HOFF v. VACAVILLE UNIFIED SCHOOL DISTRICT (1997)

It has long been the law in California that school districts must exercise reasonable care in supervising their students and may face liability for injuries proximately caused by a failure of due care.  (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513, 150 Cal.Rptr. 1, 585 P.2d 851 (Hoyem).)   The question today is whether the existence of this duty of care should depend on the status of the victim.

Seventy-four-year-old Frederick Hoff sustained severe injuries when hit by a car driven by a student exiting from the overflow parking lot of Vacaville High School (VHS) on the last day of school in June 1992.   While school authorities routinely and adequately supervised the main parking lot, they did not supervise the overflow lot.

Appellants Frederick and Eleanor Hoff sued Vacaville Unified School District (District) on a negligent supervision theory.   In its motion for nonsuit made at the conclusion of plaintiffs' opening statement, the District argued that the duty of supervision existed only for the benefit of students.   The trial court concurred, ruling that the duty did not afford protection for nonstudents such as appellants.   We conclude that status of the victim should not make a difference and thus the duty of supervision protects nonstudents as well.   Accordingly, we reverse the judgment of nonsuit.

I. STANDARD OF REVIEW

 On review of a nonsuit taken at the conclusion of plaintiff's opening statement, we accept all facts asserted at that time as true and pull out every legitimate inference from those facts.   We uphold the judgment of nonsuit where those facts and inferences would inevitably preclude plaintiff from establishing an essential element of his or her cause of action.   (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041, 21 Cal.Rptr.2d 680.)

II. BACKGROUND

A. Factual Summary

The Hoffs' opening statement reveals the following:  on the last day of the 1992 school year, sophomore Jason Lozano floored the accelerator of his V-8, 350 Mustang and, burning rubber, peeled out of the overflow parking lot at VHS.   He fishtailed, jumped the curb and ran into pedestrian Hoff who was walking on the sidewalk.   From the beginning of the incident, Lozano never had control of his car.

Lozano had been driving for six months.   Campus authorities described him as a “good,” “responsible” kid who never disobeyed them.

VHS has a main parking lot as well.   Both lots exit onto West Monte Vista Avenue, a very busy street.   VHS staff knew Monte Vista was a busy street and that one of the most dangerous situations at the end of the day was getting their student drivers out of the parking lot and onto Monte Vista.   As well, they knew that students, as young drivers, would sometimes burn rubber in the parking lots;  they also would hang out of windows and ride on top of cars.

The three campus supervisors, as well as the principal and two assistant principals, “made it a habit and routine” to supervise students as they left the main parking lot.   Students routinely obeyed the adult supervisors as they left the parking lot.   One of the supervisors was trained to direct students out of the main parking lot from the middle of Monte Vista.   It only took about 10 to 15 minutes to clear the main lot at the end of the day.

The presence of adults was necessary to curb student behavior.   Staff could suspend students who drove recklessly and take away their parking privilege.

The overflow lot was often full.   Its capacity was 40 to 60 cars, maybe closer to 100.   Students had to shoot out into traffic because there was no right-turn only lane.   Yet this lot was never supervised at the end of the school day.   According to the principal, there was sufficient personnel and money was not the issue.   Had there been a “felt need,” people could have been deployed to the overflow lot.

B. Procedural Summary

The Hoffs sued the District, as well as the City of Vacaville and Lozano and his parents.   The District moved for summary judgment arguing, among other points, that it owed no duty to Hoff.   Ultimately the trial court denied summary judgment, reasoning that if Lozano drove recklessly, then the District had a duty to control that reckless behavior which began while he was under the jurisdiction of District employees.   The District petitioned for writ of mandate, which this court summarily denied.   Proceeding to trial, the lower court granted the District's motion for nonsuit at the close of appellants' opening statement.   This appeal followed.

III. DISCUSSION

A. Legal Framework

Under the Tort Claims Act, public entity liability is entirely statutory.  (Gov.Code, § 815.)   However, we read the act against the backdrop of general tort law because the conceptual theory of statutory liability is keyed to the common law of negligence and damages.  (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809, 205 Cal.Rptr. 842, 685 P.2d 1193.)

