Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV021964
RAYE, Acting P. J.During a melee in a high school auto shop class, a fellow student punched plaintiff Brandon L. Mickley, severely injuring his eye. Mickley sued defendants Lodi Unified School District (the District) and Richard Rizzonelli, the teacher, alleging they were negligent and careless in failing to use ordinary care in supervising students in the auto shop classroom so as to prevent the attack on Mickley. The jury returned a special verdict finding Rizzonelli had not been negligent, but finding negligence by the District. The jury awarded Mickley $409,239.84. On appeal, the District contends the trial court erred in denying its motions for a directed verdict, a new trial, and a judgment notwithstanding the verdict. According to the District, the court erred in finding a duty where none existed and engaged in speculation in order to find causation. We agree with the latter contention and shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
There is little dispute about the essential facts in this matter, though the parties obviously make different deductions from those facts. Mickley, a senior in high school, was enrolled with Tuan Tran in an auto shop class. While it is not clear what role, if any, race played in the violence, the racial composition of the class was mentioned frequently in testimony. Thus, Mickley testified that 80 percent of the students in the shop class were Asian. Disruptions in the class were not unusual. At least two to three times a week security was summoned to the class. About a week before the fight, Rizzonelli had asked Mickley to tell Tran to turn down the radio in the car he was working on. Tran ignored the request.
The afternoon of the fight, Tran and another student were speaking loudly, disrupting the class. It took about 15 minutes for the class to settle down before Rizzonelli could begin teaching. Mickley testified: “Class is being disrupted all day, every day.” Rizzonelli sat at his desk in the front of the room, trying to quiet down the class as students walked around, threw papers, and continued to talk. Rizzonelli’s desk was about seven feet from the table where Mickley sat.
Rizzonelli began to speak to the students, but Tran and the other boy continued to talk and disrupt the class. After Mickley twice asked Tran to be quiet, Tran got up and approached him. Tran threatened Mickley, who remained seated. Rizzonelli, seated at his desk, told Tran to sit down and “[k]nock it off.” Tran continued threatening Mickley, and Rizzonelli, still seated at his desk, repeated his demand for Tran to sit down.
Instead of complying, Tran kicked Mickley’s leg and desk, telling Mickley to get up and fight. Rizzonelli remained seated. Believing he had to defend himself, Mickley stood up and began to approach Tran. As Mickley and Tran faced each other, Rizzonelli remained seated at his desk.
Five other Asian students began moving toward Mickley and Tran. Rizzonelli remained at his desk. Mickley hit Tran, who, along with another student, began punching Mickley. Four other students circled Mickley as Tran and another student continued to punch him. Rizzonelli remained at his desk.
One of the Asian students grabbed a chair and swung it at Mickley’s head but missed. At this point, Rizzonelli stood up beside his desk. Mickley grabbed a chair and threw it at the student who had swung a chair at him.
Tran hit Mickley in the eye. The blow hit the eye socket and Mickley lost his sight in that eye. Mickley crouched down, protecting his face, as the other five Asian students came at him, kicking and hitting him in the back and back of the head. Mickley’s eye began to bleed. The blows continued for about 15 seconds as Mickley crouched on the floor.
Mickley estimated the entire incident lasted “about a minute, maybe a little bit more, a minute and 20 seconds, something of that nature.” During redirect examination, Mickley testified the fight lasted “about a minute or possibly seconds longer than that.”
The incident ended when Rizzonelli summoned security; the Asian students fled. Rizzonelli never came to Mickley’s aid. Another student helped Mickley wash his eye at the water fountain. Security arrived approximately seven to eight minutes later.
Mickley testified there was a call button or a panic button on the wall about four feet behind Rizzonelli’s desk. According to Mickley, nothing blocked Rizzonelli’s access to the button.
Following the fight, Mickley underwent two surgeries to relieve pressure in his eye and reattach the retina. He remains legally blind in the injured eye and will require treatment for the rest of his life.
Scott Sherman, a fellow student who witnessed the fight, testified the call button was right behind Rizzonelli’s desk. During the incident, Rizzonelli yelled at Tran to sit down but never attempted to aid Mickley. According to Sherman: “I believe that [Rizzonelli] could have... hit the call button if he would have got up and moved over to here. I believe it was like right behind him.” Instead, Rizzonelli continued to yell at Tran to stop.
