RODRIGUEZ v. INGLEWOOD UNIFIED SCHOOL DISTRICT (1984)

Plaintiff and appellant Samuel Rodriguez (Rodriguez) appeals from the sustaining of a demurrer to his first amended complaint without leave to amend interposed by the defendant and respondent Inglewood Unified School District (School District).

Because the complaint failed to state the requisite element of duty necessary to a cause of action in negligence, and in any event, because the School District is protected by governmental immunity, we affirm the trial court's ruling.

PROCEDURAL AND FACTUAL BACKGROUND

Rodriguez filed a claim against the Inglewood School District on November 24, 1981, claiming an injury inflicted on him by nonstudents while he was a student on the school grounds.   Upon denial of the claim, he filed a complaint for personal injuries, to which a demurrer was lodged and sustained.

His first amended complaint alleged that Rodriguez was a student at Inglewood High School, that while on the school grounds on September 24, 1981, he was stabbed by a nonstudent.   He further alleged that Inglewood High School had a long history of acts of violence and that the School District was aware of, or should have been aware of, these prior acts for a sufficient period of time to have provided the students with adequate security to protect them against persons bringing weapons onto the school grounds.

The School District again filed a demurrer which the trial court sustained without leave to amend “on the ground that the complaint fails to state a cause of action.”   It is from this judgment that Rodriguez appeals.

CONTENTIONS

Rodriguez contends on appeal:  (1) That his allegations must be liberally construed and (2) school authorities had a duty, defined by foreseeability, to use reasonable care to protect students from injury.

DISCUSSION

 1. Scope of appellate review.

 The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law.  (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702, 141 Cal.Rptr. 189.)  “A general demurrer admits the truth of all material factual allegations in the complaint.”   (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)   When a demurrer to a complaint is sustained without leave to amend, the complaint must be liberally construed and survives a general demurrer if it states, however inartfully, facts disclosing some right of relief.  (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22, 157 Cal.Rptr. 706, 598 P.2d 866.)

 Leave to amend is properly denied when the facts are not in dispute and the nature of the claim is clear, but there is no liability under substantive law.  (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 306, 191 Cal.Rptr. 704.)   Although it is generally an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment, the burden is on the plaintiff to demonstrate that the trial court abused its discretion and to show how the amendment will change the legal effect of the pleading.  (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 885, 180 Cal.Rptr. 586 citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737.)

 2. Duty precepts.

Although the School District's immunity is obviously dispositive of this case, we are told by the Supreme Court that our logic is clearer if we discuss duty first.  Williams v. State of California (1983) 34 Cal.3d 18, 22–23, 192 Cal.Rptr. 233, 664 P.2d 137, proclaims in this regard, “[o]nce again the immunity cart has been placed before the duty horse․  ‘Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.’ ”

Therefore, we wend our way through a discussion of duty in this case.

As discussed in Johnson v. County of Los Angeles, supra, 143 Cal.App.3d at pages 307–308, 191 Cal.Rptr. 704:  “It is a fundamental principal of tort law that one is liable for injuries caused by a failure to exercise reasonable care.   Hence whenever a person is in such a position with regard to another that, if he did not use due care in his own conduct, he would cause injury or danger to another, a duty arises to use due care to avoid such danger.   (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496.)   Whether a ‘duty’ exists in a particular case is a question of law.  ‘[L]egal duties are ․ merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.’   (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166.)  ‘Duty’ is ‘ “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”  (Prosser, Law of Torts [3d ed.] at pp. 332–333.)’  (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316.)   The most important policy consideration is the foreseeability of the harm:  as a general principle a defendant owes a duty of care ‘to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399 [115 Cal.Rptr. 765, 525 P.2d 669];  Dillon v. Legg, supra, 68 Cal.2d at p. 739 [69 Cal.Rptr. 72, 441 P.2d 912].)”  (Footnote omitted.)

 3. Where nonfeasance, no duty without special relationship.

Johnson v. County of Los Angeles, supra, 143 Cal.App.3d at page 308 continues, 191 Cal.Rptr. 704:  “[T]he common law, reluctant to impose liability for nonfeasance, generally does not impose a duty upon a defendant to control the conduct of another (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23];  Rest.2d Torts (1965) § 315), or to warn of such conduct (Rest.2d Torts, supra, § 314, com. c;  Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct.  (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435 [131 Cal.Rptr. 14, 551 P.2d 334];  Buford v. State of California, supra, 104 Cal.App.3d at p. 819 [164 Cal.Rptr. 264];  Rest.2d Torts, supra, §§ 315–320.)”

