Opinion
B286337
02-03-2020
K.J., a Minor, etc., et al., Plaintiffs and Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo; Henrichs Law Firm, John Henrichs, Stephanie M. Levy; Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for Plaintiffs and Appellants. Liebman, Quigley & Sheppard, Lane Quigley and Joseph R. Zamora for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC505356) APPEAL from a judgment of the Superior Court of Los Angeles County, Brian S. Currey, Judge. Affirmed. Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo; Henrichs Law Firm, John Henrichs, Stephanie M. Levy; Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for Plaintiffs and Appellants. Liebman, Quigley & Sheppard, Lane Quigley and Joseph R. Zamora for Defendants and Respondents.
____________________
K.J. was sexually assaulted in the bathroom of her elementary school by an unknown man. Through her guardian ad litem, K.J. sued the Los Angeles Unified School District (LAUSD), its principal, and others (together defendants), for their negligence in failing to adequately secure the campus and protect the students. K.J. appeals from the judgment dismissing her action entered after the trial court granted defendants' summary judgment motion on the ground K.J. could not establish that any lack of security or supervision caused her injury, and in response, K.J. failed to raise a triable issue of fact on that element of her cause of action. Independently reviewing the record, we conclude that K.J. has not established a material triable issue of fact concerning causation. Accordingly, we affirm the judgment.
BACKGROUND
I. The sexual assault
In 2012, when K.J. was in fifth grade, she was sexually assaulted by an unknown attacker in a bathroom of her elementary school in LAUSD. Her friend had declined to accompany her to the restroom, so K.J. went alone.
K.J. described her assailant as light skinned, tall, skinny, with shaggy brown hair, brown eyes, wearing a gray sweatshirt, and black pants. He stood around five feet eight or nine inches tall. He was white and looked Mexican. He had a deep voice but no accent. K.J. had never seen her attacker before the assault. II. Campus security
At the time of the incident, there were approximately 150 to 160 fifth grade students out of a total population of 1,000 at the school. The school was completely surrounded by a 10-foot chain link fence. The campus was closed, meaning that once the instructional day began, all exterior gates were locked, except for the monitored, main entrance, permitting access by visitors and parents. Outside of school hours, the campus perimeter and bathrooms were locked.
The school also had a visitor policy, under which visitors were buzzed in through the main gate and signed in at the front desk where they gave reasons for their visits and obtained badges to wear while on campus. The school had a buddy system requiring students to go to the restrooms in pairs. The principal published the buddy system in the bulletin and reviewed it with staff at the beginning of each school year.
Campus safety was always a priority for the principal. The principal also testified that "everybody's priority was the safety of students." Accordingly, in addition to LAUSD's fiscal allocation, she would take money from the budget to fund supervision aides so as to have as many people as possible on the yard overseeing students. The principal positioned at least six such aides in various quadrants on the yard at lunch and recess during the 2011 to 2012 school year. She also created an annual campus supervision map of quadrant assignments, including restrooms, for each supervisory aide to monitor. Each day, aides conducted at least three campus walk-throughs.
School maintenance staff opened and inspected the restrooms at the beginning of each instructional day, cleaned them in the middle of the day, and locked them up at night. Parent volunteers also helped to clean areas up.
Additional maintenance was performed during school hours by a work crew of mentally delayed and disabled adults. The crew was divided into groups of three. They would sweep the trash around the school perimeter and enter the campus from the front to help with emptying the trash. The janitor would have the trash cans out for the crew when they arrived. The crew left campus just before noon to eat lunch at their own facility. The crew supervisor testified that the crew did not use the school restrooms. Whether the crew was working inside or outside the school fence, if one member had to use a restroom, the entire crew would pack up and head to a nearby McDonald's restaurant. Crew supervisors performed headcounts of crewmembers before leaving the school campus.
At the time of the incident, there were at least two surveillance cameras on campus, one at the main entrance by the front office, and one across from the restroom, although LAUSD policy strictly prohibits surveillance systems where a " 'reasonable expectation of privacy' exists," including private workspaces, restrooms, and locker rooms. III. The investigation
Sheriff's Deputy Jessica Herrera took K.J.'s initial statement. Special Victim's Bureau Detective Judith Luera then conducted the bulk of the investigation of K.J.'s assault, filing two reports.
Detective Luera reviewed video footage of the front entrance, starting one or two hours before until one or two hours after the time of the attack. She saw no male adults matching K.J.'s description of the suspect entering the campus on either April 23 or April 24, 2012. The camera outside the restroom where K.J. was assaulted was not operating on the day of the assault.
