Peter W. v. San Francisco Unified Sch. Dist.

• Decision Date: 06 August 1976
• Court: California Court of Appeals Court of Appeals
• Parties: * PETER W., Plaintiff and Appellant, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 36851.

Page 854

131 Cal.Rptr. 854

60 Cal.App.3d 814

^*

PETER W., Plaintiff and Appellant, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Civ. 36851.

Court of Appeal, First District, Division 4, California.

Aug. 6, 1976.

Hearing Denied Sept. 29, 1976.

Susanne Martinez, Peter B. Sandmann, San Francisco, for plaintiff and appellant.

Thomas M. O'Connor, City Atty., Burk E. Delventhal, Deputy City Atty., San Francisco, for defendants and respondents.

RATTIGAN, Associate Justice.

The novel--and troublesome--question on this appeal is whether a person who claims to have been inadequately educated, while a student in a public school system, may state a cause of action in tort against the public authorities who operate and administer the system. We hold that he may not.

The appeal reaches us upon plaintiff's first amended complaint (hereinafter the 'complaint'), which purports to state seven causes of action. Respondents (San Francisco Unified School District, its superintendent of schools, its governing board, and the individual board members) appeared to it by filing general demurrers to all seven counts; we hereinafter refer to them as 'defendants.' The trial court sustained their demurrers with twenty days' leave to amend. When plaintiff failed to amend within that period, the court entered a judgment dismissing his action.

On plaintiff's appeal, which is from the judgment, the question is whether a cause of action is stated against defendants in any of the complaint's seven counts. (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357.) We must treat the demurrers as having provisionally admitted all material facts properly pleaded in it (ibid.), but not such allegations--which appear throughout it--as amount to "contentions, deductions or conclusions of fact or law." (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 122, 99 Cal.Rptr. 350, 354.) We limit our summary of its contents accordingly.

The First Cause Of Action

The first count, which is the prototype of the others (each of which incorporates all of its allegations by reference), sounds in negligence. Its opening allegations may be summarized, and quoted in part, as follows:

Defendant district is 'a unified school district . . . existing under the laws of the State of California' and functioning under the direction of its governing board and superintendent of schools. Plaintiff is an 18-year-old male who was recently graduated from a high school operated by the district. He had theretofore been enrolled in its schools, and had attended them, for a period of twelve years. Allegations explicitly charging negligence next appear, as follows:

'XI. Defendant school district, its agents and employees, negligently and carelessly failed to provide plaintiff with adequate instruction, guidance, counseling and/or supervision in basic academic skills such as reading and writing, although said school district had the authority, responsibility and ability . . . (to do so) . . .. Defendant school district, its agents and employees, negligently failed to use reasonable care in the discharge of its duties to provide plaintiff with adequate instruction . . . in basic academic skills(,) and failed to exercise that degree of professional skill required of an ordinary prudent educator under the same circumstances(,) as exemplified, but not limited to(,) the following acts:'

In five enumerated subsections which follow in the same paragraph ('XI.'), plaintiff alleges that the school district and its agents and employees, 'negligently and carelessly' in each instance, (1) failed to apprehend his reading disabilities, (2) assigned him to classes in which he could not read 'the books and other materials,' (3) allowed him 'to pass and advance from a course or grade level' with knowledge that he had not achieved either its completion or the skills 'necessary for him to succeed or benefit from subsequent courses,' (4) assigned him to classes in which the instructors were unqualified or which were not 'geared' to his reading level, and (5) permitted him to graduate from high school although he was 'unable to read above the eighth grade level, as required by Education Code section 8573, . . . thereby depriving him of additional instruction in reading and other academic skills.'

The first count continues with allegations of proximate cause and injury: 'XII. . . . (A)s a direct and proximate result of the negligent acts and omissions by the defendant school district, its agents and employees, plaintiff graduated from high school with a reading ability of only the fifth grade (sic). As a further proximate result . . . (thereof) . . ., plaintiff has suffered a loss of earning capacity by his limited ability to read and write and is unqualified for any employment other than . . . labor which requires little or no ability to read or write. . . .'

