Leger v. Stockton Unified School District

Opinion

In this case, we hold that the complaint of a high school student states a cause of action for damages against his school district and its

Plaintiff contends the trial court erroneously sustained the demurrer of defendants Stockton Unified School District (District), Dean Bettker, and Greg Zavala to plaintiff’s first amended complaint without leave to amend.

Since a general demurrer admits the truthfulness of properly pleaded factual allegations of the complaint (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799 , 804 [ 205 Cal.Rptr. 842 , 685 P.2d 1193 ]), we recount the pertinent allegations: At all relevant times defendant Bettker was the principal of Franklin High School, and defendant Zavala was a wrestling coach. Each such defendant was an employee of defendant District and was acting within the scope of his employment respecting the matters stated in the complaint.

Plaintiff, a student at Franklin High School, was injured on the school campus when he was battered by a nonstudent on February 14, 1983. Plaintiff was attacked in a school bathroom where he was changing his clothes before wrestling practice. Defendants knew or should have known the bathroom was an unsupervised location unsafe for students and that attacks by nonstudents were likely to occur there.

The complaint pled three legal theories of relief against defendants. The first count alleged a violation of plaintiff’s inalienable right to attend a safe school. (Cal. Const., art. I, § 28, subd. (c).) The second count alleged the constitutional provision imposed a mandatory duty on defendants, within the meaning of Government Code section 815.6, to make plaintiff’s school safe, the breach of which entitled him to damages. The third count alleged defendants negligently failed to supervise him or the location where he was changing his clothes for wrestling practice, knowing or having reason to know the location was unsafe for unsupervised students.

Discussion

Article I, section 28, subdivision (c) of the California Constitution is not self-executing in the sense of providing a right to recover money damages for its violation.

Plaintiff first argues that article I, section 28, subdivision (c) of the California Constitution is self-executing and by itself provides a right to

Article I, section 26 of the California Constitution provides: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”

Under this constitutional provision, all branches of government are required to comply with constitutional directives (Mosk v. Superior Court (1979) 25 Cal.3d 474 , 493, fn. 17 [ 159 Cal.Rptr. 494 , 601 P.2d 1030 ]; Bauer-Schweitzer Malting Co. v. City and County of San Francisco (1973) 8 Cal.3d 942 , 946 [ 106 Cal.Rptr. 643 , 506 P.2d 1019 ]) or prohibitions (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 , 8 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 46 A.L.R.3d 351 ]). Thus, in the absence of express language to the contrary, every constitutional provision is self-executing in the sense that agencies of government are prohibited from taking official actions that contravene constitutional provisions. (Ibid.) “Every constitutional provision is self-executing to this extent, that everything done in violation of it is void.” (Oakland Paving Co. v. Hilton (1886) 69 Cal. 479 , 484 [ 11 P. 3 ]; see Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 8.)

The question here is whether section 28(c) is “self-executing” in a different sense. Our concern is whether section 28(c) provides any rules or procedures by which its declaration of rights is to be enforced, and, in particular, whether it provides citizens with a specific remedy by way of damages for its violation in the absence of legislation granting such a remedy. (See Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816 , 858 [ 182 Cal.Rptr. 813 ] (dis. opn. of Kaufman, J.).)

“A provision may be mandatory without being self-executing. It is self-executing if no legislation is necessary to give effect to it, and if there is nothing to be done by the Legislature to put it into operation. A constitutional provision contemplating and requiring legislation is not self-executing. [Citation.] In other words, it must be regarded as self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms and there is no language indicating that the subject is referred to the Legislature for action [citation]; and such provisions are inoperative in cases where the object to be accomplished is made to depend in whole or in part on subsequent legislation.” (Taylor v. Madigan (1975) 53 Cal.App.3d 943 , 951 [ 126 Cal.Rptr. 376 ].)

Plaintiff also contends that ordinary principles of tort law imposed a duty upon defendants to use reasonable care to protect him from the attack in the pleaded circumstances. At this point, we agree.

