McGranahan v. Rio Vista Joint Union High School
| Decision Date | 13 February 1964 |
| Citation | 36 Cal.Rptr. 798,224 Cal.App.2d 624 |
| Court | California Court of Appeals Court of Appeals |
| Parties | James R. McGRANAHAN, a minor, by A. L. McGranahan, his guardian ad litem, Plaintiff and Appellant, v. RIO VISTA JOINT UNION HIGH SCHOOL, a school district, Defendant and Respondent. Civ. 21221. |
T. N. Peterson, Keith C. King, Merced, for appellant.
Dunnell, Herbert & Dunnell, Fairfield, for respondent.
On this appeal from a summary judgment in favor of the defendant, the principal question involves the failure of the plaintiff to file a claim within 90 days after the injury as required by former section 1007 1 of the Education Code.
Plaintiff and appellant, James R. McGranahan (hereafter referred to as plaintiff), through his guardian ad litem, A. L. McGranahan, brought this action on September 30, 1959, against defendant and respondent, the Rio Vista Joint Union High School District of Solano County (hereafter referred to as district). The first cause of action alleged that on December 19, 1958, because of negligent supervision by the district's teachers and agents, the plaintiff, who was then 14 years old, was hit in his right eye by a wallet during a class; that as the result of this injury, the plaintiff suffered growths and cataracts, was hospitalized for surgery from January 5--January 16, June 3--June 12, 1959, and again in August, 1959, when his eye was removed; and that as a result of the injury, the plaintiff was physically unable to consult with his parents. The second cause of action alleged that the representatives of the district advised the plaintiff's parents that the school was insured and would take care of everything, and that in reliance on these representations, the plaintiff and his father did not contact an attorney until June, 1959, nor file a verified claim for damages for personal injuries with the school district until June 19, 1959. The district's motion for a summary judgment was sustained on the ground that the plaintiff failed to file a claim for damages within 90 days after the occurrence of the accident as then required by section 1007 of the Education Code, and sections 53051 and 53052 of the Government Code.
Plaintiff argues that the trial court erred in granting the summary judgment as the affidavits presented triable issues of fact on the following questions: 1) substantial compliance with the statutory notice requirement; 2) estoppel and waiver by the district and its agents; and 3) excuse from strict adherence to the statute due to minority and incapacity resulting from the injury.
A summary judgment will stand if the movant's affidavits state facts sufficient to sustain a judgment and the counter-affidavits do not proffer competent and sufficient evidence to present a triable issue of fact (deEcheguren v. deEcheguren, 210 Cal.App.2d 141, 26 Cal.Rptr. 562). The procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods of determination of issues of fact (Hatch v. Bush, 215 A.C.A. 782, 791, 30 Cal.Rptr. 397). Affidavits of the moving party must be strictly construed and those of his opponent liberally construed. The opposing affidavit must be accepted as true, and need not be composed wholly of strictly evidentiary facts (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264). The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue or defense, and not to pass upon or determine the true facts in the case (Nini v. Culberg, 183 Cal.App.2d 657 at 661, 7 Cal.Rptr. 146, at 149, 150). Any doubts are to be resolved against the moving party (Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 351, 333 P.2d 142). The facts in the affidavits shall be set forth with particularity. The movant's affidavit must state all of the requisite evidentiary facts and not merely the ultimate facts or conclusions of law or conclusions of fact (Code Civ.Proc. § 437c). We look at the affidavits in the light of these rules.
The moving affidavit of defense counsel Herbert stated as follows: Shortly after the accident, plaintiff's father corresponded with Mr. Hale, the district superintendent and principal of the school, about the California Interscholastic Federation Protective Fund, the district's insurance program, offering medical payments to school children injured upon the school grounds. Plaintiff's father sought no legal advice within the 90 day claim period but did receive assurance from Mr. Hale that the C.I.F.P.F. program would take care of the medical bills. There was no discussion with Mr. Hale about an action for general damages against the district. Sometime in January, the plaintiff returned to school and 'got along all right' although his grades were not as high as before the accident. Mr. Hale advised plaintiff's father to write to the school board concerning the accident. The plaintiff's mother in her deposition stated that after the expiration of the 90 day period [March 19], she had conversations with Mr. Hale and the school nurse, Mrs. Babicky, but later corrected her deposition to state that some such conversations had occurred before the expiration of the statutory period; that Mrs. Babicky did not advise her to see an attorney but told her that the school district was not very interested in plaintiff's condition and was eager for the statutory period to expire and advised her that if she filed suit, she would have to file a claim within 90 days. The plaintiff's parents did not consider making a claim for general damages against the school district until some time in the late spring of 1959 when it became apparent that there would have to be additional surgery to remove the injured eye.
Mr. Hale's affidavit alleged that at no time during the period of 90 days after the accident did anyone in the school district enter into any discussions whatsoever with the plaintiff or his parents concerning any claim for general damages, that his only discussions with any member of the plaintiff's family were in connection with the C.I.F.P.F. insurance coverage and that the first knowledge the school district or any of its agents had of the plaintiff's claim for general damages was the letter from the plaintiff's attorney dated June 18, 1959, to the board of trustees of the district.
The counter-affidavit of plaintiff's father did not contradict any of the above facts and in addition stated that the full nature and extent of the plaintiff's injuries were not known to his doctors and parents until late in the spring of 1959, more than 90 days after the injury, and that within the 90 day period, plaintiff's parents understood that the district's C.I.F.P.F. insurance would pay for the injuries and were never informed that they should file a claim with the school district. Plaintiff's mother in her counter-affidavit corrects her deposition to make it clear that she was not informed by the agents of the school prior to the expiration of 90 days from the date of the accident concerning the necessity of filing a claim.
The 1959 amendments to the claim statutes 2 are not retroactive, and this case must be decided under the law existing prior thereto. (Price v. Mount Diablo Unified School Dist., 177 Cal.App.2d 312, 314, 2 Cal.Rptr. 23).
The plaintiff concedes that no formal claim as prescribed by Education Code, section 1007 was addressed to the district within the 90 day period, but contends that the various school reports concerning the incident, his father's letter to the C.I.F. Protective Fund, a copy of which was sent to Mr. Hale of the school district, and the written claim filed with the protective fund contained all information required by the district for investigation and possible settlement and thus constituted substantial compliance. The courts have not always required strict compliance where a defective notice clearly apprises the public agency of essential information (Peters v. City & County of San Francisco, 41 Cal.2d 419, 260 P.2d 55; Silva v. County of Fresno, 63 Cal.App.2d 253, 146 P.2d 520; Cooper v. County of Butte, 17 Cal.App.2d 43, 61 P.2d 516; Sheeley v. City of Santa Clara, 215 A.C.A. 83, 30 Cal.Rptr....
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