*2 GARZA, Before GARWOOD, and HIGGINBOTHAM, Judges. Circuit . HIGGINBOTHAM, Judge: Circuit Edinburg Independent Consolidated appeals School District judgment from a against entered it in this 1983 action brought by the administratrix of the estate Flores, junior high of David school stu- dent who suffered an to his hand in a classroom accident and later committed suicide. A found school dis- negligence trict’s an infringe- caused ment of Flores’s constitutionally-protected right bodily not to have integrity im- paired by conditions, unsafe school $550,000. damages awarded A suit in suit, state court identical to the federal except legal theory its was state tort tort, rather than constitutional resulted in a summary judgment defendants on for. grounds sovereign immunity. Because we that under Texas conclude law the suit is barred the doctrine of res judicata, judgment reverse we and or- judgment der that for entered the de- fendants.
I January when he was fourteen old, years using power Flores was circu- woodworking lar saw his class and suf- hand; fered a cut right severe to his at the injury, time of safety guard the saw’s had been removed and the teacher was in Ibanez, Pena, L. Edinburg, Alfonso Aron an area of classroom from which he Tex., Dale, Brownsville, Tex., Roy S. for supervise could not observe or students defendants-appellants cross-appellees. using Although power tools. surgery Green, Cox, Thompson saving hand, Mitchell Conde J. Flores’s successful Gen., Tex., Attys. Austin, permanently Asst. hand left amicus cu- deformed—a riae, for State Tex. evidently preyed condition that on family do, interposed, mind. The Flores blames this condi- but failed ac parties priv Flores’s eventual suicide Octo- tion between the same ies, in subject ber reference to the mat ter” “is not final Thus> January 1979 Flores sued the school determined, actually matter but woodshop and his teacher in district parties other matter which the court, arguing negli- that their Texas state uaight litigate cause, *3 gence had injury, been the cause of his might have had decided. Id. granted summary judg- Defendants were face, itsOn this broad ground ment trial on the of statement of the before sover- suggests might rule that eign immunity. claim that Tex.Civ.Stat.Ann. art. (waiver immunity permissibly joined in suit of in one must be so 6252-19a Texas joined or will be Act forfeited. The Texas Tort Claims school Su Court, preme districts). explained appeal judgment from this soon No that it understood the rule perfected. “to mean was ever that a11 matters properly which belong to a September In 1980 Flores filed the °f caAlse in pending asserted court, alleging the district defeat, such will as sustain or su^> that school board’s custom or of part, or in action, whole of disregarding safety had concerns led produced by he an(^ judgment, be barred right injury; a Flores’s was n0^ ^at all the different causes 42 asserted under U.S.C. 1983. Flores’s Party ac^on a respecting have maY woodshop teacher was named also as ^ property joined, must be because defendant, granted summary but he was be, ^hey may proceeding. in one Moore judgment by qualified govern- reason Snowball, (1904). 98 Tex. 81 S.W. 8 immunity. The mental school board’s mo- quoted approvingly ^he court from Free summary judgment, tion for which raised Judgments man on The general 249: ex judicata, inter the issue of res alia pression, a judgment ... is conclusive proceeded to trial1 denied. case parties might matter eveiT plaintiffs. judgment resulted action, htigated misleading. have appeals.2 district school really expression isWhat meant judgment upon conclusive jj plaintiff’s tendered corn- judicata3 The Texas law of res ' am^ Wells, 4 traceable least back Foster v. recently, More early these state (1849), changed has signif Tex. 101 ments doctrine of res were icantly frequent since that time. The most reaffirmed Abbott Laboratories v. Gra early ly cited statement of the rule is found vis, (Tex.1971): 642 McAninch, in Freeman v. 87 Tex. 27 (1894), S.W. 100 where the existing Texas Su final rendered [A]n preme party upon competent Court declared can the merits “[a] relitigate matters which he jurisdiction upon jur- have within matter its suicide, judg prior 1. After David Flores’s his mother was a § 1983 action we accord the 3. certified as administratrix his estate and preclusive ment the same effect that it would capacity. in that substituted Migra have in the state courts. Warren plaintiffs also — mother father are named Educ., U.S.-, School Dist. Bd. 892, S.Ct. capacities. in their individual judg summary A L.Ed.2d sovereign immunity pounds is a case, disposition light we m^nt Judgment purposes on the merits for of res grounds appeal consider need not most judicata. Herring Dept, v. Texas Corrections board, including urged by ques- the school (Tex.Civ.App.1973),aff'd, whether have identified a con- tion of (Tex.1974). stitutionally-protected interest that was im- paired As to is- defendants’ conduct. these sues we intimate no views. rights Supreme that, although
isdiction is conclusive of the Court noted points parties quantum in all other actions on the meruit claim could have been adjudicated in claim, at issue and the first suit. joined with the contract ac- two Further, rule of factually independent; tions were the con- litigation of all issues connected quantum bars tractor could recover meruit which, of action or with a cause defense conceding while that there was no actual diligence, might with the use of have that, parties contract between the tried in a former action as well as contract, there was an actual he actually were tried. those which fully performed. The ease was thus analo- gous Snowball, to Moore v. where the scope of the res Thus the bar is plaintiff in the second suit conceded with- dependent on a determination of which is- out reservation all of the factual issues sues are “connected with a cause of action placed dispute by action. The in the first or defense” suit. only things common to the first and second The Texas Court has never suits in Moore and prop- were the *4 Griffin explicitly stated what becomes of an issue erty transaction, respectively, and the