Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC363808 Elizabeth A. Grimes, Judge. Affirmed.
Parker · Stanbury and J. Luis Garcia for Plaintiff and Appellant.
Carlson & Messer, Jeffrey J. Carlson, Jeanne L. Zimmer and Martin Schannong for Defendant and Respondent.
MALLANO, P. J.
Plaintiff, a teenage girl, was sexually assaulted at a public school by an employee. Through a guardian ad litem, plaintiff filed this suit against the school district, alleging causes of action for negligence and premises liability.
The school district moved for summary judgment, arguing it had no duty to prevent the assault, and, in addition, the premises liability claim lacked a statutory basis. The trial court granted the motion. We agree with the district’s arguments and affirm.
I
BACKGROUND
We accept as true the facts and reasonable inferences supported by plaintiff’s evidence and the school district’s undisputed evidence on the motion for summary judgment. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1125.)
A.P., a 13-year-old girl, was a student at a middle school in the Los Angeles Unified School District (LAUSD). On May 24, 2005, while A.P. was in science class during sixth period, she was “summoned” to the attendance office, located in a different building. On the way, A.P. was stopped by Omar Calderon, an employee who, as a campus aide, had the primary task of ensuring the safety of students by escorting them on school grounds.
After spending about five to 10 minutes in the office, A.P. started walking back to science class. Calderon met her as she walked. He sexually assaulted her. Eventually, A.P. made it back to class. The teacher, Allan Ogawa, asked A.P. why she was crying and why she had been “‘walking that direction with [Calderon].’” She answered that Calderon “‘had sex with me without my permission.’”
At the time of the assault, Calderon had been working at the school for approximately one year. He had passed a pre-employment screening process, including fingerprinting and a criminal records check. Neither the principal nor the assistant principal at the school had any reason to suspect that Calderon might sexually assault a student. The assistant principal never saw Calderon “flirting” with any female students.
The school uses a “buddy” system in an attempt to protect students when they walk on campus. Under the system, a student sent to the office would be accompanied by one or two other students at the teacher’s request. In the principal’s words, “Nobody travels on campus alone.” The buddy system was implemented by the LAUSD in response to the rape of an elementary school student in a restroom at another school. Its purpose is to protect students from campus intruders. The system is described in a written bulletin or memorandum at the district level and at the school.
The buddy system was not used when A.P. went to the attendance office. The science teacher, Ogawa, saw her walking alone in a courtyard and shortly thereafter saw her walking with Calderon. Ogawa had no “reason to suspect that something bad or sinister was about to happen.”
The school police officer, Alfredo Navarro, did not know of any crimes committed by Calderon other than the sexual assault of A.P.; he was not aware of “any reputation” Calderon had at the school; and he was not aware of any complaints by students or anyone else about Calderon.
Detective Jeffrey Allen, with the Los Angeles Police Department, investigated the sexual assault. During interviews, he asked if any students had complained about Calderon to school administrators or a teacher. He did not “recall anybody saying that they had any issues with [Calderon] prior” to the assault or “any knowledge of any issues.” One female student, M.R., told Detective Allen that Calderon had “flirted” with her and had made “comments” about her body, but she did not tell any school officials about his conduct. M.R., who was a witness at Calderon’s criminal trial, testified she did not report Calderon’s conduct to anyone at the school or to her parents.
The day after the sexual assault, the school principal heard “random reports of other alleged incidences” involving Calderon and students. The principal and school staff “followed” all of the reports and “found none of them to be true.”
On December 21, 2006, A.P., through a guardian ad litem, filed this action against the LAUSD and Calderon, alleging two causes of action: negligence and premises liability. The negligence claim asserted that (1) Calderon was acting within the scope of his employment at the time of the sexual assault, and (2) the LAUSD had breached “a duty... to supervise the conduct of students and teachers... for the protection of the students... from the type of sexual assault and injuries [sustained by A.P.].” The premises liability claim rested on the allegation that the LAUSD had allowed a “dangerous condition” to exist on school property, causing injury to A.P.
The LAUSD filed an answer to the complaint, generally denying all material allegations. (See Code Civ. Proc., § 431.30, subd. (d).)
