Opinion
B313844
12-13-2022
B.A. a Minor, etc., Plaintiff and Appellant, v. BONITA UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.
Ledezma Law Group and Jorge Ledezma for Plaintiff and Appellant. Carpenter, Rothans & Dumont, Jill Williams, and Scott J. Carpenter for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV38000, Edward B. Moreton, Jr., Judge. Affirmed.
Ledezma Law Group and Jorge Ledezma for Plaintiff and Appellant.
Carpenter, Rothans & Dumont, Jill Williams, and Scott J. Carpenter for Defendants and Respondents.
BAKER, J. 1
B.A. (plaintiff), a minor child proceeding by and through his mother and guardian ad litem, Jennifer A., sued Bonita Unified School District (the school district) and Ji Wang, the principal of plaintiff's school, after plaintiff was injured on the school's playground. The trial court granted summary judgment for defendants. We consider if a trial is necessary to decide whether defendants' alleged lack of supervision was the proximate cause of plaintiff's injuries.
I. BACKGROUND
A. The Incident
On the afternoon of March 28, 2019, plaintiff, a fifth grader at Ekstrand Elementary School, participated in a scavenger hunt held during the last period of the day, a physical education class. The hunt involved different groups or teams of students moving to various locations on the school's playground and field where they performed different activities. The class was supervised by the school's physical education coach and his aide.
As the teams of students moved to complete their activities, the coach roamed the playground and field moving between groups of students. Shortly before the end of the class, A.F.-a classmate who was not a member of plaintiff's team and not one of his friends-approached plaintiff and one of his teammates and said something to them. Although plaintiff could not remember exactly what A.F. said, he did remember it was nothing mean or inappropriate. 2
As third and fourth graders, plaintiff and A.F. had participated in similar scavenger hunts supervised by the same physical education coach. The record does not show plaintiff and A.F. had any verbal or physical altercations during those prior scavenger hunts. Plaintiff testified at his deposition that during these prior hunts, the coach would oversee the students as he did during the hunt at issue: by moving around the playground and field.
Moments later, plaintiff ran toward another of his teammates who was 16 feet away. A.F. ran up behind plaintiff, yelled "move out of the way," and then, using his shoulder, knocked plaintiff to the ground. According to plaintiff, the incident was unexpected, occurred "very fast," and "surprised" him. When plaintiff fell, he landed on the field's grass and a part of the school's watering system. As a result of the fall, plaintiff suffered a fractured clavicle and other injuries.
Immediately after plaintiff fell, plaintiff's teammates asked A.F. why he knocked plaintiff down. A.F.'s only response was to say words to the effect that plaintiff weighed "only two pounds." Instead of telling the coach what happened (the coach was then some distance away near the basketball courts), plaintiff left the field and his teammates walked him to the nurse's office that was nearby.
Neither the coach nor his aide witnessed what happened to plaintiff. A.F. told the principal he "bumped" into plaintiff, while plaintiff described being "pushed."
B. Defendants' Motion for Summary Judgment
Seven months after the incident, plaintiff sued defendants for negligence and alleged they "failed to maintain a reasonably safe environment" for plaintiff due to their "inadequate care and supervision." Plaintiff also alleged the pushing incident during the scavenger hunt was not the first physical encounter between 3 plaintiff and A.F.; instead, plaintiff alleged that over a year earlier A.F. had picked plaintiff up and forcibly thrown him to the ground during a game at recess.
At his deposition, plaintiff testified this earlier alleged incident occurred in fourth grade during recess. Plaintiff and A.F. were playing a game with a ball and A.F. tried to take the ball away by grabbing plaintiff around the chest area and throwing him to the ground repeatedly.
Defendants moved for summary judgment and advanced two principal arguments: the supervision they provided was reasonable as a matter of law and plaintiff could not in any event establish a lack of supervision was the proximate cause of his injuries.
In support of their motion, defendants submitted, among other things, excerpts from the transcript of plaintiff's deposition. He testified: the scavenger hunt pushing incident was sudden and unexpected and not preceded by any conflict between him and A.F.; there had been only one prior physical incident between the two boys, which occurred some 18 months earlier at the beginning of fourth grade; and plaintiff had never previously seen A.F. push or hurt another student.
Defendants also submitted a declaration from the school's physical education coach. He stated he had no reason to suspect there was any issue between the two boys prior to the day of the incident. Addressing what happened on the day of the scavenger hunt, the coach declared: "[Plaintiff'] and [A.F.] did not engage in any behavior that would have put me on notice that an incident would occur. I did not hear them exchange any heated words or 4 observe them make any inappropriate contact before [A.F.] pushed [plaintiff]."
