.App.2d 840, 841-842, the plaintiff got into an altercation with a fellow student during recess and the student broke plaintiffs leg. The teacher supervising the playground claimed she was unaware of the altercation and testified she was 40 or 50 feet distant and that it was noisy. (Id. at p. 842.) There was other testimony that she was only 15 or 20 feet away during the five-minute period this fight was going on. (Id. at pp. 841-842.) The Court of Appeal stated "it would seem that . . . had the supervisor who was standing in close proximity to the plaintiff and Thomas [the pupil who injured plaintiff], been using due care, [the teacher] would have seen or heard the fighting in time to have avoided serious injury." (Id. at p. 845.)
What was true in Lilienthal, Mastrangelo and Charonnat is true here. A jury could find that if the science teacher had been using due care in supervising the class, she would have seen the gun or heard the statements indicating there was a gun in the classroom and acted before Christina tried to put the gun away and, apparently accidentally, discharged it, or cause it to discharge. More specifically, given LAUSD's position that the gun discharged while inside Christina's backpack, a jury could infer that the gun went off when Christina placed it in the backpack to conceal it, and that if the science teacher had indicated her awareness of the gun, Christina would have had no reason to try to conceal the gun. Thus, summary adjudication was improperly granted on the general negligence cause of action because there are triable issues of material fact concerning LAUSD's negligence in supervising the classroom.
B. Premises liability
In the trial court, LAUSD had argued that premises liability for public property requires a physical defect. The trial court noted I.A. did not offer any argument on the premises liability cause of action. The trial court concluded I.A. had conceded the issue.
On appeal, I.A. contends that the trial court erred because the elements of a premises liability claim and a negligence claim are the same. Not quite.
All governmental liability is based on statutes. Government Code section 835 provides in pertinent part: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury . . . ."
" 'Dangerous condition' has been defined many times by the state's reviewing courts. In commenting on section 835's predecessor statute of like language and import (see Hayes v. State of California (1974) 11 Cal.3d 469, 472, fn. 2 [113 Cal.Rptr. 599, 521 P.2d 855]), the court in Jones v. Czapkay (1960) 182 Cal.App.2d 192, 203 , held over 25 years ago that a 'dangerous condition' of property means property which is dangerous or defective either structurally or by way of its general use and operation. 'The section has always been considered to mean just what it says, that it is the condition of property that determines the waiver of the immunity and not the condition of persons on that property.' (Ibid.)" (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 717 (Rodriguez) [holding that a school district's failu re to prevent students from bringing weapons onto campus was not a dangerous condition of public property within the meaning of section 835].)
Nevertheless, as the Court in Rodriguez noted, "In recent years, case law reflects an abandonment of the concept of a 'physical defect,' or that a condition must be inherently dangerous. 'The substantial risk of injury that is essential to characterizing a condition as dangerous need not exist as a continuous aspect of the property. It may arise only at certain times or under certain conditions that combine with the physical attributes of the property to make it hazardous to reasonably careful users.'" (Rodriguez, supra, 186 Cal.App.3d at p. 718.)
I.A. does not address this body of law or explain how any physical attributes of the school property combined with Sal Castro's actions or inaction to create a dangerous condition. Accordingly, we agree with the trial court that summary adjudication on this cause of action was appropriate. (United
Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 153 [we do not develop appellants' arguments for them].)
DISPOSITION
The trial court's order granting summary judgment and the resulting judgment are reversed. We affirm the necessarily included grant of summary adjudication on the search issues and the premises liability cause of action. We reverse the necessarily included grant of summary adjudication on the issues of supervision in the classroom. We remand for further proceedings on the supervision issue. Respondent to pay costs on appeal.
We concur: GRIMES, J., WILEY, J.