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Court of Appeal, Second District, California.*

Jennifer JOYCE, a Minor, etc., et al., Plaintiffs and Appellants, v. SIMI VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. CIV. B053453.

Decided: August 18, 1992

The Law Offices of Ian Herzog and Ian Herzog, Santa Monica, and Evan Marshall, Los Angeles, for plaintiffs and appellants. Ellis, Beach & Procter and Korman Dorsey Ellis, Ventura, for defendant and respondent.

Here we hold that an open gate at a public school can be a dangerous condition of public property if it encourages students to cross at a dangerous intersection next to the school.

Plaintiffs' complaint therefore states a cause of action against a school district for a dangerous condition of its property (Gov.Code, § 835). 1 Also, plaintiffs' government tort claim (§ 900 et seq.) is not fatally defective. We reverse the judgment entered by the trial court after it sustained the school district's demurrer.


Jennifer Joyce and her parents sued the Simi Valley Unified School District (the District) after their government tort claims were rejected.

The complaint alleges that on the morning of May 11, 1989, Joyce was on her way to Sequoia Junior High School where she was enrolled as a student. She was in a crosswalk at an uncontrolled intersection less than 40 feet from the school when she was hit by a car. Her injuries include permanent brain damage.

The complaint further alleges that the crosswalk was dangerous in that oncoming traffic could not readily see the crosswalk markings; in the preceding seven years traffic had doubled during the hours when children were crossing the street; school districts knew or should have known that motorists routinely sped through the intersection, there were inadequate warning signs and controls and that the intersection had been the subject of prior accidents and “near misses.” Despite the existence of a safer controlled intersection 450 feet away, the District encouraged students to cross at the dangerous intersection by maintaining an opening or gate2 in the school yard fence adjacent to the crosswalk.



Section 835 provides that a public entity is liable for injury caused by a dangerous condition of its property. Section 830, subdivision (a) defines a “dangerous condition” as “a condition of property that creates a substantial ․ risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

Although public property may not be in a dangerous condition by itself, conditions on adjacent property may place the public property in a dangerous condition. Thus, in Branzel v. City of Concord (1966) 247 Cal.App.2d 68, 55 Cal.Rptr. 167, a public field maintained for the purpose of flying motor-driven model airplanes could reasonably be found to be in a dangerous condition because adjacent power lines exposed those using the field to a substantial risk of injury. (Id., at p. 75, 55 Cal.Rptr. 167.)

Similarly here, a reasonable person could find that an open school yard gate is a dangerous condition where it encourages students to cross at an adjacent dangerous intersection.

The District seeks to distinguish Branzel on the ground that there the hazard “inherent” in high voltage wires created a substantial risk of injury to persons using the field; whereas, here there is no hazard inherent in the crosswalk that creates a risk of injury arising from the use of the District's property.

First, we doubt that the court in Branzel was attempting to draw the metaphysical distinction between inherent and noninherent risks. If any such distinction was intended, it would seem the risk of being hit by a car is every bit as “inherent” to a crosswalks, as the risk of electrocution is to high voltage wires.

Second, even assuming it is true that the dangerous crosswalk created no risk to persons using the District's property, section 830, subdivision (a), upon which Branzel is based, defines dangerous condition as creating a risk of injury when public property “or adjacent property” is used with due care. Similarly there is no requirement in Branzel or elsewhere that the injury must occur on the public entity's property. A person standing on private property, for example, may be injured when part of an adjacent public building falls on him. As long as a reasonable trier of fact could find that a dangerous condition of public property caused the injury, there is nothing in law or logic that prevents recovery simply because there was no risk to persons on the public property or because the place of injury was adjacent property.

Cases relied on by the District are distinguishable. In Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 246 Cal.Rptr. 199, a student leaving defendant's premises was assaulted at night on an adjacent city sidewalk. The student argued that the school should have taken reasonable steps to protect him from criminal assault on the city's sidewalk. The court disagreed, stating, “[t]he law of premises liability does not extend so far as to hold Cal Western liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the condition of such adjoining property.” (Id., at p. 720, 246 Cal.Rptr. 199.)

