Allison C. v. Advanced Educ. Services

• Decision Date: 18 May 2005
• Docket Number: No. E034358.,E034358.
• Citation: 129 Cal.App.4th 635,28 Cal.Rptr.3d 605
• Court: California Court of Appeals Court of Appeals
• Parties: ALLISON C., Plaintiff and Appellant, v. ADVANCED EDUCATION SERVICES, Defendant and Appellant.

28 Cal.Rptr.3d 605

129 Cal.App.4th 635

ALLISON C., Plaintiff and Appellant, v. ADVANCED EDUCATION SERVICES, Defendant and Appellant.

No. E034358.

Court of Appeal, Fourth District, Division 2.

May 18, 2005.

Review Denied August 10, 2005.^*

Richard E. Hodge, Inc., Richard E. Hodge, Santa Monica, Robert W. Woods, James M. Baynes, William E. Johnson; Law Offices of J.S. Hermanson and J.S. Hermanson, San Bernardino, for Plaintiff and Appellant.

Reid & Hellyer, David G. Moore, Michael G. Kerbs, Riverside; Manning & Marder, Kass, Ellrod, Ramirez, Jeffrey M. Lenkov and Steven J. Renick, Los Angeles, for Defendant and Appellant.

OPINION

RAMIREZ, P.J.

This case involves a complaint by a mother for the wrongful death, by suicide, of her severely emotionally disturbed 13-year-old son. Plaintiff Allison C.¹ appeals from an amended judgment entered in her favor and against defendant Advanced Education Services (AES) after a jury trial. She claims that the trial court erred in apportioning fault and therefore improperly calculated the amount of damages. She also appeals from the trial court's order granting AES's motion for a new trial. She asserts that neither ground cited by the trial court—prejudicial juror misconduct or excessive damages—was supported by the evidence, and further, that even if they were, the trial court erred in failing to order a limited retrial as to damages only. AES also appeals from the amended judgment and, in addition, from the order denying its motion for judgment notwithstanding the verdict. It claims that there was no substantial evidence to support the verdict that it was liable for Dylan's death or Allison's emotional distress. While AES's notice of appeal also purported to appeal from the trial court's ruling on its motion to tax costs, that point of alleged error was abandoned by the failure to raise it in the briefs. (Marocco v. Ford Motor Co. (1970) 7 Cal.App.3d 84, 87, fn. 1, 86 Cal.Rptr. 526.) We reverse the order denying AES's motion for judgment notwithstanding the verdict and consequently need not reach the merits of the order granting AES's motion for a new trial, nor need we consider the parties' appeals from the amended judgment.

FACTS AND PROCEDURAL HISTORY

Dylan was born in 1987 to Allison, and was her only child. Dylan began to have emotional problems in the third grade when he moved from Bakersfield to Crestline, California, after the breakup of Allison's marriage to his stepfather. As early as 1996 Dylan was hospitalized for a week at a local behavioral medicine center due to his out-of-control behavior. After a brief time out of state, Allison and Dylan moved to Redlands, California. Dylan attended school in Redlands for less than two months before being raped at knifepoint by a 14-year-old boy and subsequently moving to Bakersfield to live with his ex-stepfather for six months. Allison visited him at least monthly and spoke to him on the phone nightly. Upon his return, Dylan was enrolled in school in Loma Linda, near Allison's employment.

Very shortly thereafter, it was determined that Dylan required special education services for his emotional/behavioral condition, including his prior attempts at suicide and his reaction to the fact that he had been raped. At some time in 1998, Dylan was diagnosed as bipolar (manic depressive) by his psychiatrist, a condition that was aggravated by post traumatic stress disorder, from which he also suffered after the 1997 rape.

Dylan's first placement at a nonpublic school was from June 1, 1998, to January 15, 1999. Because Dylan's behaviors were out of control, he required a more supervised environment, and he was moved to a residential nonpublic school, where he attended from February 22, 1999, to August 17, 2000. While he was there Allison visited him twice per month and spoke to him nightly. Dylan made progress at the residential nonpublic school and Allison wanted him to come back home, so his individualized education program team decided that he would be released from that facility, despite some continued self-destructive and inappropriate behaviors.

Pursuant to a contract between AES and the East Valley Special Education Local Planning Agency, Dylan was placed at a nonpublic school owned by AES for 174 days of instruction plus round-trip transportation between home and school each day. Dylan actually began attending that school in September 2000.

