Opinion
D069187
01-05-2017
JOHN DOE, a Minor, etc., et al. Plaintiffs and Appellants, v. THE MERRY GO ROUND CHILD DEVELOPMENT CENTER et al., Defendants and Respondents.
Estey & Bomberger, Stephen J. Estey, R. Michael Bomberger and Mary Bajo for Plaintiffs and Appellants. Taylor | Anderson, Paul A. Buckley and James F. Hayes for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00002494-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Reversed. Estey & Bomberger, Stephen J. Estey, R. Michael Bomberger and Mary Bajo for Plaintiffs and Appellants. Taylor | Anderson, Paul A. Buckley and James F. Hayes for Defendants and Respondents.
Plaintiff and appellant John Doe, a minor, by and through his Guardian Ad Litem Jaclyn Randolph, appeals from a judgment entered on an order granting a motion for summary judgment in favor of defendants and respondents The Merry Go Around Child Development Center and Michelle Vitalis (MGA). We reverse.
All references to MGA include The Merry Go Around Child Development Center and Vitalis, unless otherwise indicated.
As we explain, there is no dispute in the record that when he was almost three years old, Doe attended MGA as a pupil. In opposing MGA's motion, Randolph presented evidence that 1) on more than one occasion Doe was sexually abused by another five-year-old child at the center; 2) at least one teacher at the school knew that the five year old had participated with other children in inappropriate activity; and 3) center personnel permitted children to use blocks to construct an area where they could not be observed by adults while playing on the center's playground. These inferences would support a finding MGA breached its duty to protect Doe from physical harm, including sexual abuse by another student, while Doe was in the center's care.
Contrary to the center's arguments on appeal, the center's duty to protect Doe did not arise only after the center actually knew abuse had occurred. The cases are clear that because of the particular vulnerability of students and the relationship between students and schools, schools, such as the center, have a duty to provide supervision of their pupils reasonably sufficient to prevent abuse from occurring in the first place. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On or about July 7, 2010, an MGA instructor found Doe and a five-year-old boy, Ivan, under a small landing on the center's playground and each boy had their pants down. Children had used blocks to construct an area under the play structure that could not be seen by instructors supervising children on the playground. According to a report the school made to child protective services (CPS) 12 days later, school personnel questioned both boys and the boys stated they were playing the "pee pee booty" game; according to the school's CPS report, the boys further explained that the "rules were that someone pulled down their pants and the other one poked their butt with their penis."
A teacher at MGA, who was later deposed, stated that while she worked at the school she had heard three children, Ivan, Emily and Billy, talking about the "pee pee booty" game and had seen one of them with his or her pants down. The teacher reported the incident to MGA's director and another instructor.
Doe's mother learned about the incident involving her son when he came home and told her that he learned the "pee pee booty" game from a boy named Ivan. Doe explained that the "pee pee booty" game involved touching "privates." According to Doe, while playing the "pee pee booty" game, Ivan would stick his finger in Doe's anus and Doe would stick his finger in Ivan's anus and touch his privates. Doe and Ivan played the game on the playground and in the bathroom.
When Doe's mother contacted the school, Vitalis admitted school personnel were aware of the incident under the landing but did not disclose it because they did not want to upset anyone. Vitalis assured Doe's mother that no further incidents would occur and that the children would not be allowed to build up blocks under the landing.
However, according to Doe's mother, one week later Doe reported that Ivan had molested him again. Doe's mother went back to the school, where she observed that blocks were still under the landing and still obstructing any adult's view of what was occurring behind the blocks. At that point, Doe's mother decided to withdraw Doe from MGA.
Randolph filed a complaint against MGA and Vitalis on Doe's behalf in which she alleged the school was liable for Doe's injuries. MGA and Vitalis moved for summary judgment and argued that they could not be held liable for Ivan's criminal acts because they had no notice of them and they were not foreseeable. The trial court granted defendants' motion and Randolph moved for reconsideration, which the trial court denied. The trial court entered judgment in defendants' favor, and Randolph filed a timely notice of appeal.