 Nonfeasance rather than malfeasance was alleged here.   As a general rule “[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless [¶] (a) a special relationship exists between the actor [School District] and the third person [nonstudent-criminal] which imposes a duty upon the actor to control the third person's conduct, or [¶] (b) a special relationship exists between the actor [School District] and the other [Rodriguez] which gives to the other a right to protection.”  (Rest.2d Torts, supra, § 315.)

If a special relationship is found, it may give rise to a duty on the part of the defendant to act reasonably and exercise ordinary care.  (Whitcombe v. County of Yolo, supra, 73 Cal.App.3d at p. 706, 141 Cal.Rptr. 189.)

Although Rodriguez did not allege a special relationship, a relationship of dependence may create one.  (Buford v. State of California (1980) 104 Cal.App.3d 811, 821, 164 Cal.Rptr. 264.)   The Supreme Court has limited the imposition of special relationships to only certain situations.

In Johnson v. State of California (1968) 69 Cal.2d 782, 785–786, 73 Cal.Rptr. 240, 447 P.2d 352, a cause of action was upheld for failure to warn foster parents of the dangerous tendencies of the state's ward.   The court explained that the state owed a duty to the parents because it had created a foreseeable risk not readily discoverable by the endangered person.   The special relationship arises because “the defendant's own negligence has been responsible for the plaintiff's situation, a relationship has arisen which imposes a duty to make a reasonable effort to give assistance and avoid any further harm.”  (Prosser, Torts (4th ed. 1971) § 56, p. 342.)

In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 439, 131 Cal.Rptr. 14, 551 P.2d 334, the decedent had been the subject of threats by the eventual assailant who had been treated by the defendant psychotherapists.   The court held the therapists, who were aware of threats against a specific person, had a duty to warn the foreseeable victim.

When a county was sued for negligence for failure to warn the local police and parents of neighborhood children of the release of a juvenile offender who posed a threat to young children, the court held no special relationship existed.  (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 749–754, 167 Cal.Rptr. 70, 614 P.2d 728.)   The court distinguished Johnson and Tarasoff explaining that in those cases the potential victims were specifically known and designated individuals.  (Id., at p. 755, 167 Cal.Rptr. 70, 614 P.2d 728.)

When a woman was stabbed while in a public laundromat, which was under surveilance of police officers for the purpose of apprehending a man who had previously assaulted three other women, the court also held there was no special relationship.  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 208–209, 185 Cal.Rptr. 252, 649 P.2d 894.)   The court reasoned that although plaintiff was a foreseeable victim, the state did not create the peril, nor was the plaintiff relying on the police for protection.  (Id., at p. 208, 185 Cal.Rptr. 252, 649 P.2d 894.)

In the most recent Supreme Court decision involving a special relationship, a motorist who was injured by a flying projectile from another vehicle alleged that the officers who arrived on the accident scene failed to properly investigate the accident, therefore destroying plaintiff's opportunity to receive compensation for her injury.  (Williams v. State of California, supra, 34 Cal.3d at pp. 21–22, 192 Cal.Rptr. 233, 664 P.2d 137.)   The court held no special relationship existed because the police did not conduct themselves in such a manner as to warrant the plaintiff's reliance that they would investigate the accident.  (Id., at pp. 27–28, 192 Cal.Rptr. 233, 664 P.2d 137.)   However, the case was reversed so as to allow the plaintiff to try to state a cause of action setting forth the nature of a special relationship, if any.

In the instant case, the School District did not create the risk.   While the School District knew of a general danger, it did not know of any particular threat to Rodriguez, nor was the attacker a known entity.   Foreseeable victims are not themselves sufficient to establish a special relationship imposing upon the School District a duty to warn or protect.  (See Davidson v. City of Westminster, supra, 32 Cal.3d at p. 209, 185 Cal.Rptr. 252, 649 P.2d 894.)

 Further, there is no basis for Rodriguez to rely on the School District for protection from all third party nonstudent harm.   Although school authorities have a duty to reasonably supervise the conduct of students (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360.), we find no precedent to require the School District to be guarantors of protection from all harm.¹

 4. Policy considerations weigh against imposing duty.

 Taking Rodriguez' allegations as true, the School District was aware of prior similar acts of violence on the school grounds.   While it is foreseeable that criminal activities would take place on the school grounds, a school by its very operation is not an “especial temptation and opportunity for criminal misconduct.”  (Prosser, Torts (4th Ed.1971) § 33, p. 174;  compare Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600 (parking complex was considered a temptation by itself which invited criminal acts).)   Even though harm may be foreseeable, the concomitant duty to prevent the harm does not automatically follow.  (Bartell v. Palos Verdes Pennisula Sch. Dist. (1978) 83 Cal.App.3d 492, 499, 147 Cal.Rptr. 898.)