In the closing paragraphs of the first count, plaintiff alleges general damages based upon his 'permanent disability and inability to gain meaningful employment'; special damages incurred as the cost of compensatory tutoring allegedly required by reason of the 'negligence, acts and omissions of defendants'; that he had presented to the school district an appropriate and timely claim for such damages; and that the claim had been rejected in its entirety.

We proceed to assess the first count for the cause of action in negligence which it purports to plead; the others are separately treated below. In his own assessment of the count, plaintiff initially points out that the doctrine of governmental immunity from tort liability was abolished in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; that Muskopf further established that governmental liability for negligence is the rule, and immunity the exception; that, as to the conduct pleaded in his first count, immunity from liability is not expressly granted by any provision of the 1963 Tort Claims Act which succeeded Muskopf (Gov.Code, § 810 et seq.); and that, in fact, one provision thereof makes defendant district vicariously liable for any tortious conduct of its employees which would give rise to a cause of action against them personally. (Gov.Code, § 815.2, subd. (a).) ¹

The thrust of these observations is that defendants do not have statutory immunity from the negligence liability with which the first count would charge them. However, Muskopf holds that liability is the rule, and immunity the exception, only 'when there is negligence.' (Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211 at p. 219, 11 Cal.Prtr. 89, 359 P.2d 457 (emphasis added).) The 1963 Tort Claims Act did not change this 'basic teaching.' (Johnson v. State of California (1968) 69 Cal.2d 782, 798, 73 Cal.Rptr. 240, 447 P.2d 352.) Since its enactment, all governmental liability in California has been dependent upon its provisions. (Gov.Code, § 815; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240.) This means that, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (Susman v. City of Los Angeles, supra, at p. 809, 75 Cal.Rptr. 240.)

A public entity may be held vicariously liable for the conduct of its employee, under Government Code section 815.2, subdivision (a) (see fn. 1, Ante), only if it is established that the employee would be personally liable for the conduct upon some 'acceptable theory of liability.' (Van Alstyne, California Government Tort Liability (Cont.Ed. Bar 1964) § 5.33, p. 144.) Plaintiff's immunity points thus mean that he May state a cause of action for negligence. They do not mean that he Has stated one, nor do they relieve him of the pleading requirements he must meet for this purpose.

According to the familiar California formula, the allegations requisite to a cause of action for negligence are (1) facts showing a duty of care in the defendant, (2) negligence constituting a breach of the duty, and (3) injury to the plaintiff as a proximate result. (3 Witkin, California Procedure (2d ed. 1971) Pleading, § 450, p. 2103.) The present parties do not debate the adequacy of plaintiff's first count with respect to the elements of negligence, proximate cause, and injury; they focus exclusively upon the issue (which we find dispositive, as will appear) of whether it alleges facts sufficient to show that defendants owed him a 'duty of care.'

The facts which it shows in this respect--or not--appear in its allegations that he had been a student undergoing academic instruction in the public school system operated and administered by defendants. He argues that these facts alone show the requisite 'duty of care' upon three judicially recognized theories, for which he cites authorities, pertaining to the public schools.

According to the first theory, '(a)ssumption of the function of instruction of students imposes the duty to exercise reasonable care in its discharge.' (Summarizing this and the other two theories advanced by plaintiff, we quote the pertinent captions of his opening brief.) The decisions he cites for his first theory have no application here; in each, the question was whether a public employee's discharge of a function, the performance of which he had 'assumed' in the exercise of his discretion, was reached by statutes which granted him immunity from tort liability for the results of his discretionary actions. (Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 940--943, 41 Cal.Rptr. 508; Sava v. Fuller (1967) 249 Cal.App.2d 281, 283--285, 57 Cal.Rptr. 312. See also McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 258--262, 74 Cal.Rptr. 389, 449 P.2d 453.)

Plaintiff's second theory is that '(t)here is a special relationship between students and teachers which supports (the teachers') duty to exercise reasonable care.' H...