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Weinstein v. William S. Hart Union High School District

Court of Appeals of California, Second Appellate District, Division Three.
Nov 24, 2003
No. B161461 (Cal. Ct. App. Nov. 24, 2003)

Opinion

B161461.

11-24-2003

PAUL WEINSTEIN, Plaintiff and Appellant, v. WILLIAM S. HART UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.

Robert E. Drescher, Gary M. Weinstein; and David Castenholz for Plaintiff and Appellant. Gibeaut, Mahan & Briscoe, Gary Robert Gibeaut and John W. Allen for Defendant and Respondent.


Plaintiff and appellant Paul Weinstein (Weinstein), a minor, by and through his guardian ad litem, Patricia Weinstein (mother), appeals a judgment following a grant of summary judgment in favor of defendant and respondent William S. Hart Union High School District (the District).

The essential issue presented is whether the District owed a duty to Weinstein.

The district is not liable under Government Code section 835 (section 835) because it neither owned nor controlled the street where the accident occurred. Further, even assuming the District undertook to supervise students who were awaiting pickup at the end of the school day, so as to implicate Education Code section 44808, such duty does not extend to this fact peculiar situation. Weinstein was safely returned to parental custody at the end of the school day. At that point, the Districts duty ceased. The District did not owe a continuing duty to supervise Weinstein thereafter. Accordingly, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The accident.

On October 6, 2000, Weinstein, a 13-year-old seventh grade student at Placerita Junior High School (Placerita) in Santa Clarita, was struck by a motorist as he was crossing Dalbey Drive (Dalbey) shortly after the school day ended.

On the day of the accident, the school day ended at 2:35 p.m. Weinstein walked across Dalbey to his mothers car, which was parked almost directly across the street from the school along with the cars of numerous other parents waiting to pick up their children. Weinstein got into the car and chatted with his mother for a few minutes. The mother then gave Weinstein permission to walk home. Weinstein left his backpack in the back seat and exited the car. Weinstein walked behind his mothers car to cross back over Dalbey in the middle of the block. A woman driving eastbound on Dalbey, Ms. Aznavour, stopped her car and signaled for Weinstein to cross. Weinstein nodded to her and began to walk across the road, pausing to look to his right to check for westbound traffic. He then proceeded and was struck by a westbound vehicle being driven by Alcria Chinchilla.

2. Proceedings.

On September 19, 2001, Weinstein filed suit against the District as well as the City of Santa Clarita (the City), alleging they were negligent in failing to properly maintain, manage, control, guard, warn and supervise the area where the accident occurred.

The District and the City both filed cross-complaints against the mother and Chinchilla for indemnity, contribution and declaratory relief, and also pled causes of action against the mother for negligent supervision.

On April 22, 2002, the District filed a motion for summary judgment on Weinsteins complaint, asserting: it did not design, maintain, own or control Dalbey Drive, the location of the accident; the accident occurred on Dalbey after school hours; Weinstein could not establish any facts to show the District failed to act reasonably under the circumstances; and the Districts discretionary allocation of school funds did not give rise to tort liability.

The City separately moved for, and obtained, summary judgment on Weinsteins complaint. In granting summary judgment in favor of the City, the trial court ruled, inter alia: there was no dangerous condition of the roadway; the road conditions, including the specific location of the accident, were consistent with all applicable traffic engineering standards; even if a dangerous condition existed there was insufficient evidence of the Citys notice of same; and in any event, the City was immune from liability pursuant to Government Code sections 830.4, 830.6 and 830.8. Weinstein appealed the judgment in favor of the City but subsequently dismissed that portion of the appeal.

The Districts motion was supported by the declaration of Rory Livingston, an assistant superintendent, stating: Dalbey is a city street within the City of Santa Clarita, and neither Placerita Junior High nor the District owned, maintained, managed or controlled Dalbey prior to and through October 6, 2000. Further, neither Placerita nor the District employs any crossing guards to supervise students in crossing any of the city streets adjacent to Placerita, including Dalbey.

In opposition, Weinstein contended, inter alia, the District at least in part designed, maintained and controlled Dalbey Drive. Weinstein cited the deposition testimony of Principal Gapper (Gapper), wherein he stated that prior to the accident, he worked with a staff member of the traffic division of the City to devise a traffic plan around the school which would reduce the number of accidents. Thereafter, a plan was developed to establish a valet student drop-off and pick-up zone in front of the school, with a traffic lane adjacent to the school sidewalk to be coned off; the promotion of Newhall Avenue and Sixteenth Street as drop-off and pick-up locations; the closure of Dalbey on the Placerita side to parking between posted hours; and the identification and implementation of a school-wide student traffic safety program. Further, the method of traffic control in the area was modified by the District after the accident. These circumstances were admissible to show the District exercised at least some design, maintenance and control of Dalbey Drive.

