Government Liability Update

School Personnel Can Be Found Negligent for Failing to Comply with District and School Anti-Bullying Policies

In E.I. v. El Segundo Unified School District, published June 13, 2025, the Second District Court of Appeal, Division 8 affirmed a jury verdict for the plaintiff.  The plaintiff who was a middle-school student who was subjected to extensive online and in-person bullying by two classmates.  The plaintiff, her parents, and schoolmates repeatedly reported the bullying to school personnel.  The personnel failed to respond as directed in the District's Comprehensive Safety Plan and the school's own safety plan.  The safety plans were modeled on the Education Code's provisions addressing school safety.  At one point, the district called the police when one of the bullies created a "petition to end [plaintiff's] life and multiple students signed it; but the district did not notify the plaintiff or her parents of the petition, and the parents only learned of it from another student's mother.  The plaintiff suffered emotional trauma, including at one point cutting herself to get attention.  The plaintiff sued the district for negligence and negligent hiring, retention, supervision and training, both under Education Code section 44807 and Government Code sections 815.2, 815.4, 815.6, 820, and 835.  During trial the plaintiff dismissed the negligent supervision cause of action.  The jury found the district negligent and that its negligence was a substantial factor in causing the plaintiff's injuries.  It awarded the plaintiff $1 million.

The appellate court rejected the district's multiple arguments for reversal.  The appellate court agreed with the district that Education Code sections 48900, 48900.5, 48900.7 and 48911 do not create private causes of action or create a mandatory duty of care owed to plaintiffs with respect to economic damages arising from educational injury.  But plaintiff did not base her negligence cause of action on those statutes, but rather on Education Code section 44807, which supports the duty of school authorities to supervise children on school grounds and enforce rules and regulations necessary to their protection; and Government Code section 815.2(a), which makes the district vicariously liable for injuries caused by its employees' negligence.  The school employees had a duty to protect the plaintiff from harm caused by other students.  Government Code section 820.2's discretionary immunity did not immunize the school employees' decisions in determining how to respond to the complaints of bullying.  Section 820.2 immunizes basic policy decisions.  The plaintiff did not claim that the district or school were negligent in crafting anti-bullying policies.  She claimed that the employees negligently failed to protect her by, among other things, not following the safety policies already in place.  Lower-level decisions that merely implement a basic policy already formulated are not immunized by section 820.2.  The district complained that the special verdict form set forth the negligent supervision claim that the plaintiff dismissed.  But this was harmless error, because the district failed to show that the jury would have awarded the plaintiff less in damages for negligence if the verdict did not include the negligent training and supervision theory.

Deputy Acted Reasonably as a Matter of Law in Advancing Toward Woman with Knife, and Tasing Her When She Advanced on Him

In County of Nevada v. Superior Court (A.C.), published May 12, 2025, the Third District Court of Appeal issued a writ directing the trial court to grant summary judgment to a sheriff's deputy defendant and his agency.  Multiple individuals called 911 about an erratically-acting woman walking along a street with two small children. The defendant sheriff's deputies were dispatched to the area to perform a welfare check on the woman and children.  The first deputy pulled up behind the woman and attempted to speak with her.  She did not respond.  The second deputy then arrived.  He understood he was to provide backup.  The woman turned to the deputies, unsheathed a knife, and accused the officers of hurting her "babies."  The first deputy drew his gun and pointed it at the ground in front of him.  The second drew a taser.  The first officer tried to talk the woman down.  She continued complaining about her babies being threatened, and advanced toward the first deputy.  He backed up to give her space.  The woman alternated her focus betwen the two deputies. As one child repeatedly approached the first deputy, the woman took several quick steps toward the first deputy, who continued backing up.  The second deputy lost sight of the first deputy around a patrol car, and so came around the front of the car with his taser and followed the woman.  The woman suddenly turned and quickly advanced toward the second deputy while raising her knife.  The second deputy discharged the taser.  The woman continued to chase the second deputy into the street.  The first deputy followed and shot the woman in the back.  The woman passed away.  These events occurred in less than two minutes. The events were captured on the deputies' bodycams.  The children sued the deputies and the county that employed them for negligence, wrongful death, and negligent infliction of emotional distress.  They asserted a separate cause of action against the second deputy, who used the taser, under the Bane Act.  The trial court granted summary judgment to the deputy who shot the woman, concluding he acted reasonably as a matter of law throughout the encounter and did not unreasonably use deadly force.  It denied the motion as to the deputy who tased the woman, concluding that a reasonable juror could find he acted unreasonably by closing the distance between himself and the woman and by using his taser, and that he had acted with reckless disregard to her constitutional rights.  The court denied the county's motion for summary judgment to the extent it could be held vicariously liable for the tasing deputy's conduct.

