Baldwin v. Zoradi

• Decision Date: 31 August 1981
• Citation: 123 Cal.App.3d 275,176 Cal.Rptr. 809
• Parties: Cynthia BALDWIN, Plaintiff and Appellant, v. Steven ZORADI et al., Defendants and Respondents. Civ. 4821.
• Court: California Court of Appeals Court of Appeals

Page 809

176 Cal.Rptr. 809

123 Cal.App.3d 275

Cynthia BALDWIN, Plaintiff and Appellant, v. Steven ZORADI et al., Defendants and Respondents.

Civ. 4821.

Court of Appeal, Fifth District, California.

Aug. 31, 1981.

As Modified on Denial of Rehearing Sept. 30, 1981.

Hearing Denied Nov. 13, 1981.

Myers & D'Angelo and John M. Maller, Los Angeles, for plaintiff and appellant

McKay & Byrne, McKay, Byrne & Udkovich, John P. McKay, Michael A. Byrne and Linda Fermoyle Rice, Los Angeles, for defendants and respondents.

OPINION

ANDREEN, Acting Presiding Justice.

On February 12, 1977, plaintiff was injured as a result of a collision. Her third amended complaint, consisting of thirteen causes of action, contains five causes of action against defendants Trustees of the California State University and Colleges (Trustees), the governing body and administrative agency of California State University and Colleges, and Jeanne Baumgartner and Steven Zoradi (Baumgartner and Zoradi), dormitory advisors. The university involved is California Polytechnic State University, San Luis Obispo (Cal Poly). A general demurrer was sustained to those five causes of action. She declined to further amend and appeals from the ensuing judgment of dismissal.

On appeal after a sustained demurrer, the court must assume the truth of the factual allegations of the complaint. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 517, 150 Cal.Rptr. 1, 585 P.2d 851; Buford v. State of California (1980) 104 Cal.App.3d 811, 815, 164 Cal.Rptr. 264.) The function of a demurrer is to test the legal sufficiency of the challenged pleading by raising questions of law. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702, 141 Cal.Rptr. 189.)

THE ALLEGATIONS OF THE COMPLAINT

The Fourth Cause of Action

The plaintiff alleges:

She was a passenger in one of three cars driven by Cal Poly student defendants, whose identities are not material here, that other student defendants aided and abetted the negligent drivers, that all of them are under 21 years of age (some under 18 years of age), and that as a proximate result of negligent activity (engaging in a speed contest) the car in which she was riding collided with one or both of the other cars, causing it to leave the highway and overturn. She emerged from the accident a quadriplegic.

The Trustees were the governing body of Cal Poly and Baumgartner and Zoradi were their employees with duties as student dormitory "advisors and/or monitors."

Students lived in the dorms pursuant to an agreement termed a "license," which is set out in the Appendix. The students thereby had a "special relationship" with the Trustees. Plaintiff, a student living in the dorms pursuant to the "license," had a right to and did rely upon the enforcement of provisions in the license agreement governing student conduct while on campus. The possession and/or consumption of alcoholic beverages is proscribed on the campus, including the dorms by the terms of the license agreement and by statute.

On the day in question, and on many prior occasions, the Trustees and the dormitory advisors "knowingly permitted" the student defendants and other students to possess and consume alcoholic beverages in the residence halls in contravention of the license, regulations and laws and failed to take appropriate steps to control the student defendants. That on the date in question, the student defendants consumed "great amounts" of alcoholic beverages to the point of intoxication. That as a foreseeable result of said activity, the student defendants operated their vehicles while under the influence of intoxicants proximately injuring plaintiff. The Trustees and dormitory advisors were negligent in several particulars, including a failure to perform a mandatory duty to enforce the provisions of the license agreement, and by so doing "caused to be furnished" alcoholic beverages to persons under the age of 21 years and aided the student defendants to consume alcohol on campus negligently and in contravention of law which was enacted for the protection of the public from injuries and that a duty of care existed because of the landlord-tenant relationship.

