Appeal from a judgment of the Superior Court of Los Angeles County, Michael R. Hoff, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. LC075487).
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant J.H., a minor child (plaintiff), by and through her mother and guardian ad litem, Kami Shade Agbeti (Mother), appeals from a summary judgment entered in favor of the Los Angeles Unified School District (the school district), and three of its employees. The judgment was entered after the trial court granted summary adjudication against plaintiff on three of the four causes of action she alleged against the school district and the employees and plaintiff dismissed the remaining cause of action against them. Plaintiff also dismissed all of the causes of action she asserted against the other defendants in the case.
The case concerns physical and sexual assault and battery that plaintiff sustained at one of the school district's grade school campuses during a voluntary after school program. The persons inflicting the harm on plaintiff were also students who attended the program. The trial court ruled that whereas school districts have an affirmative duty of care to students because of the compulsory nature of education, generally there is no duty of care with respect to children who participate in voluntary after school programs.
However, our review of the relevant case law, statutes, and regulations, as well as the facts of this case as set out in the parties' summary judgment/adjudication evidence, convinces us that the summary judgment must be reversed because defendants did owe a duty of care to plaintiff, and the questions whether defendants were negligent in running the after school program, and if so, whether such negligence was a proximate cause of plaintiff's injuries, must be left to the trier of fact.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initiation of the Suit
Named as defendants in this case are the school district, the elementary school where plaintiff was assaulted (the school), the principal of the school, Susan Babit (the principal), Susan Lasken the assistant principal (the assistant principal), and Casey Bednash, an after school playground supervisor (the playground supervisor, and collectively with those defendants, the defendants).*fn1
According to the complaint, in March 2005 plaintiff began attending the school as a second grade student. She also began attending one of the school's two after school programs, one of which requires payment for enrollment. The after school program plaintiff attended, which is held on the school's playground, does not require payment, but it has far less supervision for the children who attend it than the other program. There are 200-300 children on the playground participating in this free after school program and only two adults providing supervision.
The complaint further alleged that on April 6, 2005, plaintiff was attending her after school program and playing with a group of four students, Alice, Bobby, Pat and Robin.*fn2 These four students were members of a group known as the "kissing club." The principal, assistant principal and playground supervisor knew of the kissing club. Indeed, it was common knowledge among faculty, employees and some students that members of the kissing club, including Alice and Bobby, engaged in impermissible sexual activities, and that Alice and Bobby had a history of discipline problems. While plaintiff was playing with the four students, Alice, Pat and Robin encouraged Bobby to kiss plaintiff, and Bobby forced himself on her. Plaintiff could feel Bobby's tongue on her cheek and in her mouth. Two days later, during the after school program, plaintiff was playing with some other children near an unlocked storage shed on the school grounds. Alice grabbed plaintiff and pulled her inside the shed, held plaintiff there against her will, repeatedly slapped plaintiff in the face, and then forced plaintiff to the ground while Bobby pulled down plaintiff's pants and put his penis and testicles on plaintiff's buttocks and his penis in between her buttocks. At the time of both incidents, the defendant playground supervisor was either the only adult supervising plaintiff's after school program or at most there were only two supervisors there. When plaintiff returned to school three days later on Monday April 11, she was teased and taunted by children who had witnessed or heard about the incident.
The complaint also alleged that a child who witnessed the incident, Tammy, reported it to the defendant playground supervisor on April 12. On the same day, Mother learned of the incident and reported it to the police. No one from the school contacted the police or any other authority. As part of the investigation into the matter, plaintiff was required to have doctors examine and photograph private parts of her body, and required to submit to hours of questions by the police, doctors and investigators.
Plaintiff's first cause of action, for negligent supervision of school premises, alleged the defendants had a special relationship with plaintiff and an affirmative duty to take reasonable steps to protect her, including a duty to have competent employees supervise children in the after school program, but the defendants breached their duty by failing to provide adequate supervision of the children in that program, failing to break up or monitor the kissing club, and failing to lock the storage shed and deny access to it to the children. As a result of the breach, it is alleged that plaintiff suffered injuries and mental and emotional distress, and incurred costs of medical attention and continuing psychological counseling. The complaint alleged a second cause of action against the school district and the school for failure to properly supervise and train employees to ensure the safety of children in the after school program.
Additionally, plaintiff alleged a cause of action against defendants for violation of California Constitution article I, section 28 (a)(7), which declares that the right to public safety extends to schools, colleges and universities such that "students and staff have the right to be safe and secure in their persons"; violation of Government Code section 44807;*fn3 violation of Education Code section 8202 in which the Legislature indicated its intent that, among other things, "[a]ll families have access to child care," and "[t]he healthy physical, cognitive, social, and emotional growth and development of children be supported"; and, finally, violation of California Code of Regulations, title 5, section 5552 which provides for supervision of playgrounds for safe play before, during and after school.*fn4 A fourth cause of action alleges defendants violated Penal Code section 11166 by failing, as mandated reporters, to report the incidents of child abuse to an appropriate agency.
