Brownell v. Los Angeles Unified School Dist.

• Decision Date: 16 March 1992
• Docket Number: No. B056828,B056828
• Citation: 5 Cal.Rptr.2d 756,4 Cal.App.4th 787
• Court: California Court of Appeals Court of Appeals
• Parties: , 72 Ed. Law Rep. 950 Ernest P. BROWNELL, III, a Minor, etc., Plaintiff and Respondent, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

Page 756

5 Cal.Rptr.2d 756

4 Cal.App.4th 787, 72 Ed. Law Rep. 950

Ernest P. BROWNELL, III, a Minor, etc., Plaintiff and Respondent, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

No. B056828.

Court of Appeal, Second District, Division 5, California.

March 16, 1992.

Review Denied May 28, 1992.

Hamrick and Garrotto and Charles H. Carpenter, Los Angeles, for defendant and appellant.

Law Offices of Harold V. Sullivan, II, and Ronald E. Hermanson, Inglewood, for plaintiff and respondent.

BOREN, Associate Justice.

The Los Angeles Unified School District (LAUSD) appeals following a $120,000 jury verdict arising from an incident in which a student, Ernest P. Brownell, III, was shot and wounded by gang members. The shooting occurred immediately after school hours and on a public street adjacent to school property. Brownell alleged negligent supervision in that LAUSD personnel had dismissed the students after school without first ascertaining if the street in front of the school was free of any gang members.

In somewhat related contentions, LAUSD asserts that (1) the trial court erred in denying its motion for judgment on the pleadings because the claim for damages, filed pursuant to provision of the claims statute (Gov.Code, § 910 et seq.), failed to include a claim for negligent supervision, (2) no liability could ensue for a student's injury which occurred after school and off school premises, and (3) a claim of negligent supervision cannot prevail where LAUSD satisfied its duty of reasonable care to protect against known or reasonably foreseeable risks where the school had no indication prior to the students' dismissal after school that any gang-related incident was threatened or likely to occur. We agree with the last contention, and therefore reverse the judgment. ¹

FACTS

After the school day ended on January 28, 1985, Brownell went out the main door of Johnson High School and stood in front of the school on the sidewalk along 42nd Street among a group of 15 to 20 people. He was listening to his Walkman radio and waiting for some friends with whom he was going to walk to a nearby bus stop. Among the group of people was another student, Keesha Pierson, who was herself waiting for some friends with whom she was going to walk home. At trial, Pierson testified as to the ensuing events. After Brownell had stood outside for approximately five minutes, several youths wearing red gang colors associated with the Bloods gang ran or walked quickly across the street and gathered around Brownell. One of the gang members swung at Brownell, causing him to go into the middle of the street where another gang member pulled out a gun and shot him. ²

The incident happened very fast. The gang members were not in front of the school when Pierson or Brownell first came out of the school. Pierson had no idea during that day at school that there was going to be an incident like that after school.

Brownell, who had never been a member of a gang, was apparently shot because he was mistaken by members of the Bloods for a member of a rival gang, the Crips. Johnson High School is located in an area known as a Crips neighborhood. Before Brownell was shot, a gym teacher at the high school told Brownell and other class members about an altercation at the school which had occurred at some unspecified time and involved one of Brownell's attackers, Lymus Ali, and another student. Ali had told the teacher that "he can't come to the school no more because there's some Crips here, and that he was a Blood." Ali had only been a student at Johnson High School for one or two days when he was threatened and told the gym teacher he could no longer attend the school. The member of the Bloods who shot Brownell, Douglas Smith, was not a student at Johnson High School, and Brownell had never encountered Smith before Smith shot him.

At the time Brownell was shot, he and the other students had been dismissed from school for the day. Mary Maddox, dean and counselor at Johnson High School, and Wilma Manyweather, the principal of the school, were inside the school near the doors passing out bus tickets to the students. They normally gave out the tickets at the school gate, but they did so inside the building that day because it was raining. On the day Brownell was shot, neither Maddox nor Manyweather had heard any rumors or threats to any of the students or detected any other indications of trouble. As Maddox explained, "Usually when something was about to happen [in such a small school] you could feel it all day long, and the kids would be whispering and stuff like that. But I don't recall any of that happening on that day."

