SWEARINGER v. FALL RIVER JOINT UNIFIED SCHOOL DISTRICT

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Court of Appeal, Third District, California.

Sonia SWEARINGER et al., Plaintiffs and Appellants, v. FALL RIVER JOINT UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Sonia SWEARINGER et al., Plaintiffs and Appellants, v. PRINCETON JOINT UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Civ. 22782.

Decided: March 28, 1985

John M. Burlake, Redding, and Helen O. Page, Sacramento, for plaintiffs and appellants. Porter, Scott, Weiberg & Delehant, Mary F. Levine, Sacramento, Frost, Krup & Atlas and Leonard G. Krup, Willows, for defendant and respondent.

This appeal presents two significant questions of liability of school districts for injuries to students that occur off school grounds.   The first concerns the reach of the immunity for “field trips or excursions” provided in Education Code section 35330.   The second concerns respondeat superior liability for the negligence of volunteers who provide services to the school district.   Each question takes us into the labyrinth of statutes in the Education Code 1 , Government Code and Vehicle Code which regulate the liability of school districts.

Fall River Joint Unified School District (Fall River) hosted a basketball tournament at Fall River High School.   Princeton Joint Unified School District (Princeton) brought its basketball team to Fall River High School, together with several other students who volunteered to keep score for the team.   One of these scorekeepers, Sonia Swearinger, was seriously injured in an automobile accident while being transported from Fall River High School to overnight lodgings provided her by the family of a Fall River student.   She and her parents filed this personal injury action naming Princeton, Fall River and others as defendants.

Princeton and Fall River were granted summary judgments on the ground, among others, that they were shielded from liability by section 35330, which authorizes a school district to conduct “field trips or excursions” for athletic and other purposes but shields it from claims of liability for personal injury “occurring during or by reason” of them.   However, as we will show, the section 35330 immunity has been qualified by enactment of section 44808 which may provide for liability during field trips or excursions under the circumstances here.   Fall River was granted summary judgment on the additional ground that no respondeat superior liability could be premised on the negligence of the volunteer host driver.   This conclusion also is erroneous.   We will reverse the judgments.

Facts 2

The basketball tournament was held at Fall River High School and lasted several days.   Its financial proceeds funded the school athletic program.   Sonia, age 15, a Princeton pupil, volunteered to keep statistics for Princeton's team.   She received no academic credit.   Princeton did provide bus transportation to Fall River for her and the team.   The visiting students were housed, fed, and transported to and from Fall River High School by the families of Fall River students.   Tonya Gallion, a Fall River student, and her parents were to provide these benefits for Sonia and another Princeton statistician.   The accident occurred when the Gallion automobile, driven by Tonya and carrying the Princeton guests from Fall River High School to Tonya's house, overturned.   Sonia was gravely injured.

The Gallions and other host families were selected by Fall River faculty.   The agreement to host the Princeton students was freely undertaken by them.   Their only tangible reward was free tickets for the first night of the tournament.   Fall River faculty advisers admonished the host students to avoid such undesirable conduct as taking visitors partying, drinking, and dancing.   A violation of these admonitions could result in relieving the host families of their volunteer host duties.

Discussion

The Swearingers' complaint tenders two theories of liability:  first, that regular school employees of the districts negligently organized and conducted the tournament;  and second, that Tonya Gallion, as a volunteer host for Fall River, was an agent whose negligence is attributable to the districts.   On both theories the trial court held that section 35330 provides immunity;  on the second theory the court held Tonya Gallion was not an employee and that this precluded vicarious liability.   As appears, we have concluded that the immunity provided by section 35330 has been overridden in part by a subsequent statute, section 44808.   When read together, these statutes permit liability for the school districts on both of the Swearingers' liability theories in the circumstances of this case.   Moreover, the trial court erred in ruling, as a matter of law, that Tonya Gallion was not an employee for purposes of respondeat superior liability.

I

The Scope of Immunity for Off-Premises Injuries

The statutes which provide for liability of school districts are to be found in the main in the California Tort Claims Act of 1963.3  A school district is a public entity subject to the act.  (Gov.Code, § 811.2.)   Liability is solely that established by statute.  (Gov.Code, § 815, subd. (a).)  The applicable liability statutes are Government Code section 815.2 4 , providing for respondeat superior liability for negligence of employees, and Government Code section 815.4 5 , providing for liability for negligence of independent contractors comparable to that which would obtain for a private person.6  We will consider the reach of these statutes.   But first we must detour by way of the defense which was held dispositive in the trial court.   The liability that is premised on the Government Code is subject to any immunity “provided by statute.”  (Gov.Code § 815, subd. (b).)  The districts' first and most far-reaching claim is that Education Code section 35330 provides an absolute immunity given the facts shown undisputed in the summary judgment proceeding.

Section 35330 authorizes a school district to “[c]onduct field trips or excursions [with its students] in connection with [specified school activities]” but declares that the participants have “waived all claims against the district ․ for injury, accident, illness, or death occurring during or by reason of the field trip or excursion.”  (Emphasis added.) 7  The trial court held that both districts were engaged in a field trip as to Sonia Swearinger because she was not given attendance credit for the trip and that is the test to be applied under Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 126 Cal.Rptr. 537.   We disagree with Castro and consequently with the conclusion of the trial court.

