Cleveland v. Taft Union High Sch. Dist.

Decision Date25 March 2022
Docket NumberF079926
PartiesBOWE CLEVELAND, Plaintiff and Respondent, v. TAFT UNION HIGH SCHOOL DISTRICT et al., Defendants and Appellants.
CourtCalifornia Court of Appeals

BOWE CLEVELAND, Plaintiff and Respondent,
v.

TAFT UNION HIGH SCHOOL DISTRICT et al., Defendants and Appellants.

F079926

California Court of Appeals, Fifth District

March 25, 2022


CERTIFIED FOR PARTIAL PUBLICATION[*]

APPEAL from a judgment of the Superior Court of Kern County No. S1500CV279256. David Lampe, Judge.

Herr Pedersen & Berglund, Leonard C. Herr, Ron Statler; Pollak, Vida, & Barer and Daniel P. Barer for Defendants and Appellants.

Rodriguez & Associates, Daniel Rodriguez, Joel T. Andreesen, Chantal A. Trujillo; Esner, Chang & Boyer, Andrew N. Chang, Stuart B. Esner and Kevin K. Nguyen for Plaintiff and Respondent.

OPINION

FRANSON, J.

Defendant Taft Union High School District (District) appeals from a judgment entered after a jury found District's employees 54 percent responsible for injuries sustained by plaintiff Bowe Cleveland when another student shot him in the stomach with

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a shotgun. This allocation of fault and the jury's findings as to damages resulted in a judgment holding District vicariously liable for approximately $2 million. District filed a motion for judgment notwithstanding the verdict, which the trial court denied.

We publish this opinion because District's contention that all members of its threat assessment team are immune from liability pursuant to Government Code section 855.6[1]has not been addressed in a published decision. Section 855.6 provides that neither a public entity nor its employees are "liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a … mental condition that would constitute a hazard to the health or safety of himself or others." We conclude that the specific acts and omissions identified by plaintiff's expert as below the standard of care for conducting a threat assessment are properly characterized as administrative and not as a mental examination. Thus, those negligent acts and omissions fall outside the scope of the section 855.6 immunity.

The unpublished part of this opinion addresses District's contention that there is no substantial evidence of a causal link between plaintiff's injuries and the negligent conduct of a campus supervisor in failing to report a conversation about other employees who were afraid of the shooter and had escape plans. We conclude substantial evidence supports the jury's finding that the campus supervisor's failure to report information, like the threat assessment teams' many other failures to communicate information, was a substantial factor in causing plaintiff's injuries.

We therefore affirm the judgment.

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FACTS

In January 2013, 16-year-old high school student Bryan O. shot plaintiff Bowe Cleveland, another student, in the stomach with a shotgun near the start of their first period science class at Taft Union High School.

When Bryan was in eighth grade, he moved from Tennessee to California with his mother and brothers. In the fall of 2010, Bryan started attending the District's high school.

In March 2011, Bryan was involved in a fight with several classmates during a physical education (P.E.) class. After the fight, Bryan told assistant principal Rona Angelo that he had been "T-bagged" during the incident. Bryan's mother met with Angelo to discuss the incident, but Angelo did not tell her that Bryan had reported being "T-bagged." Bryan was suspended for three days for his involvement in the incident.

Before this incident, Bryan's mother had reported to Angelo that Bryan told her he had complained to the P.E. teacher about bullying and the teacher told Bryan to "man up." Angelo's response was that "boys will be boys." Bryan's mother was unsatisfied with Angelo's response and went to see superintendent Mark Richardson in his office. She described Richardson's response as dismissive, saying he would "look into it."

The Bus Incident

On Saturday, February 25, 2012, Bryan went on a field trip to Universal Studios with other students in an accelerated reading program. The three chaperones for the trip were librarian Kathy McLaughlin and library media technicians Dianne Kaszycki and Kelly Federoff. On the bus ride back, Bryan and four other students had a conversation that was overheard to Kaszycki and Federoff.

