Kerwin v. San Mateo County, 18106

• Decision Date: 17 December 1959
• Docket Number: No. 18106,18106
• Citation: 1 Cal.Rptr. 437,176 Cal.App.2d 304
• Court: California Court of Appeals Court of Appeals
• Parties: Lois M. KERWIN, Individually, and Richard Courtney, a mlnor, by his Guardian ad litem, Lois M. Kerwin, Plaintiffs and Appellants, v. COUNTY OF SAN MATEO, etc., et al., Defendants, Jefferson Elementary School District, Defendant and Respondent.

Page 437

1 Cal.Rptr. 437

176 Cal.App.2d 304

Lois M. KERWIN, Individually, and Richard Courtney, a mlnor, by his Guardian ad litem, Lois M. Kerwin, Plaintiffs and Appellants, v. COUNTY OF SAN MATEO, etc., et al., Defendants Jefferson Elementary School District, Defendant and Respondent.

No. 18106.

District Court of Appeal, First District, Division 1, California.

Dec. 17, 1959.

Rehearing Denied Jan. 8, 1960.

Hearing Denied Feb. 10, 1960.

Lewis & Stein, San Francisco, for appellants.

Ropers, Majeski & Kane, Redwood City, for respondent.

BRAY, Presiding Justice.

Plaintiffs appeal from a judgment in favor of Jefferson Elementary School District (hereinafter referred to as defendant) entered after order sustaining demurrer to first amended complaint without leave to amend.

Question Presented.

Did defendant owe any duty to plaintiff minor to protect him on his way home from his brother's school?

Record.

The complaint alleged:

Plaintiff, 11-year-old Richard Courtney, and his brother, 6-year-old Thomas, were pupils of defendant school district. Thomas attended Garden Village School and Richard attended Benjamin Franklin School. On May 14, 1956, Thomas became ill while in attendance at the Garden Village School. The school authorities called Thomas' home and directed Richard, who was at home alone and absent from school because of illness, to come to the Garden Village School and take Thomas home. Richard then proceeded to the school on a bicycle built for one rider. The complaint then alleged: 'When said plaintiff complied with defendants' directions and instructions, as aforesaid, he became, was and continued under their control, care, management and supervision. At said time and place, defendants negligently and carelessly supervised, controlled, managed and cared for said plaintiff and his said brother Thomas and negligently and carelessly undertook to provide transportation for said plaintiff and his said brother to their home, in that defendants, well knowing that said plaintiff and his said brother both were students and pupils of defendant school district and subject to the control, care, management, rules, instructions and supervision of defendants, failed and neglected to investigate, inspect and ascertain the mode and means of transportation to be used by said minors, and the safety and adequacy thereof, and negligently and carelessly failed and omitted to arrange for and provide a safe and adequate mode and means of transportation for said minors, and negligently and carelessly ordered, directed and instructed said plaintiff then and there to transport his said brother and himself from said school toward their said home on means of transportation to be selected by said plaintiff, and negligently and carelessly permitted both of said minors to ride from said school toward their said home on a bicycle built for one rider. Pursuant to the directions and instructions of defendants, as aforesaid, said plaintiff did endeavor to so transport his said brother and himself upon said bicycle and from said school. Said bicycle was an inadequate unsafe and dangerous mode and means of transporting both of said minors, and defendants knew or should have known it was so inadequate, unsafe and dangerous.' As a direct and proximate cause of defendants' negligence and the unsafe character of the bicycle, on the way home the bicycle tipped over, resulting in injuries to Richard.

Was There a Duty?

Plaintiffs' first contention is that defendant owed a duty to exercise reasonable care for the protection of plaintiff minor on his way home, (a) because of the school district-pupil relationship and (b) by affirmatively placing plaintiff minor in a position of danger.

(a) The Relationship.

Plaintiff, the boy who was hurt, did not go to the school as a pupil. He went there at defendant's request tod take his brother home. Both boys were ill ¹ but the illness of neither caused the accident, nor did it make it dangerous for them to go home without an adult. Nor were they unable to walk home. It is not alleged that defendant knew that the boys were riding on one bicycle. In fact, it is alleged that defendant directed plaintiff to transport his brother 'on means of transportation to be selected by said plaintiff.' A school district is under no duty to supervise, or provide for the protection of its pupils, on their way home, unless it has undertaken to provide transportation for them, which defendant did not do. See Girard v. Monrovia City School Dist., 1953, 121 Cal.App. 737, 264 P.2d 115. So, even if plaintiff had been a pupil at this particular school, defendant violated no duty as to him.

Hanson v. Reedley Joint Union High School Dist., 1941, 43 Cal.App.2d 643, 111 P.2d 415, is not in point. There the teacher arranged with another student whom she knew to have a defective car and a tendency to drive recklessly, to take home certain students in the latter's automobile, agreeing to give him gasoline for the purpose. Due in large part to the condition of the car and the faulty driving of the driver, an accident occurred in which one student was killed and another injured. In holding the district liable the court pointed out that the teacher undertook to provide transportation for the students and failed to provide reasonably safe transportation--a much different situation from that here. The district here did not undertake to provide...