A. Plaintiff has pled that defendants owed him a duty of care.

The first question is whether defendants owed plaintiff a duty of care. (Williams v. State of California (1983) 34 Cal.3d 18 , 22 [ 192 Cal.Rptr. 233 , 664 P.2d 137 ].)

The existence of a duty of care is a question of law, for legal duties express conclusions that in certain cases it is appropriate to impose liability for injuries suffered. (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 ]; Dillon v. Legg (1968) 68 Cal.2d 728 , 734 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ].)

“As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ (Rest. 2d Torts (1965) § 315; Thompson v. County of Alameda (1980) 27 Cal.3d 741 , 751-752 [ 167 Cal.Rptr. 70 , 614 P.2d 728 ]; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [ 131 Cal.Rptr. 14 , 551 P.2d 334 , 83 A.L.R.3d 1166 ].)” (Davidson v. City of Westminster (1982) 32 Cal.3d 197 , 203 [ 185 Cal.Rptr. 252 , 649 P.2d 894 ]; see also Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 , 788-789 [ 221 Cal.Rptr. 840 , 710 P.2d 907 ]; Williams v. State of California, supra, 34 Cal.3d at p. 23.)

In Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707 [ 230 Cal.Rptr. 823 ], the court considered whether a school district could be held liable when a student was assaulted on campus by a nonstudent. On the question of duty, the court concluded “that a special relationship is formed between a school district and its students so as to impose an affirmative duty on the district to take all reasonable steps to protect its students.” (P. 715.)

Although Rodriguez did not address the question, we think it obvious that the individual school employees responsible for supervising

Rodriguez notwithstanding, defendants still contend they should owe no duty to protect plaintiff from this attack. They correctly contend that neither school districts nor their employees are the insurers of the safety of their students. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 , 747 [ 87 Cal.Rptr. 376 , 470 P.2d 360 ].) But plaintiff makes no assertion of strict liability; rather, the complaint pleads negligence. Defendants do owe plaintiff a duty to use the degree of care which a person of ordinary prudence, charged with comparable duties, would exercise in the same circumstances. (Ibid.)

Of course, in the present circumstances, the existence of a duty of care depends in part on whether the harm to plaintiff was reasonably foreseeable. (See Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 , 125 [ 211 Cal.Rptr. 356 , 695 P.2d 653 ].) Neither schools nor their restrooms are dangerous places per se. (Cf. Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 812.) Students are not at risk merely because they are at school. (See Chavez v. Tolleson Elementary School Dist. (1979) 122 Ariz. 472 [ 595 P.2d 1017 , 1 A.L.R.4th 1099 ].) A contrary conclusion would unreasonably “require virtual round-the-clock supervision or prison-tight security for school premises, . . .” (Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492 , 500 [ 147 Cal.Rptr. 898 ].)

Here, however, plaintiff’s first amended complaint pled that defendants knew or should have known that he was subject to an unusual risk of harm at a specific location on school grounds. Thus, the complaint alleged defendants knew or should have known that members of the junior varsity wrestling team (including plaintiff) were changing clothes before wrestling practice in the unsupervised boys’ restroom, that defendants knew or should have known the unsupervised restroom was unsafe for students,

Whether plaintiff can prove these allegations, or whether it will be difficult to prove them, are not appropriate questions for a reviewing court when ruling on a demurrer. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 , 936 [ 231 Cal.Rptr. 748 , 727 P.2d 1029 ].)

Defendants argue they should owe no duty to plaintiff because school districts cannot afford the liability. This court has recognized that the availability of funds is a valid policy consideration in determining whether to impose a duty of care on a school district. (Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272 , 278 [ 40 Cal.Rptr. 812 ]; Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1 , 8 [ 31 Cal.Rptr. 847 ]; see also Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d at p. 500.)

However, the record contains no information bearing upon the budgets of school districts generally, nor of this defendant District in particular, nor upon the cost or availability of insurance. Nor have we been cited to materials of which we might take judicial notice. With the record in this posture, we agree with defendants, who candidly admit in their brief, “If there is a remedy to this situation, it is not with the courts but with the Legislature.”

We therefore conclude plaintiff has adequately pled that defendants breached a duty of care they owed him.