3. Trial courts ruling.

On July 17, 2002, the matter came on for hearing. Therefore, the trial court granted the Districts motion for summary judgment, ruling as follows:

"1. The district did not design, maintain, own, or control Dalb[e]y Drive, where the accident occurred. Govt. Code Section 835 . . . . The undisputed facts show that the district is not the public entity that owned Dalb[e]y Drive at the time of the accident. As such, both causes of action lack merit as to the district. . . .

"2. Plaintiff has not established any facts to show that the district failed to act reasonably under the circumstances. `Notwithstanding any other provision of this code, no school district . . . shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district . . . has failed to exercise reasonable care under the circumstances. Educ. Code Section 44808. Our courts have held that there is no statutory basis for imposing a duty upon a public school district to employ crossing guards off the school premises for students use after school hours. [See authority cited by moving party]. Those cases that do impose liability on a school district for injuries sustained by pupils off of school premises or after school hours are distinguishable from the case at hand. For example, in Hoyem v. Manhattan Beach Unified School District (1978) 22 Cal.3d 508, held that a child injured in an intersection could seek to impose liability on the school district which negligently failed to supervise him during school hours, allowing him to become a truant. Such allegations were held to fall within the exceptions of Educ. Code Section 44808. But that is not the case here.

"3. The districts discretionary allocation of school funds cannot be the basis for the imposition of tort liability. Decisions regarding where or if crossing guards should be posted, what hours they should work, or whether the district has funds to post any at all, require the exercise of discretion by the district and its employees. `Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was a result of the exercise of the discretion vested in him, whether or not such discretion is abused. Govt. Code Section 820.2; and see Govt. Code Section 815.2. For example, in Gilbert v. Sacramento Unified School District (1968) 258 Cal.App.2d 505, the court addressed the discretionary immunity argument as it applied to a student who was killed by a train in a railroad crossing while walking home from school and affirmed the trial courts granting of demurrer without leave to amend in favor of the school district. The court noted that as a result of government tort immunity legislation, there is no liability on the part of the district because the decision to supervise the intersection was discretionary; that if the duty to see to the safety of thousands of children from their home to school and vice versa was going to be imposed on the district, the legislature should have provided so; and that the cost of such a duty would be `stupendous and such a duty would replace the duty of the parent to see that their children . . . [get to] and from school safely. Id. at pages 509-10.

"The evidence submitted by plaintiff which it contends supports an inference that the District had control over Dalb[e]y Drive is set forth in Gappers deposition, wherein he states that the junior high regulated traffic along Dalb[e]y Dr. by `ask[ing] parents, prior to the time of the accident, to off-load traffic to pick their kids up on 16th Street and on Newhall and on Dalb[e]y. That was in an attempt to reduce the amount of traffic that was on Dalb[e]y and the congestion that was on Dalbey.. . . Plaintiff also provides the court with a letter from Gapper to the parents, indicating his plans to increase pedestrian and bike safety around the school. . . . However, I do not believe that this evidence supports plaintiffs contention that the District controlled Dalb[e]y Drive. I am of the opinion that this testimony is insufficient to create a triable issue of material fact regarding the Districts control over Dalb[e]y Drive. While the evidence establishes that the junior high attempted to `regulate traffic created by its parents, it does not establish that the school had such control over Dalb[e]y Drive that it was required to regulate traffic or that it even attempted to regulate all traffic on that street. Moreover, it was not the schools attempt to regulate traffic that caused plaintiffs injuries. Because the District did not own or control the property on which the accident occurred, the District cannot be liable for plaintiffs injuries. Govt. Code Section 835. . . ."

Weinstein filed a timely notice of appeal from the judgment in favor of the District.

CONTENTIONS

Weinstein contends: the trial court erred in granting summary judgment for the District because a triable issue of material fact exists as to whether the District exercised apparent or actual control over Dalbey Drive, located immediately adjacent to its property; the trial court erred in sustaining certain evidentiary objections by the District to Weinsteins evidence; and the District owed Weinstein a duty of care pursuant to section 835 and Education Code section 44808.

DISCUSSION

1. Standard of appellate review.

As stated in PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590 (disapproved on other grounds in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11), summary judgment "motions are to expedite litigation and eliminate needless trials. [Citation.] They are 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 a judgment as a matter of law. [Citations.]"

A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., §437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A defendant has shown the plaintiff cannot establish at least one element of the cause of action "by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . ." (Id. at p. 854.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Id . at p. 849.)