The Castro opinion determined the meaning of “field trip or excursion” in the light of another provision of the Education Code, section 44808.8  That statute posits liability for breach of a qualified duty of the district to provide for the safety of its pupils when it has “undertaken a school-sponsored activity off the premises of [the] school․”  As ordinary language one would say a field trip or excursion conducted by a school is a school-sponsored activity off the premises of the school.   Thus the implication of limited liability in section 44808 clashes on its face with the absolute immunity of section 35330.  Castro attempted to resolve the clash by inventing a dividing line between the two apparently overlapping terms.

 Castro said that a “ ‘school-sponsored activity’ [is one which] requires attendance [ ] for which attendance credit may be given․”  (Id., at p. 236, 126 Cal.Rptr. 537.)   It said:  “Students who are off of the school's property for required school purposes are entitled to the same safeguards as those who are on school property, within supervisoral limits.   Students who participate in non-required trips or excursions, though possibly in furtherance of their education but not as required attendance, are effectively on their own;  the voluntary nature of the event absolves the district of liability.”  (Ibid.) 9  Following this logic Princeton showed Sonia participated in the trip as a volunteer thereby making the trip, as to her, a “field trip or excursion” subject to the immunity of section 35330.   The trial court followed suit.   Here the trial court went wrong because the Castro analysis went wrong.   The distinction between voluntary and accredited off-campus activities is not to be found in the language of sections 35330 or 44808;  nor can it be placed there on policy or other grounds.

 We begin with the language of the statutes.  Castro notes the usual connotations of field trip and excursion.  “ ‘Field trip’ is defined as a visit made by students and usually a teacher for purposes of first hand observation (as to a factory, farm, clinic, museum).  ‘Excursion’ means a journey chiefly for recreation, a usual brief pleasure trip, departure from a direct or proper course, or deviation from a definite path.”  (54 Cal.App.3d at p. 236, fn. 1, 126 Cal.Rptr. 537.)   One might argue that the basketball tournament at Fall River doesn't fit neatly in either category.   However, an examination of the statutory history of the usage of “field trip or excursion” reveals that that composite term encompasses all off-campus school activities.

Section 35330 was enacted in its present form in 1971.10  It derives from a statute which limited the liability of districts which conducted “field trips or excursions” to foreign nations.  (See former § 1081.6, Stats. 1969, ch. 534, p. 1150.)   Domestic travel, as authorized by other contemporaneous statutes, was not so limited.  (See former § 16857 et seq., Ed.Code of 1959 for “school athletic contests or other school activities or to and from fairs or expositions”, former § 16857;  to “activities of an educational nature”, former §§ 16859 and 16860.)   None of these statutes distinguished between “curricular” and “voluntary” student activities.

 In 1971, these statutes were melded into one statute under the collective banner of “field trips or excursions.”  (Former § 1081.5, Stats. 1971, ch. 1808.)   This recombinant activity strongly implies that the phrase embraces all of the varieties of activities entailing off-premises travel addressed by the superseded statutes including all school-sponsored, off-campus activities, whether voluntary or curricular.   We so conclude.   When section 1081.5 was repealed and re-enacted in 1972 the phrase was retained.   (See Stats.1972, ch. 31, § 4, p. 39.)   That section is now section 35330.   Accordingly, we conclude that “field trip or excursion” extends to all off-campus activities including the athletic contest here in issue.11

 The next question is:  what is the meaning of “school sponsored activity off the premises of [the] school”?   Sponsored connotes that the involvement of the school in the activity must be substantial.   Sponsorship exceeds mere endorsement and extends to organization and control of the activity in question.   Thus, in ordinary parlance, any activity organized and conducted by regular school personnel within the scope of their employment is a school-sponsored activity.   While no definition of “school-sponsored” is contained in the Education Code, school athletic programs are described as “school-sponsored.”   For example, in former section 8703 “school sponsored” was used with reference to an interscholastic athletic program.  (Stats.1968, ch. 182, p. 465, § 31, currently § 51242;  see also former § 92, currently § 41;  c.f. Hartzell v. Connell (1984) 35 Cal.3d 899, 910, 201 Cal.Rptr. 601, 679 P.2d 35.)

 Since sections 35330 and 44808 traverse the same territory, what function does 44808 have in providing for limited liability where 35330 provides immunity?   The necessary answer is that section 44808 is an exception to section 35330.   Any other resolution would render section 44808 without effect upon school-sponsored activities.   The predecessor section 44808 was originally enacted in 1972 and chaptered subsequent to the re-enactment of the predecessor to section 35330.   Where statutes in pari materia are in conflict, the later prevails over the earlier, a rule that gains force if the later statute addresses a narrower domain.  (See, e.g., Coker v. Superior Court (1945) 70 Cal.App.2d 199, 201, 160 P.2d 885;  58 Cal.Jur.3d, Statutes, § 108, pp. 486–487.) 12  Moreover, where we are confronted with statutory ambiguity concerning immunity for liability we are mindful of the rule:  “Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.”  (Ramos v. County of Madera (1971) 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 484 P.2d 93.)