Detective Luera was shown several photographs of the crewmembers, who were primarily African American and did not match K.J.'s description of her attacker. One member, however, was Hispanic and possibly did resemble the man K.J. described. But, K.J. did not identify him as a suspect when shown a photographic lineup.
There was one sex-offender registrant living in the vicinity at the time of K.J.'s assault, but he was African American and hence did not fit K.J.'s description.
K.J. did not identify any school employee, cafeteria staff, administrator, or teacher, as a suspect. The detective did not consider vendors or delivery people who may have been on campus during the assault.
The sheriff's department has never identified or located a suspect. Detective Luera closed the investigation, concluding that the suspect was unknown. In her supplemental report, Luera stated, "Based on the facts of the case and the fact that I have exhausted all leads and there is no further workable information to lead to the suspect's identity[,] this case will be closed out as 'suspect unknown.' " Detective Luera has received no leads since then. IV. The lawsuit
K.J.'s operative complaint alleged a cause of action for negligence against defendants. The complaint alleged that defendants "failed to take any meaningful or effective steps to protect" K.J. and other students at the school. K.J. alleged that security measures were absent or insufficient, and supervision was completely lacking or ineffective, with the result that sexual assault was foreseeable. The complaint also alleged that defendants created an unsafe environment for K.J. and the children on school grounds because the principal did not know how to operate the surveillance cameras and did not ensure that they were functioning, and permitted crews comprised of mentally delayed or disabled adults to be present on campus during school hours. Finally, the complaint alleged that the principal failed to conduct an adequate and thorough investigation of the sexual assault. She alleged that "LAUSD and [the principal] breached [their] duty and such breach is a proximate cause of the [K.J.]'s damages." V. The summary judgment motion
The complaint also alleged premises liability, but that cause of action was dismissed at the demurrer stage.
Defendants' motion focused on the causation element of negligence. Defendants asserted that K.J. could not demonstrate a causal connection between her injuries and the acts of the principal. In particular, defendants argued that, as LAUSD was not directly liable for K.J.'s harm, K.J. could only recover against it vicariously for the principal's negligence (Gov. Code, §§ 815.2, 820). On the element of causation, defendants argued that because no suspect had been identified or located, K.J. could not show which supervision or security measures were inadequate or insufficient, with the result she could not show that the lack of supervision or security was a substantial factor in bringing about her injury. Insofar as K.J. asserted more or different security measures should have been provided at the school, such "evidence" or argument constituted speculation, they argued. Thus, K.J. could not prevail because she could not produce evidence that any specific, reasonable change in security or supervision would have prevented her assault. VI. K.J.'s opposition
Defendants also asserted that they were immune from liability for providing insufficient security and for the discretionary acts of the principal (Gov. Code, §§ 845, 820.2), and that K.J. was precluded from alleging grounds for liability that were not initially presented in her Government Tort Claim (§ 945.4), namely the complaint's allegations about surveillance cameras, work crews on campus, and the principal's postincident investigation.
All further statutory references are to the Government Code unless otherwise indicated.
K.J. countered that she needed "only to show that the type of injury sustained was foreseeable and given the lackadaisical campus rules enacted by [the principal] and LAUSD it was foreseeable that someone could go onto campus to hurt children such as . . . K.J." (Boldface omitted.) K.J. argued defendants did not exercise ordinary prudence and due care to ensure students' safety and so "it was foreseeable that an injury could occur to students."
K.J. disputed that security was sufficient. She pointed to her mother's declaration that she came to the school four to five times a week and never had to sign in or be buzzed in. K.J. noted that at times the sliding gate on the opposite side of campus from the entrance was unlocked and the crew supervisors would go inside and bring the trash bins out without the janitor's help. The principal did not know whether the surveillance cameras were functioning or who maintained them, and the camera located across the restroom where K.J. was assaulted did not work. K.J. argued an "unlocked and unattended gate could allow unknown people access to the campus without going through the main entrance." (Italics added.)
Contending there was a triable issue of fact about whether a crewmember committed the assault, K.J. attempted to dispute defendants' facts concerning the crew. She disputed that the crews were no longer on campus by the time of the fifth graders' lunch, noting that one group was present when the older students were on the playground. She cited Detective Luera's report that the principal acknowledged the crews did not have sign-in sheets and there was no set schedule for them. She disputed that the crews did not use the school's facilities because a crewmember used the restroom on campus the previous month. K.J. added that the principal knew that the crewmembers had not been live-scanned and cited from the deposition of the crew program's chief executive officer that once LAUSD required live-scanning, the crews stopped going to the school because members "were not necessarily going to be able to pass a live scan . . . to go onto" school campuses. K.J. added that some crewmembers had problems with aggression, anger outbursts, and fighting.