We review the trial courts ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)

2. No liability under section 835; no triable issue as to whether the District owned or controlled the subject property at the time of the injury.

Section 835 provides: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [¶] (a) negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."

In order "to be liable under section 835, the public entity must be the owner or in control of the property at the time of the injury. [Citations.]" (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 107, disapproved on other grounds in Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1146.)

There is no contention here that the District owned Dalbey Drive.

With respect to the issue of the Districts control over the street, we concur in the trial courts analysis.

The evidence cited by Weinstein in support of his theory that the District had control over Dalbey Drive was set forth in Gappers deposition, wherein he stated that prior to the accident, parents were asked to "to off-load traffic to pick their kids up on 16th Street and on Newhall and on Dalbey. That was in an attempt to reduce the amount of traffic that was on Dalbey and the congestion that was on Dalbey."

Weinstein also relied on a letter from Gapper to the parents after the accident, stating that Placerita administration, staff, parents of the schools Parent Advisory Council, traffic officers from the Sheriffs Department, and officials from the City, had developed a plan to increase pedestrian and bicycle safety around the school. The plan included creation of a valet student drop-off and pick-up zone in front of Placerita; the promotion of Newhall Avenue and 16th Street as excellent drop-off and pick-up locations; the closure of Dalbey on the Placerita side to parking between posted hours; and the identification and implementation of a school-wide student traffic safety program.

This evidence does not support Weinsteins contention that the District controlled Dalbey Drive. It merely showed the District requested parents to pick up and drop off their children at specified locations in order to reduce congestion on Dalbey, and that the District made suggestions or requests to the City regarding the management of traffic on Dalbey. These attempts by the District to manage school-related traffic do not support an inference that the District controlled Dalbey.

Alcaraz v. Vece (1997) 14 Cal.4th 1149, which found a triable issue of material fact existed as to whether defendants exercised control over the property on which the hazard was located (id. at p. 1153), is wholly inapposite. There, a tenant was injured when he stepped into a water meter box located in the lawn in front of the rental property of which he was a tenant. (Id. at p. 1152.) Evidence was introduced "establishing that defendants maintained the lawn that covered the approximately two-foot-wide portion of the strip of land owned by the city surrounding the meter box and adjoining their property and that, following plaintiffs injury, defendants constructed a fence that enclosed the entire lawn, including the portion located on the narrow strip of land owned by the city. [Fn. omitted.] From this evidence, a reasonable trier of fact could infer that defendants exercised control over this approximately two-foot-wide portion of the strip of land owned by the city and treated the land surrounding the meter box, which bordered defendants property, as an extension of their front lawn." (Id. at pp. 1161-1162.)

Here, there is no evidence that the District made any physical changes to Dalbey. As Weinstein admitted in his papers below (clerks transcript, page 345), the changes to Dalbey were made by the City. Those changes included relocating the bus stop down the block away from the students, imposing parking restrictions, and limiting the flow of traffic by creating a cone and chain system for picking up and dropping off students at Placerita. It was the City, and not the District, which exercised control over Dalbey.

Because the District neither owned nor controlled Dalbey, there is no basis for liability under section 835. (Zuniga v. Housing Authority, supra, 41 Cal.App.4th at p. 107.)

3. Evidentiary rulings.

The hearing on the summary judgment motion originally was scheduled to take place on May 31, 2002. On May 23, 2002, the parties stipulated to continue the hearing to June 25, 2002, with all opposition and reply papers "due with the June 25, 2002 date recognized as though it were the date originally scheduled for the hearing." The trial court approved the stipulation and ordered "dates by which to file opposition and reply papers tied to June 25, 2002 hearing date."

On June 25, 2002, the trial court granted a continuance to July 17, 2002, solely to enable Weinstein to take Gappers deposition.

On July 3, 2002, Weinstein filed opposition papers, including the following declarations in support of his opposition papers: (1) a declaration by the mother, setting forth the conditions on Dalbey prior to the accident, the circumstances of the accident, and subsequent remedial measures on Dalbey; and (2) an expert declaration by Harry Krueper, a civil engineer and traffic engineer, who opined that the condition at Placerita was dangerous; and (3) a declaration by Weinsteins attorney, which was supported by various exhibits, including a March 1, 2001 memorandum from Gapper to parents, setting forth the new traffic safety plan that had been developed with input from various parties.

On July 15, 2002, the District filed objections to Weinsteins papers, asserting the grounds of lack of foundation, lack of personal knowledge, hearsay and improper opinion.