According to Sherman, Rizzonelli pressed the call button after the fight ended. Rizzonelli did not have to go around anyone to press the button; the button was right behind him.
Sherman testified the fight took about 10 to 20 seconds to progress from verbal to physical and lasted about a minute. However, in a prior deposition, Sherman stated the whole incident was over in a matter of seconds and Rizzonelli did not have enough time to intervene.
Rizzonelli testified there had been prior fights in his classroom. The District’s policy and procedures manual instructed teachers not to physically intervene in student fights.
The afternoon of the fight, Tran began to act up. As the students involved in the fight converged on Mickley, Rizzonelli got up and walked around his desk but paused because there was nothing he could do. Rizzonelli determined the best course of action was to push the call button. However, several students blocked his access to the button. An L-shaped desk with a computer and a pile of things to the right of the desk also blocked access to the button. Yelling for the students to stop, Rizzonelli pushed through them and pressed the button. The incident lasted about a minute.
Bill Toledo, the principal of the high school, testified the District instructed teachers not to intervene in physical altercations, but to summon security. Teachers had three methods at their disposal for summoning security: the intercom system activated by the call button, the telephone emergency line, or stepping outside and calling for help. Toledo did not recall the location of the phone in Rizzonelli’s classroom. The high school’s security consisted of eight campus security officers and two Stockton police officers.
At the conclusion of Mickley’s case-in-chief, the District moved for a “directed verdict,” asserting that whether it owed Mickley a duty was a question of law that should be decided adversely to Mickley and that, in any event, Mickley failed to show causation, that implementation of different security precautions would have prevented the attack. The motion was denied and the District proceeded to recall Rizzonelli as the sole defense witness.
Though styled a motion for directed verdict, the motion after the presentation of plaintiff’s evidence was in effect a motion for nonsuit. (Code Civ. Proc., § 581c; cf. Code Civ. Proc., § 630.) The same test applies to both.
Rizzonelli testified the fight happened in seconds, giving him no time to physically intervene. When the fight started, Rizzonelli was seated behind his desk. He got up and started to move toward the students. He decided the best course of action was to hit the panic button. On the way to the panic button, Rizzonelli was stopped briefly when students got in the way. He then continued to the button and pressed it, and the fight stopped.
During cross-examination, Rizzonelli testified he did not go straight to the panic button when the fight started because an “L”-shaped table and typing desk blocked his way. To the side of the desk were stacked a box of bolts and “stuff.” Rizzonelli’s access to the panic button and the phone was blocked by the typing desk. On redirect, Rizzonelli testified that if there were no obstructions, he could reach the panic button in 5 to 10 seconds.
The Verdict
By special verdict, the jury found neither Rizzonelli nor Mickley negligent. The jury found the District negligent, and found this negligence a substantial factor in causing harm to Mickley. The jury apportioned 50 percent of Mickley’s damages of $409,239.84 to the District.
The court entered judgment on the special verdict in favor of Mickley. The District filed a motion for judgment notwithstanding the verdict and a motion for a new trial. The court denied both motions. The District filed a timely notice of appeal.
DISCUSSION
The elements of a negligence cause of action consist of (1) the defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty), (2) failure to conform to that standard (breach of the duty), (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause), and (4) actual loss (damages). (McGarry v. Sax (2008) 158 Cal.App.4th 983, 994.)
Mickley’s theory of negligence is set forth in a single paragraph of the complaint. “Defendants... were negligent and careless in that they failed to exercise ordinary care in supervising the conduct of students in the Auto Shop classroom... during the school hours so as to prevent the type of gang attack herein alleged. Prior to occurrence of the injuries herein alleged, Defendants had actual and constructive notice that fights, beatings, and attacks such as have been alleged herein had occurred before, and were likely to occur again, in the absence of adequate supervision. Defendants were negligent and careless in that having such knowledge they nevertheless failed to use ordinary care in the supervision of students during school instruction periods, and failed to provide adequate supervision or any supervision at all.”
In moving for a directed verdict, the District argued that supervision does not include physically intervening in fights between students, and under District procedures Rizzonelli was required only to verbally intervene and then to summon security. The District’s counsel noted the absence of expert testimony to the effect that the District’s protocols and procedures do not work. Further, on the issue of causation, the District argued Mickley was obliged to show that different security precautions would have prevented the attack and there was no evidence that Rizzonelli could have done anything to prevent the injury sustained by Mickley.