The appellate court ruled that as a matter of law the tasing deputy and the county were entitled to summary judgment, because as a matter of law the deputy acted reasonably under the circumstances.  All of the causes of action turned on the allegation that the deputies' use of force against the woman was unreasonable.  The plaintiffs did not dispute that the deputy using lethal force was entitled to summary judgment, and the appellate court agreed he acted reasonably as a matter of law.  The plaintiffs contended that the tasing deputy's conduct was unreasonable, and created the need for the other deputy to use deadly force.  There was no triable issue of material fact on whether the tasing deputy acted reasonably in closing the distance between himself and the woman.  Applying the perspective of a reasonable officer on the scene, no reasonable juror could conclude the deputy's movement to maintain line of sight with the other deputy, as the woman advanced on him with a deadly weapon, was unreasonable.  There was no triable issue as to whether the woman would be perceived as an immediate threat as she advanced toward one deputy with the knife, then suddenly turned and quickly advance toward the other while raising her weapon.  There was no triable issue that it was not feasible for the deputy to warn the woman in the instant she turned and advanced before the deputy deployed the taser.  No reasonable juror could conclude that firing the less-lethal taser under the circumstances was unreasonable.  There is no material disputed fact on whether the deputy followed his training regarding welfare checks and contacting individuals with mental illness.  A general order governing officer conduct in specific situations does not establish the standard of care for the use of force.  Instead, the standard is whether the use is reasonable under the totality of circumstances.  Even if the deputies' training required better or more reasonable actions, as long as the deputies' actions were within the range of what was reasonable under the circumstances, they need not have chosen the "most reasonable" action.  Both the tasing deputy and the county were entitled to summary judgment.

School District Forfeited Appellate Argument It Had No Mandatory Duty to Inform Teachers of Available Defibrillator

In Tillinghast v. Los Angeles Unified School Dist., published May 5, 2025, the Second District Court of Appeal, Division 8 affirmed the judgment in favor of the plaintiff.  The plaintiff's decedent, a middle-school student, passed away in PE class, after jogging, of sudden cardiac arrest.  He had an unsuspected heart defect.  When the decedent collapsed, teachers began performing CPR and called 911.  The teacher on the 911 call was trained to use a defibrillator.  The 911 operator asked the teacher if the school had a defibrillator.  The teacher had worked at the school for more than a decade, but did not know that the school had an AED-type defibrillator in its main office.  A cardiac arrest victim's chance of survival decreases by 7-10% each minute that passes without defibrillation.  The defendant school district promulgated a defibrillator policy and bulletin in 2012.  The policy stated that AEDs will be maintained on the premises of selected schools and other locations in the district.  The school principal, who started at this school in 2012, did not know of the defibrillator bulletin.  Had he known of it, he would have told the teachers about the school's AED.  The plaintiff sued the principal and the school district for negligence under Government Code sections 820, 815.2, and 815.6.  At trial, the plaintiff's strategy focused on the district's liability, rather than the principal's.  The district's policy was to admit mistakes were made, but that the there was no causation because the decedent's abnormal heart caused his death and defibrillation would not have made a difference.  During the trial, the parties agreed on a version of CACI 423, the jury instruction about mandatory duty.  The jury found the district negligent, but the principal not liable.  On appeal, the district contended that the trial court erred by giving CACI 423.  It also argued that insufficient evidence supported the verdict.

The appellate court ruled that the district had forfeited its objections to CACI 423, by acquiescing to it without requesting any additional instructions.  The insufficient evidence argument could not succeed, because the district conceded in its opening statement and closing argument that it had made mistakes.  The stipulated verdict form did not ask the jury to distinguish between negligence based on breach of a statutory duty and negligence based on any other theory.