Plaintiff opposed the summary judgment motion and argued defendants' lack of supervision was the proximate cause of his injuries. As support for the contention, plaintiff pointed to the earlier fourth grade incident involving A.F., A.F.'s conversation with plaintiff and one of his teammates moments before the scavenger hunt incident, and A.F.'s directive to "move" immediately before he shoved plaintiff. As plaintiff put it, "Had [the coach and his aide] actually been providing supervision, including providing a more involved presence on the field, . . . their presence would have likely dissuaded [A.F.] from harming [plaintiff] or they would have been able to act after [A.F.] spoke to [plaintiff and his teammate] or after [A.F.] yelled at [plaintiff to "move"]."
Although the record shows plaintiff submitted a statement of additional disputed facts, there is no indication he disputed or otherwise challenged any of the undisputed facts put forth by defendants.
With his opposition, plaintiff submitted a copy of a report from the Los Angeles County Sheriff's Department regarding the scavenger hunt incident. The report indicated plaintiff told the responding deputy that A.F. had pushed him to the ground two years earlier and that A.F. bullied plaintiff "often" at school. The report also stated A.F. told the deputies his collision with plaintiff was an "accident."
In addition, plaintiff submitted a declaration from Barbara Calagnie Glaeser (Glaeser), an expert in general and special education. She opined the coach's planning and supervision of 5 the scavenger hunt failed to meet the standard of care. Specifically, Glaeser found the coach's plan to roam the school's grounds during the hunt and rely on students to alert him to problems was "inadequate," and she accordingly believed it was "not surprising" a student was injured while under such supervision. In Glaeser's view, the coach should have "required students to periodically check in with him or the aide, so he could monitor when and where each student was at all times. . . ." Glaeser did not opine such a check-in procedure would have prevented plaintiff's injuries, nor did she state that in either her experience or her studies she had found a check-in procedure or other form of enhanced supervision reduced or eliminated the likelihood of such incidents among grade school children who were engaged in similar playground activities. Although Glaeser believed it was "obvious" the coach could not "safely supervise 60 students at once," she did not offer an opinion on the number of school staff members that would have been required to prevent the incident.
Defendants, in their reply, emphasized two undisputed facts: the scavenger hunt was not unsupervised and the incident occurred suddenly with "no commotion or build up" to alert the coach or his aide. Defendants further argued that a single prior incident between the two boys more than a year earlier did not constitute a pattern that would have reasonably triggered a need for heightened supervision of the two boys during the scavenger hunt. Defendants also lodged evidentiary objections to Glaeser's declaration and the Sheriff's report. 6
C. The Trial Court's Ruling
The trial court granted defendants' motion for summary judgment on causation grounds. The court found plaintiff's argument about the likely deterrent effect of a more involved presence by the coach or his aide during the hunt to be based on "speculation." In addition, the court was unpersuaded by the contention the coach or his aide could have intervened to prevent the collision if they had witnessed the pre-collision interactions between the two boys because plaintiff's "deposition testimony mad[e] it clear that the events of the incident occurred in quick succession" and there was "no evidence as to what [A.F.] said, other than 'Move out of the way.'" Finally, the court rejected plaintiff's argument that the "single previous bullying incident" (the tussle over the ball and pushing in fourth grade) put defendants on notice that closer supervision of A.F. was required.
The trial court sustained defendants' objections to the Sheriff's report and to a portion of excerpted deposition testimony by the district administrator. The court elected not to rule on defendants' objections to the standard of care opinions offered by Glaeser because the proffered evidence was immaterial to its disposition. Plaintiff does not contest the trial court's evidentiary rulings.
II. DISCUSSION
The trial court correctly concluded plaintiff failed to establish a triable issue of fact as to whether defendants' negligent supervision of the scavenger hunt was a substantial factor in causing his harm. We shall elaborate, but here is the reason why in short: plaintiff's core assertion that increased or closer supervision of the two boys would have "likely" prevented 7 the incident is unsupported speculation. Plaintiff put forward no evidence, even general expert opinion evidence, about how and under what circumstances close supervision by school staff might have prevented (or moderated) the quickly unfolding altercation between A.F. and plaintiff.
"'"'A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish,"' the elements of his or her cause of action. [Citation.]" [Citation.] We review the trial court's decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.' [Citation.]" (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.)