This reading meshes with the language, history and policy of the contending sections.  Castro's interpretation does not.   Its formulation is rootless and leads to capricious results.   Whether an activity is one requiring attendance for credit depends upon a characterization subject to control by the district.  (See Hartzell, supra, 35 Cal.3d at pp. 904–905, fn. 6 and pp. 908–911, 201 Cal.Rptr. 601, 679 P.2d 35.)   A liability which turns on credit lends itself to wholly illogical divisions of responsibility.   If, for example, a bus transporting students on a district sponsored activity has an accident which injures the students, under Castro the district's responsibility turns not on its control of the bus but on the credit it gives the students for the activities pursued by use of the bus.   Some students on the bus may recover and others, with identical injuries, may not.   This is an untenable basis for liability.

 We are thus led to hold that section 35330 does not bar liability for school-sponsored off-campus activity, as defined in section 44808.   Whatever immunity attaches to such activity is governed by section 44808.   That removes the districts from the sway of 35330 since the athletic contest was a school-sponsored activity (See Ed.Code, §§ 41, 51242).   There remains the question of whether Princeton and Fall River are otherwise subject to liability pursuant to section 44808.

II.

Liability Pursuant to Section 44808A. Negligent Selection of Hosts

 Section 44808 imposes a responsibility upon school districts to care for the safety of “any pupil of the public schools” when the district “has undertaken to provide transportation for such pupil to and from the school premises, [or] has undertaken a school-sponsored activity off the premises of such school, [or] has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.”   In the context of these responsibilities, the phrase “any pupil” is not limited to the district's pupils but encompasses the pupils of other schools if the district has undertaken any of the stated responsibilities and those responsibilities implicate the welfare of the pupils of another district.   This reading connects the reality of multi-district school sponsored activities, such as those in this case, with a standard of liability commensurate with the responsibilities undertaken.13  That leads us to ask whether Fall River, which hosted the basketball tournament and arranged for the housing and transportation of the visiting Princeton pupils, comes within these provisions.   We so conclude.

 Fall River faculty members selected the host families for the purpose of having them furnish housing and transportation to the Princeton pupils.   In selecting the host families Fall River assumed a responsibility commensurate with that action.   Whether or not it could be said that Fall River undertook to provide the transportation or specifically assumed that responsibility, it may nonetheless have been under a duty “to exercise reasonable care under the circumstances.”  (§ 44808;  see Hoyem v. Manhattan Beach City School Dist., supra, 22 Cal.3d at pp. 516–520, 150 Cal.Rptr. 1, 585 P.2d 851.)   That applies to the care used in the selection of the host families in authorizing them to transport the Princeton pupils to and from Fall River High School.   Case law preceding the Tort Claims Act recognized that districts may be liable for negligence of district personnel in the arrangement of transportation for students.  (See Hanson v. Reedley Etc. School Dist. (1941) 43 Cal.App.2d 643, 111 P.2d 415.)   That precedent fits the language of section 44808.  (Compare Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, fn. 3, 87 Cal.Rptr. 376, 470 P.2d 360.)   Accordingly, the trial court erred in granting summary judgment for Fall River on the ground that it was immunized by statute from potential liability for negligent selection of the hosts.14

 The trial court also erred in granting Princeton summary judgment against the negligent selection theory.   Princeton's liability cannot be predicated upon the failure of its employees to properly select host families.   It appears they had no such role.   However, liability might be predicated on its failure to inquire concerning Fall River's criteria for selection, i.e., Princeton's employees' negligence in blindly entrusting this task to Fall River.   Moreover, Government Code section 895.2 imposes joint and several liability on school districts for injuries arising out of a lawful multiple entity venture.  (Ross v. Campbell Union School District (1977) 70 Cal.App.3d 113, 138 Cal.Rptr. 557.)   The principal significance of this joint and several liability “is that the injured claimant may pursue his remedy against any one of the entities without tracing employment relations under respondeat superior.”  (See Van Alstyne, California Government Tort Liability Practice (Cont.Ed.Bar 1980) pp. 111–112.)   Accordingly, if Fall River employees were negligent in selecting the Gallion Family, Princeton is derivatively liable.

B. Respondeat Superior Liability

Plaintiffs' alternate theory is that the districts are vicariously liable for Tonia Gallion's alleged negligence.   Under section 44808 this theory can only proceed if she is “an employee of [the] district” as that term is used in the section.  (Fn. 8, ante.)   The trial court ruled, as a matter of law, that she could not be an employee of the district.   The ruling is erroneous.

 “Employee” is a term whose meaning varies with context.  (See, e.g., In-Home Supportive Services v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 727–729 and 732, fn. 12, 199 Cal.Rptr. 697;  Fleming v. Foothill-Montrose Ledger (1977) 71 Cal.App.3d 681, 688–689, 139 Cal.Rptr. 579.)   Where “employee” is used in a statute, its content is derived from a consideration of the purposes served by the statute.  (See Ibid.)   Section 44808 concerns tort liability and “employee” is used in this context.   This implies that it embraces a person for whom the “employer” is liable in respondeat superior.   That links “employee” in 44808 to the definition of employee used to that end in the Tort Claims Act.