In Positional Asphyxiation Case, Jury Verdict That Officers Did Not Use Excessive Force Could Be Reconciled with Verdict That Officers Were Negligent under California Law

In Alves v. County of Riverside, published April 29, 2025, the 9th Circuit Court of Appeal affirmed a district court's decision declining to grant a renewed motion for judgment as a matter of law after a jury trial.  The defendant deputies encountered a bleeding man speaking incoherently and engaged in unusual behavior.  The deputies believed the man was under the influence of a controlled substance or experiencing a mental health crisis.  As the deputies approached the man, he stood up and advanced toward them.  The deputies repeatedly tased the man as he advanced twice toward the deputies.  The deputies struggled to handcuff the man as he lay face down.  One deputy placed a knee on the man's back.  The man rolled to his side, and the deputies continued pinning him down.  The man became silent and stopped breathing.  The deputies rolled the man on his back.  Paramedics arrived and transported the man to the hospital, where he died.  The decedent's successor-in-interest sued the county and deputies under 42 U.S.C. section 1983 for excessive force and deliberate indifference to medical needs, and under California law for violation of the Bane Act, negligence, and battery.  The claims for excessive force, battery, and negligence were tried to a jury.  The jury found unanimously for the defendants on the 4th Amendment excessive force and state law battery claims, but found unanimously for plaintiff on her state law negligence claim.  It apportioned 20% fault to the deputies and 80% to the decedent.  The defendants moved for judgment as a matter of law on the ground that the verdicts were inconsistent.  The district court ruled the verdicts could be reconciled.

The 9th Circuit agreed.  Courts must search for a reasonable way to read verdicts as expressing a coherent view of the case, and determine whether it is possible to reconcile the verdicts on any reasonable theory consistent with the evidence.  Here, the jury's finding that the officers did not use excessive force may be reconciled with the finding that the deputies were negligent.  4th Amendment jurisprudence and California negligence law are two distinct legal frameworks.  Both bodies of law focus on whether an officer's use of deadly force has been reasonable under a totality of the circumstances.  But based on the California Supreme Court's decision in Hayes v. County of San Diego, the 4th Amendment's reasonableness standard is not the same as the standard of reasonable care under tort law, and negligent acts do not incur constitutional liability.  State negligence law, which considers the totality of circumstances surrounding use of deadly force, is broader than 4th Amendment law, which tends to focus more narrowly on the moment when force is used.  Since Hayes was decided, the 9th Circuit has repeatedly held that California negligence law is broader than federal 4th Amendment law.  The 9th Circuit rejected the contention that Hayes applies only to whether tactical conduct and decisions before use of lethal force is used are considered.  Here, for the 4th Amendment claim, the jury was instructed to consider whether the deputies' use of force and restraint was objectively reasonable under the totality of the circumstances, based on the Graham v. Connor factors.  For the negligence claim, the jury was asked whether the deputies were negligent in using unreasonable force or restrain, based on a totality of circumstances that included all facts known to the deputies at the time, including their conduct leading up to the use of force or restraint.  From the expert evidence provided, the jurors could have reasonably determined the deputies owed the decedent a duty of care after restraining him in handcuffs and breached the duty by failing to place him in a recovery position, failing to check whether he was breathing and had a pulse, or applying pressure on his back when it was no longer necessary, even though they concluded the deputies did not use excessive force.

Jury Properly Assigned Liability for Student's Injury to Him and Other Student Fighting Him, Rather than Teacher Who Fell on Student while Trying to Break Up Fight

In I.C. v. Compton Unified School Dist., ordered published February 6, 2025, the Second District Court of Appeal, Division 8 affirmed a judgment entered after jury trial.  The 16-year-old plaintiff and his friend started a fist fight during an art class.  Their teacher intervened.  The teacher weighed 375 pounds, and had recently been using a walker because of a back condition.  While pulling the larger boy away from the plaintiff, and while plaintiff was hitting the teacher, the teacher lost his balance and fell on the plaintiff's leg, causing a severe fracture.  The incident was captured on video.  The plaintiff sued the teacher and the school district for negligence.  He contended the teacher should not have stopped the fight, and instead should have prevented it, and that the school district failed to adequately train the teacher in safely intervening in student fights.  The court rejected expert witnesses from both sides.  The court also declined to give multiple instructions the plaintiff requested regarding duty.  The jury assigned 50% fault for the injury to the plaintiff and 50% to the other boy, and found that neither the teacher nor the district was negligent.

