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Court of Appeal, Fifth District, California.

Edward James ESPINOSA, a Minor, etc., Plaintiff and Appellant, v. FRESNO UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

No. F014433.

Decided: April 22, 1992

Timothy V. Magill and James F. Tritt, Fresno, for plaintiff and appellant. Robert J. Rosati, Finkle, Davenport & Barsamian, Fresno, for defendants and respondents.



Plaintiff, a minor, filed a “Claim Against Public Entity” with Fresno Unified School District and some of its employees (hereafter FUSD) seeking compensation for personal injuries he sustained in an elementary school cafeteria.  (Gov.Code, § 905.)   Following FUSD's denial of the claim, plaintiff filed a complaint.   The trial court granted FUSD's demurrer to this complaint without leave to amend.

Plaintiff then filed a motion for reconsideration attaching a proposed first amended complaint and nine days later, filed a motion to set aside and vacate the order attaching a proposed second amended complaint.   The trial court denied these motions and entered its order dismissing the action.   We reverse.


 Since the trial court sustained FUSD's demurrer, the facts alleged in the complaint are deemed admitted for purposes of this appeal.   (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 784, 221 Cal.Rptr. 840, 710 P.2d 907.)   Further, because the reviewing court may consider any tenable basis for amendment on appeal even though the theory was not presented to the trial court (Warfield v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 653, 262 Cal.Rptr. 890), it is also appropriate for this court to consider the proposed first and second amended complaints.  (Cf. Rains v. Superior Court (1984) 150 Cal.App.3d 933, 944, 198 Cal.Rptr. 249.)

When he was injured, plaintiff was a seven-year-old student at Heaton Elementary School.   On that day, plaintiff was served a hot lunch at the school.   These school lunches are prepared at a central kitchen, and then wrapped with aluminum foil “much like a TV dinner,” heated, and transported to Heaton Elementary School.   After the lunches arrive at Heaton, they are placed in heating ovens until served.   The students each pick up a tray and carry it back to their eating locations.   At the table, the aluminum foil is peeled back and the students may then begin eating.

Before the accident occurred, plaintiff was reprimanded at least three times for loud and boisterous behavior.   The proposed second amended complaint describes the accident as follows:  “After his last reprimand, he was told to sit down and in the process of sitting down to eat, he inadvertently placed his hand or elbow into the luncheon plate, which caused the plate to turn over, causing hot mashed potatoes to fall into his lap and down his leg.   The mashed potatoes and gravy left second degree burns upon a large portion of his leg.   The mashed potatoes and gravy were washed off in the bathroom and then Plaintiff went to the school nurse.   The school nurse allegedly applied cold water to the area, but did not notify the parents for approximate[ly] two hours after the incident.”


 I. Whether any of the theories of recovery set forth by plaintiff are foreclosed by the claim filed with FUSD under Government Code section 905.

“When a civil action is brought following denial of a government tort claim ‘the written claim must correspond with the facts alleged in the complaint;  even if the claim were timely, the complaint is vulnerable to a 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, 223–224, 267 Cal.Rptr. 13.)   Further, each theory of recovery must also have been reflected in a timely claim.  (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434, 253 Cal.Rptr. 587.)

The written claim filed by plaintiff briefly describes the incident up to the point of plaintiff's being burned by the hot food.   The claim then sets forth three theories of recovery.   The first, titled general negligence, states FUSD and the specified employees “so negligently and carelessly managed, maintained and operated the School Lunchroom Program thereby proximately causing the hereindescribed injuries and damage to claimant.”   The second basis for recovery set forth in the claim is that FUSD and its employees negligently hired and supervised each other.   Finally, plaintiff claims FUSD and its employees were negligent per se “in that they failed to exercise ordinary care in supervising the School Lunchroom Program in violation of safety orders, and in violation of Article 1, Section 28 of the California Constitution.”   Plaintiff's original complaint sets forth the same three theories of recovery.