 The Supreme Court has identified certain factors in addition to foreseeability to be considered, including “the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”  (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

 More simply stated, “the magnitude of the harm likely to result from defendant's conduct must be balanced against the social value of the interest which he is seeking to advance, and the ease with which he may take precautions to avoid the risk of harm to plaintiff.”  (Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 53, 150 Cal.Rptr. 722.)   This balancing is to be conducted anew in each case based on factors present in that case.  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)

When public agencies are involved, other factors such as the extent of the agency's powers, the role imposed upon it by law and the limitations imposed by its budget must also be considered.  (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 203, 185 Cal.Rptr. 252, 649 P.2d 894 citing Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8, 31 Cal.Rptr. 847.)  “School districts and their employees have never been considered insurers of the physical safety of their students, ․”  (Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d at p. 498, 147 Cal.Rptr. 898.)

 Applying the above enumerated factors, we find social value in the School District's educational activities and great difficulty in the School District's attempting to guard Rodriguez from the harm he alleges.   Rodriguez would require that the School District do more than just warn, which was all that was required in Tarasoff;  he would require protection of students from all nonstudent third party harm.   Insuring such protection would impose a substantial financial burden on the School District which operates on a limited budget.   The effectiveness of a security force is questionable, unless exceedingly large, and even then, the ability to guard against nonstudent criminal behavior is dubious.   The establishment of a costly police force on school grounds calls for a political—not a judicial—determination.

For all the reasons discussed, we find no duty on the School District to protect Rodriguez from criminal conduct by unknown nonstudents.

 5. The School District as a public entity is immune from liability for Rodriguez' injury.

Although we have resolved the issues presented on this appeal by a determination of the duty question adverse to Rodriguez, the subject of governmental immunity deserves consideration since in the final analysis it would be dispositive.²

 Governmental tort liability is dependent on statute.  (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240.)   A plaintiff must set forth facts, specific and sufficiently detailed to support an inference that each of the statutory elements of liability is met.   (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5, 190 Cal.Rptr. 694.)   General allegations are regarded as inadequate.  (Susman v. City of Los Angeles, supra, 269 Cal.App.2d at p. 809, 75 Cal.Rptr. 240;  Van Alstyne, California Government Tort liability Practice (Cont.Ed.Bar (1980)) § 3.72.)   Rodriguez' pleadings are to be strictly construed because his cause of action in this regard would be statutory.   Governmental immunity only allows suits wherein certain specific conditions are met.

 (a) The School District did not maintain a “dangerous condition” which caused injury to Rodriguez.

 Rodriguez has alleged that the “defendants [School District] negligently and carelessly failed to prevent students and other persons from bringing weapons onto school grounds when such precautions could have been taken by defendants.”   Rodriguez was either attempting to allege that a dangerous condition existed on the school grounds or that the School District should have provided a security force to protect its students.

A “dangerous condition” within the meaning of section 835 is defined by section 830, subd. (a):  “ ‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

Section 835 discusses “dangerous condition” liability:  “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:  [¶] ․ [¶] (b) The public entity had actual or constructive notice of the dangerous condition ․ a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

“Dangerous condition” has been defined many times by the state's reviewing courts.   In commenting on section 835's predecessor statute of like language and import (see Hayes v. State of California (1974) 11 Cal.3d 469, 472, fn. 2, 113 Cal.Rptr. 599, 521 P.2d 855) the court held almost 25 years ago in Jones v. Czapkay (1960) 182 Cal.App.2d 192, 203, 6 Cal.Rptr. 182, that a “dangerous condition” of property means property which is dangerous or defective either structurally or by way of its general use and operation.  “The section has always been considered to mean just what it says, that it is the condition of property that determines the waiver of the immunity and not the condition of persons on that property.”  (Ibid.)

This rule was reiterated by the Supreme Court in Hayes v. State of California, supra, 11 Cal.3d at page 471, 113 Cal.Rptr. 599, 521 P.2d 855, where the plaintiffs were assaulted on a public beach owned and maintained by the University of California at Santa Barbara.   The plaintiffs sought to amend their complaint to allege a “dangerous condition” of public property and failure to warn.   In affirming the decision of the trial court not to allow an amendment, the Supreme Court held that “[l]iability for injury caused by a dangerous condition of property has been imposed when an unreasonable risk of harm is created by a combination of defect in the property and act of third parties.  [Citations.]  However, courts have consistently refused to characterize harmful third party conduct as a dangerous condition—absent some concurrent contributing defect in the property itself.”  (Id., at p. 472, 113 Cal.Rptr. 599, 521 P.2d 855.)