I
The standard of review on appeal from a judgment entered on an order granting summary judgment is familiar. "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) Thus, on appeal we determine whether the party opposing the motion has shown the existence of a triable, material factual issue. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832.) We "liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) However, in order to prevail, the party opposing the motion must set forth "specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(1).)
The plaintiff's burden in defeating a motion for summary judgment is only a burden of production and only a burden of making a prima facie showing of a triable issue of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.)
Importantly, the plaintiff can defeat a defense motion for summary judgment by showing "the defense evidence itself permits conflicting inferences as to the existence of the specified fact." (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757.) "The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim 'as a matter of law.' " (Id. at p. 757, italics added.)
II
The principle substantive question we face here is whether defendants had a duty to protect Doe from abuse by Ivan, even, if as defendants assert, they had no knowledge about what was occurring. The law is fairly clear that they did.
We begin our analysis with Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 (Dailey). There, the court stated: "While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty 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.]' [Citations.] The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care 'which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.' [Citations.] 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." (Dailey, at p. 747; accord, Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932-933; Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513.)
In Dailey, a high school student was killed while roughhousing with another student during a lunch break outside the school gymnasium. A teacher who was responsible for supervising students in that area of the campus was in his office at the time the student died. In finding that the teacher breached his duty to supervise the students, the court stated: "[T]he instructor ostensibly on duty at the time of the accident, remained inside an office during the entire lunch period, even though the area of his supervisorial responsibility was large and even though all students were outside the gymnasium. He did not station himself in the office in such a fashion as to maximize his ability to observe the students outside, but sat with his back to the window. He did not devote his full attention to supervision but ate lunch, talked on the phone, and prepared future class assignments. Neither defendant . . . heard or saw a 10-minute slap boxing match which attracted a crowd of approximately 30 spectators, although this took place within a few feet of the gymnasium. From this evidence a jury could reasonably conclude that those employees of the defendant school district who were charged with the responsibility of providing supervision failed to exercise due care in the performance of this duty and that their negligence was the proximate cause of the tragedy." (Dailey, supra, 2 Cal.3d at p. 750.)
In rejecting the defendants' contention the conduct of the student who killed the victim relieved the defendants of liability, the court stated: "The fact that another student's misconduct was the immediate precipitating cause of the injury does not compel a conclusion that negligent supervision was not the proximate cause of [the student]'s death. Neither the mere involvement of a third party nor that party's wrongful conduct is sufficient in itself to absolve the defendants of liability, once a negligent failure to provide adequate supervision is shown." (Dailey, supra, 2 Cal.3d at p. 750.)
The court also rejected the defendants' contention that the death of the student was not foreseeable: "The events which occurred in the instant case are precisely what one would expect from unsupervised adolescents. Of course, it is not necessary that the exact injuries which occurred have been foreseeable; it is enough that 'a reasonably prudent person would foresee that injuries of the same general type would be likely to occur in the absence of adequate safeguards.' " (Dailey, supra, 2 Cal.3d at p. 751, italics added.)
The principle that schools have a duty to provide supervision which prevents assaults by students on other students or adults, even when the school and its administrators have no actual knowledge of such conduct, has been consistently followed by our courts. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 875-876 [breach of duty possible when school fails to protect student from sexual abuse by counselor]; Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1328-1329 (Jennifer C.) [special needs student sexually assaulted by a fellow student in hidden alcove gives rise to potential liability]; M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519-520 (M.W.) [school properly found liable to special needs student sodomized by fellow student on campus before school when no supervision provided].) The cases make it clear that students' inherent vulnerability makes injury to them foreseeable when they are not properly supervised. (See Jennifer C., at pp. 1328-1329.)
