Reset A A Font size: Print

Court of Appeal, Second District, Division 5, California.

Michael HOYEM, by and through his guardian ad litem Mary Ann Hoyem, Mary Ann Hoyem, Plaintiffs and Appellants, v. MANHATTAN BEACH CITY SCHOOL DISTRICT and Foster A. Begg School, Defendants and Respondents.

Civ. 48605.

Decided: July 21, 1977

Morgan, Wenzel & McNicholas, Bruce A. Broillet, Darryl L. Dmytriw, Los Angeles, for plaintiffs and appellants. Ellis J. Horvitz Law Corp., Ellis J. Horvitz, Edward J. Horowitz, Los Angeles, for defendants and respondents.

In this case against a school district and a school, we are asked to determine for the first time whether school authorities have a duty to prevent pupils from voluntarily leaving the school grounds during school hours, in order to protect them from negligent acts of third parties that might occur off the school grounds. Under the facts of this case, we conclude no such duty exists.

Plaintiffs and appellants are Michael Hoyem (Michael), a ten-year old minor and his mother Mary Ann Hoyem (Mary Ann). Defendants and Respondents on this appeal are Manhattan Beach City School District and Foster A. Begg School (Begg School). On July 16, 1974, Michael was enrolled in the summer school program at Begg school. On that day, Mary Ann delivered him to the school premises. During the school day, and before the final classes were dismissed, Michael left the school grounds on his own volition and was standing near or about the intersection of Manhattan Beach Boulevard and Peck Avenue in the City of Manhattan Beach, when he was struck by a motorcycle driven by one Miles McCoid Dupee (Dupee), and seriously injured.

Plaintiffs brought action against Dupee, respondents and others. They alleged as many as eight separate causes of actions in various complaints filed through and including the third amended complaint. Four of these causes of action involved respondents and were based respectively upon Michael's personal injuries, Mary Ann's medical expenditures on his behalf, Mary Ann's loss of Michael's comfort and society, and Mary Ann's emotional shock.

Ultimately, respondents' demurrers for failure to state a cause of action were sustained without leave to amend as to each of these alleged causes of action. This appeal is from the order dismissing the actions against respondents.

The act of negligence being asserted against respondents is the failure of the school authorities to supervise Michael in such a way as to prevent him from departing the school grounds before the end of regularly scheduled classes. Mary Ann alleges she relied upon such supervision when she produced Michael at the school and entrusted his safety and well being to the school authorities. Plaintiffs do not suggest that the school had a duty to provide supervision to Michael once he departed school grounds. Instead, they contend that the school had a duty to prevent Michael from leaving in the first place. In their opening brief plaintiffs summarize their position succinctly by stating: ‘1. Michael Hoyem went to school and began regularly scheduled classes. 2. The school failed to supervise Michael while he was on the school ground by failing to take the proper precautions against Michael's ‘playing hooky.’ Michael played hooky and was injured on the public streets.'

An indispensable condition of negligence liability is a duty of care owed by the alleged wrongdoer to the injured person. Existence of such a duty is initially a question of law for determination by the court, although, when reasonable foreseeability injury is involved, the latter element is a jury question, unless the facts are such that decisional law has established that the accident was not foreseeable. We have such a situation here.

The alleged foreseeable harm in our present case was a danger existing off the school's grounds. In Kerwin v. County of San Mateo, 176 Cal.App.2d 304, 1 Cal.Rptr. 437, a six-year old pupil, Thomas, became ill while at school and a school official called his home and spoke with his eleven-year old brother Richard, also a student at the school, who was home ill and apparently was the only one there. He was told to come to school and get Thomas and take him home. Richard rode to school on his one-seat bicycle and picked up his brother. On the way home, the bicycle tipped over causing injuries to Richard. The substance of the cause of action was that the school owed a duty to exercise reasonable care for the protection of Richard on his way home, inasmuch as it affirmatively placed him in a position of danger when it allowed him (and his brother) to leave the school grounds. This theory of liability is substantially the same as plaintiffs' theory in our present case; namely, that the school, by negligently allowing Michael to become a truant, placed him in a position of danger while he was walking to his destination. The Kerwin court rejected plaintiff's argument, saying at page 309, 1 Cal.Rptr. at page 440:

‘No reason is alleged why an 11-year-old boy could not safely return home. Thousands of 11-year-old schoolboys, as well as those of much younger years, travel to and from school daily without school supervision. Defendant had the right to assume unless something occurred to put it on notice to the contrary, that the two boys would walk home. Nothing is alleged to cause defendant to believe otherwise, or that an 11-year-old boy would not substantially appreciate the dangers to be encountered on the streets.’

