SALCEDO v. MONTEREY COUNTY OFFICE OF EDUCATION (1991)

Plaintiffs Steven Salcedo, a minor, by Maria Salcedo, his guardian ad litem, and Maria Salcedo (collectively, “Salcedo”) appeal from a judgment of nonsuit entered against them.   Defendant Monterey County Office of Education (hereafter, “MCOE”) cross-appeals from the earlier denial of its motion for summary judgment.   We reverse the nonsuit judgment and affirm the order denying summary judgment.

BACKGROUND

On June 2, 1988, Steven Salcedo, a 12–year–old sixth grade pupil of Sanborn Elementary School, attended an “environmental school” program of MCOE.   He sustained serious injuries to his back when a high school cabin counselor, Gilbert Moreno, tripped and pushed him down to the cabin floor.

The “outdoor school” was a four-day program sponsored by MCOE.   It was structured to allow students to study curricular subjects in the natural environment.

Prior to Steven's participation in the program, MCOE distributed to Salcedo a handbook entitled “Outdoor Education Program [¶] An Environmental School,” which described the program as a study of “the forest, chaparral, meadow, and streams as they work in nature's classrooms and laboratories,” and its curriculum as “learning in an academically-oriented situation.”

The handbook acknowledged that “[o]ccasionally students have disciplinary problems as to Outdoor School [sic ]” and that “these problems arise because students may believe our program to be similar to a more free following [sic ] summer camp,” but stressed that “[s]ince we are a school program, we take our supervisary [sic ] responsibilities very seriously.   We are always aware of the health, safety, and welfare of the children in our care.”

The handbook informed Salcedo that cabin groups would be “supervised by cabin counselors” who would “provide 24–hour-per-day supervision, under the direction of staff and teachers.”   It further said the program would be run by “a core of paid full-time cabin counselors,” and that these full-time counselors would be joined by high school seniors and juniors who would be “carefully selected.”

In his deposition, Steven testified that two “guys” in his cabin started wrestling, and that all the others, including himself, joined in.  “We were throwing each other on the bed and stuff like that.”   He said he was winning because he had not been knocked down.   Then Moreno came up to him.   Steven did not see Moreno.   Steven recounted that Moreno “put his foot behind my feet and then put his hand on my chest and then he knocked me down.   After he knocked me down, I was on the floor.   And then he told everybody, everyone to jump on top of me so they did.”   Steven said that after he fell down, he felt a sharp pain in his back.   He said about seven people jumped on him and that he told them to get off because he was “run[ning] out of breath.”   Moreno then said:  “Okay, okay, get off, guys,” and they did.

Moreno was not selected under the same procedure used to select the other student cabin counselors.   Unlike the other student cabin counselors, Moreno was not chosen or screened by his guidance counselor or school vice principal.   He was taken as a “fill in” when the camp ran short of counselors.   Moreno was the only student counselor who did not attend a slide presentation of hypothetical disciplinary situations as part of the training program for cabin counselors.

After the issues were joined below, MCOE moved for summary judgment.   The trial court denied the motion, holding there were triable issues of fact.

At the commencement of the trial, MCOE moved for nonsuit on the ground of “express statutory immunity.”   The court heard the motion in limine.   Salcedo opposed the motion, arguing that the MCOE handbook and the deposition of the school superintendent, Troy Bramlett, showed the off-campus activity to be a “required curriculum” of the school.   The court granted MCOE's nonsuit motion.   The parties waived jury trial and stipulated, for purposes of appeal, that there was a valid judgment.

This appeal and the cross-appeal ensued.

ISSUES

There are two issues before us on appeal.   The first, raised by Salcedo, is whether the trial court erred in granting nonsuit in favor of MCOE.   The second, raised by MCOE, is whether the trial court erred in denying MCOE's motion for summary judgment.   We will address the nonsuit issue first.