In his proposed amended complaints and on appeal, plaintiff has expanded these theories of recovery.   Plaintiff now contends FUSD negligently supervised the children, including plaintiff, under its control in the lunchroom and failed to provide plaintiff with prompt medical care following the accident.   Plaintiff also alleges FUSD is strictly liable because it violated Health and Safety Code section 26520, which sets standards for unadulterated food, in providing plaintiff with food that was so hot it was defective.   FUSD argues plaintiff is barred from raising the theories of negligent supervision and delay in providing medical care as bases for liability because those theories were not fairly reflected in his tort claim.

 The claims act is intended to give the government agency an opportunity to investigate and evaluate its potential liability and to settle the claim without the expense of a lawsuit.  (Fall River Joint Unified School Dist. v. Superior Court, supra, 206 Cal.App.3d 431, 435–436, 253 Cal.Rptr. 587;  State of California ex rel. Dept. of Transportation v. Superior Court (1984) 159 Cal.App.3d 331, 335, 205 Cal.Rptr. 518.)   Where a party's attempted compliance with the claims statutes is defective, the court must ask whether sufficient information is disclosed on the face of the filed claim so that the purpose of the claims statutes is met.  (State of California ex rel. Dept. of Transportation v. Superior Court, supra, 159 Cal.App.3d 331, 335, 205 Cal.Rptr. 518.)   If so, the claim should be given a liberal construction to permit full adjudication of the merits.  (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 280, 262 Cal.Rptr. 754.)  “ ‘The doctrine of substantial compliance, however, cannot cure total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute.  [Citations.]’ ”  (State of California ex rel. Dept. of Transportation v. Superior Court, supra, 159 Cal.App.3d 331, 335, 205 Cal.Rptr. 518.)

In applying this doctrine, the courts have found the claim provided a sufficient basis for the complaint where the complaint merely elaborated or added further detail to the claim and was predicated on the same fundamental facts.   In that situation, the claim has put the government agency on fair notice regarding the contents of the complaint.   However, where there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim, the courts have determined the claim filing prerequisites were not complied with.  (Blair v. Superior Court, supra, 218 Cal.App.3d 221, 225–226, 267 Cal.Rptr. 13.)

 Here, plaintiff's claim that FUSD was negligent in its management, maintenance and operation of the school lunchroom program is sufficient to support the allegations of negligent supervision in the lunchroom.   A charge that FUSD's negligence created the situation that led to plaintiff's injury may reasonably be read to encompass negligent supervision of the children in the lunchroom as a contributing factor.

However, plaintiff's claim that he suffered further injury because of FUSD's negligent failure to provide prompt medical care was not fairly reflected in his filed claim.   This alleged omission occurred after the initial injury upon which his claim was based and involved the school nurse who was not named in the claim.   Thus, the demurrer was properly sustained as to the allegations of negligent medical care on the ground that this basis of recovery was not fairly reflected in the claim.

 FUSD further argues plaintiff's general allegations of negligence are insufficient to support his claims of negligent supervision and negligent management and operation of the lunch program against FUSD because FUSD is a public entity.   Under the Tort Claims Act all governmental tort liability is based on statute.  (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d 780, 795, 221 Cal.Rptr. 840, 710 P.2d 907.)   Thus, “ ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’ ”  (Ibid.)  Plaintiff has done so here.   Plaintiff has set forth the facts supporting his allegations that FUSD employees, while in the scope of employment, were both operating the lunch program and supervising the cafeteria negligently.   Under Government Code sections 820, subdivision (a) and 815.2, subdivision (a), an employee of a public entity is liable for his torts to the same extent as a private person and the public entity is vicariously liable for any injury which its employee causes to the same extent as a private employer.  (Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1461, 249 Cal.Rptr. 688.)

