Opinion
NOT DESIGNATED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC323974, Conrad Aragon, Judge.
Michael J. Hemming for Plaintiff and Appellant.
Gutierrez, Preciado and House, Calvin House and Sarosh Qaiser for Defendant and Respondent.
JOHNSON, J.
Rudy Plazola, Jr., a minor, by and through his guardian ad litem Marisol Morales (Rudy), appeals from a judgment entered after the trial court granted summary judgment in favor of the Los Angeles Unified School District (the District) in this action for negligence and negligence per se. Because we find triable issues of material fact, we reverse.
FACTS AND PROCEEDINGS BELOW
When Rudy was a second grade student at Sierra Park Elementary School in Los Angeles, he suffered an eye injury at school during lunchtime. Rudy claims negligent supervision by the District’s employees was the proximate cause of his injury.
November 8, 2002, the date of the injury, was a rainy day so the school was following its “Inclement Weather Schedule.” This meant the students were to eat lunch in the school auditorium. Rudy’s class was assigned to the first of four 30-minute lunch periods. It lasted from 11:10 to 11:40 a.m. Pursuant to the Inclement Weather Schedule, six “Supervision Aides” and one Assistant Principal were supposed to supervise the students during the four lunch periods. Approximately 200 students were assigned to the same lunch period as Rudy.
Rudy’s teacher walked her class to the auditorium for lunch at approximately 11:10 a.m. When she returned to the auditorium to pick up her class at about 11:40 a.m., she learned Rudy had been injured. Rudy’s friend, Peter P., a fellow second grader and classmate, had placed an orange peel on a plastic “spork” (a combination spoon and fork) and tried to “flick” it through the air. The spork flew out of Peter’s hands and hit Rudy in his right eye. Rudy started crying and reported having pain in his eye, so he was sent to see the nurse.
Rudy brought this action for negligence and negligence per se against the District. In the operative first amended complaint, Rudy alleged he sustained the injury “[d]uring the lunch recess period, [when] students were watching a movie in the school auditorium, due to the rainy weather.” He further alleged Peter “had a prior history of misbehavior and lack of discipline,” and [i]t was foreseeable that . . . Peter’s pattern of misconduct would subject other students, including [Rudy], to potential risk of harm.” Rudy claimed the District “owed a duty to protect students, including [Rudy], from reckless behavior and foreseeable misconduct which would likely lead to injury to other students, including [Rudy],” and the District’s breach of its duty to properly supervise Peter was “a substantial factor in proximately causing [Rudy]’s injuries.” Rudy cited two regulations and an Education Code section as the basis of his negligence per se cause of action.
As cited by Rudy, California Code of Regulations, title 15, section 5531 provides: “All social activities of pupils, wherever held, if conducted under the name or auspices of a public school or of any class or organization thereof, shall be under the direct supervision of certificated employees of a district or an office of a county superintendent of schools.” California Code of Regulations, title 15, section 5551 provides: “The principal is responsible for the supervision and administration of his school.”
As cited by Rudy, Education Code section 44807 provides, in pertinent part: “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.”
The District answered the first amended complaint and later moved for summary judgment. In its summary judgment motion, the District conceded it owed a duty “to supervise the conduct of children on school grounds and to enforce those rules and regulations necessary to their protection.” The District argued it fulfilled this duty. In support of its argument, the district submitted declarations from the Assistant Principal and Supervision Aide Lourdes Nunez, who both represented under oath the students in Rudy’s lunch period were supervised by the Assistant Principal and six Supervision Aides at the time of Rudy’s injury, in compliance with school policy (the Inclement Weather Schedule). The District asserted, “[t]here is no evidence that these Supervision Aides were not in their assigned areas” at the time of the incident. In her declaration, Supervision Aide Nunez also stated she was only 10 feet away from Peter when he flicked his spork, and she saw the whole incident occur. She further represented, she started walking over to Peter as soon as she saw him “with a spork in one hand and an orange peel in his other hand.”
In its summary judgment motion, the District also asserted it had “no actual or constructive knowledge that [Peter] posed any threat to [Rudy].” Rudy and Peter’s teacher submitted a declaration stating she knew Rudy and Peter to be friends. She even saw them playing together at the end of the school day on the date of the incident. In their declarations, the teacher and the Assistant Principal also stated, although Peter “had been referred to the office on a number of occasions for teasing other students,” he had “never physically endangered or harmed any of his classmates.” The District also submitted excerpts from the transcript of Rudy’s deposition at which Rudy testified he and Peter were friends and, although Peter “made fun of people” (other than Rudy), Rudy never knew Peter to injure “anyone else in the classroom.”