The only alternative is to find the definition of “employee” in the Education Code.   Preliminary to use of the Tort Claims Act definition of “employee” in our analysis we digress to examine this prospect.   The Education Code contains numerous provisions addressed to the employment relationship of the school district and its compensated employees.  (See §§ 44000 et seq.)   Indeed, section 44808 is lodged in the segment of the Education Code generally addressed to such employment, and particularly to the employment of teachers.   Moreover, section 35021,15 which provides for the use of unpaid aides for non-instructional work which assists teachers, says “[s]uch a non-teaching volunteer aide shall not be an employee of the school district ․”  (Also see § 45349, subjecting the use of volunteers who supervise and instruct pupils to § 35021.)   However, as we have said, “employee” takes on its content from its context.   These provisions have no apparent purpose to address tort liability.   Accordingly, we discern no compelling reason to employ section 35021 to rule out volunteers as employees for purposes of vicarious liability.

The distinction between paid and unpaid personnel as a basis for immunity has little logical force.   On the face of it, it seems unjust that a student could recover for injuries attributable to the negligence of a paid teacher's aide but not in the same circumstances if the aide is working without compensation.   Assuming that liability would otherwise exist because of the master/servant relationship, it seems extraneous to inquire if the servant was motivated by civic virtue rather than personal economic gain.   This conclusion is strengthened by section 32350 which imposes liability upon a school district for the acts of an outsider employee whose services are gratuitously loaned to the district while the employee is under the supervision and control of the district.

The Tort Claims Act, which provides the backdrop against which the tort liability of school districts is to be measured, explicitly includes, in Government Code section 810.2 16 , as an employee any person within the master/servant relation “whether or not compensated.”   It must be remembered that the master/servant relationship defines the respondeat superior liability of public entities, including school districts.   If section 44808 were meant to hinge immunity on the compensation status of the employee the point should have been made expressly.   We are directed to resolve a statutory ambiguity against a finding of immunity.  (See Ramos, supra, 4 Cal.3d at p. 692, 94 Cal.Rptr. 421, 484 P.2d 93.)   Accordingly, we ask if a person who acts as Tonya Gallion did here could be found to be an “employee” as that term is used in the Tort Claims Act for purposes of respondeat superior liability.

When the legislation which engendered the Tort Claims Act definition of employee was introduced it read:  “ ‘Employee’ includes an officer, agent or employee, but does not include an independent contractor.”  (Sen. Bill No. 42 as introduced January 10, 1963 (1963 Reg.Sess.).)   The bill was then amended to strike the word “agent” and to insert “servant, whether or not compensated” as Government Code section 810.2 presently reads.  (Sen. Bill No. 42 as amended February 26, 1963 (1963 Reg.Sess.).) 17  Thus, we are concerned with the meanings of the terms “servant”, “independent contractor”, “agent”, and the recurrent term “employee.”   These are terms of art in the law of respondeat superior and their present meanings and derivation are revealed in the Restatement Second of Agency.  (See Rest.2d Agency, §§ 1, 2, 14n, and Introductory Note to Torts of Servants, pp. 477–481 [hereafter Restatement Analysis].)

 The Restatement says that the terms “employee” and “servant” are synonyms which refer to those agents whose acts give rise to respondeat superior liability of their employer or principal.  (See Ibid., also cf. e.g. White v. City of Alameda (1899) 124 Cal. 95, 98–99, 56 P. 795;  San Francisco v. Boyd (1941) 17 Cal.2d 606, 620, 110 P.2d 1036.)   Agents who are outside of this master/servant relationship are independent contractors.  (See Restatement Analysis;  also see e.g. Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 604, 110 P.2d 1044.)   Independent contractor may also refer to persons who are not agents, i.e., those who are not fiduciaries.  (See Rest.2d Agency, § 14n.)   Accordingly, the net effect of the amendment removing “agent” and substituting “servant” in the language of Government Code section 810.2 is to remove the possible inference that agent/independent contractors might be within the ambit of vicarious liability and only non-agent/independent contractors without.   This conforms the law of master/servant respondeat superior for public entities to that for private parties.18  (See Van Alstyne, Cal.Government Tort Liability Practice, supra, § 2.19, p. 59.)   Accordingly, we must turn to that law for doctrine and analogous precedent.

The first doctrinal question is:  who is a servant for purposes of imposition of master/servant respondeat superior liability?   The Restatement Second of Agency defines “servant” as “a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.”  (Rest.2d Agency, § 220.) 19  The definition is quite broad.20  (Compare Lab.Code, § 2750, “The contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person.”)   It is also apparent that the determination of master/servant relationship depends upon the interplay of criteria which are specific to a factual context.   In that sense it is fact-laden.

 Of course, recognition that the determination is fact-laden does not mean the matter must always be tried as a fact.  “If the inference is clear that there is, or is not, a master and servant relation, it is made by the court;  otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered.”  (Rest.2d Agency, § 220, com. c;  accord Fleming v. Foothill-Montrose Ledger, supra, 71 Cal.App.3d at p. 684, 139 Cal.Rptr. 579;  1 Witkin, Summary of Cal.Law (8th ed. 1973) Agency and Employment, § 22.)   Adjudication of the master-servant relationship as a matter of law may be appropriate despite disputed facts concerning aspects of the relationship if, regardless of the disputed facts, it is clear the matter is outside the master-servant relationship.  (Ibid.;  cf. Castro v. State of California (1977) 70 Cal.App.3d 156, 158–160, 138 Cal.Rptr. 572.)

