Judge: Stephen Morgan, Case: 19AVCV00346, Date: 2022-07-26 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

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Case Number: 19AVCV00346    Hearing Date: July 26, 2022    Dept: A14

Background

This is an action based in negligence. Plaintiff Rebecca Calito, a minor by and through her Guardian ad Litem, Yasmiri Maldonaldo (“Plaintiff”), alleges that on or about August 29, 2018, while on the monkey bars and playground equipment on Discovery Elementary, whom Defendant Lancaster School District (“Defendant”) is responsible for, she fell to the surface below, which caused her to suffer injuries, including a fractured right arm.

On May 03, 2019, Plaintiff filed her Complaint alleging two causes of action for Negligent Supervision and Dangerous Condition of Public Property.

On July 02, 2019, Defendant filed its Answer.

On June 22, 2020, Defendant filed this instant Motion for Summary Judgment, or in the alternative, Summary Adjudication (“the Motion”). The Motion was rescheduled seven times and continued by stipulation one time, moving it to January 20, 2022.

On July 21, 2022, Defendant filed its Reply to an Opposition that never filed with the Court.

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Analysis

Standard for Motion for Summary Judgment – The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿¿(Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal. App. 3d 367, 381-382.)¿ 

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As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

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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. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿ 

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Discussion

Application – Defendant moves for summary judgment on the basis that (1) there are no triable issues of material fact as to Plaintiff’s First Cause Action, Negligent Supervision, given that plaintiffs injuries were caused by falling off of the monkey bars, not caused by any allegedly negligent supervision by school personnel; and (2) there are no triable issues of material fact as to Plaintiff’s Second Cause of Action, Dangerous Condition of Public Property, as there was no dangerous condition of public property (i.e., the monkey bars on the school playground) at the time and place of the accident and Plaintiff’s fall was caused by Plaintiff herself getting too tired to make it to the next rung.

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First Cause of Action (Negligent Supervision) – Defendant presents that no number of aides could have prevented Plaintiff’s fall from the monkey bars as Plaintiff’s accident was “sudden and unexpected” and “could not have been prevented or anticipated with any degree of supervision.” (Motion, p. 4, Lines 9-11.) Defendant also presents that an adult aide was present who offered assistance.

It appears from the allegations that this claim is based on negligence (negligent supervision by school personnel of Plaintiff) and not negligent supervision by Defendant of its employees. Plaintiff has premised the First Cause of Action on Cal. Educ. Code § 44807 in which imposes a duty on teachers in public schools to hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess and Cal. Gov. Code § 815.6 where a public entity under a mandatory duty (i.e., Cal. Educ. Code § 44807) is liable for “an injury of that kind proximately caused by its failure to discharge that duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. (See Cal. Educ. Code § 44807; see also Cal. Gov. Code § 815.6.) As alleged, Plaintiff seeks to hold Defendant accountable for negligence premised on the “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.” (Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 945.)

Defendant concedes that it had a duty; however, it argues that its legal duty is to “exercise reasonable care in supervising students in their charge.” (Motion, p. 3, Lines 15-25 [citing to Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741 and Hoyem v. Manhattan Beach City School District (1978) 22 Cal. 3d 508].)

Here, no other students were involved. (UMF Nos. 25, 57, 89.) It appears from case law that this type of accident, slipping from the monkey bars, is not the type that this statute is intended to prevent (See, e.g., M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508 [school owed duty of care to an eighth grade special education student, was sodomized, the school district provided only general supervision, under which no adult was specifically responsible for supervision of the students on campus]; Hoyem, supra, 22 Cal.3d 508, 523 [student stated claim against school district based on failure to exercise due care in supervision on school premises when it failed to prevent student from truancy is valid]; Dailey, supra, 2 Cal.3d at pp. 747–751 [sufficient evidence to support verdict against school district for negligent supervision even where another student's misconduct was immediate, precipitating cause of injury]; Lucas v. Fresno Unified School Dist. (1993) 14 Cal.App.4th 866, 871–873  [school district had legal duty to supervise students to prevent them from throwing dirt clods at each other during recess]; Charonnat v. S.F. Unified Sch. Dist. (1943) 56 Cal. App. 2d 840, 845–846 [school district liable for negligence or willful misconduct of pupil resulting in injuries to another pupil while both were playing during recess hour]; Forgnone v. Salvador U.E. School Dist. (1940) 41 Cal. App. 2d at p. 426 [wrongful absence of supervisor may constitute negligence creating liability on part of school district for student's injuries].) Plaintiff was playing on the monkey bars – she waited in an orderly line for her turn, proceeded after her friend, and no student interfered with Plaintiff by physically touching her during her turn, and Plaintiff proceeded carefully. (UMF Nos. 12, 44, 76; 20, 52, 84; 25, 57, 89; and 22, 54, and 86.) However, the Court continues its analysis.