Where a plaintiff was severly injured by being attacked on an unlighted parking lot owned by a school district and leased to the county, an appellate court citing Hayes in part held that the county's failure to adequately light the parking lot did not constitute a dangerous and defective condition of property as contemplated by section 835, and that the harm to the plaintiff was caused by the intervening criminal acts of third parties.  (Sykes v. County of Marin (1974) 43 Cal.App.3d 158, 160–161, 164, 117 Cal.Rptr. 466.)

In Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d at pages 496–497, 147 Cal.Rptr. 898, plaintiff alleged a “dangerous condition” on a school ground that allowed students to play a skateboard version of crack-the-whip, and the court restated the rule of Hayes that not only must there be an actual physical defect on the public property, but that such defect must appear to be the proximate cause of an injury in order for a cause to be stated under section 835.

In the instant case, Rodriguez alleged no physical defect on the school grounds, but rather just the presence of criminal assailants thereon.   Criminal acts by a third party are insufficient by themselves to allege a “dangerous condition.”  (Taeleifi v. Southern Cal. Rapid Transit Dist. (1982) 130 Cal.App.3d 366, 369–370, 181 Cal.Rptr. 697 (allegations of a “dangerous condition” on public buses by allowing hoodlums and derelicts to ride, resulting in plaintiff being assaulted).)

As the Supreme Court stated in Hayes v. State of California, supra, 11 Cal.3d at page 473, 113 Cal.Rptr. 599, 521 P.2d 855, there was little benefit to be gained by warning of past criminal conduct and “determining and regulating the use of public property are better left to legislative and administrative bodies, rather than to the judiciary.”

By its facts the complaint failed to plead and could not plead a dangerous condition on the school grounds so as to create liability under section 835.

 (b) The School District as a public entity was immune from its failure to provide a police force on the school grounds.

 Section 845 states:  “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”

The Law Revision Commission Comment immediately following section 845 states:  “This section grants a general immunity for failure to provide police protection or for failure to provide enough police protection.   Whether police protection should be provided at all, and the extent to which it should be provided, are political decisions which are committed to the policy-making officials of government.   To permit review of these decisions by judges and juries would remove the ultimate decision-making authority from those politically responsible for making the decisions.”

Section 845 was designed to prevent political decisions being second-guessed by judges and juries in tort litigation.  (Mann v. State of California, (1977) 70 Cal.App.3d 773, 778–779, 139 Cal.Rptr. 82.)   Hence the decision to provide more police protection on school grounds must come from the responsible political bodies.   The School District had no liability for Rodriguez' injury because it had the discretion to provide more, less, or no security on the school grounds.

CONCLUSION

The School District had no duty to protect Rodriguez from third party nonstudent criminal injury as there was no special relationship between the parties.   Although such criminal acts may be foreseeable, in balancing other factors such as the importance of education, the cost of providing protection and the questionable effectiveness of any protection, no duty resulted.

Even assuming a duty to protect Rodriguez, the School District is immune as third party criminal activity in itself is not a dangerous condition of property.   The School District is also immune from acts allegedly occurring as a result of failure to establish a police force to protect its students.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   At oral argument Rodriguez' counsel argued for the first time that a liberal construction of the complaint would support a theory of “negligent supervision” as per Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at page 747, 87 Cal.Rptr. 376, 470 P.2d 360.While it is well settled that a theory upon which a case is tried must be adhered to on appeal (Ernst v. Searle (1933) 218 Cal. 233, 240–241, 22 P.2d 715;  Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 638, 158 Cal.Rptr. 178), an appellant may be permitted to change a legal theory only when a question of law is involved, based on the facts appearing in the record.  (Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534;  Barton v. Owen (1977) 71 Cal.App.3d 484, 491, 139 Cal.Rptr. 494.)Here, we find that the above test was not met, because while Rodriguez may suggest a new theory on appeal and even in oral argument for the first time, the theory must be based on the facts as alleged in his first amended complaint.   Here, there were insufficient facts to support an action for negligent supervision, since there was no allegation of inadequate supervision by teachers and/or school officials.  (Cf. Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 656, 192 Cal.Rptr. 732.)

2.   Government Code section 815 states in pertinent part:  “Except as otherwise provided by statute:  [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.  [¶] (b) The liability of a public entity established by this part ․ is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.”All subsequent references to the Government Code will be by section number only.

KLEIN, Presiding Justice.

DANIELSON and ARABIAN, JJ., concur.