The appellate court rejected the plaintiff's arguments of error.  It affirmed the trial court's denial of JNOV to the plaintiff, finding substantial evidence supported the jury's conclusion that neither the teacher nor the district was negligent.  The plaintiff's contentions that there was insufficient evidence that the district's training was reasonable and that the teacher acted with due care assume that the burden was on the defendants to prove lack of negligence.  But the plaintiff had the burden to prove negligence.  Plaintiff's contention that the jury had to be instructed on the nature of the special relationship between student and teacher, the duty of school authorities to supervise children and enforce rules, the standard of care for school employees, the duty of school authorities to train and supervise employees, the duty of school personnel to use reasonable measure to protect students, and the foreseeability of the injury failed.  None of the instructions was necessary to assist the jury in deciding whether the teacher breached his duty to use reasonable care to prevent harm to others.  The jury was adequately instructed to decide how a reasonably careful person would have acted in the teacher's situation.  Exclusion of the plaintiff's expert on intervening in fights was within the trial court's discretion, based on the evidence that the expert had no experience teaching or managing a classroom.  Further, the jury watched the video, and did not need an expert to expound upon how the intervention happened and whether it was done safely.

County Child Welfare Agency That Received Complaints from Child That He Was Being Hurt Had Duty of Care to Child

In D.G. v. Orange County Social Services Agency, ordered published January 31, 2025, the Fourth District Court of Appeal, Division 3 reversed the summary judgment granted to the defendant county.  The plaintiff and his siblings were first placed in a foster home in 1972, when the plaintiff was three.  The foster parents were licensed, had no criminal history, and had never been accused of sexual abuse.  When he was five years old, the plaintiff claims, he started telling his social worker, "Bad people are hurting me."  He did not tell the social worker to whom he was referring.  He asserts he told the social worker this repeatedly, and tried to explain how the bad people were hurting him.  There is no evidence the social worker followed up on the statements.  The social worker was also allegedly aware of a bedwetting problem that the plaintiff developed after he moved into the foster home.  The social worker was aware that bedwetting was common in children who had experienced trauma, but based on the plaintiff's history and situation she did not consider it a red flag.  Years before the plaintiff's placement, a nine-year-old foster child had told his social worker he felt weird taking showers with the same foster father.  The county did not follow up on the report, and continued to place children with the foster family after the report.  The social worker had no suspicions of sexual abuse in the foster home.  An adoption home study did not reveal evidence of abuse or the risk of abuse.  In 1978, the plaintiff was adopted by the foster family.  He lived with the family until the mid-80s, when he was arrested.  In 1986, the plaintiff disclosed to a therapist at juvenile hall that the foster father had molested him.  The therapist reported this to the county.  This was the first formal report of sex abuse the county received about the father.  In 2019, the foster father admitted to sexually abusing his four oldest sons, including the plaintiff.  The plaintiff sued the county for negligence. He alleged sexual abuse throughout his placement with the family. The trial court granted summary judgment for the county on the grounds of lack of duty to protect the plaintiff from unforeseeable criminal conduct, and that the social worker (and therefore the county) were immune under Government Code section 820.2 discretionary immunity.

The appellate court disagreed on both points.  There is a special relationship between a foster child and the agency that provides his or her care.  Once a special relationship is established, the trial court must look to the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 to decide whether they require creating an exception to the duty of care at issue.  The trial court erred by analyzing only the foreseeability Rowland factor.  The trial court also misapplied the foreseeability factor, by determining only whether the information the county received constituted actual knowledge that would make the foster father's conduct foreseeable.  In applying Rowland, the court's task is not to decide whether a particular plaintiff's injury was foreseeable in light of a particular defendant's conduct, but whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced.  The relevant question is whether the failure to investigate sexual abuse by a foster parent once the potential for abuse is raised by a foster child is likely to result in continued sexual abuse.  Case-specific foreseeability questions, such as whether there was actual knowledge of abuse, are relevant in determining the actual standard of care or breach in a particular case, but do not inform the threshhold determination that a duty exists.  The appellate court concluded that it was sufficiently foreseeable that the failure by the county to inquire or investigate when a foster child suggested abuse had occurred makes it appropriate to impose a duty to protect.  The other Rowland factors (except availability of insurance, for which there was no information) do not support an exception to imposing a duty in this case.  As for discretionary immunity, the court agreed that decisions of child welfare agency employees concerning determinations of child abuse and placement are subjective discretionary ones.  But there is no evidence in the record that the social worker here or anyone else exercised discretion--that she made a judgment call about whether to leave the plaintiff in the foster home after considering possible abuse based on the information known to her or the county.  The county therefore failed to shift the burden to the plaintiff on that issue.  Even if the burden had shifted, the evidence created triable issues of fact as to whether the social worker did actually consider facts indicating possible abuse.