On September 28, 2007, the LAUSD filed a motion for summary judgment, arguing that it was not liable on either cause of action because Calderon’s conduct was unforeseeable, and the premises liability claim lacked a statutory basis. A.P. filed opposition papers. The LAUSD filed objections to some of A.P.’s evidence, two of which were sustained.
The motion was heard on December 13 and December 20, 2007. On January 17, 2008, the trial court entered an order granting the motion and a judgment in favor of the LAUSD. A.P. appealed.
II
DISCUSSION
We conclude that summary judgment was proper because the LAUSD had no duty to prevent Calderon’s unforeseeable conduct, the LAUSD did not commit any act of direct negligence, and the premises liability claim lacked statutory support.
A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
“‘“A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.... We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.... [T]he moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.”... We accept as undisputed facts only those portions of the moving party’s evidence that are not contradicted by the opposing party’s evidence.’” (Raghavan v. Boeing Co., supra, 133 Cal.App.4th at p. 1132.)
As a preliminary matter, we comment on A.P.’s opening (and only) brief. First, the “Statement of Facts” does not contain any citations to the record, violating rule 8.204(a)(1)(C) of the California Rules of Court. Second, the Statement of Facts misstates the record in certain respects. For example, the brief recites that Calderon told A.P. he wanted a “hug and kiss” on the day of the assault and that A.P. “tried to take a different route [from the office] back to her science class to avoid Calderon.” The record does not support either contention. Finally, the brief relies on evidence as to which the trial court sustained objections, but A.P. neglects to mention that any objections were filed, much less sustained. The result is a brief that could have misled this court were it not for the LAUSD’s brief and our independent review of the record. And, as should be clear, A.P. has waived any challenge to the trial court’s evidentiary rulings. (See Hulings v. State Dept. of Health Care Services (2008) 159 Cal.App.4th 1114, 1120, fn. 1.)
As to the propriety of the summary judgment, we begin with the principle that “all government tort liability in California must be based on statute.” (N.V. Heathorn, Inc. v. County of San Mateo (2005) 126 Cal.App.4th 1526, 1531; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127–1131.) Further, “[a] special relationship exists between a student and a school district that gives rise to a duty to ‘“supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.”’... ‘[T]he amount of care due to minors increases with their immaturity and consequent heedlessness to danger.’... ‘“[N]o supervision is required where the school has no reason to think any is required.”’” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1206, citations omitted.) “But, despite that special relationship, the existence of a [particular] duty still requires that the harm be reasonably foreseeable, which requires that the defendant have actual knowledge of the assaultive propensities of the assailant.... Defendants cannot be liable under a negligent supervision theory for nonfeasance based solely on constructive knowledge or information they should have known.... [T]here must be actual knowledge in addition to a special relationship.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 153, citations & fn. omitted.)
A. Negligence
A.P. argues that the LAUSD is liable based on (1) the doctrine of respondeat superior and (2) its direct negligence.
1. Respondeat Superior
“[T]his case is controlled by Government Code section 815.2, which provides, 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.’ To hold a governmental employer vicariously liable for the wrongful acts of its employees, section 815.2 by its express terms requires a showing that the employee acted within the scope of his employment. Whether the scope of employment issue is a question of fact or a question of law will turn on the factual background of the particular case: Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact. However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138 (Alma W.).)
In Alma W., an elementary school student sued the school district after being sexually molested by a custodian in his office. The Court of Appeal affirmed the trial court’s dismissal of the complaint on demurrer, explaining: “The general rule of respondeat superior at common law for nongovernmental employers is the same as that set forth in the Government Code for public employers: An employer is vicariously liable for the torts of employees committed within the course or scope of their employment....
“... ‘The determination as to whether an employee committed a tort during the course of his employment turns on whether or not: 1) the act performed was either required or “incident to his duties”..., or 2) the employee’s misconduct could be reasonably foreseen by the employer in any event....’... If an employee’s actions fall within the range of actions covered by either part of this two-prong test, the employer will be liable for the wrong, even though the employee has acted maliciously and intentionally....
“In assessing whether an employee’s wrongful act was required by or incidental to his duties, the law defines occupational duties broadly. The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.... [But if] an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee’s actions....