Johnson High School had a population of approximately 200 students. The students at Johnson High School were referred there from other high schools where they had had behavior problems, such as inability to get along with other students, truancy, destructiveness in the classroom, and involvement in gang-related activities. The school had no school police or security guards, but had campus aides who could contact the school administrators or school police by walkie-talkie. It was the policy of the school to prohibit the display on campus of gang colors and paraphernalia associated with gangs. During 1985, the year Brownell was shot, the school removed such gang-related items from students on almost a daily basis and also on occasion confiscated weapons from students. There had been no prior shootings at Johnson High School.

DISCUSSION

I. Motion for Judgment on the Pleadings Based on the Claims Statute

In ruling on a motion for judgment on the pleadings, as in the case of a general demurrer, the court is confined to the facts alleged in the pleading attacked. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 714, fn. 3, 117 Cal.Rptr. 241, 527 P.2d 865.) A motion for judgment on the pleadings may be made at any time, whether before or at trial, as long as the motion is made before final judgment is rendered. (Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 224, 162 Cal.Rptr. 669; Shabrick v. Moore (1961) 195 Cal.App.2d 56, 59, 15 Cal.Rptr. 310.) A motion for judgment on the pleadings, like a general demurrer, challenges the sufficiency of the plaintiff's cause of action and raises the legal issue, regardless of the existence of triable issues of fact, of whether the complaint states a cause of action. (Donohue v. State of California (1986) 178 Cal.App.3d 795, 802, 224 Cal.Rptr. 57.)

LAUSD moved for judgment on the pleadings on the ground, in essence, that the complaint failed to state a cause of action because it alleged, as the basis for liability, facts not set forth in the written claim presented to and rejected by LAUSD. The claim filed on March 27, 1985, pursuant to Government Code section 910 alleged that "[a]fter school on the premises" Brownell was shot in the back, causing a collapsed lung and damage to his kidney. Pursuant to LAUSD's request for clarification, on April 15, 1985, Brownell filed an amended claim which alleged that Brownell "was leaving the school but still on the school premises headed toward the bus stop when he was assaulted and shot by gang members. The school district failed to provide adequate security in a known risk area." After LAUSD rejected Brownell's claim, he filed a complaint in the superior court alleging, inter alia, that LAUSD "negligently and carelessly failed to properly supervise, guard, maintain, inspect and manage [the school] premises proximately causing" Brownell's injuries. The court denied the motion for judgment on the pleadings because it ruled that Brownell's claim for damages adequately stated a claim under the theory of negligent supervision, the theory alleged in the complaint.

LAUSD contends that the concept of negligent supervision in the complaint is not contained anywhere in the claim for damages, which provides notice only of a failure to provide adequate security and does not refer to any improper conduct by school personnel before the students were dismissed by the school. The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity (see Gov.Code, §§ 910, 912.4-912.8, 945.4) and creates "a sympathetic bond between the administrative claim and the judicial complaint." (Crow v. State of California (1990) 222 Cal.App.3d 192, 199, 271 Cal.Rptr. 349.) Each theory of recovery against the public entity " 'must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the complaint were timely, the complaint is vulnerable to a demurrer [or a motion for judgment on the pleadings] if it alleges a factual basis for recovery which is not fairly reflected in the written claim.' [Citation.]" (Id. at pp. 199-200, 271 Cal.Rptr. 349.) It is acceptable for a plaintiff to elaborate or add further detail in the complaint to a claim which was predicated on the same fundamental facts described in the complaint. (Id. at p. 200, 271 Cal.Rptr. 349; Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434, 253 Cal.Rptr. 587.) However, a plaintiff may not "premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim" and may not completely "shift [the] allegations." (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 226, 267 Cal.Rptr. 13; see Crow v. State of California, supra, 222 Cal.App.3d at p. 200, 271 Cal.Rptr. 349.)

In the present case, the complaint alleged not merely a negligent failure to "supervise," but also specifically a negligent and careless failure, in pertinent part, to "guard, maintain, inspect and manage" (emphasis added) the school premises. Such an allegation in the complaint is substantially similar to the administrative...