But here, the complaint alleges more than that the school exists next to dangerous property. The complaint alleges that the open gate encouraged students to cross adjacent dangerous property even though a less dangerous crossing was available. There is a difference between failing to take action to influence or affect a danger and encouraging students to expose themselves to a danger.

In Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal .App.3d 492, 147 Cal.Rptr. 898, a 12–year–old boy was killed while playing a skateboard version of “crack the whip” on school grounds after hours. There was evidence the boy obtained entry to the school ground through an unlocked gate or a hole in the fence. Plaintiff argued that the failure of the school district to prevent access to the playground combined with knowledge of the use of the ground for a dangerous activity constituted a dangerous condition of public property.

The Court of Appeal disagreed, stating there was no defect in the school ground that was itself inherently dangerous. The alleged defect of leaving a gate unlocked or a hole in the fence merely allowed access to the area. Such defects go to the question of the school district's duty of supervision and control and not to the existence of a dangerous condition. (Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d 492, 497, 147 Cal.Rptr. 898.) In Bartell, the only thing that was dangerous was the activity of the boys. The school property was not dangerous, and, unlike the instant case, there was no allegation that adjacent property was dangerous.

In Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 223 Cal.Rptr. 206, a first grade girl was struck by an automobile as she walked home from school. The plaintiff alleged the school district failed to remedy a dangerous condition along her route home, failed to utilize crossing guards, failed to provide safety education, and failed to supervise her trip home. The Court of Appeal held the school district had no such duties. But unlike the present case, the complaint in Searcy did not allege a dangerous condition of school property, and the court pointed out the accident site was not part of nor directly contiguous to the school grounds.

In Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 2 Cal.Rptr.2d 405 plaintiff's husband was killed when he was struck in a crosswalk adjacent to the hotel. In affirming a summary judgment in favor of the hotel the court stated: “[P]remises liability is predicated upon the concept that possession includes the attendant right to manage and control․ [Citations.] [¶] ‘The courts, therefore, have consistently refused to recognize a duty to persons injured in adjacent streets ․ over which the defendant does not have the right of possession, management or control. [Citations.]’ “ (Id. at p. 489, 2 Cal.Rptr.2d 405.)

Here, although the District had no direct control over the adjacent street, it did have control over whether the gate on its own property was open. It is the alleged failure to properly exercise this control for which the complaint seeks to hold the District liable.

Although the crosswalk in Seaber might have been the most convenient crossing for hotel patrons, there is nothing in Seaber to indicate the hotel did anything to encourage its patrons to use the crosswalk in question. Moreover, the Seaber case was decided on a motion for summary judgment. The facts showed the hotel had limited options in doing anything about the dangerous crosswalk. There was no showing of any close connection between its conduct and the injuries suffered. Under such circumstances the appellate court held that as a matter of law there could be no liability.

In contrast, here we have a pleading case. The complaint alleges the open gate had the effect of inviting students to use the dangerous crosswalk. The function of a demurrer is to test the sufficiency of the complaint. (Rader Co. v. Stone (1986) 178 Cal .App.3d 10, 20, 223 Cal.Rptr. 806.) Whether or not a trier of fact could find there exists a connection between the District's conduct and the injuries suffered remains to be seen.

The dissent states that liability for a dangerous condition of public property does not attach unless the public property has a physical defect. The dissent is wrong, however, in concluding that here the school property was not in a dangerous condition because the gate and fence themselves were not physically defective.

An object which itself is not defective can create a dangerous physical condition in relation to other objects. In Branzel v. City of Concord, supra, 247 Cal.App.2d 68, 75, 55 Cal.Rptr. 167, neither the park nor the power lines themselves had physical defects. It was the proximity of one to the other that created the dangerous condition. An open gate is a physical condition of property which can create a danger even though the gate and the fence to which it is attached are not in themselves dangerous or defective.

The District contends the complaint does not allege with sufficient specificity that the crosswalk is a dangerous condition. It argues the complaint alleges nothing more than that the crosswalk was not a controlled intersection and that it had been the subject of accidents and close calls.

The District cites section 830.4 for the proposition that an uncontrolled intersection is safe as a matter of law. That section provides: “A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.”