B. There is a statutory basis for liability.

Even though Rodriguez v. Inglewood Unified School Dist., supra, determined a school district has a duty to protect students on campus from violent assaults by third parties, the court concluded the defendant school district was not liable because no statute provided for liability. (186 Cal.App.3d at pp. 715-716.) “[I]n California, all government tort liability must be based on statute. . . .” (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at p. 785, fn. 2, citation omitted.)

However, Rodriguez did not examine Government Code sections 815.2 and 820, imposing liability on a public entity for the torts of its employees.

Here, as we have noted, plaintiff has sued employees of the District and pursues the District on a theory of respondeat superior. (See Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 , 967-968 [ 227 Cal.Rptr. 106 , 719 P.2d 676 ].) Section 820 provides in relevant part that except as otherwise statutorily provided, “a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Subd. (a).) Section 815.2 provides in pertinent part that the 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 . . . have given rise to a cause of action against that employee . . . .” (Subd. (a) .) Thus, “the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§815, subd. (b) ).” (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446 , 463, fn. omitted [ 183 Cal.Rptr. 51 , 645 P.2d 102 ]; see Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) §§ 2.31-2.32, pp. 74-80.)

The next question is: would a private school and its employees be liable in the pleaded circumstances? The answer is “yes.”

“As a general rule, it has been held that a [private] school is not required to provide constant supervision over pupils at all times. Thus, no supervision is required where the school has no reason to think any is required. . . . [fi] It appears that a \private\ school has a duty to provide supervision with respect to a particular activity if the school officials could reasonably anticipate that supervision was required . . . .” (Annot., Tort Liability of Private Schools and Institutions of Higher Learning for Negligence of, or Lack of Supervision By, Teachers and Other Employees or Agents (1971) 38 A.L.R.3d 908 , 916, fns. omitted; italics added.)

“Where a student is injured in performing a task on the direction of school authorities without supervision, the question of [private] school negligence is one for the jury if there is evidence of the existence of a danger known to the school authorities, who neglect to guard the student against such danger, or if there is an unknown danger which the school, by the exercise of ordinary care as a reasonably prudent person, would have discovered.” (38 A.L.R.3d at p. 919, fn. omitted.)

In Schultz v. Gould Academy (Me. 1975) 332 A.2d 368 , the Supreme Court of Maine held a private girls’ school was liable for the negligence of its night watchman who failed to prevent a criminal assault on a 16-year-old girl student by an unknown intruder in a school dormitory. At about 3 a.m., the watchmen had observed footprints in fresh snow leading up to the building and on a roof adjacent to a screened but unlocked second story window. (Id., at p. 369.) The watchman saw water on stairs leading to the basement; a stairwell also connected the basement to upper floors in the dorm. (Ibid.) Although the watchman investigated storage rooms in the basement, he did not alert anyone to the possibility that the intruder was on the upper floors where the attack occurred. (Id., at pp. 369-370, fn. 3.)

The court held that the employee and the school had a duty to guard the students against dangers of which they had actual knowledge and those which they should reasonably anticipate. (332 A.2d at p. 371.) The court concluded that, “forewarned by furtive and intrusive movements in and around the girls’ dormitory, a reasonably prudent man, charged with the protection of the dormitory’s young female residents would have taken some measures to avert the likelihood that one (or more) of them would be physically harmed.” (Id., at p. 372.)

We think the foregoing authorities state the appropriate law to be applied in California. Under these authorities, if defendants here were in the private sector, they would be liable to plaintiff upon the facts pled in the first amended complaint. We therefore conclude that the defendant employees are similarly liable under section 820, and the District is liable under section 815.2 unless some other statute grants immunity from liability.

On demurrer, the District is not entitled to immunity.

Defendants contend imposition of liability in such a situation would contravene section 845, which provides in relevant part that, “Neither a public entity nor a public employee is liable for failure to . . . provide police protection service or . . . for failure to provide sufficient police protection service.” Defendants argue that imposing a duty on the District is tantamount to requiring them to have a police or security force. This contention