The following Monday, Kaszycki filed an incident report describing the conversation as follows. Bryan told a classmate that when he lived in Tennessee he had thought about shooting someone at school because he was being picked on. The classmate told Bryan that he could not get away with anything because he would do

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everything in his power to make sure it did not happen and the armed officer at the school would shoot Bryan. During the conversation, Bryan mentioned that he had only dreamt about it and the other student replied that dreaming is the first stage of doing something like that. Bryan also described bringing gasoline to school and blowing up the auditorium. When two girls asked Bryan if he would shoot them, Bryan said no. When a third girl asked, he said probably. At the end of the report, Kaszycki stated that the situation was very disturbing and stressful and that she was very concerned for the safety of the students, staff, and Bryan.

Federoff also prepared an incident report. Federoff heard Bryan describing how he could blow up the auditorium and telling another student he could shoot or take out more than 50 students before anyone could stop him. Differing from Kaszycki's report, Federoff's report stated that when the last girl asked Bryan if he would shoot her, "Bryan looks straight at her and tells her 'Yes I would.'" Federoff also reported Bryan saying he had dreams about shooting people and telling the other students that he knew they had thoughts about shooting people; the other students told Bryan they did not have such thoughts. Federoff reported that "Bryan said 'Don't you just have those days when it gets so bad that you just can't take in anymore and you want to start shooting people?'" Students also completed incident reports about what happened during the bus ride.

Threat Assessment Initiated

On Monday, February 27, 2012, Kaszycki met with Angelo, told Angelo what she had overheard, and expressed her concern for the safety of students and staff. Angelo also expressed concern and told Kaszycki she was going to go through her process of investigating the situation. As part of that process, Angelo decided to start a threat assessment.

Later that Monday, Angelo suspended Bryan for five days for violating an Education Code provision prohibiting threats about causing physical injury to another

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person. Bryan and his older brother signed a written notice acknowledging they had been told the reason for the suspension. Bryan's mother was notified by telephone.

As part of the threat assessment, Angelo met with school psychologist Mark Shoffner. Shoffner obtained his credential as a school psychologist in 1985. Shoffner did not have an administrative credential and, therefore, was not authorized to discipline students. He first became involved in threat assessments of students in 2000, shortly after Columbine. In August 2006 until 2017, Shoffner worked for District. He estimated that he had done more than 150 threat assessments while at District. Shoffner's role in a threat assessment was to look at the mental health information available and meet with the student to determine what the student's intent was and whether the student understood why others might have been scared by what the student said or did. Shoffner also stated that there were times when (1) he would request the assistance of a school resource officer[2] or (2) a determination was made that the officer should be part of the assessment team. Factors used to determine whether to involve a school resource officer included whether a weapon was involved or a threat to use a weapon was made, whether there was an assault, and whether there was a plan being put in place, such as a hit list.

As part of the threat assessment, Shoffner contacted Bryan's guidance counselor and asked her if she had any concerns about Bryan's academic performance or otherwise. He learned she had none.

On February 28, 2012, Shoffner met with Bryan and interviewed him about the incident on the bus. Shoffner's handwritten notes from the meeting were admitted as an exhibit at trial. During that meeting, Bryan described the discussion the students had on the bus, saying it turned into a discussion about bullies and what the student would do about bullies. Bryan described being asked a hypothetical question about a hit list,

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followed by other students asking whether they would be on the list. Bryan said he told the student who asked "no," except he paused before answering the last student. Bryan also told Shoffner about the dream he had when he was living in Tennessee that involved locking the bullies in a gym and shooting them. Bryan also said it was part of a dream and he would never do anything like that.

On February 29, 2012, a female student completed an incident report about a drawing she saw on Bryan's desk during history class. The drawing showed big stick figures with machine guns shooting smaller stick figures and was titled "The Playground." The smaller stick figures were laying on the playground and had red blood marks on their heads. The female student grabbed the drawing and gave it to the history teacher. She spoke with Angelo about the incident twice, once on the day it occurred and again a few weeks later. The student told Angelo that she felt scared and disturbed by the drawing. Angelo asked if the student felt threatened for her life and the student answered "yes." Angelo then told the student that Bryan was getting help from the school counselor and not to worry because it was getting taken care...

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