“This case presents us with a factual situation where the connection between the employee’s duties and the employee’s wrongful action has become so attenuated that the law will not hold the employer vicariously liable. Sexual molestation is in no way related to mopping floors, cleaning rooms, or any of the other tasks that are required of a school custodian. Though there may be those cases where personal motivations so mingle with the employee’s pursuit of occupational duties that it is arguable whether the employee’s action is incidental to his duties, this is not such a case. [The custodian’s] action, prompted by wholly personal motivations, was clearly not required or incidental to his duties as a school custodian.
“... Where an employee pursues his own ends, the use of property or facilities entrusted to him by the [school] is an inadequate basis for imputing liability to the employer.... [T]he custodian’s use of the janitor’s office, which arguably furnished a unique opportunity for [his] action, does not impute liability to the school district. The mere fact that an employee has the opportunity to abuse facilities necessary to the performance of his duties does not render an employer vicariously liable for the abuse.
“Nor does the fact that the offense occurred during working hours make [the custodian’s] action incidental to his employment.... [M]ere presence at the place of employment before, during, or after the commission of the offense has not been a decisive factor in resolving the scope of employment issue.... If an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.
“... [The custodian’s] act of rape was not an integral part of a course of action on behalf of his employer, but rather an independent, self-serving pursuit wholly unrelated to his custodial duties.” (Alma W., supra, 123 Cal.App.3d at pp. 138–141, citations omitted.)
The court in Alma W. continued: “We now turn to the second part of our inquiry: Whether the employee’s misconduct was foreseeable in any event.... ‘“[F]oreseeability” in this context must be distinguished from “foreseeability” as a test for negligence. In the latter sense “foreseeable” means a level of probability which would lead a prudent person to take effective precautions whereas “foreseeability” as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.... In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer....’... [I]t defies every notion of fairness to say that rape is characteristic of a school district’s activities.
“... [W]hile it might be foreseeable for a school custodian to become involved in a dispute over the manner in which he swept the floors or cleaned a classroom and for the dispute to end in someone being hit with a mop, the same statement cannot be made with reference to rape. There is no aspect of a janitor’s duties that would make sexual assault anything other than highly unusual and very startling. [¶]... [¶]
“Distilled to its essence, [the plaintiff’s] argument is little more than that the risk of loss from an employee’s sexual assault should fall on the school district as a means of spreading the risk to the community at large.... Even assuming that schools are equipped, as are businesses, to absorb the costs of employees’ torts in that schools are able indirectly to absorb and distribute the costs through taxation to the community at large, the rationale for vicarious liability does not justify allocating the risk of sexual assaults by a school employee to the community at large.... A sexual assault simply does not fall within the range of risks allocable to an employer.
“... [T]he act of rape is not attributable to the school district because it is neither a required or incidental duty of a school employee, nor is it a reasonably foreseeable consequence of the educational enterprise. We will not depart from settled precedent to establish a rule that would divert limited educational funds to create a new compulsory insurance fund which would cover virtually all torts of an employee occurring during working hours at the place of employment, regardless of the extremity or personal nature of the act.” (Alma W., supra, 123 Cal.App.3d at pp. 141–144.)
Alma W. was cited with approval in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 (John R.). There, a male student in the ninth grade participated in the school’s “instructional, work-experience” program under the supervision of his math teacher. The student assisted the teacher in tasks such as grading other students’ papers. The school district authorized teachers in the program to have the students work at the teachers’ homes. On one occasion, while John was at his teacher’s house, the teacher “succeeded in pressuring [him] into sexual acts, including oral copulation and anal intercourse.” (Id. at p. 442.) John’s parents filed a suit against the school district on John’s behalf, alleging that the district was vicariously liable for the teacher’s acts. The trial court dismissed part of the case on demurrer and the remaining claims by way of a nonsuit. The Court of Appeal reversed the judgment in its entirety. The Supreme Court agreed with the trial court. In responding to Justice Kaufman’s partial dissent (see id. at pp. 462–467), the lead opinion stated: “We must also observe that [Justice Kaufman’s] opinion seems to reflect an unduly pessimistic view of human nature, for, if we read the opinion correctly, it seems to suggest that sexual misconduct is foreseeable any time a minor and an adult are alone in a room together, at least if not constrained by the possibility of being interrupted..... Given the facts of this case and the benefit of hindsight, all would have to agree that the prospect of such misconduct is conceivable, but that is a far cry from foreseeability, even under the broad meaning that concept is given in the respondeat superior context. Simply stated,... we think the teacher’s acts here can only be characterized as ‘so unusual or startling’... that vicarious liability cannot fairly be imposed on the district.” (Id. at p. 450, fn. 9 (lead opn. of Arguelles, J.); see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 210–211 & fn. 2 [discussing various opinions in John R.]; de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 253–254 & fn. 10 [same].)