Prior to considering the analogous precedents on the issue of servant status it is useful to recall the policy basis for respondeat superior liability.   That basis is explained in Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 88 Cal.Rptr. 188, 471 P.2d 988.  “Although earlier authorities sought to justify the respondeat superior doctrine on such theories as ‘control’ by the master of the servant, the master's ‘privilege’ in being permitted to employ another, the third party's innocence in comparison to the master's selection of the servant, or the master's ‘deep pocket’ to pay for the loss, ‘the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk.  (2) The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business.   They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them;  and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.’  (Prosser, Law of Torts (3d ed. 1964) p. 471;  fns. omitted.)   Dean Prosser's citations suggest that the ‘modern’ justification has been accepted for more than 50 years.

“․

“․ Thus, it must be deemed settled in California that in accordance with the principal justification for the doctrine, the employer's liability extends to the risks inherent in or created by the enterprise.”  (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at pp. 959–960, 88 Cal.Rptr. 188, 471 P.2d 988.)

With these principles in mind we ask:  is the relationship of “volunteer” host and, perforce, driver for the school district, outside of the master/servant characterization as a matter of law?   We have found no direct illumination in the case law construing Government Code section 810.2 or Vehicle Code section 17000.   However, as related, we are directed to conform the law of governmental respondeat superior to that of private enterprises.   The apt private analogy is case law concerning volunteers who provide services to charities.   We turn to these precedents.

The liability of charitable organizations for their volunteers has arisen with some frequency.  (See Annot., Liability of Charitable Organization Under Respondeat Superior Doctrine For Tort of Unpaid Volunteer (1978) 82 A.L.R.3d 1213;  Annot., Tort Immunity of Nongovernmental Charities—Modern Status (1983) 25 A.L.R.4th 517;  cf. Annot., Liability of Youth Camp, Its Agents or Employees, or of Scouting Leader or Organization, For Injury to Child Participant In Program (1978) 88 A.L.R.3d 1236.)   The precedents are apposite.

In Malloy v. Fong (1951) 37 Cal.2d 356, 232 P.2d 241, the Supreme Court held a church liable for injuries caused by the negligent driving of an unpaid volunteer while transporting children attending a vacation bible school from a bible class to a playground.   The volunteer performed work essential to the school and was appointed by the pastor under his implied authority.   (Id., at pp. 373–375, 232 P.2d 241.)   The pastor had the right to summarily terminate the volunteer's status.  (Ibid.)  Extensive volunteer assistance was customarily rendered.  (Id., at p. 375, 232 P.2d 241.)   The pastor had authority over the children in the volunteer's vehicle and was responsible for their conduct and safety during the transport.  (Id., at p. 373, 232 P.2d 241.)   He accompanied the volunteer to the playground in another auto.   (Ibid.)

Malloy supports the notion a volunteer school host may be an employee for purposes of respondeat superior.  (See also Garcia v. Herald Tribune Fresh Air Fund, Inc. (1976) 51 A.D.2d 897, 380 N.Y.S.2d 676, charity placing children in homes of volunteers for one week summer sojourn liable via respondeat superior for negligence of hostess when child drowned.)   Although Malloy did use the term “agent” in discussion of the relationship between the volunteer and the church, it did so in a context which made it clear that the agency relationship is that of master and servant.  (Malloy, supra, 37 Cal.2d at pp. 378–379, 232 P.2d 241.)   While the Malloy relationship was of longer duration with more immediate opportunity for exercise of control than appears in this case, in other respects the circumstances are analogous.

The activity here is an ordinary school activity.  (Compare Oxnard Union High Sch. Dist. v. Teachers Ins. Co. (1971) 20 Cal.App.3d 842, 99 Cal.Rptr. 478, assistant football coach driving in scope of that employment in his own auto struck motorcycle, school district liable.)   The use of the volunteers is reasonably foreseeable and the appointment of volunteers within the implied authority of school personnel.  (Cf. Hanson v. Reedley Etc. School Dist., supra, 43 Cal.App.2d at pp. 648–650, 111 P.2d 415, arrangement for one student to transport others home from tennis classes after school hours makes arguable respondeat superior claim;  teacher who set up arrangement was acting within the scope of his employment.)   Despite the absence of means to exercise immediate control by paid school district employees while the students are with the hosts, the school has a residuum of authority and commensurate responsibility for the guest students.  (Compare Vind v. Asamblea Apostolica, Christo Jesus (1957) 148 Cal.App.2d 597, 307 P.2d 85, unpaid assistant pastor of church driving himself to regional convention is an employee.)   If complaints concerning the conduct of the host, e.g., in driving unsafely, are made, school officials have a responsibility for inquiry and correction.   The host role is terminable at will by school officials.   (Compare Smith v. Fall River Joint Union High School District (1931) 118 Cal.App. 673, 681, 5 P.2d 930, owner-driver of school bus who contracted with district to provide transportation for Fall River students to and from school was a servant.)

 Consequently, we conclude that the trial court erred in holding as a matter of law that Tonya Gallion was not an employee of Fall River.   That requires that the matter be returned to the trial court for consideration pursuant to the fact-dependent criteria set forth in this opinion.   As explained, if Fall River may be held liable Princeton may also be held derivatively liable under Government Code section 895.2.

In view of the foregoing, the judgments are reversed.

