Searcy v. Hemet Unified School Dist.

Decision Date20 February 1986
Citation223 Cal.Rptr. 206,177 Cal.App.3d 792
Parties, 30 Ed. Law Rep. 783 Marcia Ann SEARCY, a Minor, by Wendy Ruble, her Guardian at Litem, Plaintiff and Appellant, v. HEMET UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents. E001693.
CourtCalifornia Court of Appeals Court of Appeals
David Prescott, Los Angeles, for plaintiff and appellant Jeffrey T. Miller, Deputy Atty. Gen., for respondent State of Cal
OPINION

KAUFMAN, Associate Justice.

Plaintiff Marcia Ann Searcy appeals from judgments of dismissal following the court's sustaining without leave to amend the demurrers of defendants Hemet Unified School District (School District) and State of California by and through its agent California Highway Patrol (CHP) to plaintiff's second amended complaint. Plaintiff advances a host of contentions directed at demonstrating the demurrers should not have been sustained. We discern no error in the court's rulings and therefore affirm the judgments.

Facts and Procedural Setting

On January 6, 1983, plaintiff, a six-year-old first grade student at Ramona Elementary School in Hemet, was struck by an automobile and injured as she walked home after school. The accident occurred in the middle of a block on Girard Street north of Whittier Avenue at a site which was often utilized by school children as a "short cut." The accident site was not part of nor directly contiguous to the school grounds; it was in fact between one-quarter and one-half mile from the school grounds.

Plaintiff's second amended complaint named the driver of the vehicle, Dorothy Susan Gibbel, and the driver's employer, True Cast Concrete, in its count based upon a theory of vehicular negligence. Named as defendants in other counts were School District, CHP, the County of Riverside (County) and the City of Hemet (City). Plaintiff asserted the following theories of liability against these public entities:

1. Failure to remedy or cause to be remedied an allegedly dangerous condition 1 in the road along plaintiff's route home--School District, CHP, County and City;

2. Negligent creation and/or maintenance of this dangerous condition--County and City;

3. Failure to promulgate and enforce safety standards--CHP and County;

4. Failure to utilize crossing guards--School District, County and City;

5. Failure to teach and develop materials for teaching safety education--School District, CHP and County; and

6. Failure to provide adult supervision for plaintiff's trip home the day of the accident--School District.

School District and CHP demurred to each of plaintiff's counts against them, contending principally that any duty to act was discretionary in nature and could not give rise to tort liability. (Gov.Code, §§ 815.2, subd. (b), 820.2.) The trial court sustained the demurrers and granted judgments of dismissal in favor of School District and CHP. Defendants Gibbel, True Cast Concrete, County and City are not parties to the present appeal.

On appeal, plaintiff does not challenge the trial court's rulings as to School District's failure to provide adult supervision for plaintiff's trip home or CHP's failure to administer safety education and enforce safety standards. Thus, only the following questions remain for our consideration:

1. Did School District or CHP have potential tort liability to plaintiff for failure to remedy a dangerous condition?

2. Did School District have potential tort liability to plaintiff for failure to provide an adequate course of safety education or for failure to employ a crossing guard or cause a crossing guard to be employed at the site of the accident?

Discussion

At the outset it must be noted that, in California, all governmental tort liability is dependent upon the existence of an authorizing statute or "enactment." (Gov.Code, §§ 815, subd. (a), 815.6; Tolan v. State of California ex rel. Dept. of Transportation (1979) 100 Cal.App.3d 980, 983, 161 Cal.Rptr. 307; Morris v. State of California (1979) 89 Cal.App.3d 962, 964, 153 Cal.Rptr. 117.)

