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District Court of Appeal, First District, Division 2, California.


Civ. 10609.

Decided: January 11, 1938

Crozier C. Culp and Elliott Johnson, both of Oakland, for appellant. Earl Warren, of Oakland, and Charles V. Barfield, of San Francisco, for respondent.

The minor plaintiff sued through her guardian for damages for personal injuries suffered by her when struck by a garbage truck owned and operated by the Scavenger Company. The injuries occurred while the truck was gathering garbage from the school grounds, and the school district was joined on the theory that it was negligent in failing to prevent the injuries. A demurrer both general and special was filed by the school district, and was sustained without leave to amend. The plaintiff did not seek permission to file an amended complaint, but comes here on an appeal from the judgment in favor of the school district.

The plaintiff was a regularly enrolled pupil in the Castlemont High School maintained by the defendant school district in the city of Oakland. As a member of the class in physical education, she was required, with the other members of the class, to cross a portion of the school premises from the gymnasium to the playgrounds. While following this course she was struck by the garbage truck, but the complaint does not state where this occurred other than that it was within the school premises. The pertinent portions of the complaint are: “while plaintiff, Eleanor Taylor, in the company of the other young ladies who were members of the aforesaid physical education class, was proceeding, under the care, supervision and control of the said Claire M. Johnston (the teacher), from the aforesaid gymnasium building to the aforesaid playgrounds where the aforesaid class in physical education was to be held and conducted, and while said plaintiff, Eleanor Taylor was following the usual and regular course to said playgrounds, which said course lay wholly within the private bounds and confines of the premises of said Castlemont High School, defendant, Albert Santucci, did then and there so recklessly, carelessly, and negligently drive, operate and propel the aforesaid Ford garbage truck upon, across and wholly within the bounds and confines of the said grounds, playgrounds and premises of the said Castlemont High School, that the said Ford garbage truck and then and there come into violent contact with the body of the said plaintiff, Eleanor Taylor, and did then and there with great force and violence, knock, hurl and threw the said plaintiff, Eleanor Taylor, to and down upon the paved and graveled surface of the ground at said place.”

Negligence is charged to the school district in the following language:

“That said defendant, Oakland High School District of Alameda County, and its said agents, servants and employees, * * were fully aware of the danger and peril to students of the said Castlemont High School arising from and occasioned by the operation of motor vehicles over, upon and within the bounds and confines of the grounds, playgrounds, and premises of the said Castlemont High School during regular school hours, and while regularly scheduled physical education classes were being held and conducted upon said grounds, playgrounds and premises of said High School, and while students were passing to and from the aforesaid Gymnasium Building and the aforesaid playgrounds, but that said defendant, * * * negligently and carelessly failed, neglected and omitted to furnish, install, provide, formulate, or to place or put into effect or operation, any device, safeguard, safety measure, rule or regulation of any nature whatsoever to prevent the aforesaid injuries. * * *

“That the aforesaid respective specified acts of negligent omission on the part of the defendant, Oakland High School District of Alameda County, and its aforesaid agents, servants, and employees, and the aforesaid acts of negligent commission on the part of the defendants, Oakland Scavenger Company, a corporation, * * * operated singly and independently and proximately to cause, bring about and produce, and did singly, independently and proximately cause, bring about and produce the aforesaid injuries sustained.”

It is at once apparent that appellant rests her charge against the school district upon no affirmative act of negligence, but relies wholly upon the failure to provide such safety devices and rules and regulations as would make such accidents impossible, notwithstanding the independent negligent acts of third parties. The respondent rests its case upon the theory that the garbage truck was using the school premises under state–wide regulations found in the Vehicle Code, St.1935, p. 93, as amended, and that plaintiff's injuries were attributable solely to the negligence of its codefendant, who was not under the supervision or control of the school district.

The action was brought under the provision of section 2.801 of the School Code, as amended by Stats.1931, p. 2487, which permits recovery for injuries arising “because of the negligence of the district, or its officers or employees.” Since this statute has created a new liability upon the school districts, it must be strictly construed. Cook v. Superior Court, 12 Cal.App.2d 608, 55 P.2d 1227; Weber v. Pinyan, Cal.Sup., 70 P.2d 183, 112 A.L.R. 407. Hence, it is necessary to find in the charge of negligence on the part of the school district a “want of such care as a person of ordinary prudence would exercise under the circumstances,” or a “failure to observe, for the protection of the interest of another person, that degree of care, protection and vigilance which the circumstances justly demand.” 19 Cal.Jur. p. 548.

