In Nigel B. v. Burbank Unified School District, published July 3, 2023, the Second District Court of Appeal, Division 5 reversed a jury verdict against the defendant school district and its physical education teacher. The plaintiff was an eighth grade student. Another student often bullied him. During a PE class, the plaintiff participated in a touch football game. The student who had been bullying the plaintiff ran into the plaintiff at full speed, causing him to fly several feet in the air and land on his left side. The plaintiff suffered a tear in his anterior cruciate ligament. At the time of the injury, the PE teacher sat on a chair 220 feet from the field, doing paperwork. The plaintiff sued the PE teacher and the district for negligence and breach of a mandatory duty imposed by Education Code section 49079, and sued the student who hit him and the student’s parents for battery and intentional infliction of emotional distress. At trial, the trial court declined to instruct the jury on the primary assumption of risk doctrine. Over the defendants’ objections, the trial court created a special verdict form that asked the jury whether the student who hit the plaintiff acted in a manner that was negligent and intentional, and only to apportion fault to the student if the student’s conduct was negligent rather than intentional. The jury found that the district had failed to carry out a mandatory duty; that the failure was a substantial factor in causing harm to the plaintiff; and that the student intentionally injured the plaintiff. The jury did not apportion fault between the student and the district.
The appellate court reversed the finding of breach of mandatory duty. Education Code section 49079 requires a school district to inform teachers about students who have engaged in or are reasonably suspected of engaging in physical injury or willful violence upon another person, or harassment, threats, or intimidation. There was no substantial evidence that the district knew or reasonably suspected the student who injured the plaintiff was engaged in such conduct before the plaintiff’s injury. Although there was substantial evidence of the PE teacher’s failure to report another student’s intentional injury of the plaintiff, there was no substantial evidence this failure was a substantial factor in causing the plaintiff’s injury. The appellate court therefore directed that judgment be entered for the district. The appellate court affirmed the trial court’s refusal to instruct the jury on the primary assumption of risk doctrine. Although the doctrine applies to a range of school activities, they are all activities in which students voluntarily participate. The court declined to extend the doctrine’s application to a sports activity that was part of a mandatory physical education class. It is the compulsory nature of education that imposes a duty on school districts to take reasonable steps to protect students. Finally, the appellate court reversed the trial court’s ruling that the defendants could not apportion fault to the other student if he acted intentionally. A negligent tortfeasor is entitled to apportion fault to an intentional tortfeasor.
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