DISCUSSION

Nonsuit

In reviewing a nonsuit judgment, “we are required to evaluate the plaintiff's evidence under the same rules governing the trial court.  [Citation.]  The evidence most favorable to the plaintiff must be accepted as true unless it is inherently incredible [citation], and conflicts must be resolved and reasonable inferences drawn in the plaintiff's favor.  [Citations.]”  (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272, 219 Cal.Rptr. 836.)   Furthermore, “[w]hen a nonsuit is based on the plaintiff's opening statement, we assume plaintiff can prove all the favorable facts alleged.  [Citations.]  The court may consider as part of the opening statement exhibits that would probably become evidence at trial.  [Citation.]”  (Ibid.)

Here, nonsuit was granted as trial commenced after Salcedo had argued to the court that MCOE's handbook and the deposition of the school superintendent showed the off-campus activity to be part of the school curriculum.   Nonsuiting a plaintiff under such circumstances is equivalent to granting nonsuit after plaintiff's opening statement.   Accordingly, we must assume that Salcedo can prove what they alleged;  i.e., that the off-campus activity was a “required curriculum” of the school.

Pursuant to Education Code section 35330,¹ “[t]he 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․  [¶] [ ] 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․”

Section 44808, on the other hand, states that “[n]otwithstanding 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.”

 Reviewing sections 35330 and 44808 together, the court in Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 236, 126 Cal.Rptr. 537, observed:  “The Legislature, by these sections, recognize that:  not all educational facilities can be provided within the confines of each school's property.   To accomplish a school's educational aims, it therefore is necessary for students to accomplish portions of their study off the school's property.   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 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;  the voluntary nature of the event absolves the district of liability.”

The Supreme Court, in Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 518, at footnote 3, 150 Cal.Rptr. 1, 585 P.2d 851, considered this statement in Castro to be mere dictum.   Nevertheless, in the instant case, the trial court relied upon it and held that since Steven's participation in the field trip/excursion was not required, and his mother had given her consent, MCOE was not liable for the injuries Steven sustained.

Castro involved an appeal from an order sustaining a demurrer without leave to amend the second amended complaint for wrongful death filed by the parents of the decedent.   The second amended complaint had alleged that the death of the decedent, a high school student, occurred while he was participating with his ROTC unit in a “summer camp, bivouac, or summer training” which was organized by and under the supervision and control of the board of education, and that his death occurred as a result of the board's negligence.   In reversing the trial court, the Castro court held that the second amended complaint stated a cause of action under former Education Code section 13557.5, which is now section 44808.   It stated as the dispositive reason for the reversal not the voluntary nature of the participation but the need to provide plaintiffs “the forum in which to prove, if they can, that the ROTC ‘summer camp, bivouac and summer training’ was just as much a part of the school curriculum as a school-sponsored band or orchestra performance at an off-premises event.”  (54 Cal.App.3d at p. 237, 126 Cal.Rptr. 537, emphasis added.)   Hence, under Castro, the test is not really whether the pupil's participation was voluntary or not, but whether the off-premises activity was part of the school curriculum.

It would appear that the dictum on the voluntary/involuntary nature of the participation is of questionable validity.   Neither section 35330 nor section 44808 suggests such test, nor does it find support in this state's underlying policy on education, as expressed in its constitution and implementing statutes.

An analysis of the issues here raised requires situating those issues in the larger context of California's constitutional mandate to provide education to its people.  Article IX, section 1, of the California Constitution, provides:  “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.”

To implement this mandate, the California Legislature enacted sections 48200 et seq. of the Education Code, which are also known as the Compulsory Education Law.  Section 48200 provides:  “Each person between the ages of 6 and 18 years not exempted under the provisions of this chapter or Chapter 3 ․ is subject to compulsory full-time education.   Each person subject to compulsory full-time education ․ shall attend the public full-time day school ․ for the full time designated as the length of the schoolday by the governing board of the school district in which the residency of either the parent or legal guardian is located and each parent, guardian, or other person having control or charge of the pupil shall send the pupil to the public full-time day school ․ for the full time designated as the length of the schoolday by the governing board of the school district in which the residence of either the parent or legal guardian is located.”