K.J.'s opposition also highlighted the principal's evasiveness, deceit, and interference with Detective Luera's investigation by failing to keep it confidential, and by failing to give straightforward answers, rolling her eyes during the questioning, and interrupting Detective Luera's conversations with staff members. She repeatedly cited the principal's conduct to dispute facts asserted in defendants' separate statement.
K.J. summed up her opposition by arguing "causation is clearly established because it was foreseeable that harm was highly likely to occur to students on campus without proper supervision of workers and the securing of a locked campus." VII. The trial court's ruling
The trial court ruled that K.J. was unable to demonstrate a triable factual issue that defendants caused her injury. As an additional ground, the court ruled that defendants were immune from liability for insufficient security and for the principal's discretionary acts. (§§ 845, 820.2.) K.J.'s timely appeal followed.
DISCUSSION
I. Standard of review
The trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
" 'A defendant who moves for summary judgment [has] the initial burden to show the action has no merit—that is, "one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to [that] cause of action." ' " (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1085 (Delgadillo); see Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once this defendant meets its burden, "the burden shifts to the [plaintiff] . . . to . . . set forth the specific facts showing that a triable issue of material fact exists as to the cause of action." (Code Civ. Proc., subd. (p)(2).)
We independently review appeals from summary judgments. We " 'liberally constru[e] the evidence in favor of the party opposing the motion and resolv[e] all doubts about the evidence in favor of the opponent. [Citation.] We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded.' " (Delgadillo, supra, 20 Cal.App.5th at p. 1085.) II. Legal principles
A. Negligence
To prevail on a negligence cause of action, plaintiff must show that defendants owed a legal duty of care, they breached that duty, and that the breach was a proximate or legal cause of the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772 (Saelzler).)
The well-established duty of school districts and their employees is 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." ' " (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869 (Hart).) Included in this protective duty is the duty "to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally." (Id. at p. 870.) Such duty arises from the special relationship school districts and their employees have with the district's pupils, beyond that which each of us generally owes others under Civil Code section 1714. (Hart, at p. 870.) School districts are vicariously liable for injuries proximately caused by the negligence of their employees. (Gov. Code, § 815.2, subd. (a); Hart, at p. 869; Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747.)
The standard of care in carrying out this duty of school districts and their employees 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.' " (Hart, supra, 53 Cal.4th at p. 869.)
K.J. devoted much of her summary judgment opposition and briefs to the issue of defendants' duty of care based on the special relationship school districts have with their students. However, defendants' summary judgment motion did not contest they breached their protective duty toward K.J. Notwithstanding the special relationship between school districts and their charges, student-plaintiffs are not exempt from establishing the traditional elements of actionable negligence, including causation. (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1370-1371 (Thompson).) K.J. had the burden in opposing defendants' summary judgment motion to point to a triable issue of fact as to causation. (See Code Civ. Proc., § 437c, subd. (p)(2); Delgadillo, supra, 20 Cal.App.5th at p. 1085.)
B. The element of causation
To demonstrate actual or legal causation, plaintiff must show that defendants' act or omission was a " 'substantial factor' in bringing about the injury." (Saelzler, supra, 25 Cal.4th at p. 774.) " 'A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.' " (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1025.) Thus, plaintiff must show that it is " 'more probable than not' " that improved security or increased supervision would have prevented the assault. (Saelzler, at pp. 774-776, italics omitted.) Although causation is ordinarily a question of fact, when the facts are not in dispute, causation becomes a question of law. (Forgnone v. Salvador U.E. School Dist. (1940) 41 Cal.App.2d 423, 426.)
In Saelzler, supra, 25 Cal.4th 763, the plaintiff was raped by unknown assailants after attempting to deliver a package at the defendant's apartment complex. The plaintiff alleged that the defendant failed to provide additional security guards or functioning, locked security gates. (Id. at p. 767.) Our Supreme Court concluded, even conceding breach of a duty to provide security, because the plaintiff was unable to prove the identity or background of her attackers, she could not show that the defendant's failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing the plaintiff's injuries because her assailants might have been authorized or empowered to be on the premises. (Id. at p. 776.) The Saelzler court also rejected the plaintiff's expert's opinion that the injuries could have been avoided if the defendants had hired roving security guards during the day. The court noted the opinion was speculative and otherwise the plaintiff could not show that roving guards would have encountered her assailants or prevented the attack. (Id. at pp. 776-777.) Summary judgment in favor of the defendants in Saelzler was proper because, without knowing how the assailants gained entry to the property, plaintiff could not establish it was more probable than not that additional security precautions would have prevented the attack. (Id. at p. 776.)