I dissent.   By its own clear language, Education Code section 35330 1 applies to this case and unequivocally provides the school district with immunity from liability.   The “excursion” in this case was “in connection with ․ school-related ․ athletic ․ activities to and from places in the state, ․”  (§ 35330, subd. (a).)  “All persons making the ․ excursion shall be deemed to have waived all claims against the district․”  (§ 35330, subd. (d).)

I agree with the majority that the reasoning in Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 126 Cal.Rptr. 537 is questionable,2 as section 44808's “school-sponsored activity off the premises” is in no way limited by the requirement of attendance or credit.   Additionally, Castro misreads section 35330's predecessor statute as somehow classifying field trips and excursions into those requiring attendance and those which are voluntary.   The section makes no such distinction.

Much as the majority sees it, the two statutes here appear to be in conflict, but I believe they can be reconciled.   Consequently, I come to a different conclusion as to which section controls here.   Proceeding on the premise the two statutes are irreconcilable, the majority correctly points out the predecessor statute of section 44808 was enacted later than the predecessor statute of section 35330, enacted as an urgency measure in the same 1972 regular session of the Legislature.   Unlike the majority, however, I do not think section 44808 addresses a narrower domain.

We may rely on that rule of statutory construction which provides the later of two acts on the same subject will prevail over the earlier only if the two acts cannot be so reconciled that both can stand together.  (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.)   The rule applies only when two potentially conflicting “ ‘statutes are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.   The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.” ’  (In re White (1969) 1 Cal.3d 207, 212 [81 Cal.Rptr. 780, 460 P.2d 980 ․].)”  (In re Thierry S., supra, 19 Cal.3d at p. 744, 139 Cal.Rptr. 708, 566 P.2d 610.)   I believe the two statutes here can be so reconciled because one section is an exception to the other.

The majority concludes section 44808 is necessarily an exception to section 35330.   I believe it is the reverse.  Section 44808 was originally enacted as section 13557.5, added to the Education Code in the 1972 regular session of the Legislature.  (Stats.1972, ch. 979, § 1, p. 1782.)   Numerically, it followed former section 13557, now incorporated into section 44807, and read “[e]very teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.”  (Stats.1959, ch. 2, § 3, p. 965.)   Section 13557.5, now section 44808, was a clear limitation on this accountability for those times when the pupil is not on school property.   The section provides for liability only when the district, board or officer or employee has undertaken to provide transportation for any “school-sponsored activity off the premises.”  (§ 44808.)   Any such liability is further limited to “while such pupil is or should be under the immediate and direct supervision of an employee․”  (§ 44808.)   Thus, the section establishes an overall limitation on liability for the school, excepting from its own limitation those general undertakings enumerated.   It is my view “school-sponsored activity off the premises” is a broad term encompassing any activity which the school may sanction off its grounds.

Section 35330 provides the “deemed waiver” of liability only for those school-sponsored activities off the premises which qualify as field trips or excursions.   Athletic activities are specifically listed as one of the types of school-related excursions to which section 35330 applies.  (§ 35330, subd. (a).)  Thus, section 35330 provides an exception to the limited liability in section 44808.   Absolute immunity therefore applies only to those “school-sponsored activities off the premises of [the] school” (§ 44808) which are “field trips or excursions in connection with courses of instruction or school-related social, education, cultural, athletic or school band activities․”  (§ 35330.) 3  In sum, the absolute immunity for field trips and excursions operates as an exception to the general limited liability of school districts for school-sponsored activities off school premises.

Those school-sponsored activities off the premises which do not constitute the enumerated activities in section 35330 may subject school officials to the limited liability provision in section 44808.   Typical examples of such events are school-sponsored concerts, carwashes, or volunteer work at local non-school sites, not requiring a field trip or excursion, to which students are frequently brought by their parents or friends directly to the site.

The instant case is one involving a clear application of section 35330, as plaintiff was a participant in an excursion in connection with athletic activities.   Thus, the school district is absolutely immune from her claims.

FOOTNOTES

1.   All nondescript statutory references are to the Education Code.

2.   The facts are derived from two sources, the complaint and factual materials submitted by defendants.   The defendants, as moving parties, had the burden of production of evidence showing undisputed facts which negate their liability as measured by the claims of the complaint.   (See Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 148–149, 60 Cal.Rptr. 377, 429 P.2d 889.)   The defendants established certain facts as without controversy by answers to interrogatories and excerpts from depositions.   However, as will be shown, these are not dispositive when viewed in the light of the substantive issues of law tendered by the plaintiff's complaint.   There remain unchallenged factual claims which, together with inferences therefrom, must be considered in determining the propriety of the summary judgments.

3.   Prior to this enactment, which constituted a broad retraction of the bar of sovereign immunity, school districts were subject to both liability for dangerous conditions of public property under the Public Liability Act of 1923 and liability in respondeat superior for the negligent conduct of officers and employees acting within the scope of their employments under former Education Code section 903.  (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 69.)

4.   This provision reads in pertinent part:  “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

5.   This provision reads in pertinent part:  “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.   Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”

6.   If the injury to the student is caused by a negligent or wrongful act or omission in the operation of a motor vehicle, liability may also be premised on Vehicle Code sections 17000 and following.   These, inter alia, provide for respondeat superior liability for operation of a motor vehicle by an employee of a public entity acting within the scope of employment.  (Veh.Code, § 17001.)   The statutory definition of employee in this usage is virtually identical to that in the Tort Claims Act.   (Compare Veh.Code, § 17000, subd. (a) with Gov.Code, § 810.2.)