1. School District Neither Owns Nor Controls the Property Alleged to Be in Dangerous Condition

Plaintiff first attempts to ground School District's liability upon Government Code section 835, which provides in relevant part: "... A public entity is liable for injury caused by a dangerous condition of its property...." "Property of a public entity" in turn means real or personal property owned or controlled by that public entity. (Gov.Code, § 830, subd. (c).) Although School District's ownership of the property alleged to be in dangerous condition was pled in the complaint, plaintiff has acknowledged in her opening brief that School District does not own the property. Instead, plaintiff argues School District's authority to affect safety conditions so as to increase the safety of pupils traveling to and from school constitutes "control" of the property 2 within the meaning of Government Code section 830(c). Not so.

The case of Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 87 Cal.Rptr. 173 upon which plaintiff places reliance is not on point. The plaintiff in Low was injured when she fell into a water-filled depression in a "parking strip" of land between a sidewalk and a street curb outside a County of Sacramento hospital facility. The parking strip was part of the public street easement owned by the City of Sacramento on county land. The court was called upon to interpret that part of Government Code section 830(c) which states: "['Property of a public entity' and 'public property'] ... do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." In affirming the trial court's finding of joint liability between the city and county, the court concluded the county retained extensive control over maintenance of the parking strip and the remedying of dangerous conditions upon it. The court stated, "Where the public entity's relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition." (Low, supra, 7 Cal.App.3d at p. 833-834, 87 Cal.Rptr. 173, emphasis added; see also Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 67 Cal.Rptr. 197 (holding a city liable under Government Code section 835 to a child injured by a train, where the city had reserved extensive powers to regulate and inspect the railroad company's easement) and Warden v. City of Los Angeles (1975) 13 Cal.3d 297, 118 Cal.Rptr. 487, 530 P.2d 175 (holding a city liable for a dangerous condition caused by a submerged municipal sewer pipe in federal waters).)

Citing several statutes concerning the role school districts play in student safety, plaintiff asserts, in the parlance of Low, that School District possessed the "power to prevent, remedy or guard against the dangerous condition," i.e., it had control for the purposes of section 835 liability. Included in plaintiff's statutory recitation are Education Code section 39607, which gives school districts permissive authority to construct and maintain "... pedestrian walks, footbridges, and pedestrian tunnels when required for the safety of pupils attending the schools of the district," and Vehicle Code section 21373, which authorizes school districts to request city, county and state agencies to install traffic control devices. Plaintiff also cites the guidelines in the School Area Pedestrial Safety manual promulgated in 1979 by the California Department of Transportation pursuant to Vehicle Code section 21372 3 (see fn. 4, infra). Without enlarging the authority of school districts over traffic safety along student transportation routes, these guidelines only recommend standards and procedures aimed at bringing about desirable safety conditions.

Not having been drafted by School District, however, the guidelines in the School Area Pedestrian Safety manual are not internally binding upon the District. (Cf. Clemente v. State of California (1985) 40 Cal.3d 202, 214-216, 219 Cal.Rptr. 445, 707 P.2d 818.) Moreover, we cannot agree the authority of school districts to influence traffic control measures and effectuate student safety found in these sources provides the kind or degree of control necessary for section 835 liability. Unlike the situation in Low, the present case does not involve contiguous land parcels or property concerning which there are overlapping or conflicting layers of authority. Instead, the property over which plaintiff contends School District had control is located a considerable distance from the school grounds. The complaint specifies no authority which empowers or requires School District to manage the property on an ongoing basis or to erect barriers or traffic controls that might control pedestrian and vehicular traffic over the property. (See, e.g., Fuller v. State of California (1975) 51 Cal.App.3d 926, 947, 125 Cal.Rptr. 586.) The Low-type inquiry and result are only appropriate '... [w]here the public entity's relationship to the dangerous property is not clear....' (Low v. City of Sacramento, supra, 7 Cal.App.3d at p. 833, 87 Cal.Rptr. 173.) Here, it is clear that School District lacks the kind and degree of non-ownership control over the property sufficient to give rise to liability under Government Code section 835.

2. Neither the School District nor the CHP Has A Mandatory Duty under Statute to Remedy or Cause the Remedy of the...

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