We are unpersuaded by K.J.'s attempt to distinguish Saelzler. She cites this division's opinion in J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 146, footnote 11 to argue that Saelzler does not apply to cases against school districts who have a special relationship with their students giving rise to a duty to supervise and protect those in their care. But, duty was the issue in J.H. The court reversed summary judgment in favor of the defendant school district holding that it "did owe a duty of care to plaintiff." (J.H., at p. 128.) J.H. discussed foreseeability and prior similar incidents as factors to be considered in establishing duty and its breach. (Id. at p. 146; Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128-1129.) In the context of analyzing duty, J.H. distinguished Saelzler on two grounds. First, the basis of duty in Saelzler was premises liability for third party criminal acts, whereas the duty of school districts is otherwise defined. (J.H., at p. 146, fn. 11.) Second and more important, J.H. distinguished Saelzler because the latter case focused on causation, an element not at issue in J.H. (Ibid.) Here, as in Saelzler, causation is the focus and students remain obligated to prove traditional elements of actionable negligence, including causation. (Thompson, supra, 107 Cal.App.4th at pp. 1370-1371.)
In reaching its conclusion, Saelzler, supra, 25 Cal.4th at pages 774 to 775, applied the reasoning of Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472 (Leslie G.). There, the plaintiff was raped by an unknown assailant in the garage of her apartment building and sued her landlord alleging negligence in failing to repair a broken gate in the garage through which her attacker might have entered. (Leslie G., at p. 478.) As in Saelzler, the property was located in a high-crime area making crime on the property foreseeable. (Leslie G., at pp. 478-479.) The Leslie G. court affirmed the defense summary judgment on the element of causation. The expert's opinion about the perceived deficiencies in security was too speculative to demonstrate causation. The Leslie G. court explained, "Where, as here, there is evidence that the assault could have occurred even in the absence of the landlord's negligence, proof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence." (Id. at p. 488.) Significantly for our purposes, the court explained, "[s]ince there is no direct evidence that the rapist entered or departed through the broken gate (or even that the broken gate was the only way he could have entered or departed), [plaintiff] cannot survive summary judgment simply because it is possible that he might have entered through the broken gate." (Id. at p. 483.)
Saelzler, supra, 25 Cal.4th 763 and Leslie G., supra, 43 Cal.App.4th 472 involved a duty based on premises liability because the defendants were not school districts. However, the Third Appellate District in Thompson, supra, 107 Cal.App.4th 1352 at pages 1370 to 1372, which is a case against a school district, applied the causation principles in Saelzler and Leslie G. Thompson, at page 1371, explained "[t]he standard is no different simply because a school district is the defendant. It has long been held that school districts are not the insurers of the physical safety of students. [Citation.] To establish a right of recovery, a student must prove the traditional elements of actionable negligence, including causation. [Citation.] In fact, the Government Code expressly requires proximate causation for recovery against a public entity. (Gov. Code, § 815.2, subd. (a).)" Thus, "[t]o establish causation, plaintiff must demonstrate that a particular omission caused the injury." (Thompson, at p. 1370.) Summary judgment for the school district was affirmed in Thompson where the plaintiff was unable to show causation, not because the assailant was unknown, but because the attackers had chosen to assault the plaintiff in a place that escaped direct scrutiny—a restroom—preventing the defendant supervisory personnel from discovering and preventing it. (Id. at pp. 1358, 1372.) The mere fact the fight occurred did not demonstrate actionable negligence. (Ibid.) III. Analysis
Here, K.J. admits that her attacker was not identified or located. He might have been an unauthorized trespasser, but he could have been empowered and authorized to enter the closed campus. As the assailant was never identified, there is no direct evidence about how he gained entrance (see, e.g., Leslie G., supra, 43 Cal.App.4th at p. 483) and so K.J. is unable to show what different security or supervision would have prevented her attack.