7.   The immunity is implied from a curious statutory device, a “deemed waiver.”   This appears functionally as conclusive presumption, conferring immunity as a rule of substantive law.  (See Evid.Code, § 620 [Law Revision Commission Comment (Recommendation, January 1965) ].)   Section 35330 provides in pertinent part:“The governing board of any school district or the county superintendent of schools of any county may:“(a) Conduct field trips or excursions in connection with courses of instruction or school-related social, educational, cultural, athletic, or school band activities to and from places in the state, any other state, the District of Columbia, or a foreign country for pupils enrolled in elementary or secondary schools.   A field trip or excursion to and from a foreign country may be permitted to familiarize students with the language, history, geography, natural sciences, and other studies relative to the district's course of study for such pupils.“(b) Engage such instructors, supervisors, and other personnel as desire to contribute their services over and above the normal period for which they are employed by the district, if necessary, and provide equipment and supplies for such field trip or excursion.“(c) Transport by use of district equipment, contract to provide transportation, or arrange transportation by the use of other equipment, of pupils, instructors, supervisors or other personnel to and from places in the state, any other state, the District of Columbia, or a foreign country where such excursions and field trips are being conducted;  provided that, when district equipment is used, the governing board shall secure liability insurance, and if travel is to and from a foreign country, such liability insurance shall be secured from a carrier licensed to transact insurance business in such foreign country.“(d) Provide supervision of pupils involved in field trips or excursions by certificated employees of the district.“No expenses of pupils participating in a field trip or excursion to any other state, the District of Columbia, or a foreign country authorized by this section shall be paid with school district funds.   Expenses of instructors, chaperones, and other personnel participating in a field trip or excursion authorized by this section may be paid from school district funds, and the school district may pay from school district funds all incidental expenses for the use of school district equipment during a field trip or excursion authorized by this section.“The attendance or participation of a pupil in a field trip or excursion authorized by this section shall be considered attendance for the purpose of crediting attendance for apportionments from the State School Fund in the fiscal year.   Credited attendance resulting from such field trip or excursion shall be limited to the amount of attendance which would have accrued had the students not been engaged in the field trip or excursion.“Credited attendance shall not exceed 10 schooldays except in the case of pupils participating in a field trip or excursion in connection with courses of instruction, or school-related educational activities, and which are not social, cultural, athletic or school band activities.“All persons making the field trip or excursion shall be deemed to have waived all claims against the district or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion.   All adults taking out-of-state field trips or excursions and all parents or guardians of pupils taking out-of-state field trips or excursions shall sign a statement waiving such claims.”  [Emphasis added.]

8.   The text of section 44808 is:“Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board 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, board, or person 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, board, or person 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 or board.”

9.   In Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508, 518, footnote 3, 150 Cal.Rptr. 1, 585 P.2d 851, the Supreme Court characterized this as dicta.

10.   Castro was premised on the erroneous belief sections 35330 and 44808 were jointly enacted in 1972 for the first time and consequently should be read as complimentary.   Whether this conclusion is compelled by its premise, the premise is false.   The terms “field trip or excursion” and “school sponsored activity off the premises of [the] school” do not spring from contemporaneous origins.

11.   Our dissenting colleague apparently accepts this analysis leading to a broad meaning for “field trip or excursion.”   However, he suggests that some off-campus activities nonetheless lie outside this definition, specifically off-campus concerts, car washes, or volunteer work to which students are “frequently” transported by parents or friends.   (Diss. opn., post, at p. 415.)   Creating this exception runs against the tide of inclusion apparent in the history of enactment of former section 1081.5.   Parents or friends may sometimes be employed to transport students on the most orthodox of “field trips” but that happenstance is not of consequence.   Moreover, the creation of the exception is unsupportable in that its only function is to artificially establish a limited and wholly unreasonable field of operation for section 35330.   The result is liability for off-campus activities where the school has least control and immunity where the school has most control.   We reject this as not a sensible means of reconciliation of the two statutes.

12.   It might appear that our resolution leaves section 35330 without effect.   However, that is not the case.  Section 44808 addresses immunity only to other indications of liability in statutes of the Education Code.  Section 35330 is not so limited.   Hence section 35330 has a residual field of operation on codes other than the Education Code, for example, in preventing vicarious liability predicated upon Government Code section 815.4 for the negligence of an independent contractor.   As discussed, infra, the district may be liable for the negligent selection of an independent contractor pursuant to section 44808.   However, vicarious liability, e.g. pursuant to the peculiar risk doctrine (see e.g. 4 Witkin, Summary of Cal.Law (8th ed. 1974) § 657ff), is apparently cut off by the residuum of immunity in section 35330.

13.   The alternative reading of the statute is that it has no application to conduct of a school district with respect to pupils of other districts who are placed in its charge.   This reading and a parallel reading of section 35330 would leave a second district without any Education Code immunity.

14.   In the present posture of this case we are not called upon to resolve issues concerning the scope of the duty of careful selection of personnel and equipment for transportation of students.   It suffices that disputed issues of fact and duty may exist concerning Fall River's selection criteria for ability of host family drivers, safety of their automobiles, and, perhaps, for financial responsibility of host families.   (See Rest.2d Torts, § 411, com. g.)