Section 830.4 grants immunity from liability for the failure to provide controls for an intersection. Contrary to the District's argument, it does not purport to make a factual determination that an uncontrolled intersection is safe. The complaint does not seek to hold the District liable “merely because of the failure to provide regulatory traffic signals”; it seeks to hold the district liable for encouraging students to cross at an unsafe intersection.

The District argues that allegations the intersection had been the scene of prior accidents and “near misses” is insufficient because the accidents might have been due to the negligence of drivers of cars and not the condition of the intersection. (Citing Wilkerson v. City of El Monte (1936) 17 Cal.App.2d 615, 621, 62 P.2d 790.) But a reasonable person might conclude from a history of accidents or near accidents that an intersection is dangerous. This conclusion may still be reasonable even if the specific cause of the danger is unknown.

Pleading the specific cause of a danger may be important where the complaint seeks to assess liability for the creation of the danger. Here the complaint does not seek to hold the District liable for the creation of the dangerous intersection, but only for encouraging students to expose themselves to it when a less dangerous alternative was available.

This is not to say a conclusory statement that the intersection was dangerous would be by itself sufficient. But here the complaint states more than a conclusion. It cites such factors as the doubling of traffic volume, the difficulty motorists had in seeing the crosswalk, the tendency of motorists to speed through the intersection, inadequate warning signs and accidents and “near misses.”

Nor is Joyce's action barred by Education Code section 44808. That section provides in part: “[N]o school district ․ shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district ․ has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstance.”

The statute states a nonliability rule but also states an exception where the school district “has failed to exercise due care under the circumstances.” The District relies on Torsiello v. Oakland Unified School Dist. (1987) 197 Cal.App.3d 41, 242 Cal.Rptr. 752 in an effort to avoid application of the exception to this case.

There the school district argued the “ ‘reasonable care’ “ phrase serves only to modify the preceding three phrases, making the district liable for the failure to exercise due care only in providing transportation, sponsoring an off-campus activity or for some other specific assumption of responsibility. The court stated that the district's construction “makes sense.” (Torsiello v. Oakland Unified School Dist., supra, 197 Cal.App.3d 41, 48, 242 Cal.Rptr. 752.)

The construction advanced in Torsiello, however, ignores that the “ ‘reasonable care’ “ phrase begins with the disjunctive “or,” and thus could not have been intended to modify the preceding three phrases.

Moreover, the court in Torsiello was discussing the plaintiff's claim that Education Code section 44808 created a duty not whether section 44808 provided immunity. As to immunity the Torsiello court acknowledged our Supreme Court's opinion in Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 150 Cal.Rptr. 1, 585 P.2d 851. (See Torsiello v. Oakland Unified School Dist., supra, 197 Cal.App.3d 41, 48–49, 242 Cal.Rptr. 752.)

In Hoyem a boy was injured when he was hit by a motorcycle after he left campus during school hours without permission. He and his mother alleged the school was negligent in failing to supervise its students. The court held that although Education Code section 44808 provides immunity where a student is going to or coming from school, where the school district has failed to exercise due care the section explicitly withdraws the grant of immunity. (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, 517, 150 Cal.Rptr. 1, 585 P.2d 851.) The court pointed out that the school district was not being charged for what happened off school premises, but for failure to supervise on the school premises. (Id . at p. 525, 150 Cal.Rptr. 1, 585 P.2d 851.)

Here, as in Hoyem, the complaint alleges more than that Joyce was injured off school property while going to or coming from school. The complaint alleges the school district was negligent in maintaining the dangerous condition of an open gate. The gate was on school property, not off the premises. Under the circumstances Education Code section 44808 will not assist the school district on demurrer.

The dissent accuses us of taking the “reasonable care” provision of Education Code section 44808 out of context to create an exception that swallows the general immunity rule. We agree with the dissent that Education Code section 44808 generally provides immunity for accidents students may suffer before they arrive at school. If all the complaint had alleged was that Joyce was injured on her way to school and that the school was liable for failure to supervise an intersection, Education Code section 44808 would require that a demurrer be sustained. This complaint, however, alleges more. It alleges that an open gate adjacent to a dangerous intersection created a dangerous condition of public property. Education Code section 44808 was never intended to provide immunity for a dangerous condition of public property.