In denying the motion, the trial court declared the law did not require a teacher to physically intervene in a fight between students. Nonetheless, in the court’s estimation, the evidence presented several questions of fact precluding a directed verdict. Questions of fact existed as to whether Rizzonelli “made arrangements in the classroom to have the best access to the panic button and whether or not there was negligence in putting an L desk and a student teacher grading desk between himself and the panic button.”
In addition, the court found a question of fact as to whether “if the teacher had been able to get to that panic button more quickly, since there has been testimony that it was the pushing of the panic button... that caused the fight to stop,... whether or not if he could have gotten there more quickly the fight could have been terminated more quickly.” The court noted the witnesses differed in their estimates of the fight’s duration, but “[o]bviously the difference between 15 seconds and two to three minutes is substantial when we’ve got fists flying.”
The trial court, in denying the District’s motion for a directed verdict, stated, “[o]bviously the difference between 15 seconds and two to three minutes is substantial when we’ve got fists flying.” However, various witnesses testified the fight lasted between a few seconds to just over a minute. No witness testified the fight lasted two to three minutes.
Counsel for the District complained that the court’s questions of fact were beyond the purview of the complaint and accused the court of “creating a new lawsuit.” The trial court disagreed. The case proceeded. Taking a cue from the trial court’s ruling, however, Mickley’s counsel thereafter placed greater emphasis on the panic button. In closing, he urged the jury to find negligence based on the following:
1. Acknowledging the court’s instruction that Rizzonelli had no obligation to physically intervene in the physical altercation, counsel argued Rizzonelli could have “stopped [the altercation] before it started,” but he did not get up from his desk or go over to hit the emergency call button until after the altercation stopped or was breaking up.
2. A lack of supervision or ineffective supervision can either be the conduct of a particular teacher or rules and regulations that the teacher is told to enforce.
The trial court sustained an objection to argument that the school district cannot make rules and regulations that emasculate the teacher and “[t]hen say well if something happens because a teacher is not going to intervene, that were [sic] totally okay.” Thereafter, counsel referred to the District’s nonintervention policy and expressed the view that the District had sought to take away responsibility for supervision from the teachers and to impose the duty on an understaffed, nontrained security force. The court sustained an objection to the argument. Later, counsel referred to the response time of security personnel, and the trial court again sustained an objection.
3. Rizzonelli had configured his desk in a manner that obstructed access to the security call button and resulted in delay.
Upon these slender reeds, the jury constructed a verdict in favor of Rizzonelli but against the District. The District complains that the trial court, in ruling on its motions for nonsuit, for judgment notwithstanding the verdict, and for a new trial, erroneously found the District owed a duty to Mickley and engaged in speculation in order to find causation.
Mickley argues the trial court’s denial of the District’s motion for a directed verdict is a nonappealable order. However, denial of a motion for nonsuit or directed verdict may be reviewed on appeal from the judgment. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263; Gettemy v. Star House Movers (1964) 225 Cal.App.2d 636, 647-648.)
Standard of Review
We apply the same standards in reviewing the denial of motions for nonsuit and judgment notwithstanding the verdict that apply to denial of a motion for directed verdict. “A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.]
“Thus, if the party resisting a motion for directed verdict produces sufficient evidence to support a jury verdict in his or her favor, the motion must be denied. In this case, of course, the jury found in [defendant’s] favor at the conclusion of trial. [Plaintiff’s] assertion that he was ‘unfairly denied a directed verdict’ is therefore functionally equivalent to contending there was insufficient evidence to support the jury verdict against him. Only if there was no substantial evidence in support of the verdict could it have been error for the trial court earlier to have denied [plaintiff’s] motion for directed verdict. [Citation.]
“Our consideration of the issue whether the judgment was supported by substantial evidence is governed by the well-established standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630, fn. omitted.) Unless it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, the trial court cannot grant a directed verdict. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 745 (Dailey).)
Duty and Causation
Mickley claimed the District and Rizzonelli negligently failed to exercise ordinary care in order to prevent the fight that injured him. Mickley is correct in discerning the existence of a special relationship between a school district and its students, resulting in the imposition of a duty on the school district to take all reasonable steps to protect its students. This duty arises, in part, based on the compulsory nature of public education. (M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517 (Panama).)