As the lead opinion phrased the issue before it: “The question... is whether an employer (specifically, a school district) can be held liable for a sexual assault committed by an employee (here, a teacher) on another person (particularly, on a student committed to that teacher’s supervision). The natural, initial reaction is ‘No! Of course not!’ A more personal escapade less related to an employer’s interests is difficult to imagine. But the question is not so easily disposed of. It is closer than might appear upon first examination, but we ultimately conclude the Court of Appeal erred in reversing the trial court on this point.” (John R., supra, 48 Cal.3d at p. 447.)
The lead opinion continued: “‘Three reasons have been suggested for imposing liability on an enterprise for the risks incident to the enterprise: “(1) [I]t tends to provide a spur toward accident prevention; (2) it tends to provide greater assurance of compensation for accident victims[;] and (3) at the same time it tends to provide reasonable assurance that, like other costs, accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them.”’...
“The first of these three considerations just noted plays little role in the allocation of responsibility for the sexual misconduct of employees generally, and with respect to the unique situation of teachers, indicates that untoward consequences could flow from imposing vicarious liability on school districts. Although it is unquestionably important to encourage both the careful selection of these employees and the close monitoring of their conduct, such concerns are, we think, better addressed by holding school districts to the exercise of due care in such matters and subjecting them to liability only for their own direct negligence in that regard. Applying the doctrine of respondeat superior to impose, in effect, strict liability in this context would be far too likely to deter districts from encouraging, or even authorizing, extracurricular and/or one-on-one contacts between teachers and students or to induce districts to impose such rigorous controls on activities of this nature that the educational process would be negatively affected.
“Nor is the second consideration — the assurance of compensation for accident victims — appropriately invoked here. The acts here differ from the normal range of risks for which costs can be spread and insurance sought.... The imposition of vicarious liability on school districts for the sexual torts of their employees would tend to make insurance, already a scarce resource, even harder to obtain, and could lead to the diversion of needed funds from the classroom to cover claims.
“The only element of the analysis that might point in favor of vicarious liability here is the propriety of spreading the risk of loss among the beneficiaries of the enterprise. School districts and the community at large benefit from the authority placed in teachers to carry out the educational mission, and it can be argued that the consequences of an abuse of that authority should be shared on an equally broad basis. But the connection between the authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher’s employer. It is not a cost this particular enterprise should bear, and the consequences of imposing liability are unacceptable.” (John R., supra, 48 Cal.3d at p. 451–452, citations & fn. omitted.)
We find Alma W. and John R. dispositive here. The analysis in those cases compels the conclusion that the LAUSD is not vicariously liable for Calderon’s unusual and startling sexual assault on A.P.
A.P.’s reliance on Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 is misplaced. In that case, the Supreme Court held that a school district was vicariously liable where two physical education teachers failed to supervise students during lunch period and to prevent high school students from fighting in the gymnasium. The court’s reasoning, as follows, readily distinguishes Dailey from the present case: “Supervision during recess and lunch periods is required, in part, so that discipline may be maintained and student conduct regulated. Such regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm. High school students may appear to be generally less hyperactive and more capable of self-control than grammar school children. Consequently, less rigorous and intrusive methods of supervision may be required. Nevertheless, adolescent high school students are not adults and should not be expected to exhibit that degree of discretion, judgment, and concern for the safety of themselves and others which we associate with full maturity.... ‘[W]e should not close our eyes to the fact that... boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years.’ Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence.” (Id. at pp. 748–749, fn. omitted.) Dailey has no application to injuries sustained by a student as a result of a sexual assault by a school employee.
2. Direct Negligence
A.P. contends that even if the LAUSD is not liable under the doctrine of respondeat superior, it may be found liable for direct negligence, namely, the negligent supervision of Calderon.
