APPEAL from a judgment of the Superior Court of San Diego County, Ronald S. Prager, Judge. Reversed. (Super. Ct. No. GIC871766).
The opinion of the court was delivered by: Huffman, Acting P. J.
Certified for Publication 5/27/09 (order attached)
Plaintiff and appellant Eric M. (Eric), by and through his guardian ad litem, Gloria M., brought this action against defendant and respondent Cajon Valley Union School District (the District), alleging that his injuries from being hit by a car were proximately caused by the District's failure to supervise adequately the process of his dismissal from school and anticipated school bus ride home. After six-year-old Eric boarded but then immediately left the school bus (telling the bus driver he saw his father's car), shortly after school had ended for the day, he started walking to the bus stop where he thought his mother would pick him up, but was hit by a car as he crossed the street.
Eric appeals from a judgment of dismissal entered against him after the trial court granted the District's motion for summary judgment, and denied Eric's motion for summary adjudication on the existence of an affirmative duty not to let him off the bus under those circumstances. The trial court's ruling to grant the District's summary judgment motion was based on its analysis of duty and immunity under Education Code section 44808,*fn1 under the circumstances of a student being injured by being struck by a car, after school and off campus. The court concluded the District owed Eric no duty, as of the time of his injuries, to provide him safe transportation under its transportation safety plan (TSP). (§ 39831.3, Gov. Code, § 815.)
The trial court's analysis applied authority from this court, Guerrero v. South Bay Union School District (2003) 114 Cal.App.4th 264 (Guerrero), to conclude that although the District had undertaken to provide transportation for pupils to and from the school premises, within the terms of section 44808, it had not undertaken to supervise children until they were safely in the arms of their parents. The trial court concluded the District had exercised reasonable care in its transportation functions under all the relevant circumstances, and was entitled to statutory immunity. (§ 44808.)
On appeal, Eric argues the trial court erroneously determined as a matter of law that the District owed him no duty of reasonable care during the events leading up to his injuries. Eric contends the District negligently supervised him while he was on campus, i.e., boarding and then leaving the bus, and that such a failure of supervision was the proximate cause of the accident. According to Eric, the District, through its TSP, undertook the duty to transport him at the school, but failed to exercise reasonable care by letting him leave the bus without making sure that he had alternative transportation.
We agree with Eric that, as a matter of law, and under existing authorities, the trial court incorrectly determined the District did not owe Eric a duty of reasonable care at the relevant times during these events. (Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508 (Hoyem).) Moreover, triable material issues of fact remain regarding the extent and manner of performance of that duty, and the summary judgment and underlying summary adjudication ruling must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2005, Eric was a six-year-old first grade student at Johnson Elementary School, part of the District. Eric's parents had paid a fee for him to participate in the District's school bus program, and had filled out paperwork showing that Eric would normally be dropped off after school at 2:35 p.m. at the Magnolia School bus location, which was closer to his home. Eric had been in school for about a month and he was taking the bus home on an irregular basis, because sometimes one of his parents would pick him up, and this changed day to day. Eric's parents told him that if he missed the bus home, he should go to the school office.
Under the District's TSP for providing school bus transportation service, once a student had signed up for this bus transportation, it was available to him but not mandatory. (§ 39831.3.) On the day of the accident, Eric was dismissed from school at 2:00 p.m. and headed for the school bus area. As required by the TSP, several school staff monitors were present as usual at the time of boarding the school buses. Eric boarded the bus as usual, but within a minute, he told the driver, Ms. Youngs (not a party here) that he saw his father's car and was going to drive home with him. Ms. Youngs grabbed him by the arm and asked him if he were sure, and he said he was. Eric got off the bus while it was still on campus, but he could not find his father, who was not in fact there. (Apparently, his mother had come to campus in the family car around the same time, and was allegedly looking for him to tell him to ride the bus to Magnolia School, but she could not find him.)*fn2
Eric then started to walk with other students toward Magnolia School, and after about a half a mile, he crossed a busy street. Meanwhile, his mother was reporting to the office that he was missing. Shortly thereafter, they learned he had been injured when a car struck him when he crossed the street.
Eric filed a complaint for personal injuries against the District and the driver/owner of the car.*fn3 In his governmental claim and amended complaint, Eric alleged that the District breached its duty of care when it "negligently permitted, allowed, and let [him] wander away from school." (Gov. Code, §§ 815, 900 et seq.)
The District answered the complaint, raising numerous affirmative defenses, including the immunity of section 44808 for injuries incurred off school premises, after school hours.
B. Motions; District Transportation Plan
The District moved for summary judgment, claiming section 44808 provided it with immunity for the accident, which occurred off campus and after school hours. It argued that contrary to arguments made by Eric that it had been negligent per se, its TSP was adequate under the statutory standards set by section 39831.3. The District provided evidence that Eric was not normally escorted to the bus, but that three or four staff members and teachers were assigned and on site for monitoring the boarding of the buses. The District relied on its Transportation Department Handbook, describing a bus driver's duties to students on the bus and stating that students are to be properly supervised at all times. (TSP, § 200.12.) The District contended that since Eric had gotten off the bus while it was still on campus, it did not "undertake" to "transport" him that day, within the meaning of section 44808. (See Guerrero, supra, 114 Cal.App.4th 264, 267.)
Eric filed a cross-motion for summary adjudication (MSA) arguing the same duty issues but in an opposite manner, and additionally seeking a determination that certain Government Code immunities did not apply. (Gov. Code, §§ 815, 815.2, subd. (b); 820, subd. (b), 820.2, 820.8; 6th affirmative defense.) Eric also argued that under section 44807, school teachers must hold pupils "to strict account for ...