School authorities have a duty to supervise at all times the conduct of children on school grounds and to enforce the rules and regulations necessary for their protection. School districts are liable for injuries resulting from the failure of their employees to use ordinary care in this respect. (Panama, supra, 110 Cal.App.4th at p. 517.)
School employees must act with the degree of care that a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. A total lack of supervision or ineffective supervision may constitute a lack of ordinary care in the supervision of students. (Dailey, supra, 2 Cal.3d at p. 747.)
Only if Mickley presented substantial evidence establishing duty, breach of duty, and causation can we sustain the trial court’s denial of the District’s motion for a directed verdict. (Panama, supra, 110 Cal.App.4th at p. 519.)
Mickley presented evidence that he and a fellow student got into a verbal exchange during class that very quickly escalated into a fight. Various witnesses testified as to the duration of the fight. Mickley estimated it lasted about a minute, maybe a few seconds longer. Sherman, another student, testified the fight lasted about a minute. The fight ended when Rizzonelli hit the button on the voice call box located behind his desk.
Mickley contends “there was sufficient evidence presented that the manner in which Rizzonelli had configured his desk and adjacent tables, such as to prevent his direct and timely access to the voice call box on the wall, could be perceived as negligence upon his part.” In addition, Mickley cites the trial court’s finding that there was direct and circumstantial evidence the District, in determining security procedures and precautions, failed to take all reasonable steps to protect the students in Rizzonelli’s class. On this basis, Mickley asserts, the trial court correctly denied the District’s motion for a directed verdict.
In support, Mickley cites Dailey. In Dailey, the Supreme Court found sufficient evidence to withstand a directed verdict. The student in Dailey died from injuries suffered in a slap-boxing fight on campus during recess. Two teachers responsible for student supervision testified there was no set procedure for determining who was to supervise on particular days or what their supervisory duties were. (Dailey, supra, 2 Cal.3d at pp. 745-746.)
In addition, during the fight one of the responsible teachers sat at a desk facing away from the office windows, “and a wall obscured the view of the area in which the slap boxing took place.” (Dailey, supra, 2 Cal.3d at p. 746.) The teacher testified that when he saw students slap boxing he would order them to cease immediately. However, the day of the fatal fight, the teacher heard nothing to indicate a fight was taking place. (Id. at pp. 746-747.)
In finding the evidence sufficient to support a finding of negligent supervision, the court noted, in addition to other factors, that one of the supervising teachers “did not station himself in the office in such a fashion as to maximize his ability to observe the students outside, but sat with his back to the window.” (Dailey, supra, 2 Cal.3d at p. 750.) The jury could reasonably conclude that the employee charged with the responsibility of supervision failed to exercise due care in the performance of this duty. (Ibid.)
However, here, in contrast, there was no glaring failure of supervision. Rizzonelli was in the classroom when the fight between Mickley and Tran broke out. The District installed a voice call box in the classroom, which Rizzonelli pushed after the fight started. Unlike the situation in Dailey, here the student is questioning the rapidity of Rizzonelli’s response, not asserting a lack of supervision.
Mickley also references Charonnat v. S. F. Unified Sch. Dist. (1943) 56 Cal.App.2d 840, in which the court observed: “the law imposes the duty on the school authorities to provide sufficient supervision so that the fighting may be stopped before serious injury results.” (Id. at p. 844.) In Charonnat, a fight between two students during recess resulted in the plaintiff student’s leg being broken. During recess, between 100 and 150 students were on the playground, supervised only by the vice-principal. The vice-principal stood no more than 50 feet away from the fight but did not hear the plaintiff screaming. In addition, although about 20 other teachers were available to provide recess supervision, the vice-principal alone was assigned to that duty. (Id. at pp. 841-842.) The trial court found inadequate supervision by the vice-principal, determining that if she had exercised reasonable care she would have observed and intervened in the incident, preventing the plaintiff’s injury. The appellate court affirmed. (Id. at pp. 843, 846.)
Here, Rizzonelli observed the altercation and responded by following the District’s instructions to summon help by pushing the button on the call box. Again, the question is not a lack of supervision, but the efficacy of Rizzonelli’s response.
In Panama, a school campus was open to students at 7:00 a.m., with teacher supervision beginning at 7:45 a.m. Parents were never informed there was no supervision prior to 7:45 a.m. (Panama, supra, 110 Cal.App.4th at pp. 511-512.) The plaintiff, a 15-year-old special needs student with a third-grade mentality, was dropped off during the unsupervised period. A fellow student, who had harassed the plaintiff repeatedly, sexually assaulted the plaintiff. (Id. at pp. 512-514.)