"'Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law . . . . Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.'" (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353; accord, Shih v. Starbucks Corp. (2020) 53 Cal.App.5th 1063, 1068-71 [affirming summary judgment on causation grounds].)
"[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." (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513.) Because "school districts and their employees have never been considered insurers of the physical safety of 8 students" (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747), a plaintiff-student must prove all of the traditional elements of negligence, including causation. (Id. at 747 & fn. 3; accord, C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 876.) Imposing on a plaintiff-student the requirement that he or she establish causation "does not impose an impossible burden on an injured student; the requirement merely precludes recovery where it cannot properly be said that an injury has been caused by negligent supervision." (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1371-1372 (Thompson); accord, J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 143, fn. 10.)
To establish causation, a "plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiff's injury and the defendant's failure to provide adequate [supervision]." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774, 775 (Saelzler); see also id. at 773-775 [a showing of "abstract negligence" unconnected to plaintiff's actual injury is insufficient to avoid summary judgment].) A plaintiff "must show that the defendant's act or omission was a 'substantial factor' in bringing about the injury." (Id. at 778; see also Woodsmall v. Mt. Diablo Unified School Dist. (1961) 188 Cal.App.2d 262, 263, 265 [causation not proven when student pushed the minor plaintiff into a basketball pole at school because "the uncontroverted evidence leads to the conclusion that supervision would have made no difference"]; Thompson, supra, 107 Cal.App.4th at 1372 [summary judgment for school district where attack on student in a school restroom during the lunch period "occur[red] with such rapidity that supervisory personnel 9 [had] no opportunity to discover and respond to the situation"]; Wright v. City of San Bernardino High School Dist. (1953) 121 Cal.App.2d 342, 346 [lack of supervision not the proximate cause of high school student plaintiff's eye injury from being struck by a tennis ball because "the danger which suddenly developed could not reasonably be said to have resulted from or been caused by the absence of the teacher"; the incident "'could occur equally as well in the presence of the teacher as during her absence'"] (Wright).)
Summary judgment in defendants' favor was appropriate here because there is no substantial evidence that would support a finding that the proximate cause of plaintiff's injuries was defendants' allegedly deficient supervision and not A.F.'s shove. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163 ["[I]n order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing"].) It is undisputed that the altercation between plaintiff and A.F. occurred quite rapidly: plaintiff testified A.F. pushed him as he was running toward a teammate who was only a few yards away from where plaintiff and A.F. moments earlier had been talking with another of plaintiff's teammates. According to plaintiff, A.F.'s "move" comment and subsequent collision with him occurred in such a fast and unexpected manner that it surprised him. The undisputed evidence, in short, established that the incident was "'one of those events which could occur equally as well in the presence of the teacher as during her absence.' [Citation.]" (Wright, supra, 121 Cal.App.2d at 346.)
Plaintiff points to no evidence in the summary judgment record that would support a contrary conclusion. Instead, his 10 appellate briefing relies on his own unsupported child behavior analysis: "All students know that some (if not all) kids act a certain way when a teacher or coach or supervisor is nearby . . . but then they act differently when that teacher's back is turned, or when he leaves the room . . . or field. . . . The argument that the [c]oach couldn't have intervened even if he had been standing right there next to the group does not go far when the fact is that [A.F.] would not have been as likely to act aggressively or push down [plaintiff] if the [c]oach had been nearby."
This mode of analysis suffers from several problems. First, representations about what "[a]ll students" or all people know about how children generally behave is no substitute for evidence, of which there is none. Second, even if plaintiff did put forward some evidence (which may not be difficult to find) that supervision at some degree of closeness generally reduces aggressive behavior, there is no evidence about A.F. specifically and whether he is the sort of child for which this general rule holds true some or all of the time. And even if there were evidence about that, plaintiff's position on proximate causation unduly risks collapsing the distinction between negligence and proximate causation: if a negligent level of school supervision requires a trial on causation because more supervision always makes it less likely that an injury would have occurred no matter the particular circumstances, a plaintiff would often (if not always) be relieved from coming forward with evidence establishing a triable issue of fact on the element of causation. But that is not how it works. Circumstances matter, as cases like Thompson and Wright establish. 11
We acknowledge that causation is frequently a factual issue that may require a trial to resolve, but that is not true in this case and on this record. The "mere possibility" of causation is not enough for a plaintiff to survive summary judgment (Saelzler, supra, 25 Cal.4th at 775-776), and that is what we have here.
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
We concur: RUBIN, P. J., MOOR, J. 12