The dissent fears that if we hold the school district liable because it encouraged students to use the crosswalk, a school district that encouraged students to ride bicycles or car pool would have similar liabilities. The fear is unfounded. Liability would only attach if there was some physical condition on the school property that encouraged the bicycle riding or car pooling students to enter the school through an unsafe intersection where a safer intersection was available.

The dissent relies on Gilbert v. Sacramento Unified School Dist . (1968) 258 Cal.App.2d 505, 510, 65 Cal.Rptr. 913, and Wright v.. Arcade School Dist. (1964) 230 Cal.App.2d 272, 279–280, 40 Cal.Rptr. 812, for the proposition that the school district's decision to supervise or not to supervise a traffic intersection is discretionary and subject to the immunities set forth in sections 815.2 and 820.2.

The dissent's reliance is misplaced. We do not suggest that the District has a duty to supervise traffic intersections. All we suggest is that the District has a duty not to maintain a dangerous condition of its property, a condition that a reasonable person might find could have been remedied simply by closing a gate.


The next question is whether the government tort claim (§ 910) filed with the District was sufficient to give it notice of the facts alleged in the complaint. Even if a claim is filed in a timely manner, a complaint is subject to demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim. (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 224, 267 Cal.Rptr. 13.)

Here Joyce stated on her claim form: “Claimant was injured due to being struck by a vehicle while in the crosswalk [at a described intersection] on her way to school. The School District by its actions and inactions allowed a dangerous condition to exist and failed to inform the claimant of such dangerous condition, and encouraged the plaintiff to use the aforesaid crosswalk though they knew it was dangerous for the claimant.” Joyce's parents filed a claim form containing substantially the same language.

Contrary to the District's contention, the claim alleges more than simply that the crosswalk is dangerous. It alleges that a dangerous condition exists and that the District encouraged Joyce to use the crosswalk. This is not a different factual basis for recovery than what is alleged in the complaint.

It is true the claim is short on specifics. But the statement that the District encouraged Joyce to use the crosswalk should have put the District on notice that it was being charged with more than operating a school adjacent to a dangerous crosswalk. If lack of specifics made the claim vague or ambiguous, the District had a duty to send Joyce a notice of insufficiency. (§ 910.8; see Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 263 Cal.Rptr. 119, 780 P.2d 349.) In the absence of a notice of insufficiency, any such defect was waived. (§ 911.)

The District relies on cases in which the allegations in the complaint go beyond merely clarifying the ambiguous allegations of the claim; rather, in those cases the allegations of the complaint are completely different from those contained in the claim.

For example, in Turner v. State of California (1991) 232 Cal.App.3d 883, 890, 284 Cal.Rptr. 349, the dangerous condition alleged in the claim was known criminal activity, but the complaint alleged inadequate lighting. In Crow v. State of California (1990) 222 Cal.App.3d 192, 271 Cal.Rptr. 349, the claim alleged plaintiff was assaulted in a university dormitory by a student known to the university to be dangerous, but the complaint alleged causes of action based on breach of contract.

The judgment is reversed. Costs are awarded to appellants.

I respectfully dissent.

The majority impose a protective duty of care where none otherwise exists. School districts have no duty to provide traffic protection to students walking to school. (Ed.Code, § 44808; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 804, 223 Cal.Rptr. 206.) Education Code section 44808, however, sets forth three exceptions to the immunity rule when a school district undertakes to (1) provide transportation, (2) sponsor a school related off-campus activity, or (3) engage in some other specific assumption of responsibility. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 155, p. 236.)

In enacting Education Code section 44808, “․ the Legislature was principally concerned with limiting a school district's liability for injuries to pupils either before or after school hours while children were either going to school or coming home after school.” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 517, 150 Cal.Rptr. 1, 585 P.2d 851.) Today's decision eviscerates that immunity by making a school yard gate an attractive nuisance.