K.J. contends that security was inadequate because the gates were not always locked and a surveillance camera did not function. These facts are relevant to breach and demonstrate only " 'abstract negligence,' " as they do not address causation. (Thompson, supra, 107 Cal.App.4th at p. 1370.) K.J. presents no evidence that the gates were unlocked on the day of the assault. A functioning surveillance camera outside the restroom would not have prevented the crime; it simply would have enabled detectives to identify the perpetrator afterwards. Otherwise, the attacker could have been authorized to enter and so the assault could have occurred even had the gates been locked and the surveillance camera outside the restroom functioned. Without direct evidence about how the assailant gained entry to the campus, the mere possibility that it could have been through a potentially unlocked gate is speculative and insufficient to survive summary judgment. (Leslie G., supra, 43 Cal.App.4th at pp. 483, 488.) We reject K.J.'s argument that, given defendants' breach of their duty of care, triable issues of fact exist about whether that negligence was a substantial factor in causing K.J.'s injury. The mere fact that the assault happened does not establish causation. (Thompson, supra, 107 Cal.App.4th at p. 1371; Saelzler, supra, 25 Cal.4th at p. 778.)
K.J.'s focus on the principal's attitude and conduct during the police investigation is misplaced. The principal's behavior after the assault is irrelevant to the question of what caused the attack in the first place.
The main focus of K.J.'s appeal is her argument that a triable issue of fact exists about whether a crewmember committed the assault. She observes that the crews were not required to sign in or be live-scanned; they were never told they were forbidden to use the restrooms; a crew was on campus during fifth grade lunch period; a crewmember did use a campus restroom a month before the attack; and some crewmembers had anger and aggression issues, and might have disqualifying criminal backgrounds.
Again, these listed facts are relevant to defendants' conceded breach of their duty to protect students and supervise crewmembers. But, these facts do not raise a triable issue about whether increased security or improved supervision of the crews would have prevented K.J.'s injury because it is unknown by what means the unidentified perpetrator entered the school. The evidence K.J. cites does not even demonstrate that any crewmember working on this campus actually had anger and aggression issues. Assuming some did and possibly used the students' restroom, that does not establish that any particular crewmember was predisposed to sexually assaulting children, or that any of them had ever done so. Nor does it raise anything more than conjecture that one did so this time.
K.J. contends that the trial court improperly found that the crew conclusively did not commit the crime, which incorrectly shifted the burden of proof to her. She asserts that she did not "rule out [the crewmember in the photographic lineup], but merely indicated that she was unable to identify anyone in the photo lineup as the man in the bathroom," with the result that there is a triable issue of fact about the identity of her assailant.
Citing Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, involving a judgment notwithstanding the verdict in a food poisoning case, K.J. contends that she was not required to exclude every other conclusion about what caused the injury; that it was sufficient if there was substantial evidence of causation. She contends that a reasonable jury could infer that, because defendants failed to supervise the crews and its students, a crewmember was able to follow K.J. into the restroom and assault her. But it is also possible that a parent or a deliveryman could have lawfully entered the property three hours before the attack and waited in the restroom. K.J.'s argument is simply another way of saying what was rejected by Thompson and Saelzler, namely that the mere fact that defendants breached their duty of care establishes causation.
No burden was improperly shifted. Moving defendants carried their burden to show K.J. could not establish causation because, unable to identify her attacker, K.J. had no direct evidence about how he entered campus and hence what deficiency in security and supervision enabled her attack. In opposition, K.J. was unable to carry her burden to show a dispute as to that element. Furthermore, although assaulted from behind, K.J. was able to give detectives a thorough description of the suspect. Detective Luera wrote that K.J. "did not identify [the Hispanic crewmember] as a suspect" when showed a photographic lineup and no other photo of a crewmember fit K.J.'s description. K.J.'s failure to identify the only crewmember fitting the suspect's general description renders speculative her assertion a crewmember could have assaulted her. Because it is equally possible that K.J.'s attacker was someone other than a crewmember, or someone else who was authorized to be on campus, K.J. could not show that it was more probable than not that locked gates, functioning cameras, and improved supervision of the crew would have prevented her attack.
Finally, K.J. argues that defendants' summary judgment motion failed to address the negligence of Doe defendants because the motion was predicated only on the negligence of the principal, with the result that her lawsuit should not have been dismissed. Specifically, K.J. argues LAUSD grounds keeper at the school was negligent in supervising the crewmembers and in failing to keep the school gates locked. But, the same result obtains. As K.J.'s attacker remains unidentified and his method of gaining entrance to the school is unknown, K.J. cannot demonstrate a triable issue of fact that had any LAUSD employee properly locked the gates and properly supervised the crews, K.J. would not have been attacked.
As a result of our conclusion, we need not address K.J.'s other contentions on appeal. --------
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.