The holding and reasoning in Jennifer C. and M.W. are particularly relevant here. In Jennifer C. and M.W., special needs students were sexually assaulted on school grounds by fellow students. In both cases, the courts found the schools were potentially liable for their failure to provide supervision of the students. Both courts rejected the schools' respective contentions that they had no duty to prevent injury to the victims. (Jennifer C., 168 Cal.App.4th at p. 1329; M.W., supra, 110 Cal.App.4th at p. 521.) In Jennifer C., where the plaintiff was assaulted in a hidden alcove the school knew about, the courts stated: "Our Supreme Court has indicated that there are a number of considerations which come into play when a court is considering whether or not there is a duty in any given case: '[t]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of 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. [Citations.]' (Rowland v. Christian [(1968)] 69 Cal.2d [108,] 113.) We consider these factors: First, we have already indicated that here there was foreseeability predicated not on prior similar occurrences, but rather on the vulnerability of plaintiff. Second, there is a degree of certainty that plaintiff did suffer injury. Third, there is a closeness of the connection between defendant's maintenance of the hidden area and the injury suffered. Fourth, there is some degree of moral blame attached to the defendant's conduct because defendant could have easily prevented this occurrence from happening in the area by simply blocking access thereto. Fifth, the policy of preventing future harm of a similar nature to a similar plaintiff is present. Sixth, the burden to defendant and the consequences to the community is acceptable because the goal here is to have safe school grounds not only for 'special needs' children, but for all children. Seventh, respondent is a governmental entity and may be self-insured with or without an 'excess' insurance policy. The record is silent thereon. Whatever impact the availability of insurance can have here, it does not carry the day one way or the other." (Jennifer C., supra, 168 Cal.App.4th at pp. 1329-1330.)
In M.W., the plaintiff was sodomized by a fellow student in a school bathroom before classes commenced, but after the plaintiff had been left at the school by his mother. Although the school was aware students were on school grounds at that time, it provided no supervision of them. With respect to the foreseeability of a sexual assault the court in M.W. stated: "It is not necessary for the District to have foreseen that an act of sodomy could have occurred. We find no distinction between a physical assault and a sexual assault for purposes of foreseeability in this case. [Citations.] The fact that a particular act of sodomy in a school bathroom may have been unforeseeable does not automatically exonerate the District from the consequences of allowing students, particularly special education students, unrestricted access to the campus prior to the start of school with wholly inadequate supervision. Such conduct created a foreseeable risk of a particular type of harm—an assault on a special education student. Not only was such an assault reasonably foreseeable, it was virtually inevitable under the circumstances present on this campus." (M.W., supra, 110 Cal.App.4th at p. 521, fn. omitted.)
III
The record here clearly shows that defendants had a duty to protect Doe from assault by Ivan. Doe was not yet three years old and in MGA's care while at the school. He was completely vulnerable and depended entirely on the school to protect him from all types of injury. The school itself recognized this vulnerability and the consequent broad scope of its duty in its own handbook, which requires "vigilant supervision" of students on the playground. As in Jennifer C., Doe's vulnerability made the potential for injury to him foreseeable and, given the school's own report to CPS, there is little room to doubt serious sexual assaults occurred. Here, as in Jennifer C., there was a direct connection between the injury and a hidden area of the school that the school knew about. Because it would have been quite easy to remove the blocks from under the landing, there is a degree of moral blame in the school's failure to do so. Imposing a duty of care also would, as in Jennifer C., prevent future harm and protect all the school's students from not only sexual abuse but other physical risks as well. Thus, as in Jennifer C. and M.W., we have no difficulty concluding defendants had a duty to provide playground supervision reasonably sufficient to protect Doe from sexual assault.
There is also more than sufficient evidence that the school breached its duty. The CPS report the school made states that, when discovered, Doe and Ivan reported the sexual nature of the conduct to school personnel. According to the instructor who found the boys, the conduct occurred in an area blocked from view by the children; Doe's mother observed the obstruction on not one, but on two occasions. Lack of care is evident as well in one teacher's observation and report of a similar "pee butt" incident involving Ivan and two other children; although the teacher was unable to remember whether the incident occurred before or after Doe's mother reported his abuse, it is difficult to believe that the incident the teacher reported occurred after Doe's mother twice confronted MGA's director about Ivan, the blocked landing and the abuse Doe suffered and withdrew Doe from school. Given the seriousness of the mother's report and the CPS report it engendered, a strong inference can be drawn that thereafter Ivan was subject to very close supervision and that the incident with Emily and Billy likely occurred earlier.
In sum, the record here contains more than sufficient evidence to support a judgment in Doe's favor. Hence, the trial court erred in granting the defendant's motion for summary judgment.
DISPOSITION
The judgment is reversed. Plaintiffs to recover their costs of appeal.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.