 II. Whether plaintiff can state a cause of action against FUSD.

Plaintiff phrases the principal basis of FUSD's liability as “the entrusting to a seven year-old of unusually hot material combined with the failure to supervise that seven year-old and other seven year-olds in the vicinity.”   Thus, plaintiff is proceeding primarily on a general negligence theory.   Consequently, plaintiff must allege (1) facts showing a duty of care in FUSD;  (2) negligence constituting a breach of the duty;  and (3) injury as a proximate result.  (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 820, 131 Cal.Rptr. 854.)

 FUSD responds that, because FUSD complied with its duty of care regarding preparation of food by serving food that was unadulterated and otherwise fit for human consumption, the only question presented is whether plaintiff can maintain an action premised on breach of FUSD's duty to supervise plaintiff.   However, FUSD has incorrectly analyzed its duty of care toward plaintiff.   The proper analysis is whether FUSD used “the degree of care which a person of ordinary prudence, charged with comparable duties, would exercise in the same circumstances.”  (Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d 1448, 1459, 249 Cal.Rptr. 688.)

 Although a school district is not an insurer of its pupils' safety, it bears a legal duty to exercise reasonable care in protecting and supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care.  (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513, 516, 150 Cal.Rptr. 1, 585 P.2d 851.)   Whether the circumstances at issue give rise to such a duty of care depends in part on whether the harm to the plaintiff was reasonably foreseeable.  (Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at p. 1459, 249 Cal.Rptr. 688.)

 The degree of foreseeability necessary to warrant the finding of a duty varies from case to case.   Where the burden of preventing future harm is great, a high degree of foreseeability may be required.   However, where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125, 211 Cal.Rptr. 356, 695 P.2d 653.)   A court's task in determining “duty” is to evaluate generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.  (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

 Contrary to FUSD's position, the fact that the food was unadulterated and fit for human consumption does not in and of itself exonerate FUSD from liability.   It may very well be true that serving wholesome food to an adult which is hot enough to cause second degree burns if spilled would not violate the duty of care.   However, the same cannot be said of serving such hot food to children in an elementary school cafeteria.   It is reasonably foreseeable that a child in such a situation, i.e., in close proximity to other children and with minimal supervision, could be injured by the hot food spilling.   Further, simply serving the food at a lower temperature would prevent this harm.   Thus, sustaining the demurrer on the ground FUSD did not breach its duty of care by serving very hot food to plaintiff was error.

 FUSD further contends the hot food was not the proximate cause of the injury, because spilling the food on himself by plaintiff constituted an intervening event which broke the connection between FUSD's alleged negligence and the injury.   However, where injury is brought about by an intervening cause, i.e., a later cause of independent origin, the question of proximate cause revolves around a determination of whether the intervening cause was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable.  (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, 521, 150 Cal.Rptr. 1, 585 P.2d 851.)   Here, as discussed above, the risk that a child will spill food on himself while eating in the school cafeteria is the reason serving food which is hot enough to burn the child's skin could be found to constitute a breach of the school district's duty of care.   Therefore, the fact that plaintiff spilled the food on himself does not relieve FUSD of liability for plaintiff's injuries.

FUSD also argues a lack of proximate cause prevents plaintiff from proceeding on a negligent supervision theory.   FUSD categorizes this injury as one that was “as likely to occur in the presence of a teacher as in his absence, and under well-supervised conditions as under negligent supervision.”  (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 750, fn. 7, 87 Cal.Rptr. 376, 470 P.2d 360.)

 Proximate cause is generally a question of fact for the jury.  (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, 520, 150 Cal.Rptr. 1, 585 P.2d 851.)   Nevertheless, where reasonable people will not dispute the absence of causality, the court may treat the decision as one of law.  (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207, 223 Cal.Rptr. 645.)   However, the standard for finding as a matter of law that the material facts show a lack of causality is high.  (Ibid.)

 Here, plaintiff alleges his boisterous conduct contributed to the accident.   He further contends proper supervision of the cafeteria would have eliminated or significantly reduced “the level of horseplay at the lunch table” thereby reducing the probability of hot substances spilling and burning plaintiff.   Based on the facts alleged by plaintiff, it cannot be determined with certainty that negligent supervision did not contribute to the accident.