The majority's reliance on Government Code section 835 is misplaced. An open school yard gate does not create a substantial risk of injury. (Gov.Code, §§ 830, subd. (a), 830.2; Bartell v. Palos Verdes Peninsula School Dist. (1978) 83 Cal.App.3d 492, 496–497, 147 Cal.Rptr. 898.) Although an unreasonable risk of harm may arise based on the combination of a dangerous property condition and third party conduct, liability does not attach unless the public property has a physical defect. (Ibid., Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810–811, 205 Cal.Rptr. 842, 685 P.2d 1193.) Here, the gate and fence had no physical defects. The District did not lose its statutory immunity merely because a motorist failed to yield for a pedestrian. This is so because “․ the courts will not ascribe liability to a dangerous condition of the public property solely on the basis of third party acts. [Citations.]” (Taeleifi v. Southern Cal. Rapid Transit Dist. (1982) 130 Cal.App.3d 366, 370, 181 Cal.Rptr. 697.)

In Perna v. Conejo Valley Unified School Dist. (1983) 143 Cal .App.3d 292, 294, 192 Cal.Rptr. 10, we held that “school districts are not legally responsible for accidents that students may suffer ․ before they arrive at school. [Citation.]” Today, the majority adds a fourth exception to Education Code section 44808: “reasonable care.” The majority has read the phrase in isolation to create an exception that swallows the general immunity rule. (Torsiello v. Oakland Unified School Dist. (1987) 197 Cal.App.3d 41, 48, 242 Cal.Rptr. 752.)

The assertion that the District assumed an affirmative duty of care because it “encouraged” students to use the crosswalk does not translate into a duty to warn about or monitor the use of a crosswalk before school hours. Such a rule would mean that schools who encourage students to ride bicycles or car pool have a similar duty to supervise their safe travel. Not so.

We may not “․ manufacture a mandatory duty by arguing School District's discretionary powers to hire crossing guards (see Ed.Code, §§ 45450 through 45452; see also Sts. & Hy.Code, § 2118.5), require it to do so. Irrespective of extrinsic arguments concerning public policy and legislative intent, these statutes merely delegate authority and budgetary power to effect a school safety program and no mandatory duty to employ a crossing guard at a particular location․” (Searcy v. Hemet Unified School Dist., supra, 177 Cal.App.3d 792, 804–805, 223 Cal.Rptr. 206.)

Education Code section 44808 was based on a series of cases (see Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at pp. 517–518, 150 Cal.Rptr. 1, 585 P.2d 851) which held that the decision to supervise or not supervise a traffic intersection is discretionary and subject to the immunities set forth in Government Code sections 815.2 and 820.2. (Gilbert v. Sacramento Unified School Dist. (1968) 258 Cal.App.2d 505, 510, 65 Cal.Rptr. 913; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 279–280, 40 Cal.Rptr. 812.) This is so because “[t]housands of California children walk to public schools in heavily congested urban areas and heavily traveled suburban districts, crossing streets and boulevards which carry varying degrees of automobile traffic. Some street intersections habitually crossed by pupils are signal controlled; others are not. School authorities decide whether or not to supply safety patrols at some of these intersections ․ The decisions of affected public agencies and officials turn in part on predictions of need and danger, in part on availability of personnel and funds․ The decisions so made are governmental decisions ․ Submitting such a question [to a jury] reposes in the jury an ‘after the fact’ decision, approving or rejecting accuracy of the school authorities' prediction of harm and the reasonableness of their governmental decision to confer or withhold a protective service. That concept would require school districts, at their financial peril, to make a profuse series of advance decisions for or against guarding street intersections throughout the district. Imposition of such a heavy responsibility is a matter of legislative policy and should not lie with juries.” (Id., 230 Cal.App.2d at pp. 279–280, 40 Cal.Rptr. 812.)

In my view, the District owed no duty of care until it made a decision to supervise preschool use of the crosswalk. Liability only attached “[i]n the event of such a specific undertaking․ ” (Ed.Code, § 44808, emphasis added.) Here, the trial court properly found that encouraging students to use an open gate was not a “special undertaking” or activity by which the District “has otherwise specifically assumed” responsibility.

I would affirm the judgment.


1.  All further statutory references are to the Government Code unless otherwise specified.

2.  The complaint states the District failed to close “the opening in the fence adjacent to said crosswalk.” On appeal Joyce insists the opening was a gate.

GILBERT, Associate Justice.

STONE, P.J., concurs.

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