Hoyem v. Manhattan Beach City School District

CLARK, J., Concurring and Dissenting.

Paying only lip service to the established rule a public school district is “not an insurer of its pupils’ safety” (ante, p. 513), the majority impose on districts insurmountable *524 duties and financial burdens. We are told a district has an absolute liability for whatever ill befalls a truant after escaping from school premises because security measures are too lax. 1 Short of complete closure, the majority opinion forces a district to respond in one or both of two ways, either of which imposes impractical if not impossible financial responsibilities.

First, a district may insure truants against third party tortfeasors for injuries suffered while off school grounds. Even absent the great cost of this added responsibility, it is questionable whether school districts can survive financial burdens already thrust upon them by ever increasing personal injury awards and erosion of sovereign immunity concepts. The State Superintendent of Public Instruction, in a press release on 5 April 1978, stated public schools face an insurance crisis which could bankrupt them if unchecked. He reported liability insurance premiums in the four preceding years have increased an average of 345 percent for elementary school districts, stating “Costs have gone up so much that some school districts can’t afford to pay for the insurance they need to protect themselves. . . . And even if they have the money, coverage is hard to get because many insurance companies are not interested in insuring schools.” (See, also Liability Insurance in California Public Schools (Dept. Pub. Ed. 1978); A Report of the Liability and Property Insurance Crisis in Los Angeles County Public Schools (Office of L.A. Co. Super, of Pub. Schs. 1977).)

The report of the Department of Education shows total premiums paid by included school districts rose from $8,272,684 in 1974-1975 to $39,794,451 in 1977-1978, with only minimal expansion in total coverage. The data compiled and reported by the department did not, of course, reflect the further dramatic premium increases today’s opinion will produce. In view of the tremendous financial impact resulting from adoption of Proposition 13 in the Primary Election of 1978, the majority *525 decision will surely hasten the insolvency of some school districts as predicted by the State Superintendent of Public Instruction.

The alternative, itself imposing additional financial and administrative burdens, is to increase security on school campuses to reduce truancy. This can be accomplished by reducing campus size to a manageable enclosure and restricting students either by barriers or by security personnel sufficient in number to watch and police all points of egress—essentially a concentration camp. 2

An even more serious problem confronting school districts would be in maintaining the quality of education now available on open campuses. In Bright v. Los Angeles Unified Sch. Dist. (1976) 18 Cal.3d 450 [ 134 Cal.Rptr. 639 , 556 P.2d 1090 ], we dealt with the question of openness of expression on school campuses. Although we now deal with the question of openness of physical freedoms our views in Bright are nevertheless pertinent. We said there that “student communication . . . may cause trouble and lead to disturbance, but ‘our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.’ ” (Id., at p. 456, quoting from Tinker v. Des Moines School Dist. (1968) 393 U.S. 503, 508-509 [ 21 L.Ed.2d 731, 738-739 , 89 S.Ct. 733 ], An enforced atmosphere of confinement and limitation on movement will also discourage off-campus and inter-campus innovative programs and even such programs which require freedom of movement to. different facilities within a single campus.

There is little question the majority decision is grounded on a policy determination that, in their view, yet another element of society should be afforded an insured’s protection against mishap. 3 Such policy determination is generally for the Legislature either to make in the first instance or to redetermine after judicial intervention into an area properly a legislative matter. The author of today’s majority opinion has *526 addressed the issue of when the court should decline to extend liability. Approximately one short year ago he wrote as author of another majority opinion: “ ‘Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.’ [¶]. . . ‘[N]ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor’s responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political.’ ” (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 446-447 [ 138 Cal.Rptr. 302 , 563 P.2d 858 ]; italics added.)

The restraints suggested in Borer are particularly applicable when public liability is sought to be extended, as in the instant case. In Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814 [ 131 Cal.Rptr. 854 ], plaintiff sought to create a new area of school district liability for “educational malpractice.” In concluding liability should not be extended, the court stated: “[Jjudicial recognition of such duty ... is initially to be dictated or precluded by considerations of public policy. . . . ‘[I]n the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget; and finally, the moral imperatives which judges share with their fellow citizens—such are the factors which play a role in the determination of duty. . . .’ (Raymond v. Paradise Unified School Dist., supra, 218 Cal.App.2d 1 , 8-9 . . . .) [¶] In Rowland v. Christian (1968) 69 Cal.2d 108 . . . the Supreme Court used similar terminology in defining various public policy considerations as exceptional factors which might alone warrant nonliability for negligence. . . . [¶] . . . [T]he major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. . . . (Rowland v. Christian, supra, 69 Cal.2d 108 at pp. 112-113 ....)” (Id., at pp. 822-823.)

Obviously, the factors mentioned by us in Rowland and relied on in Peter W.—a case closely in point with the instant case—should persuade us to exercise the restraint urged in Borer. Here the district could not *527 foresee the particular harm to plaintiff; the certainty plaintiff would suffer harm as a truant was no greater than had he been properly dismissed from school on the day in question; there is only remote connection between the district’s alleged negligence and the injury suffered; there is little if any moral blame in the district’s conduct; the burden on the district is, as stated, insurmountable; the effect of imposing liability on the district will be negative and far-reaching; and the cost of insurance, even if available, will impose a burden the district may well not be able to overcome.

The judgment should be affirmed.

We are not told of the majority position in the case of students who, having permission to be off campus or having terminated their school day, are injured by third party tortfeasors while proceeding to their homes. Certainly the majority do not intend to afford the truant greater benefits than are afforded students conforming to established rules. Yet the Legislature has expressly denied protection to such students. (Ed. Code, § 44808, formerly § 13557.5.) The majority do not explain such conflict nor do they attempt to square today’s decision with decisions holding a district is not liable for off-campus injuries suffered by a student while returning home from school (Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737 [ 264 P.2d 115 ]; Angelis v. Foster (1938) 24 Cal.App.2d 541 [ 75 P.2d 650 ]), while away from school with express permission (see Kerwin v. County of San Mateo (1959) 176 Cal.App.2d 304 [ 1 Cal.Rptr. 437 ]), or even while on an errand for the teacher (see Annot. 38 A.L.R.3d 830 , 844).

There is actually little a school district can do to restrain a student who wishes to leave a campus. Even a habitual truant cannot be suspended or removed from school rolls. (Ed. Code, § 48900.) The majority thus propose to make a school district an insurer of the safety of such persons although the district lacks the power to control their movements.

If a school district is negligent because a truant is able to leave campus, and such negligent conduct is the actual and proximate cause of injuries suffered when struck by a negligently operated motorcycle, is not the school district liable to a motorcycle driver injured when that truant negligently darts into the motorcycle’s path?