Judge: Loren G. Freestone, Case: 37-2019-00018525-CU-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2019-00018525-CU-PO-CTL BALSLEY VS LAKESIDE UNION SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Lakeside Union School District's unopposed motion for summary judgment is GRANTED.

LUSD's unopposed request for judicial notice of Plaintiff Max Balsley's complaint [Ex. A] and government claim [Ex. B] is granted.

Education Code section 44807 imposes 'a general duty to supervise pupils on school property during school hours in order 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. At the same time, this statute does not make school districts insurers of the safety of pupils at play or elsewhere.' (Srouy v. San Diego Unified School District (2022) 75 Cal.App.5th 548, 567.) The applicable standard of care imposed upon school personnel is 'that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances.' (Ibid.) 'A 'special needs' child, i.e., a child suffering from mental and/or physical disability, cannot reasonably be expected to take care of himself or herself. Such a child at public school needs help and protection.' (Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1329.) That said, school officials are nonetheless not the insurers of a 'special needs' child's safety, are not strictly liable for injuries suffered by such a student, and do not owe a higher duty of care with respect to such a child.

(Id. at p. 1329.) 'Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision.' (Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741, 747.) However, there 'is no absolute rule as to the number of pupils one supervisor may adequately oversee, nor is there any fixed standard of supervision.' (Rodrigues v. San Jose Unified School District (1958) 157 Cal.App.2d 842, 846–848; see Skinner v. Vacaville Unified School District (1995) 37 Cal.App.4th 31, 38.) Moreover, the fact an accident happens does not itself establish that the supervision provided was inadequate. (Thompson v. Sacramento City Unified School District (2003) 107 Cal.App.4th 1352, 1370–1372; see Woodsmall v. Mt Diablo Unified School District (1961) 188 Cal.App.2d 262, 264–267.) Here, Balsley alleges that he has autism spectrum disorder and was injured because LUSD negligently failed to provide him one-to-one supervision while on the playground. LUSD submits evidence that although the school psychologist recommended Balsley have 1:1 support of an assigned aide, the Calendar No.: Event ID:  TENTATIVE RULINGS

2976568  44 CASE NUMBER: CASE TITLE:  BALSLEY VS LAKESIDE UNION SCHOOL DISTRICT [IMAGED]  37-2019-00018525-CU-PO-CTL recommendation was unrelated to playground safety. Rather, the purpose of the aide during recess was 'to help with peer interactions and coping with frustration.' But even assuming LUSD had a duty to have 1:1 supervision while climbing playground apparatus, LUSD submits evidence that it did not breach that duty. LUSD submits evidence that at the time of the incident, Balsley was being supervised by his 1:1 aide (Kathryn Cunningham). LUSD also submits evidence that Cunningham exercised due care. LUSD submits evidence that it was reasonable for Cunningham to allow Balsley to climb the slide under her supervision, rather than prohibiting him from using the slide outright, as Balsley had used the playground slide on a daily basis, always without incident. LUSD submits evidence that Cunningham was standing nearby the slide promptly reacted when Balsley needed assistance, including checking on him when he slipped on one of the ladder steps and attempting to break his fall over the edge of the slide.

The burden therefore shifts to Balsley to submit evidence raising a triable issue of fact. (Code Civ.

Proc., § 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851.) The mere fact that Balsley fell when he pushed his body upwards as he progressed around the second curve of the slide does not raise a triable issue as to whether Cunningham's supervision was ineffective or unreasonable under the circumstances. Balsley did not file an opposition, and therefore necessarily failed to meet his burden.

The motion for summary judgment is therefore granted. LUSD shall submit a proposed judgment within 10 days.

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