Raymond v. Paradise Unified School Dist. of Butte County

• Decision Date: 03 July 1963
• Citation: 31 Cal.Rptr. 847,218 Cal.App.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Charles RAYMOND, a minor, etc., Plaintiff and Respondent, v. PARADISE UNIFIED SCHOOL DISTRICT OF BUTTE COUNTY, Defendant and Appellant. Civ. 10581.

Page 847

31 Cal.Rptr. 847

218 Cal.App.2d 1

Charles RAYMOND, a minor, etc., Plaintiff and Respondent, v. PARADISE UNIFIED SCHOOL DISTRICT OF BUTTE COUNTY, Defendant and Appellant.

Civ. 10581.

District Court of Appeal, Third District, California.

July 3, 1963.

Grayson Price, Chico, for appellant.

Peters, Peters & Hoffman, Chico, for respondent.

FRIEDMAN, Justice.

At the time of the injury for which he sues plaintiff Charles Raymond was seven years old. He was a pupil at the Paradise Elementary School operated by defendant school district. He lived near the Paradise Junior-Senior High School operated by the same district. The district provided bus transportation for pupils. Defendant Alvin C. Marshall was one of its bus drivers. Marshall's bus route at the time of the accident included approximately eleven stops, the next to last stop being on the grounds of the high school and the final stop at the elementary school.

Marshall's bus had space for 62 passengers. His normal load consisted of about 25 high school students and a similar number of elementary school pupils. At the stop on the high school premises he would discharge the high school students and take on 2 to 5 more children bound for the Paradise Elementary School. Charles Raymond was among the elementary school pupils who habitually entered the bus at the stop on the high school grounds.

The various bus stops had been designated by the defendant district through its supervisor of transportation. The loading zone on the high school grounds consisted of semi-circular driveway approximately 100 feet long located at the east side of Maxwell Drive, a north-south street. Buses bound for this loading zone would drive south on Maxwell Drive, past the northerly opening of the semi-circular driveway, and turn left into the southerly entrance. Faced in a northward direction, the buses would then come to a halt for the purpose of loading and unloading passengers. The inner or school side of the driveway was bordered by a sidewalk, then by lawn. The sidewalk was the immediate loading and discharge area for school bus passengers. The outer side of the driveway was separated from Maxwell Drive by a semicircular cement island.

The bus loading zone at the Paradise Junior-Senior High School was used by approximately six buses. During pupil transportation periods the buses would arrive and depart in close proximity in order to load and discharge children. Before the first bus left, one or more buses would arrive behind it. The driveway accommodated three buses simultaneously. The principal of the high school testified that use of the high school driveway as a bus stop for elementary pupils had never been brought to his attention. Aside from the efforts of the bus drivers, there was no supervision of the children as they waited for the buses.

While waiting for their bus, Charles and his companions played on the high school lawn next to the semi-circular loading zone. Sometimes he and his friends would run around and wrestle on the grass. Occasionally, when a bus arrived, several of them ran toward it and alongside it as it moved up the semi-circular driveway, in order to be closest to the bus door and to enter it first when the bus stopped. When Marshall, the bus driver, saw the children running he would stop the bus and warn them not to run, that they were not to approach the bus until it came to a halt. Charles was one of the recipients of these warnings. Neither Marshall nor the other drivers brought this matter to the attention of the school authorities.

On the morning of the accident, Marshall approached the loading zone, made a left turn into the semi-circular driveway and drove to the far north end at a speed of about five miles an hour. He saw no children running and was not aware of any untoward occurrence until one of the older students left the bus and saw Charles lying on his back on the sidewalk close to the right front wheel of the bus, which was located behind the front door. Charles' testimony, which was substantiated by several older students who saw the accident, was that he had been playing on the high school lawn; when he saw the bus make the left turn into the driveway he ran toward it, placed his left hand on the side of the bus and fell backward on the sidewalk. He admitted that he had been told by the bus drivers that he should not run in the area of the buses. His mother, who arrived shortly after the accident, told Marshall that she knew that he was not to blame and that she had warned Charles about running in their own driveway.

By special verdicts, the jury found that Marshall was not negligent in driving the bus; that the school district was not negligent in maintaining a place dangerous to children, but was negligent in failing to provide for supervision of the area; that Charles was not contributorily negligent. It returned a verdict in Charles' favor and against the district in the sum of $8,500. The district appeals from the judgment, from an order denying its motion for judgment notwithstanding the verdict and from an order denying its motion for a new trial. The last-mentioned order is not appealable and that portion of the appeal is dismissed.