Failure by parents to send their children to school is punishable as an infraction.   Thus, under section 48293, “[a]ny parent, guardian, or other person having control or charge of any pupil who fails to comply with this chapter, unless excused or exempted therefrom, is guilty of an infraction and shall be punished․”

It is evident from these provisions of the California Constitution and the implementing statutes that, as a matter of state policy, California considers its interest in an educated and enlightened citizenry higher than any opposing interest of individual parents.   So vital is education to the “preservation of the rights and liberties of the people” and the health and vigor of the body politic in general that the state has taken upon itself the duty to educate its young.   The assumption of such a high duty is not without costs, however.   Because the compulsion on parents to send their children to school necessitates the forced removal of such children from the custody of their parents during school hours, justice demands that the school authorities, and the state in general, also assume the corresponding obligation to look after the care and safety of the children while the children are in their custody.   The state's substitute parental responsibility in this situation has been recognized through the ages under the principle of in loco parentis.

It is thus no accident that in this jurisdiction respondeat superior liability was imposed on school districts before it was extended to other public entities.  (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 153, p. 234.)   Witkin writes:  “Under the Tort Claims Act, a public entity is liable for an act or omission of an employee in the scope of his employment if that act or omission would have given rise to an action against the employee himself.  [Citation.]  This basic provision carries over the respondeat superior liability previously imposed on school districts, making it applicable to all public entities.”  (Ibid.)

In Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at page 513, 150 Cal.Rptr. 1, 585 P.2d 851, the court said:  “Although a school district is not an insurer of its pupils' safety [citation], our cases have long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care.   [Citations.]  [¶] We recently reaffirmed this rule in Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360, declaring that ‘California law has long imposed on school authorities 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.]  The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties.   This uniform standard to which they are held is that degree of care “which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.”  [Citations.]’ ”

Logically, there is greater reason to impose respondeat superior liability on school districts than on other public entities, for whereas parents are compelled by law to surrender control and custody of their children to school authorities during school hours, there is no similar compulsion for anyone else under normal times to submit to the custody of any other governmental entity.

Viewed from this perspective, and in this context, the critical inquiry is not whether the student's participation in the off-campus activity was voluntary or not, but whether it was undertaken pursuant to the constitutional mandate to promote the “intellectual, scientific, moral, and agricultural improvement” of the student.²

 When viewed from this standpoint, it is clear the trial court should not have granted MCOE's nonsuit motion.   The record abounds with evidence that the “outdoor school” program was part of the school curriculum.   MCOE itself explicitly considered the program so.   Its handbook described the program as “outdoor school,” “outdoor education program,” “an environmental school,” and “a program of environmental education in the outdoor classroom.”   It even called the site “the Outdoor Education site.”

The handbook told Salcedo that “[y]ou will be studying in a different kind of classroom, our outdoor classroom.”   It pointed to its facilities as including “an infirmary, a small library, an Ecology Center displaying examples of things found in the natural habitats, a lounge for small meetings, numerous outdoor classroom meeting areas, adequate indoor class meeting areas in case of rainy weather, campfire circles, amphitheater, a stream and miles of hiking trails.”

The students and their teachers were to “study the forest, chaparral, meadow, and streams as they work in nature's classrooms and laboratories.”   Additional activities included “offerings in classes where language arts, art, music, social studies, mathematics, science and conservation are adapted to the outdoor classroom.”

The “curriculum” was defined as “focus[ing] on learning in an academically-oriented situation where every effort is made to provide an experience which is both fun and meaningful․  Students are exposed to a variety of learning experiences in which they are being taught to feel a responsibility for their environment—to appreciate it, show consideration for it and to feel comfortable in it.”

In short, MCOE took elaborate effort and care to present the “outdoor school” program to Salcedo as part of the school curriculum.

 We have earlier cited to the case of Loral Corp. v. Moyes, supra, 174 Cal.App.3d at page 272, 219 Cal.Rptr. 836, for the proposition that “[t]he court may consider as part of the opening statement exhibits that would probably become evidence at trial.”   MCOE's handbook, which was one of Salcedo's exhibits, was not only most likely to become evidence at trial;  Salcedo repeatedly referred to it in his argument to show that the off-campus activity was part of the school curriculum.   There is thus no question that the handbook was part of Salcedo's “opening statement.”