This theory fails for two reasons. First, A.P. does not cite any statute imposing liability on a public entity for direct negligence as opposed to respondeat superior. (See de Villers v. County of San Diego, supra, 156 Cal.App.4th at pp. 251–256.)
Second, the evidence would not support a direct negligence claim against a nonpublic employer, and a public employer’s liability does not exceed that of an employer in the private sector. (Cf. Alma W., supra, 123 Cal.App.3d at pp. 138–139.) Calderon passed a pre-employment test, including a criminal records check. The school principal, assistant principal, campus police officer, and A.P.’s science teacher had no knowledge that Calderon posed any kind of danger to students. And A.P. did not offer any evidence that the administration or any teacher thought otherwise. Although the LAUSD had a buddy system in place, which was not used in this instance, the district was not under a legal obligation to adopt that particular system or to use it. A lapse in the use of the buddy system — a safety program adopted in response to a previous sexual assault — is not a basis for liability, especially where the school has implemented other safeguards, such as the use of campus police and campus aides. (Cf. Evid. Code, § 1151 [evidence of remedial measures taken after event causing harm is inadmissible to prove negligence or culpability]; City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 778, 783 [in personal injury action against city for battery by police officer, evidence that officer was disciplined for committing battery was inadmissible and therefore not discoverable].) Here, the student was not walking alone when assaulted. On the contrary, she was accompanied by an employee who had the responsibility of escorting students and protecting them from harm. The buddy system, on the other hand, was intended to protect students from off-campus intruders, not school employees. In these circumstances, the LAUSD was not directly negligent as a matter of law.
B. Premises Liability
A.P.’s appellate brief addresses only the negligence claim and does not challenge the summary adjudication of the premises liability claim. Thus, she has waived any challenge to that portion of the judgment. (See Hulings v. State Dept. of Health Care Services, supra, 159 Cal.App.4th at p. 1120, fn. 1.) Nevertheless, we briefly discuss the merits of the trial court’s decision as to that claim.
A premises liability claim may be based on Government Code section 835, which provides: “[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, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.” (Italics added.)
A “dangerous condition” is statutorily defined as “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.” (Gov. Code, § 830, subd. (a).)
In addition, “‘[d]angerous condition’ has been defined many times by the state’s reviewing courts.... [A] ‘dangerous condition’ of property means property which is dangerous or defective either structurally or by way of its general use and operation. ‘[That term] 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.’” (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 717, second italics added.) As stated in Rodriguez, a case involving a student who was stabbed by a nonstudent: “In recent years, case law reflects an abandonment of the concept of a ‘physical defect,’ or that a condition must be inherently dangerous. ‘The substantial risk of injury that is essential to characterizing a condition as dangerous need not exist as a continuous aspect of the property. It may arise only at certain times or under certain conditions that combine with the physical attributes of the property to make it hazardous to reasonably careful users.’... [¶]... [¶]
“In [the plaintiff’s] complaint,... [n]o physical defects or conditions of the campus are alleged which would increase the risk of crime. The allegation that other such acts occurred on the campus prior to his assault adds notice but does not bring his factual situation within the legal parameters of a dangerous condition to state a cause of action.” (Rodriguez v. Inglewood Unified School Dist., supra, 186 Cal.App.3d at pp. 718–719.) “[The plaintiff’s] allegations clearly have nothing to do with the physical condition of the property, or the misuse of it in any way, but relate only to ‘the condition of persons on that property.’” (Id. at pp. 719–720.)
In sum, “‘liability for injury caused by a dangerous condition of [public] property has been imposed when an unreasonable risk of harm is created by a combination of defect in the property and acts of third parties. However, courts have consistently refused to characterize harmful third party conduct as a dangerous condition — absent some concurrent contributing defect in the property itself.’... [¶]... ‘[I]f the risk of injury from third parties is in no way increased or intensified by any physical defect of the public property, the courts ordinarily decline to ascribe the resulting injury to a dangerous condition of the property.’” (Crow v. State of California (1990) 222 Cal.App.3d 192, 206, citation omitted; accord, Zelig v. County of Los Angeles, supra, 27 Cal.4th at pp. 1133–1137.)
Here, A.P. made no showing that a dangerous condition — apart from Calderon’s behavior — existed on school grounds. Accordingly, the premises liability claim lacked statutory support.
III
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., TUCKER, J.
* Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.