Paramedics Did Not Owe Duty to Perform Adequate Medical Examination of Person Who Refused Treatment

In Murphy v. City of Petaluma, published November 25, 2024, the First District Court of Appeal, Division 1 affirmed summary judgment in favor of the defendant city and two of its paramedics.  The plaintiff was involved in a head-on collision.  The defendant paramedics responded to the scene.  They asked the plaintiff questions to determine her involvement in the collision and whether she was hurt or needed medical assistance.  She stated she was not hurt and did not want or need medical assistance.   The paramedics did not observe any signs of injury, any signs the plaintiff was in pain, or any signs of cognitive impairment. One of the paramedics explained to the plaintiff that it was possible she had suffered an injury of which she was unaware, that the injury could manifest later, and that the injury could be life-threatening.  He recommended that she accept transportation to a hospital where she could be examined as a precautionary measure.  The plaintiff responded she was aware of the risks, but again declined transportation to the hospital.  The paramedic advised the plaintiff of the potential signs of serious injury of which she should be aware.  After attending to the other driver, the paramedic returned to the plaintiff to ask if she had developed a headache or required medical assistance.  She again refused medical assistance, and still did not display objective signs of injury or cognitive impairment.  Before the paramedics left, one of the paramedics again obtained confirmation from the plaintiff that she did not want or need medical assistance.  Based on their observation of the plaintiff, the paramedics concluded she was alert and oriented, had capacity, and had expressly exercised her right to refuse medical treatment.  After leaving the scene, the plaintiff suffered a stroke in her sleep, due to a hypertensive crisis caused by the collision.  The plaintiff sued the city and paramedics, alleging the paramedics were grossly negligent in their medical examination, evaluation, and treatment of her, including failing to take her blood pressure and failing to transport her to a medical facility.  The trial court granted the defendants' motion for summary judgment, concluding that no medical care was initiated and that the paramedics did not take any action that created a duty to perform a full assessment of the plaintiff's medical condition.

The appellate court agreed.  The plaintiff contended the paramedics owed her a duty of care to provide medical assistance in accordance with Health and Safety Code section 1799.106 under the negligent undertaking doctrine.  Emergency rescue personnel, like other persons, have no general duty to protect others from the conduct of third parties.  The negligent undertaking rule is an exception.  Where one undertakes to aid another, the person is under a duty to exercise due care in acting, and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.  The plaintiff contended that by virtue of the paramedics interactions with her at the scene they assumed a duty to provide her with adequate medical care.  She maintained her refusal to of medical care was irrelevant to the duty issue.  She did not claim that the paramedics were negligent in their assessment that she had the cognitive capacity to exercise her right to refuse medical assistance.  The court rejected the plaintiff's argument. As with other first responders, the scope of the duty the paramedics assumed must be measured by the particular level of service they provided.  That level of service was dictated by the plaintiff's repeated refusal of medical assistance and transport.  After she made these statements, the paramedics did not undertake a medical examination.  Therefore, they did not assume a duty to conduct such an examination meeting the applicable standard of care.  Further, there is no evidence that the paramedics' conduct increased the harm or risk of harm inflicted by the third party.  The paramedics left the plaintiff in exactly the position she occupied before they arrived.  They therefore did not have a duty to render medical assistance to the plaintiff in accordance with the standard of care.

Public Park Was Not a Dangerous Condition of Public Property Due to Lack of Surveillance Cameras

In Summerfield v. City of Inglewood, published October 25, 2023, the Second District Court of Appeal, Division 8 affirmed dismissal of a wrongful death suit after demurrer was sustained without leave to amend.  In January 2021, the plaintiffs' decedent drove to a park in the defendant city to play basketball.  While he was in his vehicle, he was shot and killed.  The plaintiffs asserted causes of action against the city, which owned and operated the park, for dangerous condition of public property and negligence.  The operative First Amended Complaint alleged that the park was supposed to be closed to the public due to COVID-19, but a city employee opened the park gym to the public in violation of the city's COVID protocol, which was a substantial factor in drawing the decedent and the perpetrator to the park.  The FAC alleged there were no security cameras in the parking lot, and a lack of attendants, control measures, and security.  The FAC alleged there had been "multiple shootings" at the park before the incident, but described only two incidents, in 1997 and 2012.  The FAC alleged that considering the multiple shootings, the lack of cameras presented attractive opportunities to criminals.  It asserted the city was liable under Government Code sections 815.6 (violation of mandatory duty).  The trial court ruled that the complaint, as amended, failed to identify a dangerous condition of public property.

