Rio Linda Unified School Dist. v. Superior Court

• Decision Date: 06 February 1997
• Docket Number: No. C023840,C023840
• Court: California Court of Appeals Court of Appeals
• Parties: , 115 Ed. Law Rep. 382, 97 Cal. Daily Op. Serv. 906, 97 Daily Journal D.A.R. 1299 RIO LINDA UNIFIED SCHOOL DISTRICT, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent; Luis DIAZ, Jr., et al., Real Parties in Interest.

Page 710

60 Cal.Rptr.2d 710

52 Cal.App.4th 732, 115 Ed. Law Rep. 382,

97 Cal. Daily Op. Serv. 906,

97 Daily Journal D.A.R. 1299

RIO LINDA UNIFIED SCHOOL DISTRICT, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent Luis DIAZ, Jr., et al., Real Parties in Interest.

No. C023840.

Court of Appeal, Third District, California.

Feb. 6, 1997.

Domenico D. Spinelli, Kristin L. Comer, and Edson & Laplante, Sacramento, for Petitioner.

No appearance for Respondent.

Kimberly A. Henderson, David S. Henderson and Kyle R. Knapp, for Real Parties in Interest.

DAVIS, Associate Justice.

Real parties in interest Luis Diaz, Jr., and his mother Maria Diaz (for convenience, we shall refer only to Luis Diaz as "real party") brought this personal injury action against petitioner Rio Linda Unified School District (School). The School moved for summary judgment/summary adjudication of issues. (Code Civ. Proc., § 437c; undesignated section references will be to this code.) The trial court denied the motion. The School then petitioned this court for a writ of mandate directing the trial court to vacate its order and enter a new one granting the School's motion. We issued an alternative writ and a stay of proceedings pending our plenary review of the issues presented.

We conclude a moving party's reference to inadmissible evidence in its statement of undisputed facts does not waive a contemporaneously

raised objection to that evidence in the accompanying points and authorities. We shall thus dissolve the stay and grant the requested relief.

STANDARD OF REVIEW

The historic paradigm for our de novo review of a motion for summary judgment remains unchanged. We first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima-facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party's prima-facie case. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)

Recently, however, the Legislature has given a "federal" flavor to the nature of the moving party's prima-facie case. Previously, the moving party could establish its prima-facie entitlement to judgment only by demonstrating the existence of facts which negated an element of the opponent's case. (AARTS Productions, Inc., supra, 179 Cal.App.3d at p. 1064, 225 Cal.Rptr. 203.) Now, however, the moving party is not limited to supporting its motion with affirmative evidence. It may also establish its prima-facie entitlement to judgment by demonstrating its opponent's discovery responses are devoid of evidence to support an element of the opponent's case. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482, 50 Cal.Rptr.2d 785; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653.) ¹

THE PLEADINGS

In his first "cause of action," ² real party alleged the School maintained "a dangerous, unsafe[,] and hazardous condition in that students were directed to play in a manner allowing [them] to fall from playground equipment and come into contact with concrete placed in close proximity to the playground equipment...." This implicates the elements of a public entity's liability for an injury caused by a dangerous condition of its property. (Gov't.Code, §§ 830, 835.) In the second count, he alleged the School "was negligent and careless in that it failed to provide adequate or any supervision over the aforesaid school activity and area" despite at least constructive knowledge of the manner in which students played "and that accidents were likely to occur[ ] in the absence of adequate supervision...." This implicates the elements of negligent supervision. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513, 150 Cal.Rptr. 1, 585 P.2d 851; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1459-1460, 249 Cal.Rptr. 688.) In each instance, real party alleged he sustained severe injuries when he fell from a slide onto the concrete on June 7, 1994. ³