At the July 17, 2002 summary judgment hearing, the trial court ruled Weinsteins opposition was untimely, stating the hearing had been continued solely for the purpose of obtaining the Gapper declaration and there was no reason for late filing of the declarations by Krueper and the mother. The trial court also sustained all the objections on the grounds raised in the Districts papers, and added "even if I consider what remains of the Krueper declaration, the Weinstein [declaration] — in other words, even if I consider the late-filed opposition, there still are no triable issues of fact here."

Leaving aside the issue of the timeliness of Weinsteins opposition papers, Weinsteins arguments in this regard are unavailing. The clerks transcript does not include a copy of the Districts evidentiary objections. It was Weinsteins burden, as the appellant, to present an adequate record for review. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, p. 562.) Because we do not know the precise objections raised below, or the extent of the Districts objections, we cannot review the trial courts ruling sustaining the objections.

Code of Civil Procedure section 437c, subd. (b), provides "Any opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (Italics added.)

Further, and in any event, the trial court ruled that even if it were to consider the belated opposition, it still would find no triable issue of material fact. We concur. We have considered the opposing declarations and they do not support Weinsteins claim that the District exercised control over Dalbey. They merely show the District requested the parents to drop off and pick up their children at certain locations, and that the District proposed certain traffic improvements to the City, which circumstances do not show the District controlled Dalbey.

In sum, Weinstein cannot show any prejudicial error in the trial courts evidentiary rulings.

4. Weinsteins reliance on Education Code section 44808 is unavailing.

Education Code section 44808 provides: "Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances. [¶] In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board." (Italics added.)

Weinstein contends the District owed a duty of care under this section because District personnel assumed responsibility to regularly supervise students on Dalbey as they proceeded to and from their parents vehicles. Weinstein relies, inter alia, on Gappers deposition testimony that he went out to the front of the school after the bell rang "to supervise the kids that were awaiting pickup."

In approaching the issue, we are mindful that "[s]chool districts and their employees are not insurers of the physical safety of their students (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 . . . , notwithstanding their discretionary authority to influence conditions affecting the safety of students transportation to and from school. In light of Californias statutory scheme of limited governmental liability, the special relationship doctrine can impose no greater duty of protection on school districts for off-school-grounds hazards than the Legislature has authorized by statute. (See Ed. Code, § 44808; see also Hoyem v. Manhattan Beach City Sch. Dist. [(1978)] 22 Cal.3d 508, 517.) [¶] . . . [¶] As a general rule school districts are under no obligation to supply traffic protection to students en route to and from school. (Ed. Code, § 44808; Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at pp. 517-518; see also Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272 .)" (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 804.) A school districts discretionary power to hire crossing guards does not impose upon a district a mandatory duty to employ a crossing guard at a particular location. (Searcy, supra, 177 Cal.App.3d at pp. 804-805.)

Education Code section 45450 provides: "The governing board of any school district may employ, in accordance with the provisions of this chapter, such personnel as may be necessary to act as guards at pedestrian crossings to ensure the safety of schoolchildren who use such intersections."

Thus, the District had no duty in the first instance to supervise departing students. However, even assuming the District assumed a duty to supervise students who were waiting to be picked up after school, the duty did not extend to this fact situation. Here, after being dismissed from Placerita at the end of the school day, Weinstein departed the school and crossed Dalbey, making his way to his mothers car. Thus, Weinstein safely returned to parental custody after the conclusion of the school day. Weinstein got into his mothers car and chatted with her for a few minutes. She then gave him permission to walk home. He exited the car to cross back over Dalbey in the middle of the block when he was struck by Chinchilla.

In sum, assuming arguendo the District assumed a duty to supervise students awaiting pickup at the end of the school day, so as to implicate Education Code section 44808, such duty does not extend to this fact situation. Any duty on the part of the District ceased once Weinstein was safely returned to parental custody. The District did not owe a continuing duty to supervise Weinstein thereafter.

DISPOSITION

The judgment is affirmed. The District shall recover its costs on appeal.

We concur: CROSKEY, J., KITCHING, J.


Summaries of

Weinstein v. William S. Hart Union High School District

Court of Appeals of California, Second Appellate District, Division Three.
Nov 24, 2003
No. B161461 (Cal. Ct. App. Nov. 24, 2003)
Case details for

Weinstein v. William S. Hart Union High School District

Case Details

Full title:PAUL WEINSTEIN, Plaintiff and Appellant, v. WILLIAM S. HART UNION HIGH…

Court:Court of Appeals of California, Second Appellate District, Division Three.

Date published: Nov 24, 2003

Citations

No. B161461 (Cal. Ct. App. Nov. 24, 2003)