Public entities generally are vicariously liable for the torts of their employees committed within the scope of employment if the employee would otherwise be liable for such conduct.  (Gov.Code, § 815.2, subd. (a).)  The effect of this provision is to infuse general standards of tort liability into respondeat superior liability of public agencies.  (Torsiello v. Oakland Unified School Dist. (1987) 197 Cal.App.3d 41, 44-45, 242 Cal.Rptr. 752.)

In order to recover from a public agency on a negligence theory, that agency or its employees must owe plaintiff a duty of care.   The question whether a duty is owed of course is one of law.   An affirmative answer is nothing more than the policy determination that in certain circumstances it is right to impose liability for the damage done.  (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334 (Tarasoff ).)

Nearly thirty years ago, our Supreme Court reaffirmed the established rule that school authorities were under “a duty to ‘supervise at all times the conduct of the children on school grounds and to enforce those rules and regulations necessary to their protection.  [Citations.]’  [Citations.]”   (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360 (Dailey ).)   Among other authorities for this proposition, Dailey referenced former Education Code section 13557 (now § 44807).  Education Code section 44807 states in part:  “Every 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․” ¹

 The duty to supervise also has roots in the common law concept of special relationship.   Ordinarily, under general tort principles, one does not owe a duty to control the conduct of another.   However, a duty may arise if the defendant stands in special relationship either to the person whose conduct needs controlling or to the foreseeable victim of that conduct.  (Tarasoff, supra, 17 Cal.3d at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334;  Rest.2d Torts (1965) § 315.)

 A special relationship exists between a school and its attending students.  (Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 498-499, 147 Cal.Rptr. 898;  see also Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458-1459, 249 Cal.Rptr. 688;  Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 715, 230 Cal.Rptr. 823.)   The special nature of the school district-student relationship derives from several factors, including the following:  school attendance is compulsory (Ed.Code, § 48200);  public school students have a constitutional right to attend safe, secure and peaceful campuses (Cal. Const., art. I, § 28, subd. (c));  and school authorities stand in loco parentis to their students during the time the students are entrusted to their care (Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, 1196, 228 Cal.Rptr. 776).

 In fulfilling their supervisorial responsibilities, school personnel are held to that degree of care which a person of ordinary prudence, charged with comparable responsibilities, would exercise under the same circumstances.   Either a complete lack of supervision or ineffective supervision may fall short of this standard.   Under Government Code section 815.2, a school district is vicariously liable for injuries proximately caused by negligent supervision.  (Dailey, supra, 2 Cal.3d at p. 747, 87 Cal.Rptr. 376, 470 P.2d 360.)

Courts have long recognized that the main purpose of supervision is to anticipate and curb rash student behavior.  (Dailey, supra, 2 Cal.3d at pp. 748-749, 87 Cal.Rptr. 376, 470 P.2d 360 and cases cited therein.)   And, while high school students may be capable of exerting more self-control than elementary school children, they are not adults and cannot be expected to exhibit the same level of judgment and concern for safety of others and themselves that we associate with full maturity.  (Id. at p. 748, 87 Cal.Rptr. 376, 470 P.2d 360.)   Peer pressure, competitiveness, the desire to show off and other typical characteristics of youth demand efficient supervision to correct conduct and dangerous practices likely to harm fellow students or others.

B. The Existing Duty of Supervision is Owed to Students and Nonstudents Alike

All this brings us to the question of the day:  does the District's duty to supervise the conduct of its students afford protection to nonstudents as well as students who sustain injuries proximately caused by negligent supervision?

The District is absolutely correct that in every published case invoking the duty to supervise, the injured party has been a student.   Naturally, these decisions (1) emphasize that the duty serves the important purpose of protecting students;  and (2) highlight that the responsibility of supervision and protection stems from the public entrustment of children to school authorities during school hours.  (See, e.g., Hoyem, supra, 22 Cal.3d at p. 514, 150 Cal.Rptr. 1, 585 P.2d 851;  Dailey, supra, 2 Cal.3d at p. 748, 87 Cal.Rptr. 376, 470 P.2d 360;  Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at p. 1461, 249 Cal.Rptr. 688.)

However, this does not tell us whether the law also affords protection to nonstudents.   Once again, special relationship principles are helpful.   In Tarasoff our Supreme Court made it clear that there is no logical reason to confine duties arising from special relationships to situations where the defendant stands in special relation both to the victim and the person whose conduct is creating the danger.  (Tarasoff, supra, 17 Cal.3d at p. 436, 131 Cal.Rptr. 14, 551 P.2d 334.)   And, contrary to the District's assertion, Thompson v. County of Alameda (1980) 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (Thompson) did not clarify and limit Tarasoff to circumstances where “the individual under the supervision or control of the public entity poses a threat to an ascertainable victim as distinguished from the general populace.”