This case is distinguishable from those cited by FUSD where it was held that the level of supervision did not contribute to the injury.  (Woodsmall v. Mt. Diablo etc. Sch. Dist. (1961) 188 Cal.App.2d 262, 10 Cal.Rptr. 447;  Wright v. City of San Bernardino Sch. Dist. (1953) 121 Cal.App.2d 342, 263 P.2d 25.)   In both Woodsmall and Wright, the injury was not caused by conduct the children were engaged in for a period of time preceding the accident, but, rather, was caused by a sudden act which could not have been anticipated.   Here, however, the “boisterous conduct” is alleged to have been going on long enough for plaintiff to have been reprimanded three times.   Therefore, whether negligent supervision was a proximate cause of the injury is a question of fact.

Thus, the demurrer was improperly sustained as to the causes of action alleging general negligence in the operation of the lunch program, i.e., serving very hot food and inadequately supervising the cafeteria.   However, the facts alleged by plaintiff do not support his theory of strict liability.

 Food is not deemed unfit or defective if it contains an injury-producing substance which is natural to the preparation of the food served.   Therefore, under these circumstances, the injured person has no cause of action in strict liability or implied warranty.  (Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633, 4 Cal.Rptr.2d 145, 822 P.2d 1292.)   Only if the injury-producing substance is foreign to the food served may the injured person state a cause of action in implied warranty and strict liability.  (Ibid.)  Thus, even assuming excessive heat can be considered “an injury producing substance,” it cannot be the basis of a strict liability cause of action.   Heat is natural to the preparation of the food.

 The complaint also alleges a cause of action based on negligence per se.   However, the negligence per se doctrine does not constitute a separate theory of recovery, but, rather, relates to the burden of proof.   (Cade v. Mid–City Hosp. Corp. (1975) 45 Cal.App.3d 589, 596, 119 Cal.Rptr. 571.)   Thus, the inability to prove the negligence per se doctrine applies in a particular case does not foreclose a finding of negligence.  (Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 501, 225 P.2d 497.)

Evidence Code section 669, enacted in 1967, codified the doctrine of negligence per se as a presumption affecting the burden of proof.   The section reads as follows:

“(a) The failure of a person to exercise due care is presumed if:

“(1) He violated a statute, ordinance, or regulation of a public entity;

“(2) The violation proximately caused death or injury to person or property;

“(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;  and

“(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”

The first two elements are regarded as factual matters to be determined by the jury.   The last two elements are determined by the trial court as a matter of law because they involve statutory interpretation.  (Cade v. Mid–City Hosp. Corp., supra, 45 Cal.App.3d at p. 597, 119 Cal.Rptr. 571.)

 Plaintiff cites Education Code section 44807 as proof of FUSD's negligence.  Section 44807 provides that teachers shall “hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.”   One purpose of this statute is “to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars under their custody.”  (Forgnone v. Salvador U.E. School Dist. (1940) 41 Cal.App.2d 423, 426, 106 P.2d 932.)   Whether this section was violated due to the level of supervision in the cafeteria and, if violated, whether the violation contributed to plaintiff's injury is a question of fact.   Therefore, contrary to FUSD's contention, the facts as pled in the complaint do not foreclose reliance on Education Code section 44807 to prove negligence.

 However, plaintiff cannot rely on article I, section 28, subdivision (c) of the California Constitution to demonstrate negligence per se.   That section provides “All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful.”   The goal of this section is public safety, including the safety of those in our schools, and is intended to be reached through reforms in the criminal laws.  (Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d 1448, 1456, 249 Cal.Rptr. 688.)   Thus, this section was not designed to prevent injury to students due to negligence of school district employees.   Consequently, it does not meet the requirements of Evidence Code section 669.


The judgment is reversed.   Plaintiff to have his costs on appeal.

BEST, Presiding Justice.

STONE (Wm. A.) and THAXTER, JJ., concur.

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