The District also argued Rudy “must show that it was more probable than not that different supervisory precautions at Sierra Park would have prevented [Peter] from injuring [Rudy]. [Rudy] cannot establish causation because [Peter]’s acts were completely spontaneous, unpredictable, sudden, and accidental.” The District added, “Horseplay among students is commonplace, and accidents happen that are unavoidable.”
The District also argued Rudy cannot establish negligence per se because he cannot show the District violated the regulations or the Evidence Code section cited in the complaint.
In his opposition, Rudy maintained the District failed to properly supervise the students during Rudy’s lunch period, and the District’s breach of its duty of care was the proximate cause of Rudy’s injury. Rudy also argued he could prove his cause of action for negligence per se because the District violated regulations and a section of the Education Code “designed to protect students” from the type of injury which occurred in this case.
In support of his opposition, Rudy submitted evidence indicating there were only four Supervision Aides present at the beginning of Rudy’s lunch period instead of the six required by school policy. At their depositions, Peter and Rudy both testified they saw only four “lunch ladies” or Supervision Aides present in the auditorium on the date of the incident. Moreover, Peter testified, right around the time when the incident occurred, he saw all four of the Supervision Aides standing in a group about 35 feet away from his table talking to each other “[i]nstead of taking care of the kids.” At his deposition, the school Principal confirmed there should have been a “minimum” of “seven adults” supervising the children during lunch on the date of the incident, in compliance with the Inclement Weather Schedule.
Rudy also submitted excerpts from the deposition testimony of Supervision Aide Nunez, which completely contradicted the declaration she signed in support of the District’s summary judgment motion. She testified she did not report to the auditorium on the date of the incident until about 11:40 a.m., at the end of Rudy’s lunch period. When she got there, the lights were dimmed because a movie was being shown. She believed the movie had just started at the time she arrived. Nunez testified she did not see Peter flick his spork. She explained she was walking by the area where Rudy and Peter were sitting “after [the incident] happened” and she noticed Rudy was crying. Rudy told her what had occurred. Rudy and Peter still had their lunch trays sitting on the table in front of them.
Nunez explained, on rainy days, the kids usually watched a movie in the auditorium during their lunch period.
In its reply brief, the District argued Rudy could not establish negligent supervision even if there were only five adults (four Supervision Aides and the Assistant Principal) present instead of seven at the time Rudy was injured. The District submitted excerpts from Nunez’s deposition testimony indicating there were five adults supervising the students (four Supervision Aides and the Assistant Principal) when she arrived at the auditorium at the end of Rudy’s lunch period. Nunez testified she was the Supervision Aide who was closest to Rudy and Peter at the time this incident occurred.
At his deposition, the school Principal testified there are more supervisors present during lunch on a rainy day “because having 200 kids in a confined place [in the auditorium as opposed to outside] can get crazy. So having more supervision allowed us to control the situation better.”
Nunez indicated she found it difficult to supervise all 200 children with only six adults present.
In support of its argument the lunchtime supervision was adequate, the District pointed to Rudy’s deposition testimony. Rudy testified, on the date of the incident, when he was walking to his table in the auditorium, he saw one of the “lunch ladies” (Supervision Aides) nearby and she appeared to be “paying attention to what she was doing.” Rudy said the “lunch ladies” were walking around during the lunch period “[t]o make sure people didn’t throw food” and they “look[ed] like they were doing their job.” Rudy also indicated one of the “lunch ladies” was near him at the time he was injured and he walked over to her and reported the incident. At that point, he did not see any of the other Supervision Aides walking around the auditorium. Rudy believed the Supervision Aides each were assigned a specific area of the auditorium to supervise. According to Rudy, the Supervision Aides were “mean” and strict when it came to the rules.
The District also submitted deposition testimony from Peter indicating other students threw trash from their lunch trays before Peter flicked his spork. According to Peter, Rudy saw a student at another table throw a stick from a corn dog and he suggested they try it. So Rudy flicked a stick from a corn dog and it went over Peter’s head. Then Rudy told Peter if he bent a spork back and let it go, it would fly. So Peter placed the orange peel on the spork and he tried to flick it, and the spork flew out of his hands and hit Rudy in the eye.
At her deposition, Rudy and Peter’s teacher testified Rudy indicated he had shown Peter how to flick the spork during the lunch period in which he sustained his injury.
Rudy did not reference this testimony in his papers, but he brought it up at oral argument and the trial court considered it in ruling on the summary judgment motion.
Rudy submitted rebuttal argument in which he asserted, among other things, the Supervision Aides and Assistant Principal rendered inadequate supervision by failing to have the children throw away their trash before the supervisors dimmed the lights and showed a movie.
At oral argument on the summary judgment motion, the District pointed out Rudy did not include this argument about the trash in his opposition papers. He raised it for the first time in his rebuttal argument, which he filed two days before the hearing. Although the trial court permitted Rudy to present oral argument on this issue, the court ultimately ruled in deciding the motion: “Rebuttals are not recognized in the governing statute and will not be considered by the court.”