The holding of Tarasoff is familiar:  when a therapist determines or should have determined that a patient poses a serious danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.   Discharge of that duty will vary with the facts of each case.   In some instances it will be unreasonable to interrogate the patient to discover the victim's identity, or to conduct an independent investigation to ascertain the victim.   In other cases more might be required.  (Tarasoff, supra, 17 Cal.3d at p. 439 & fn. 11, 131 Cal.Rptr. 14, 551 P.2d 334.)

Tarasoff was essentially a duty to warn case.   So was Thompson.   There, the court refused to impose on public entities and their employees a duty to warn of the release of a juvenile inmate with a violent history who had made nonspecific threats of harm directed at nonspecific victims.   The court explained that the warnings sought by plaintiffs would have to be made to a broad segment of the population and would be general in nature, unlike Tarasoff where the potential victim was specifically known.   (Thompson, supra, 27 Cal.3d at pp. 752-758, 167 Cal.Rptr. 70, 614 P.2d 728.)

This case, of course, is not about warning, it is about a defendant's duty to control the conduct of another when (1) defendant stands in some special relationship to that person and (2) avoidance of foreseeable harm requires such control.  (Tarasoff, supra, 17 Cal.3d at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334.)   There is nothing in Tarasoff or Thompson that requires an ascertainable victim in these circumstances.

 We believe the District's statutory and common law duty to control its students and hold them to account for their behavior runs to the Hoffs such that they are entitled to pursue their negligent supervision claim beyond opening argument.   But before we delve into an analysis of the various policy considerations pertaining to duty, two observations bear noting.   First, nothing in the language of Education Code section 44807 or the case law indicates that the duty of supervision runs only to students.   Second, we are not declaring a new field of activity for school authorities.   We are saying simply that a school district's existing responsibility to use reasonable care in supervising its own students on campus, in narrow circumstances, can be invoked in favor of a nonstudent.

 The elements bearing on whether a duty is owed in a given case are several:  foreseeability of harm to plaintiff;  degree of certainty that plaintiff in fact sustained injury;  the closeness of connection between the offending conduct and the injury suffered;  the moral blame attached to defendant's conduct;  the policy of preventing future harm;  the burden on defendant and consequences to the community if a particular duty is imposed;  and the availability, cost and prevalence of appropriate insurance.   (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193.)   And, where defendant is a public agency, we also examine the extent of that agency's powers, the role imposed on it by law and its budgetary limitations.  (Ibid.)

First, foreseeability.   The foreseeability inquiry is not simply whether the injury was within the realm of possibility.   Objective foreseeability must be tempered by subjective reasonableness when it comes to deciding whether a duty is owed.  (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306, 34 Cal.Rptr.2d 498.)   Further, our task in determining duty is not to decide whether a particular plaintiff's injury was reasonably foreseeable in view of the particular defendant's conduct.   Rather, we must generally assess whether the type of negligent conduct in question is sufficiently likely to result in the type of harm experienced so that liability may appropriately be imposed on the offender.  (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624;  Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1839, 20 Cal.Rptr.2d 913.)

Thus, the question:  is it reasonably foreseeable that an inexperienced teenage driver, departing on the last day of school or any other school day from an unsupervised school parking lot that opens directly onto a very busy street, might exit recklessly and cause an accident?

The answer is “Yes.”   For all the reasons that the VHS authorities elected to supervise the main lot, this type of accident was also reasonably foreseeable.   Supervision in the main lot was necessary to control reckless driving behavior.   The adult presence subdued immature conduct and students generally behaved when held to task for foolish behavior.   Both lots exited to the same busy street, resulting in an onslaught of vehicular traffic at the end of the school day.   The accident occurred in the near vicinity of the lot and thus the injured victim could just as easily have been another student, parent or teacher.

Second and third, that Hoff suffered severe injury as an immediate and direct result of being struck by Lozano is not questioned.   What about the role of adult supervision?   The evidence summarized in opening statement reflected that students adjust their behavior in light of adult admonitions.   A word from a campus authority could easily have deflected Lozano's take-off.