In Girard v. Monrovia City School Dist., 121 Cal.App.2d 737, 264 P.2d 115, a nine-year old student was killed at a busy intersection near school. The complaint asserted negligence against two school districts in advising and permitting the child to attend a school in Monrovia instead of the Santa Fe Elementary School, thereby causing the child to travel a more dangerous route to and from school. The court, at page 743, 264 P.2d at page 119, said:

‘Of course, respondents could reasonably foresee that if a pupil is transferred to a different school he will take a different route and cross different streets, and be subjected to varying degrees of traffic hazards, but they cannot reasonably foresee that on any given street on any particular occasion, either a motorist or the pupil will fail to exercise ordinary care, or that at any particular location an unavoidable accident may occur.’

‘The fact that an injury occurs while a pupil is on an errand . . . of the teacher does not necessarily establish negligent supervision, since it is the duty of the teacher, as a reasonable and prudent person, to guard only against such accidents as are reasonably foreseeable. . . . Thus, the fact that a pupil, while on an errand on orders of his teacher . . . outside the school premises, is injured when run into by a vehicle, does not render the school agency liable in the absence of a finding of fault or negligence on the part of the teacher . . . as a proximate cause of the accident.’ (Emphasis added.)1 (38 A.L.R.3d 830, 844, citing inter alia, Harrison v. Caddo Parish School Board, La.App., 179 So.2d 926.)

California cases express the rule that a school district has no duty to supervise or provide for the protection of pupils between home and school unless it has undertaken to provide transportation. (See Raymond, Kerwin, and Girard, supra.) Education Code section 13557.5 has codified this rule.2

In Castro v. Los Angeles Bd. of Education, 54 Cal.App.3d 232, at page 236, 126 Cal.Rptr. 537, at page 540, this court concluded:

‘Students who are off of the school's property for required school purposes are entitled to the same safeguards [pursuant to section 13557.5] as those who are on school property, within supervisorial limits. Students who participate in nonrequired trips or excursions, though possibly in furtherance of their education but not as required attendance, are effectively on their own [pursuant to Education Code section 1081.5]; the voluntary nature of the event absolves the district of liability.’

It follows from the above case law that school authorities are not responsible for a pupil's welfare off school grounds unless the school has accepted responsibility for his or her safety or has knowledge of a specific danger which the school could guard against. Thus, even assuming arguendo that negligent supervision on respondents' part permitted Michael to leave the school, the moment he became a truant, they had no reason to foresee any harm to him.

The court's ruling on Mary Ann's cause of action for emotional shock when she first observed Michael's injuries ‘a few hours' after the accident was correct. (Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.) In Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122, the court reviewed Dillon and reaffirmed the requirement that plaintiff must be present at the scene of the accident. Also see Aravz v. Gerhardt, 68 Cal.App.3d 937, 137 Cal.Rptr. 619, where the court rejected the cause of action when the mother arrived at the scene of her son's accident within five minutes after it occurred.

We do not discuss the merits of Mary Ann's alleged causes of action for damages for medical expenditures made by her on Michael's behalf and her loss of his comfort and society, because they are derivative actions and in the absence of the primary liability of the tortfeasor (respondents) for the injury of Michael, there is no ground for an independent and secondary liability for injuries to Mary Ann.

The order of dismissal of December 29, 1975, is affirmed.


1.  See also Angelis v. Foster, 24 Cal.App.2d 541, 75 P.2d 650.

2.  Education Code section 13557.5 provides in peitinent part, as follows:‘Notwithstanding any other provision of this code, no school district . . . shall be responsible or in any way liable for the conduct or safety of any pupil is of the public schools at any time when such pupil 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 circumstances.‘In the event of such a specific undertaking, the district . . . shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district . . ..’

HASTINGS, Associate Justice.

STEPHENS, Acting P. J., and ASHBY, J., concur.

Copied to clipboard