The Fifth Cause of Action

The allegations of the fourth cause of action are incorporated; there are additional allegations that in the school catalog and announcements it is stated that rules of student conduct prohibit use and consumption of alcoholic beverages, and disciplinary action will be taken for violation thereof, and that the dormitory advisors were under a mandatory duty to enforce the rules of student conduct, but negligently failed to perform said duty which was a proximate cause of plaintiff's injuries.

The Sixth Cause of Action

The Trustees and dormitory advisors permitted a dangerous condition to exist at the residence hall in that consumption of alcohol by minors occurred regularly, and the said defendants knew or should have known of such occurrence and taken appropriate steps to stop the activity. By "knowingly acquiescing in the consumption of alcohol by minors on campus over an extended period of time, the Trustees, and their employees, created an unsafe condition, to wit, a safe haven or enclave where large groups of minors could, would and did gather and consume alcoholic beverages, to an excess, with complete impunity from any laws or rules and regulations."

The Seventh Cause of Action

The Trustees breached the license agreement in that they permitted a chronic pattern of disobedience to their rules forbidding alcoholic consumption thereby rendering the premises dangerous. And, having actual or constructive knowledge of said condition, intentionally and negligently failed to reduce the hazard or to warn students of the dangers. Plaintiff was proximately injured thereby.

The Thirteenth Cause of Action

In the petition for rehearing the plaintiff informs us that she dismisses this cause of action.

DISCUSSION

Negligence as Alleged in the Fourth and Fifth Causes of Action

The allegations aver nonfeasance rather than misfeasance. (See Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49, 123 Cal.Rptr. 468, 539 P.2d 36.) Liability can attach only if a special relationship existed between the Trustees on the one hand, and the plaintiff and student defendants on the other. (Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779, 139 Cal.Rptr. 82; Buford v. State of California, supra, 104 Cal.App.3d 811, 819-820, 164 Cal.Rptr. 264.) We will examine whether the relationship of school and student or the school regulations impose such a special relationship.

Negligence in Reference to Primary and Secondary Education

Schools and their personnel owe a duty to students who are on school grounds to supervise them and to enforce rules and regulations necessary for their protection. Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care. It is the task of supervisors to anticipate and curb behavior of students who have not attained full maturity. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747-748, 87 Cal.Rptr. 376, 470 P.2d 360.)

The duty to supervise can exist off the school grounds by virtue of a duty to supervise students while on the campus. (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, 515, 150 Cal.Rptr. 1, 585 P.2d 851.) In Hoyem, a case which involved a dismissal at the demurrer stage, the allegations were that the 10-year-old student was negligently supervised and as a proximate cause of such negligence left the school premises without permission and was injured when hit by a motorcycle at a public intersection. The court held that although a school district is not an insurer of students' safety, it has a legal duty to exercise reasonable care in supervising students while on the school premises and may be held liable for injuries proximately caused by the failure to so supervise. Whether such duty existed and whether negligent on-campus supervision was the proximate cause of an off-campus injury were held to be questions of fact for the jury.

Hoyem relied on Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d 741, 87 Cal.Rptr. 376, 470 P.2d 360, which reversed a motion for directed verdict in a case where two high school students were playing "slap boxing," during which one of the combatants fell, fracturing his skull, resulting in death. The Dailey court stressed that school authorities have a duty to supervise the conduct of children on school grounds, using ordinary care in doing so. "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." (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 748, 87 Cal.Rptr. 376, 470 P.2d 360.)

The pleadings under review are virtually identical with those in Hoyem and Dailey. In both cases, as well as the one before us, the complaint alleged that school personnel failed to exercise ordinary care in supervising a student while the student was on school premises, which proximately caused a student's resulting injury.

The ages and educational level of the students in those two cases varied considerably from those in the instant case. In Hoyem, the student was a 10-year-old boy. In Dailey, the student was 16 years old. The cases relied on in Hoyem involved a youth of 17 years (Satariano v. Sleight (1942) 54 Cal.App.2d 278, 129 P.2d 35); a 15 year old (Calandri v. Ione Unified School School Dist. (1963) 219 Cal.App.2d 542, 33 Cal.Rptr. 333); and children 71/2, 8 and 101/2 years (Bryant v. United States (10th Cir. 1977) 565 F.2d 650).

In the...