To meet these demands, the appellant alleged that the school authorities failed to provide any “safety measure, rule or regulation of any nature whatsoever to prevent the aforesaid injuries.” In support of the pleading, the appellant argues that it was the duty of the school authorities to enact all necessary rules to prevent such accidents, and in this regard suggests that they might have provided an officer to meet every vehicle at the gates and to walk slowly ahead of each vehicle sounding a warning to the students of the approaching danger; that they might have called a general assembly and warned all the students that there was danger in moving motor vehicles and that they should use special care in going from the dressing rooms to their physical education classes; that they might have provided small hand trucks for the delivery of supplies and for the removal of garbage; and that they might have erected “stop signs” or other signals to control the operation of vehicles within the school grounds. The respondent replies that the rules for the control of traffic over school premises have been fixed by state–wide regulations made by the Legislature and found in the Vehicle Code. Section 511, St.1935, p. 176, provides speed limits for vehicles when traversing school grounds. Section 603, St.1935, p. 196, limits the right to operate a vehicle upon school grounds except upon permission of the school authorities. Subdivision (c) of that section provides that, when no special conditions or regulations have been imposed by the school authorities, “all the provisions of this code relating to traffic upon the highways shall be applicable to such traffic upon said driveways, paths or grounds.” Here it is alleged that vehicular traffic was permitted by the school authorities and that no special conditions or regulations were imposed. It follows that such traffic was subject to all the regulations and provisions of the Vehicle Code. The purpose of the Code sections is clear. If the school authorities determine that special regulations of vehicular traffic are necessary they are authorized to make and enforce such regulations. But, if the school authorities determine that special regulations are not necessary, then the Legislature has declared that the provisions of the Vehicle Code shall apply. These matters are purely legislative, and it is not a matter for the court or jury to determine whether any rule, regulation, or restriction covering such traffic should be made. It is a matter of common knowledge that many of our school districts have provided roads and driveways for vehicular traffic over school grounds for the accommodation of the pupils, the teachers, and the public having business with the schools. The use of these facilities is not of such a rare occurrence that a court could say as a matter of law that special rules and regulations should be enacted to govern the traffic. There is nothing unusual or inherently dangerous in a garbage truck which periodically enters the school grounds for the removal of garbage. We are not aware of any case in which a court would have jurisdiction to supervise the quasi legislative acts of an administrative body of this kind, but, if some special circumstances should arise which would warrant a court in exercising such jurisdiction, those circumstances should be pleaded. That some court or jury might deem certain regulations expedient is beside the question. Rules of conduct are legislative rather than judicial in character, and, when the sovereign state, acting through its legislative branch, fixes the rules of conduct to be observed under certain circumstances, it is not within the power of the courts to declare that different rules should be observed. The situation is not changed when the Legislature gives to one of its agencies power to enact additional rules. Assuming that the Legislature may make this delegation of power, the exercise of the power is discretionary with the agency and is not subject to judicial review or judicial control. Certainly the school authorities could not restrict the disposal of garbage as that is a local police affair under the control of the municipality. Article 11, § 11, Const. We, therefore, conclude that, in so far as the case rests on the failure of the school authorities to enact additional regulations to those found in the general statutes, the complaint fails to state a cause of action.

For like reasons no cause of action is stated in relation to the failure of the school authorities to provide traffic signals and traffic controls. The Legislature has declared that these things may be done, but that, if they are not done, then the conduct of all parties is regulated by the general laws. This is but another way of saying that, if the school authorities do not deem it necessary to adopt other methods, the rules of conduct applicable to all parties shall be those found in the statutes. Thus, in the absence of such local regulations, the state has elected to determine what is reasonable and prudent in regard to the control of such traffic. Applying the rule of strict construction to section 2.801 of the School Code, which imposes upon the school districts liability for “negligence,” the inevitable conclusion follows that the Legislature did not intend to fix liability upon a district because of conduct which, by express legislative action, was declared to be reasonable and prudent.

In cases of this type the judgments which have charged the school districts with liability have generally rested upon a showing of some dereliction on the part of the teacher or employee. This is not such a case. The complaint alleges that the appellant was under direct supervision of the instructor, following the usual and regular course from the gymnasium to the playgrounds. There is no allegation that the teacher was incompetent or that she failed in any respect in the performance of her duties. The plaintiff was sixteen years of age and presumably in possession of all her faculties. If there was any inherent danger in the operation of the garbage truck, it must have been known to the plaintiff. The complaint alleges that all the school authorities, including this teacher, were fully aware of the danger and peril to the students occasioned by the operation of motor vehicles generally over the school grounds. This is but an abstract statement of the commonplace––that people know that motor vehicles are dangerous if operated negligently. But there is no allegation of mental or physical weakness on the part of the appellant which would take her out of the general class, and no allegation that the operation of the garbage truck created any special or unknown danger which would require special supervision in reference to a girl of that age. We do not undertake to state in this opinion what allegations would be sufficient. We merely hold that this complaint does not state a cause of action against the school district. The case pleaded is simply one of a girl presumably in possession of all her faculties who was the victim of an unfortunate accident which was caused by the alleged negligence of the operator of the truck, but in which the school authorities and the school employees took no part.

The objection that the trial court failed to give appellant leave to amend is not available at this time because she did not make any application to the trial court at any time for such leave. Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698, 706, 16 P.2d 268.

The judgment is affirmed.

NOURSE, Presiding Justice.


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