Fourth, as to the degree of moral blame attached to the District's conduct, assuming for purposes of argument that the District's supervision on the day in question fell below the applicable standard of care,² this would not be characterized as a heinous lapse of care.   What is significant is the District's awareness of the danger posed by many students streaming out in cars from school at the end of the day.   If there is a danger with respect to cars exiting the main lot, presumably there would be a similar danger with respect to the smaller, yet nevertheless constantly utilized, overflow lot.

Fifth, the policy of preventing future harm is a nonissue in that the duty to supervise students on campus already exists.   Mr. Hoff could just as easily have been a student, and there would be no question of duty.   We are not talking about implementing new obligations to prevent this type of accident.   Either the District's performance of its supervisory role on the day in question met the standard of care or it did not.

Sixth, for the same reason the additional burden on the District will primarily be limited to defense and payoff of tort claims in the event liability to a nonstudent is found.   We are not announcing a rule calling for increased supervisorial responsibilities.   Additionally, in this instance the scope of parking lot supervision was not restricted because of resources or lack of personnel.   Note too that we are only referring to the duty to supervise student conduct on campus.   It was Lozano's on-campus behavior that under the facts of the opening statement set his car in a tailspin and led directly to the accident.  (See Hoyem, supra, 22 Cal.3d at pp. 513-515, 150 Cal.Rptr. 1, 585 P.2d 851 [failure to exercise reasonable care in supervising students while on school premises during the day gives rise to liability for student's injuries proximately caused by such failure, even when site of injury is off campus].)

Seventh, the consequence to the community is obvious.   Nonstudent pedestrian and vehicular members of the community who might find themselves in that narrow path of harm's way near and around exits from school parking lots stand to benefit if the duty to supervise runs to them.

Eighth, we note that beginning in the 1970's, many commercial carriers refused to provide liability insurance to public entities.   And when insurance was available, the cost was unaffordable.  (City of South El Monte v. Southern Cal. Joint Powers Ins. Authority (1995) 38 Cal.App.4th 1629, 45 Cal.Rptr.2d 729, citing Young, Survey Results:  Pools a Significant Risk-Financing Option (May/June 1988) Public Risk.) According to amici curiae,³ respondent District and nearly 400 additional districts have agreed to provide pooled excess self-insurance under Government Code section 990.8.   Amici curiae administer this pooling mechanism, comprised of pooled public funds, to fund the defense and payment of tort claims.   Thus, at least as to these school districts, commercial insurance apparently is not available.

Ninth, without question school districts have the power to supervise students and hold them to account for their behavior on campus.   Principals are given the specific job of providing for supervision of the conduct of pupils on school grounds during, before and after school.  (Cal.Code Regs., tit. 5, § 5552.)

Tenth, we reiterate that the impact on budget will pertain primarily to the availability of self-insurance, not to implementation of the duty of supervision itself.

On balance it is evident to this court that a school district's long-standing duty to use reasonable care to supervise its students' conduct on campus should accrue to the benefit of students and nonstudents alike.   The specific functions of campus supervision should not noticeably change or increase because they already exist for the protection of students.   The general unavailability of commercial insurance is the only reason to use the status of the victim as the gatekeeper for imposing liability for negligent supervision where, as here, the on-campus behavior requiring supervision could just as easily harm a student as a nonstudent.   This is not enough, in our opinion, to deny protection.   All other policy considerations weigh in favor of liability.

We reverse the judgment of nonsuit.⁴

FOOTNOTES

1.   California Code of Regulations, title 5, section 5552 similarly provides:  “Where playground supervision is not otherwise provided, the principal of each school shall provide for the supervision by certificated employees of the conduct and safety, and for the direction of play, of the pupils of the school who are on the school grounds during recess and other intermissions and before and after school.”

2.   This case comes to us solely on the question whether the duty of supervision existed for the benefit of the nonstudents as well as students.   Whether the District breached this duty on the day in question is a factual question for the jury, as is the issue of causation.

3.   Northern California Regional Liability Excess Fund Joint Powers Authority and Southern California Regional Liability Excess Fund Joint Powers Authority.

4.   We need not and do not address the District's immunity arguments because they were not raised in the motion for nonsuit.

REARDON, Associate Justice.

HANLON, P.J., and POCHE, J., concur.