Education Code section 903 provides: 'The governing board of any school district is liable as such in the name of the district for any judgment against the district on account of injury to person or property arising because of the negligence of the district, or its officers or employees.' Defendant's primary argument on appeal is that the verdict is not supported by law in that defendant had no duty to supervise the area where the accident occurred; even so, on the assumption of a duty's existence, that defendant school district complied with it.

Counsel for defendant have accurately selected the question of duty as their prime target. A finding of negligence turns upon two elements, first, the existence of a duty to use care, and second, a breach of such duty by the creation of an unreasonable risk of harm. (McEvoy v. American Pool Corp., 32 Cal.2d 295, 298, 195 P.2d 783; Routh v. Quinn, 20 Cal.2d 488, 491-492, 127 P.2d 1, 149 A.L.R. 215; Rest., Torts, sec. 281 a, b.) A third element necessary to establish actionable negligence, is proximate cause. (Cases cited 35 Cal.Jur.2d 549, note 2; Rest., Torts, secs. 281, 430.) Inquiry into proximate causation, however, presupposes an affirmative finding of negligence, based upon the dual occurrence of a duty and its breach. (Richards v. Stanley, 43 Cal.2d 60, 69, 271 P.2d 23.) A duty of care, owed by the alleged wrongdoer to the injured plaintiff or to a class of which he is a member, is indispensable to negligence liability. (Richards v. Stanley, supra, 43 Cal.2d at 63, 271 P.2d at 25; Hatch v. Ford Motor Co., 163 Cal.App.2d 393, 397, 329 P.2d 605.)

One factor in the delineation of duty is the foreseeability of harm. (Richards v. Stanley, supra, 43 Cal.2d at 66, 271 P.2d at 27; 38 Am.Jur. 669, Negligence, sec. 24; Prosser on Torts (2d ed.) 168; see Prosser, Selected Topics on the Law of Torts, Palsgraf Revisited, 191-242.) Foreseeability is equally pertinent in the exploration of proximate cause, especially where an intervening act plays a contributory role in the accident. (Eads v. Marks, 39 Cal.2d 807, 812, 249 P.2d 257; McEvoy v. American Pool Corp., supra, 32 Cal.2d at 298, 299, 195 P.2d at 786; Bilyeu v. Standard Freight Lines, 182 Cal.App.2d 536, 542, 6 Cal.Rptr. 65.) Divergent results are possible and judicial disagreements arise by approaching negligence determination through the gateway of duty, on the one hand, or proximate causation on the other. (See Richards v. Stanley, supra, 43 Cal.2d 60, 271 P.2d 23; Mosley v. Arden Farms Co., 26 Cal.2d 213, 220-223, 157 P.2d 372, 158 A.L.R. 872, concurring opinion; Prosser, Proximate Cause in California, 38 Cal.L.Rev. 369, 412-415; Green, Duties, Risks, Causation Doctrines, 41 Tex.L.Rev. 41.)

We make these observations in view of the variant approaches of California decisions on negligence liability of school districts, some of which have been cited to us as precedents. Several cases illustrate the method of initial inquiry into the existence of duty. Thus Kerwin v. County of San Mateo, 176 Cal.App.2d 304, 307, 1 Cal.Rptr. 437, and Girard v. Monrovia City School District, 121 Cal.App.2d 737, 743, 264 P.2d 115, express the rule that a school district has no duty to supervise or provide for the protection of pupils between home and school unless it has undertaken to provide transportation. (See also Bates v. Escondido Union High School District, 133 Cal.App. 725, 732, 24 P.2d 884.) Another case declares that there is no duty on the district's part to anticipate (foresee) danger to the pupil caused by wilful misconduct of a fellow student. (Reithardt v. Board of Education, 43 Cal.App.2d 629, 635, 111 P.2d 440.) An apparent expression of a duty concept, found in some decisions is the statement that a school district is required to exercise reasonable supervision over its students while school is in session, but is not an insurer of their safety at play or elsewhere. (Woodsmall v. Mt. Diablo Unified School District, 188 Cal.App.2d 262, 267, 10 Cal.Rptr. 447; Ford v. Riverside City School District, 121 Cal.App.2d 554, 562-563, 263 P.2d 626; Weldy v. Oakland High School District, 19 Cal.App.2d 429, 431-432, 65 P.2d 851.)

Other decisions emphasize the element of proximate cause. Thus, claimed lack of supervision has been rejected as a proximate cause where the immediate occasion of the accident was an intervening wrong which supervision would not have prevented. (Woodsmall v. Mt. Diablo Unified School District, supra, 188 Cal.App.2d at 266-267, 10 Cal.Rptr. at 450; Wright, by Murphy v. City of San Bernardino School District, 121 Cal.App.2d 342, 347, 263 P.2d 25.) A negligence charge based on lack of supervision has been rejected on the theory that the district could not reasonably...