The uniform standard to which schools are held liable for supervision of their pupils is that degree of care “ ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’ [Citations.]” (Hoyem, supra, 22 Cal. 3d 508, 513; see also C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.) Thus, Negligent supervision in the context of school supervision of pupils, has the same elements as negligence: (1) defendant owed a legal duty to plaintiff; (2) defendant breached that legal duty; and (3) a causal connection between the breach of duty and the plaintiff’s resulting injury.  Defendant owed a duty to supervise its students to prevent disorderly and dangerous conduct which is likely to result in physical injury to its students. “ ‘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.’ [Citations.]” (Id.) It has been also been recognized that “principal task of supervisors is to anticipate and curb rash student behavior” and that “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, supra, 2 Cal.3d 741, 748-49.) Defendant had a duty aide present at the time of the accident and, when Plaintiff fell, a duty aide came to her side and radioed for assistance. (UMF Nos. 29, 30, 31; 61, 62, 63; and 93, 95, 95.) It appears to the Court that there was not a lack of supervision or ineffective supervision. Plaintiff likes playing on the monkey bars and is allowed to at recess (UMF Nos. 3, 35, 67), Plaintiff has fallen off the monkey bars prior and has never gotten hurt (UMF Nos. 9, 15, 73), and on the day of the incident Plaintiff’s fall was sudden as she fell attempting to grab another rung of the monkey bar (21, 53, 85.). The Court finds that it can be anticipated that students would fall from the money bars, but that such falls are not caused by the rash behavior that Cal. Educ. Code § 44807 is meant to protect against and is not meant to be curbed by the statute.  

The Court also notes that the doctrine of “primary of assumption of risk” also applies. (See Amaya v. Orange Unified Sch. Dist. (2016) 2016 Cal. Super. LEXIS 370 [applying primary assumption of the risk to monkey bars].) “ ‘[T]he legal question of duty, and specifically the question of whether a particular risk is an inherent part of a sport [or recreational activity], is necessarily reached from the common knowledge of judges, and not the opinions of experts.’ Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 25 l, 257. ‘[I]t is [also] the trial court's province to determine whether defendants breached their duty not to increase the inherent risk of [injury] ....’ Huffy. Wilkins (2006) 138 Cal.App.4th 732, 745.” (Amaya, supra, at 8.) Plaintiff voluntarily played on the monkey bars. Falling off of monkey bars is an inherent risk of the activity, and, under the doctrine of primary assumption of the risk, Defendant has no duty to eliminate that risk. The Amaya court noted: “The risk of falling from the playground equipment at issue in this case cannot be eliminated without altering the fundamental nature of swinging from the monkey bars.” (Id. at 9.) The Court agrees with this reasoning.

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Second Cause of Action (Dangerous Condition of Public Property) – Defendant presents that Cal. Gov. Code § 835 provides that a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes: (1) That the property was in a dangerous condition at the time of the injury; (2) That the injury was proximately caused by the dangerous condition; and (3) That the dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred. Defendant argues that a dangerous condition did not exist at the time of the accident as there was nothing about the monkey bars that presented any risk of injury to any student; plaintiff testified that were no defects with the monkey bars such as chipping paint, sharp or jagged edges, and/or debris; Defendant did not have notice of any defect regarding the monkey bars; and there is no causation between Defendant’s actions and Plaintiff’s injury.

Cal. Gov. Code § 835 reads:

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, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Cal. Gov. Code § 835.)

First, the Court notes that while Plaintiff alleges in the Complaint that Defendant failed to make a reasonable inspection of Discovery Elementary, including the playground areas and playground equipment, to discover unsafe conditions and failed to remedy those unsafe conditions and/or failed to provide adequate warnings regarding the same, Plaintiff has stated that she did not feel anything sharp on the rung, see dirt on the monkey bars or notice any peeling paint. (UMF Nos. 24, 56, 88.)

Additionally, as the Amaya Court held, assumption of the risk applies to "Premises Liability"/Dangerous Condition of Public Property claims under Government Code section 835 as well. (See Amaya, supra, 2016 Cal. Super. LEXIS 370 at 1; see also supra for Court’s analysis.)

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Defendant has satisfied the initial burden of proof by presenting facts to negate an essential element, or to establish a defense as to all Causes of Action alleged by the Complaint. The burden now shifts to Plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. Plaintiff has not presented otherwise. 

Accordingly, the Motion for Summary Judgment is GRANTED. 

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Conclusion