The court in Panama determined it was “reasonably foreseeable that, given the lack of direct supervision in the early morning hours, a special education student... was at risk for a sexual or other physical assault. The District’s superintendent acknowledged that supervision has a special meaning to educators on the issue of safety and entails observing the person being supervised. This simply did not occur at [the school] prior to 7:45 a.m. Given the unique vulnerabilities of special education students, the District knew or reasonably should have known that the minor was subject to the risk of an assault, including a sexual assault....” (Panama, supra, 110 Cal.App.4th at p. 520.) The court also found the burden to provide adequate supervision was minimal; the district could satisfy its responsibility by merely precluding students from coming onto campus in the early morning hours. (Id. at p. 521.)
We do not find the factors at play in this case present a similar scenario of foreseeability. Here, the District provided supervision: Rizzonelli was present during class and observed the fight as it broke out. The District provided a procedure for responding to fights in the classroom: instead of intervention, teachers were instructed to summon help via the call button.
The crux of Mickley’s argument is that Rizzonelli did not react quickly enough to summon help and prevent his injuries. While Mickley faults the District’s placement of the call button, arguing its location prevented Rizzonelli from responding promptly enough to prevent his injuries, Mickley presented no evidence that Rizzonelli had time to reach the button fast enough to prevent Mickley’s injury regardless of the button’s accessibility.
In Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352 (Thompson), another case involving school violence, we concluded the evidence was insufficient to support a finding of a breach of duty by the school district. In Thompson, two students waylaid and beat a fellow student. The area where the attack occurred was out of sight of security officers, who had patrolled the area minutes before the beating. (Id. at pp. 1358-1360.)
We noted that to establish a right of recovery, a student must prove the traditional elements of actionable negligence, including causation. However, “This 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. For example, where a school fails to provide supervision and an injury results from conduct that would not have occurred had supervision been provided, liability may be imposed. [Citations.] Where supervision is provided but the supervisor allows dangerous conduct to go on, liability may be imposed.” (Thompson, supra, 107 Cal.App.4th at pp. 1371-1372.)
In Thompson, two students formed a hasty plan to rob a fellow student. They lured the victim out of the immediate view of campus supervisory personnel for at least a couple of minutes. From there, events unfolded “extremely quickly.” Approximately two minutes after a campus monitor had patrolled past the area, the monitor returned to find the injured victim. (Thompson, supra, 107 Cal.App.4th at p. 1372.)
On these facts, we concluded: “Short of a prison-like lockdown situation, students who, for their own purposes, deliberately intend to escape the direct scrutiny of supervisory personnel will inevitably find a way to do so. [Citation.] When, in such a case, an injury occurs with such rapidity that supervisorial personnel could have no opportunity to discover and respond to the situation, then claims of abstract negligence will not support recovery. [¶] We must reject appellants’ suggestion that the mere fact a fight occurred is sufficient, in itself, to establish actionable negligence. [Citation.] Where, as here, a claim of ineffective supervision is not supported by competent proof of causation, summary judgment is appropriate. (Thompson, supra, 107 Cal.App.4th at p. 1372.)
Similarly, we cannot find that the District breached its duty to Mickley under the evidence presented by Mickley at trial. The students in Rizzonelli’s class were supervised and the District provided teachers with a method for summoning backup in the event of a fight. Such a fight broke out, and in just over a minute Rizzonelli pushed the call button, ending the fight. Any delay in such a compressed timeline cannot and should not support a claim of breach of duty on the part of the District.
In addition, to require instantaneous reactions on the part of teachers is both unworkable and virtually impossible. It would require teachers to constantly remain within reach of the call button, hampering their ability to move about the classroom in performance of their duties.
There is no substantial evidence supporting a verdict in Mickley’s favor. Therefore, the trial court erred in denying the District’s motion for nonsuit and erred again in denying the motion for judgment notwithstanding the verdict. Accordingly, we reverse the judgment and direct judgment to be entered in favor of the District.
DISPOSITION
The judgment in favor of Mickley is reversed and the trial court is directed to enter judgment in favor of the District. The parties shall share costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: HULL, J., CANTIL-SAKAUYE, J.