AES is a corporation created to educate special needs children on different campuses throughout California. The students at the facility Dylan attended were primarily those with emotional/behavioral and learning disabilities. Dylan's school employed two teachers, plus two classroom aides and a program manager as well as a therapist, and an office manager.

Prior to accepting Dylan as a student, the AES school was provided with documentation regarding his history and therefore was aware of his diagnoses and behavioral issues, including his prior suicide attempts and his tendency to be absent without leave (AWOL) from school campuses, and was aware that he was being transferred from a residential facility. Upon his enrollment, Dylan was provided with a school policy statement indicating that he had a right to be safe. Dylan was also provided with a list of school rules indicating that he would be supervised by a staff member at all times. These documents were signed by both Dylan and Allison.

After leaving the residential facility and while at the AES school, Dylan's behavior started to decline. Several incident reports were made regarding Dylan's behavior while at the AES school, including fights with other students, putting a tack through his ear, intentionally cutting his thumb, carrying a pack of cigarettes and a lighter on the bus, taking apart a fence, and giving a fellow student poison to drink. However, during his time at the AES school, Dylan did not express any suicidal thoughts.

Shortly after beginning classes at the AES school, Dylan went AWOL twice on the same day. The first time he left campus and panhandled, then went to a feed store and bought a baby chicken before returning to school. The second time, he refused to leave the chick behind so that he could be transported home (no live animals were allowed on the bus) and therefore walked off on his own after school. Allison was informed of these AWOL incidents. Four days later there was a meeting among school staff, Dylan and Allison regarding his behavior and to discuss strategies to keep him from leaving campus. At this meeting the staff explained the AES school policy regarding AWOL students to Allison, though she could not remember whether, and later denied that, this occurred. Staff would shadow the student on campus to attempt to persuade the student to remain and to determine the student's direction of travel. Physical restraint was not permitted unless the student posed an immediate threat of danger to himself or others, thus, a student normally could not be forcibly kept on campus. The parent would be notified of the AWOL and given the option of allowing the school to contact the authorities, or if the parent could not be reached in a timely fashion, the police would be notified of the AWOL. There was conflicting testimony whether AWOL students would be followed off campus. In certain situations where a student or parent makes a request, or if a student is highly agitated, the school may retrieve the student from the community.

One morning, after this meeting, Dylan used a needle and thread to sew his fingers together through the skin at their tips and reported to staff that he had not taken his medication before coming to school. The thread was removed and he calmly turned the needle over to his teacher. Allison was not contacted about this incident or Dylan's claim not to have taken his medication. Approximately one hour later Dylan left the campus with another student, despite staff attempts to persuade him to return to class. Dylan did not appear agitated and no attempt was made to physically restrain him. Allison was called eight minutes after Dylan went AWOL. Two hours later, and after several phone calls to the school, she reported him missing to the police.

Dylan was missing for three days during which time he was sexually assaulted by an adult male who subsequently pled guilty to the assault. He never returned to the AES school as a student. Dylan returned to the first nonpublic school that he had attended in December 2000. His acting-out behaviors continued there. Some three months later, Allison dropped Dylan off with his grandparents who were to watch him while she went to work. After dinner Dylan went into his grandparents' bedroom, took a rifle from under the bed and shot himself.

On July 16, 2001, Allison filed her complaint against AES, in which she pled a cause of action for general negligence resulting in Dylan's death and injury to herself in the form of emotional distress. She claimed that AES negligently allowed Dylan to leave campus, resulting in his being sexually assaulted, which caused him to take his own life. On April 28, 2003, the case went to trial on theories of wrongful death and negligent infliction of emotional distress. As to the wrongful death, the jury returned a verdict finding that AES's breach of a duty of care to Dylan was a substantial factor in bringing about Dylan's death. It found that both Allison and Dylan were negligent, but their negligence was not a substantial factor in bringing about Dylan's death. It fixed the amount of damages at $5,000,000 and apportioned fault, 60 percent to AES, 8 percent to Allison, 2 percent to Dylan, and 30 percent to others. As to the emotional distress, the jury returned a verdict finding that AES's breach of a duty of care to Allison was a substantial factor in bringing about her injury. It found that Allison was not negligent, but Dylan was, though his negligence was not a substantial factor in bringing about Allison's...