The appellate court agreed.  Case law establishes that the presences or absence of security guards is not a physical characteristic of public property and thus not actionable as a dangerous condition of public property.  Further, public entities are immune under Government Code section 845 for alleged failure to provide security services or police presence.  The plaintiffs therefore cannot support their claim that failure to provide security at the parking lot was a dangerous condition.  The alleged failure to take adequate precautions from employees opening the gym to the public is also not a dangerous condition or defective in a way that foreseeably endangers those using the property.  Dangerous condition claims must be specifically pleaded, and must specify in what manner the condition constituted a dangerous condition.  The FAC failed to allege sufficient facts that the city's failure to provide adequate precautions was a dangerous condition of public property.  The allegation that the city failed to provide security cameras despite ongoing criminal activity failed because the FAC identified only two crimes over a 23-year span.  Further, third party criminal activity does not constitute a dangerous condition of public property unless the property itself is in a dangerous condition and that condition increases or intensifies the risk of injury to the public.  A parking lot is not dangerous because it lacks surveillance cameras; it needs surveillance cameras if it is dangerous.  The FAC failed to plead sufficient facts to show a causal connection:  that the absence of security cameras created a substantial risk of being shot.  The theory that the city failed to provide adequate warning about the dangerous condition failed because the FAC failed to allege a dangerous condition.  Further, a public entity has no duty to warn against criminal conduct.  Because a city cannot be held liable for nonstatutory negligence, the trial court properly sustained the demurrer against the negligence cause of action.  The plaintiffs failed to adequately show they could amend the complaint to state a claim.

One justice wrote a concurring opinion asserting that to establish a novel theory of tort liability, a plaintiff must establish the benefit would outweigh the burden.  The plaintiffs cannot establish that imposing a duty on public entities to place surveillance cameras and other security wherever crime has occurred would outweigh whatever benefit might result. 

Primary Assumption of the Risk Doctrine Does Not Apply to Mandatory Physical Education

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.

Mother Cannot Sue City for Bystander Emotional Distress based on Dangerous Condition Liability Absent Contemporaneous Awareness Property Condition Caused Accident

In Downey v. City of Riverside, published April 26, 2023, the Fourth District Court of Appeal, Division 1 reversed the dismissal of the defendant city after demurrer.  The plaintiff was speaking to her daughter via cellphone, giving the daughter directions, when the daughter's vehicle collided with another vehicle at an intersection.  The mother heard the collision, a long pause during which her daughter did not respond to her, and the statements of a person on the scene trying to find her daughter's pulse.  The plaintiff and her daughter contended that the accident was caused by a dangerous condition of public property based on defective traffic markings, signals, warnings, medians, and fixtures.  The trial court sustained the city's demurrer to the plaintiff mother's cause of action, on the ground that the complaint failed to establish contemporaneous sensory awareness of the connection between the city's tortious conduct and the daughter's injuries.  After allowing one amendment, the trial court denied further leave to amend, and dismissed the case against the city.

The court majority agreed that the trial court properly sustained the demurrer.  Although the plaintiff's sensory awareness of the daughter's injuries over the phone was sufficient to satisfy the element of bystander emotional distress requiring the plaintiff to be "present at the scene of the injury-causing event," the law also requires contemporaneous awareness of the causal connection between the tortfeasor's negligent conduct and the resulting injury.  Here, the allegations in the complaint did not establish the plaintiff's contemporaneous or meaningful understanding of a causal connection between the alleged deficient traffic signals and markings and the accident.  But the appellate court reversed the trial court's denial of leave to amend.  On appeal, the plaintiff argued that she could allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by the city.  The court ruled that she should be given an opportunity to allege such facts.

One justice concurred in the result, but dissented from the majority's ruling that the demurrer was properly sustained.