15.   Section 35021 provides:  “Notwithstanding any other provisions of law, any person may be permitted by the governing board of any school district to perform the duties specified in section 44814 or 44815, or to serve as a nonteaching volunteer aide under the immediate supervision and direction of the certificated personnel of the district to perform noninstructional work which serves to assist such certificated personnel in performance of teaching and administrative responsibilities.   Such a nonteaching volunteer aide shall not be an employee of the school district and shall serve without compensation of any type or other benefits accorded to employees of the district, except as provided in Section 35212 of the Education Code and Section 3364.5 of the Labor Code.No district may abolish any of its classified positions and utilize volunteer aides, as authorized herein, in lieu of classified employees who are laid off as a result of the abolition of a position;  nor may a district refuse to employ a person in a vacant classified position and use volunteer aides in lieu thereof.It is the intent of the Legislature to permit school districts to use volunteer aides to enhance its educational program but not to permit displacement of classified employees nor to allow districts to utilize volunteers in lieu of normal employee requirements.”

16.   The statute reads:  “ ‘Employee’ includes an officer, judicial officer as defined in Section 28 of the Elections Code, employee, or servant, whether or not compensated, but does not include an independent contractor.”  (To the same effect see Veh.Code, § 17000, subd. (a);  also see Rest.2d Agency, § 225.)

17.   The Senate Committee on the Judiciary made a formal comment on this change.   The comment says in pertinent part:  “By amendment, the word ‘servant’ was substituted for ‘agent’ because (1) ‘servant’ was considered more appropriate than ‘agent’ when used in a statute relating to tort liability and (2) the public entities feared that to impose liability upon public entities for the torts of ‘agents' would expand vicarious liability to include a large, indefinite class of persons and ‘servant’ was believed to be more restrictive than ‘agent.’ ”  (See Rep. of Sen.Com. on Judiciary on Sen.Bill No. 42, Sen.J. (1963 Reg.Sess.) pp. 1885–1886, concerning the adoption of section 810.2.)

18.   The sole plausible caveat to this reading arises from the fact that “agent” has sometimes been used in contradistinction to “servant.”   In this usage a servant performs manual services, while an agent conducts transactions.  (See Rest.2d Agency, p. 478;  compare Civ.Code, § 2295 with former Civ.Code, §§ 2009–2015;  also c.f. e.g. People v. Treadwell (1886) 69 Cal. 226, 236, 10 P. 502.)   However, this usage would present an illogical rule of decision if used to divine the scope of respondeat superior.

19.   The Restatement authors were fully conscious of the generality of the formulation.   The comment on the definition provides:  “c.   Generality of definition.   The relation of master and servant is one not capable of exact definition.   It is an important relation in that upon it depends the liability of the master to third persons and to his employees under the provisions of various statutes as well as under the common law;  the relation may prevent liability, as in the case of the fellow servant rule.   It cannot, however, be defined in general terms with substantial accuracy.   The factors stated in Subsection (2) are all considered in determining the question, and it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relation.”  (Rest.2d Agency, § 220, com. c.)The factors stated in subsection 2 are:“(a) the extent of control which, by the agreement, the master may exercise over the details of the work;“(b) whether or not the one employed is engaged in a distinct occupation or business;“(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;“(d) the skill required in the particular occupation;“(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;“(f) the length of time for which the person is employed;“(g) the method of payment, whether by the time or by the job;“(h) whether or not the work is a part of the regular business of the employer;“(i) whether or not the parties believe they are creating the relation of master and servant;  and“(j) whether the principal is or is not in business.”

20.   Dean Prosser characterizes it as “a great over-simplification of a complex matter.”   He points to the factors in the Restatement definition but eschews detailed analysis, closing with the observation:  “․ it is probably no very inaccurate summary of the whole matter to say that the person employed is a servant when, in the eyes of the community, he would be regarded as a part of the employer's own working staff, and not otherwise.”  (Prosser, Torts (4th ed. 1971) p. 460.)

1.   All statutory references in this dissenting opinion are to the Education Code unless otherwise stated.

2.   In footnote 10 the majority suggests the Castro court premised its conclusion on the erroneous belief sections 35330 and 44808 were jointly enacted.  Castro nowhere offers such a statement or suggestion.   In any case, the fact that there are different enactment times does not detract from the court's conclusion the two sections could be read as complementary.  (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381, 137 Cal.Rptr. 332;  see also Banks v. Yolo County (1894) 104 Cal. 258, 259, 37 P. 900;  Old Homestead Bakery, Inc. v. Marsh (1925) 75 Cal.App. 247, 259, 242 P. 749.)

3.   Even if I were to conclude these two provisions were irreconcilable, I believe the relevant provisions of section 35330 deal expressly with a particular subject and section 44808 with a general subject, and thus, they constitute an exception so as to control and take precedence over section 44808.  (Div. of Labor Law Enforcement v. Moroney (1946) 28 Cal.2d 344, 346, 170 P.2d 3;  58 Cal.Jur.3d, Statutes, § 109, at pp. 488–490.)

BLEASE, Associate Justice.

SPARKS, J., concurs.