DEFENDANT'S MOTION

The School's motion asserted the discovery responses of real party demonstrated he could not establish the existence of an element of either count and thus it was entitled to judgment. (§ 437c, subd. (o)(2).) Specifically, the School argued there was no evidence whatsoever that real party in fact fell Bob Bastian taught a special education class for 12 severely handicapped students at the School. Real party was one of his pupils. Born in 1986, real party is developmentally disabled and has very minimal vocal skills either in English or Spanish. ⁴

                from a slide on school property.  Relying on this defect, it argued real party could not establish even the existence of a dangerous condition on its property (let alone that the dangerous condition was a cause in fact and a proximate cause of injury) for his first count (Gov't.Code, §§ 830, 835), nor demonstrate that negligent supervision was the proximate cause of the injury for his second count.  (Woodsmall v. Mt. Diablo etc.  Sch. Dist.  (1961) 188 Cal.App.2d 262, 264, 10 Cal.Rptr. 447.)   To this end, it submitted deposition excerpts and interrogatory responses containing the following facts
                

Bob Bastian and Melissa Conn-Smith (a resource specialist without classroom) were supervising the last outdoor recess of June 7, 1994, on the playground. Among other equipment, the playground had a taller slide (depicted in the School's exhibit 1 to the parents' deposition) and a pair of smaller ones attached to platforms (pictured in exhibit 2 to the depositions). The two slide areas were surrounded by "tanbark" contained by a low concrete retaining wall. There were at least 180 ordinary students in first through third grade at recess in addition to the 12 special-education students. Bob Bastian last noticed real party playing tag with the ordinary students (as principles of "mainstreaming" encouraged). Real party was not near any of the playground equipment. Bastian then directed his attentions elsewhere for an undetermined period.

Melissa Conn-Smith kept the playground under continuous surveillance. It would take her a couple of minutes to make a complete 360-degree scan. She noticed a group of children playing tag about eight steps away, but could not recall at her deposition whether real party was among them. When she returned her gaze to where she had last seen the children playing tag, she noticed real party sitting on the ground at least 50 feet from any of the playground equipment, pointing at his leg and making whining sounds. None of the children near real party mentioned to her how he had been injured. She summoned Bob Bastian.

Bob Bastian concurred in his deposition that real party was not sitting near any of the slides when Bastian came over to him. Real party did not identify what had happened to him; some of the children told Bastian that real party had fallen while running. Bastian asked if he could walk; real party nodded and limped back to the classroom. He iced the child's knee, then called Maria Diaz. He told her about the injury, suggested she take real party to a doctor, and recommended that real party not take a school bus home. She said she was unable to come to the school, so Bastian drove real party home. Melissa Conn-Smith overheard him on the phone recommending that a doctor examine the child.

Maria Diaz claimed she had overruled a recommendation by the School that her son was not badly hurt and could take the bus home; she offered to come for him. She admitted, however, that it was Bob Bastian who brought her son home. When he got home, all her son could communicate was "hurt" and "pain" while pointing at his leg. Because (she claimed) the teachers had said it was not a significant injury and she did not see anything seriously amiss, she delayed taking her son to the doctor. She took him to the hospital after he continued limping for a few days. At the hospital, she repeated what she had heard, that real party had injured himself while running.

The orthopedic specialist to whom the hospital referred her found a femoral fracture. He performed surgery to insert two screws. At his deposition, he said the injury had appeared to be consistent with the cause reported by Maria Diaz. He removed the cast in July, at which point the fracture was healing. However, real party broke his femur falling down the stairs in October. Another doctor with whom the Diazes consulted agreed the fracture would not have been the result of a major trauma, noting real party suffered from osteoporosis.

Real party's parents testified that at some unspecified point during vacation while their son was still in his cast and required a wheelchair, they took him to the playground to see if they could determine how he had been injured. They wheeled him around from location to location, asking if he had fallen. According to Maria Diaz, her son pointed at the taller slide and said the Spanish word for "there." The father's testimony was less clear, at first indicating his son pointed at the taller slide, but then selecting the photograph of the smaller slides as the location identified by his son.

On the occasions when she supervised the playground, Melissa Conn-Smith had never seen real party play on any of the slides; instead, he wandered around or would roll a ball to another student. Bob Bastian also never saw him willingly use the slides; during the monthly safety program on use of playground equipment, real party appeared apprehensive of heights.

In their interrogatory responses, the Diazes admitted they were not presently aware of any witnesses to the accident. They did not list any videotapes among the materials in their possession relevant to...