The trial court heard oral argument, took the matter under submission, and then issued a minute order granting the District’s summary judgment motion. The court concluded Rudy could not establish the causation element of his causes of action. The court found “Peter’s action was sudden, there was little adequate warning in time for an adult response, and no opportunity to stop it.” On December 13, 2005, the court entered judgment in favor of the District.
DISCUSSION
I. STANDARD OF REVIEW.
Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion . . . and the uncontradicted inferences the evidence reasonably supports. [Citation.]” In the trial court, a defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that 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. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
Code of Civil Procedure section 437c, subdivision (c).
Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.
Code of Civil Procedure section 437c, subdivision (p)(2).
As our Supreme Court has made clear, a defendant moving for summary judgment “has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion [citation].” The defendant does not meet its burden on summary judgment “simply” by pointing out the “‘absence of evidence to support’ an element of the plaintiff’s cause of action [citation] . . . .”
Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854; see Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889-890, 891-892.
Aguilar v. Atlantic Richfield Company, supra, 25 Cal.4th at page 855, footnote 23.
In reviewing a summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing party’s evidence and strictly scrutinizing the moving party’s evidence. Any doubts about whether the motion should be granted “should be resolved in favor of the party opposing the motion.”
O’Riordan v. Federal Kemper Life Assurance Company (2005) 36 Cal.4th 281, 284.
Molko v. Holy Spirit Association (1988) 46 Cal.3d 1092, 1107.
II. THE DISTRICT HAD A DUTY TO PROVIDE ADEQUATE SUPERVISION.
The District does not dispute it had a duty to supervise the students during lunchtime on the date of the incident. As our Supreme Court has explained: “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.” Whether supervision is adequate or amounts to a breach of the duty of ordinary care is generally a question of fact for the jury.
Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741, 747; Taylor v. Oakland Scavenger Company (1941) 17 Cal.2d 594, 600; Thompson v. Sacramento City Unified School District (2003) 107 Cal.App.4th 1352, 1369, 1370.
Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at page 749, footnote 6; Charonnat v. San Francisco Unified School District (1943) 56 Cal.App.2d 840, 843-844.
“Supervision during recess and lunch periods is required, in part, so that discipline may be maintained and student conduct regulated. Such 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.” “Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence.”
Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at page 748; Forgnone v. Salvador Union Elementary School District (1940) 41 Cal.App.2d 423, 426 (“We assume that the purpose of the law requiring supervision of pupils on the playgrounds and on the school property during school hours is to regulate their conduct so as to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars under their custody”).
Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at pages 748-749.
To prevail on a negligent supervision claim, the plaintiff must establish inadequate supervision was the proximate cause of the injury. “[P]roof of causation cannot be based upon speculation and conjecture, and . . . a mere possibility of causation is insufficient. [Citation.] To establish causation, the plaintiff must demonstrate some substantial link or nexus between omission and injury. [Citation.] The plaintiff must show it was more probable than not that different [supervision procedures] would have prevented the [injury].”
Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508, 519.
Thompson v. Sacramento City Unified School District, supra, 107 Cal.App.4th at page 1371.
“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 injury]. 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.” Moreover, “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. [Citations.’ [Citations.]” In determining whether causation is established, a relevant inquiry is whether the injury would have been as likely to occur had adequate supervision been provided. Whether adequate supervision would have prevented the injury is generally a question of fact for the jury.
Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at page 750.
Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at page 751; Taylor v. Oakland Scavenger Company, supra, 17 Cal.2d at page 600.
See Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at page 750, footnote 7.
Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at page 750, footnote 7; Hoyem v. Manhattan Beach City School District, supra, 22 Cal.3d at page 520 (“Proximate cause . . . is generally a question of fact for the jury”).
III. BECAUSE RUDY HAS SHOWN TRIABLE ISSUES OF MATERIAL FACT AS TO HIS NEGLIGENCE CAUSE OF ACTION, SUMMARY JUDGMENT WAS IMPROPER.
We conclude the District met its burden on summary judgment. As set forth below, however, we find Rudy also met his burden of showing triable issues of material fact as to whether the District breached its duty to provide adequate supervision and whether that breach was the proximate cause of Rudy’s injury.