“A nonsuit on the opening statements is warranted ‘only when the court [can] conclude ․ from [all the facts and inferences] that ․ there will be no evidence of sufficient substantiality to support a judgment in favor of the plaintiff[s].’  [Citations.]”  (Willis v. Gordon (1978) 20 Cal.3d 629, 633, 143 Cal.Rptr. 723, 574 P.2d 794.)   Such conclusion cannot be drawn from the current facts of record in this case, more so because we must assume on appeal that Salcedo can prove their allegation that the activity in question was part of the school curriculum.

“Deemed” Waiver

 MCOE argues, however, that because section 35330 gives the school district absolute immunity from liability where the parent consents to the student's participation, it is not liable in any event.   We disagree.

Section 35330 does not grant absolute immunity;  it only provides that “[a]ll 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․”  (Emphasis added.)

“Deemed to have waived” is not the equivalent of absolute immunity.   There is nothing to waive if there is nothing owned;  therefore, section 35330 implies the right of the injured and their parents to file claims, but for the waiver.   However, a waiver, to be valid, must be knowing.   Thus, when section 35330 states that all persons making the field trip or excursion are “deemed to have waived all claims,” the implication is that they had been previously fully informed of the activity, the risks involved, and the claims they would be waiving by giving their consent.

Here, the facts do not show either informed consent or a knowing waiver.   The handbook stated that the cabin groups would be “supervised by cabin counselors” who would “provide 24–hour-per-day supervision, under the direction of staff and teachers.”   It said the program would be run by “a core of paid full-time cabin counselors,” and that these full-time counselors would be joined by high school seniors and juniors who would be “carefully selected.”

That did not turn out to be so.   The present state of the record does not show that Moreno came close to being the “carefully selected” counselor assured in the handbook, nor is there any showing that he in fact provided responsible cabin supervision.

If MCOE did not conduct the “outdoor school” program, including the supervision of the participants, in the manner it said it would when it presented the program to Salcedo, it cannot be said that Maria had given her informed parental consent to Steven's participation and that any waiver of claims she made was a knowing waiver.

We therefore conclude the trial court committed reversible error in granting MCOE's motion for nonsuit.

Summary Judgment Issue

 In its cross-appeal, MCOE contends the trial court erred in denying its motion for summary judgment.   There was no error.

The rules governing review of summary judgment were summarized by the Supreme Court in Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31, as follows:  “ ‘ “The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.   The court may not pass upon the issue itself.   Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.   In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.” ’  [Citation.]”

In Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 37, 241 Cal.Rptr. 539, this court further held that “[s]ince a motion for summary judgment raises only questions of law regarding the construction and effect of the supporting and opposing papers, the appellate court independently reviews all of the papers, including the evidence presented in connection with the motion.”

We have concluded ante that the critical inquiry in this case is not whether Steven's participation in the off-campus activity was voluntary or not, but whether it was undertaken as part of the school curriculum pursuant to the constitutional mandate to promote the “intellectual, scientific, moral, and agricultural improvement” of the student.   Necessarily, such an inquiry raises as a threshold issue of fact the nature of the off-campus activity.   If the trier of fact determines that the activity was part of the school curriculum, other issues of fact follow, such as those of negligence, causation, and damages.   There is also the issue of whether Salcedo gave an informed or knowing waiver of their right to sue.

These are triable issues of fact.   Therefore, the trial court did not err in denying MCOE's motion for summary judgment.

DISPOSITION

The nonsuit judgment is reversed.   The order denying summary judgment is affirmed.   This matter is remanded to the trial court for further proceedings consistent with this opinion.   The parties are to bear their own costs on appeal.

FOOTNOTES

1.   Further statutory references are to the Education Code unless otherwise specified.

2.   In the context of the compulsory nature of grade and secondary school education, the voluntary/involuntary test suggested by the Castro dictum is incongruent.

PREMO, Associate Justice.

CAPACCIOLI, Acting P.J., and COTTLE, J., concur.