2. Defendants' Summary Judgment Motion
The school district, principal, assistant principal and playground supervisor, all represented by the same law firm, filed a motion for summary judgment or alternatively summary adjudication of issues (defendants' motion). Regarding the first three causes of action, defendants' motion asserted that on the two days the kissing club incidents occurred, the special relationship between plaintiff and the school district ended prior to the time of the incidents because plaintiff and the other students had already left the portion of the school campus that is devoted to the after school program and gone to the other side of the campus where the storage shed was located, where they knew they were not allowed. Defendants further claimed that even if there was a special relationship between plaintiff and the school district when the incidents occurred, the incidents were not foreseeable as a matter of law and therefore there was no duty to protect plaintiff, and moreover there is no causal connection between an unlocked storage shed and the assaults on plaintiff. Regarding the fourth cause of action (failure to report incidents to proper authorities), defendants asserted it is barred because it was not asserted in the government claim filed by Mother prior to her filing this suit.*fn5
Each of the three individual defendants (principal, assistant principal, and playground supervisor) submitted a declaration in support of defendants' motion. According to the declarations, the school district's "youth services section" runs an after school playground program (ASPP) at nearly all of the school district's elementary schools, including the subject school. There is no formal enrollment in the ASPP. The ASPP is free of charge to students, is taxpayer funded, and is an attempt by the school district to provide an after school environment that is better for the students than being on the street. Students who use the ASPP have discretion to arrive and leave whenever they choose. Other after school activities were, and are, offered elsewhere on the school's campus. One example is "the Enrichment After School Experiences (`EASE') program," which is owned and run by a private company, using non-school district employees, and which leases the school district's property at the school after the regular school day ends, and charges tuition and other fees.
The declarants stated that in April 2005, the ASPP "was operated on only a portion of the northernmost end of [the subject school's] four- acre campus. The... program did not provide supervision beyond its boundaries, and the remainder of the campus was closed and off-limits to [the] program participants and anyone else without a valid reason to be there." The area where the April 8 incident occurred, and where the students discovered an unlocked storage shed, is located in the southernmost part of the school's campus, approximately 170 yards beyond the boundaries of the ASPP area. Classroom buildings prevent the shed from being seen from the ASPP area. The playground supervisor added in his declaration that his duties as an ASPP playground supervisor included "supervis[ing] the children who chose to participate in the [ASPP] on any particular day." He stated the program operated from 2:25 p.m., when school was dismissed, to 6:00 p.m., he was "always there for the entire time," and he worked on both April 6 and 8, 2005.
The declarants stated they had not heard of any improper incidents involving plaintiff, Alice and Bobby until the April 8, 2005 incident was reported to the playground supervisor on April 12, 2005. The defendant playground supervisor added that on April 12, 2005, the child we have identified as Tammy reported to him that plaintiff, Alice, Bobby, and two other students had created a kissing club behind some classroom buildings on the other side of the school's campus and had engaged in sexual activities there. Prior to Tammy's report to the playground supervisor, none of the declarants had information or reason to believe that a kissing club existed in the ASPP, nor that sexual misconduct had occurred. The declarants did not know or have reason to believe that Bobby and Alice had engaged in sexual activities before the incidents, and they still do not know of such prior sexual conduct, nor did they know or have reason to believe that Bobby and Alice had a propensity to sexually assault other students prior to April 12, 2005.
The principal and assistant principal included in their declarations statements that (1) "[t]here were no prior incidents involving [Alice] and [Bobby] that could potentially cause suspicion that they had a propensity to commit acts of sexual assault. [Alice] and [Bobby] had no history of disciplinary problems at all"; and (2) "[o]ther than the alleged incidents of April 6 and 8, 2005, there has never been any sexual misconduct at [the subject school] to [the declarants'] knowledge." The playground supervisor did not include those comments in his declaration even though the statements made by him in his declaration tracked those made by the principal and the assistant principal in other respects.
Also offered in support of defendants' motion were pages from a deposition given by plaintiff. She testified that there was a day when Alice took her to "a shack" "which was behind one of the classes in the bungalows." Asked if she knew that she was not supposed to be behind there at that time, plaintiff answered: "Yes." Asked why she went there, plaintiff answered: "Because I wanted to be---Because I was scared. I wanted to see what it was." She stated that she, Alice, Bobby and another boy went there. Alice began hitting plaintiff and asked her to kiss Bobby, and Bobby kissed plaintiff on the cheeks. After that happened, plaintiff did not tell anyone at school that Alice slapped her because she was afraid of being embarrassed and afraid of what Alice would do to her if she told anyone. She also did not tell her parents. On another day, Alice "came up to all of us and told us to go to the shack." By "all of us," plaintiff meant "[t]he members of the club" and the members were plaintiff, Alice, Bobby, and another boy. Plaintiff testified Bobby put his private parts against her. Bobby was upset at that time and plaintiff was crying. Asked if Bobby "just rub[bed] his private up against you, or did he actually go inside your butt," plaintiff answered that he "rubbed his private against me."
3. Evidence Presented In Opposition to Defendants' Motion*fn6
A Los Angeles Police Department report indicates that the incidents occurring at the school on April 6 and 8, 2005, were reported to the police by Mother on the evening of April 12, 2005. Mother contacted the police on that date after the playground supervisor told her about the April 8 incident when she came to pick up plaintiff at school. Mother told the police that the playground supervisor told her he had learned of the April 8 incident from one of the children who participates in the ASPP, and he interviewed separately all of the children whom he was told were involved. The police report states that a female officer interviewed plaintiff, and after listening to what the child told her, the officer "determined a sexual assault had occurred." The police report describes plaintiff as "a ...