In arguing he has shown a triable issue of material fact on the issue of adequate supervision, Rudy places great emphasis on the number of Supervision Aides present in the auditorium at the time he was injured. We are more concerned with the evidence indicating the supervisors who were there -- whether they be four or five instead of the six required by school policy -- were not doing any supervising at the time the incident occurred. Peter testified around the time he flicked the spork he noticed the four Supervision Aides who were present in the auditorium were standing together in a group talking to each other about 35 feet away from his table. This is not inconsistent with Rudy’s testimony he saw the four Supervision Aides walking around the auditorium at some point during the lunch period, but after the incident, he saw no Supervision Aides other than Nunez walking around. (And the evidence indicates Nunez entered the auditorium after Peter flicked the spork or just as he was doing so.) Based on the foregoing evidence, we certainly cannot hold the District provided adequate supervision as a matter of law. A jury must hear the testimony and decide whether it believes the Supervision Aides were paying attention and doing their jobs as supervisors or whether they were engrossed in conversation with each other and not monitoring the children’s behavior at the time the incident occurred.
Turning to the causation element, Rudy testified the “lunch ladies” or Supervision Aides were “mean” and strictly enforced the rules. Given Peter’s testimony he saw the four Supervision Aides standing in a group talking to each other before he flicked the spork, a reasonable inference is Peter believed he could get away with his misconduct because the supervisors were chatting with each other instead of supervising the students. It also is reasonable to infer, had the supervisors been walking around observing the students and making their presence known, Peter would have been too intimidated to flick the spork.
Moreover, a reasonable jury could find, if the supervisors had exercised ordinary care in the supervision of the students, they would have admonished the students before Peter flicked the spork. According to Peter’s testimony, an unidentified student flicked a stick from a corn dog, then Rudy flicked a stick from a corn dog, then Peter flicked the spork. It is for the jury to decide whether one or more of the supervisors should have noticed what was going on and called out to the students before Peter flicked the spork. Based on this evidence, whether the injury could have been prevented by proper supervision is a question of fact.
We reject the argument this injury was not foreseeable. According to Rudy, there were rules prohibiting the students from throwing things during lunch. It is not a stretch to assume kids who are not adequately supervised in a lunch room will throw food and trash. Supervision Aide Nunez testified she knew sporks could be dangerous, given their sharp edges. In the three years preceding this incident, Nunez had seen kids “horsing around with sporks” on more than 20 occasions. During the same period, she had seen kids use a spork to flick an orange peel on about 10 occasions.
Given these triable issues of material fact as to whether the District breached its duty to provide adequate supervision and whether that breach was the proximate cause of Rudy’s injury, the trial court erred in granting summary judgment.
IV. THE NEGLIGENCE PER SE CAUSE OF ACTION FAILS AS A MATTER OF LAW.
As discussed below, Rudy cannot establish a violation of California Code of Regulations, title 5, section 5531 or section 5552. Moreover, a claim of negligence per se based on the broad principles regarding a school’s duty to supervise students set forth in Education Code section 44807 and California Code of Regulations, title 5, section 5551 is duplicative of the common law negligence cause of action given Rudy still would have to establish inadequate supervision before he could prevail on the negligence per se claim. Thus, the cause of action for negligence per se fails as a matter of law.
We agree with the District’s position Rudy has made no attempt to show how the District violated California Code of Regulations, title 5, section 5531. To the extent the lunch period is a “social activity” within the meaning of section 5531, it was in fact conducted under the direct supervision of a certificated employee, the Assistant Principal, as required by this section.
This regulation is quoted above in footnote 1.
On appeal Rudy cites California Code of Regulations, title 5, section 5552, which provides: “Where playground supervision is not otherwise provided, the principal of each school shall provide for the supervision by certificated employees of the conduct and safety, and for the direction of the play, of the pupils of the school who are on the school grounds during recess and other intermissions and before and after school.” In ruling on the District’s demurrer to Rudy’s original complaint, the trial court found Rudy could not state a violation of this section as a matter of law. We agree. First, this section pertains to “playground supervision” which is not applicable to the facts of this case. Second, even assuming a lunch period in the auditorium can be held to fall under this section, the students in Rudy’s lunch period were being supervised by a certificated employee, the Assistant Principal.
Education Code section 44807 provides, in pertinent part: “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.” “This section has been cited as imposing upon a school district a duty to supervise students on school grounds.” Similarly, California Code of Regulations, title 5, section 5551 provides, “The principal is responsible for the supervision and administration of his school.” This is the same duty which forms the basis of Rudy’s negligence cause of action. To establish a violation of this duty, Rudy would have to prove the District rendered inadequate supervision in failing to prevent Peter from flicking the spork, the same showing he would have to make to prove his negligence cause of action. Thus, a claim of negligence per se based on Education Code section 44807 or California Code of Regulations, title 5, section 5551 is duplicative of Rudy’s negligence cause of action.
Lucas v. Fresno Unified School District (1993) 14 Cal.App.4th 866, 871-872, citing Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at pages 747-748.
For the foregoing reasons, we conclude Rudy’s negligence per se cause of action fails as a matter of law.
DISPOSITION
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. Appellant is entitled to recover his costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.