un- actually that is raised in the first action but suits; derlying the legal the theories and judgment not decided there because a on were, cases, factual bases in entirely both the merits is entered on some other distinct. However, ground. if judicata barred Gravis, relitigation only by the actually those issues decided the Texas action, years decided in the first Griffin, it would be Court two before the court indistinguishable estoppel plaintiff’s from collateral found that a against drug suit a respect upon with to the in manufacturer liability theory issues raised the a strict pleadings; only respect by judgment with to issues that was barred an earlier adverse upon should have been in in pleadings negligence theory raised the a suit a identical parties but were not raised would pose overlapping in material greater ways a bar than estoppel. rejected collateral their facts. The See the Inc., argument v. Enterprises, judgment Fireside that the negli- in the 869, 871 4 (Tex.Civ.App.1980). gence S.W.2d & n. action neg- should be no bar because Furthermore, if pleading ligence products a different is not an issue in a liability legal theory would have induced the court suit. Because suits “[b]oth involve[d] particular to decide a resulting issue the first tort action from furnishing action, “which, plainly drug issue is one the same operation with for the same on diligence, might the use of person,” the same have been tried 470 S.W. at is, former Diligence action.” in court held that the obliged two claims were [the] brief, key brought short, determinant of applicability single to be in a action. In any particular change legal bar to theory enough was not case. justify separate actions. uncertainty
Some about this rule has plaintiffs are an even arisen since the Texas Supreme position Court’s plaintiffs weaker than the Gravis decision Holiday v. legal theory Inns because the shift in from their Griffin America, (Tex.1973). state suit to their federal suit does not free Griffin, a employer contractor sued his them from reliance on allega- the factual alleging parties the two had had a tions made in complaint. contract, performed contractor had Though legal bases for the two actions contract, under their and that he had not are in place distinct— 1983 of Texas tort paid. Judgment been was entered for the law—the crucial factual by issue raised employer. The contractor then plaintiffs’ complaints sued on a in both actions is the meruit, theory quantum alleged negligence but the Court of of officials of the school Appeals Flores, however, Civil affirmed its dismissal on the district. upon relies judicata. following basis of res Reversing, the Texas declaration court: Griffin has con- leaves res a dead letter Freeman [v. McAninch] sistently proposition that all cited for the sense that it would be no broader rule relating or grounds of defense than estoppel respect collateral to is- cause of action asserted pleadings. sues raised urged will be pending suit must or inquiry, In this Erie -like dowe judgment. Ogletree
barred 431; independently Crates, policies examine the Tex.Sup., S.W.2d Moore behind Snowball, Rather, 5. We choices made Texas courts. Tex. S.W. judgment said or that a in we attempt faithfully have not held Texas law. role, a suit on one claim cause of action is surrogate Consistent with this necessarily of all conclusive claims primary rejecting reason for read against party, of action causes same ing heavy upon its reliance Griffin4 relating property, to the same or aris- Snowball, Moore v. where court de transaction____ ing out definitively clared “a judgment is con general As a rule a on ... upon clusive the issues tendered the merits in a on one cause of complaint,” (em 81 S.W. 8at subsequent action is not conclusive of a added). phasis We conclude therefore except cause of suit on different “a different cause of action” is one that litigated actually as to issues of fact and proceeds on a sufficiently differ determined in the first suit. See Moore theory ent legal but also a different Snowball____ footing require factual as not to the trial of (additional suit; is, facts material to the former 537-38 citations omitted). an action that can even all maintained *5 the disputed factual in issues raised the question by but not raised answered plaintiff’s original complaint are conceded by what consti- Gravis —is Griffin —as in the defendant’s favor. Navar Dobbs v. tutes a “different cause of action” for res ro, (Tex.Civ.App.1974). judicata purposes. argues Flores in effect Flores, noted, previously as have we cannot that a “different cause of action” is a suit standard, meet this for to concede the fac grounded in legal theory, a different the previously tual issues raised would be to underpinnings factual of which need be admit the school officials were not underpinnings different from the factual negligent. prior long the suit so as factual is- those litigated not actually sues were and decided This result is not so as it harsh test, judicata prior By suit. this res may appear. judi first The doctrine of res present
would not bar the
suit because
cata,
limitations,
§
penalizes
like a
statute
legal
recovery
1983 is
basis
distinct
lapses
diligence, thereby
poten
in
law,
assuring
and
principal
from Texas tort
the
fac-
tial
exposure
defendants that their
tual
to liabil
issue
the two suits—the school
ity
wholly
is not
alleged negligence
open-ended.
deter-
Flores has
board’s
—was
join
mined in the earlier state court action. As offered no excuse for
failure
the
the
to
§
above, however,
we have noted
this view
1983 action with
state
claim.5
the
tort
matter,
disagree
already
4. As an
we
with the
incidental
circuit has
indicated that
it does not
argument
above-quoted
change
school district’s
that the
believe
to
Texas law
Griffin
by
portion
judicata;
was dicta overruled
in Brachett v. Universal
Insurance
Griffin
Life
Supreme
Rights
Co.,
(5th Cir.1975),
post-
Texas
Texas Water
—a
Works,
Com'n. v. Crow Iron
decision —we
the traditional
restated
Griffin
Crow,
(Tex.1979).
anything,
(almost
reaffirms
Texas formulation of res
exact-
Griffin
result,
ly
—a natural
because
is consistent
Supreme
as it
was later restated
Texas
Griffin
longstanding
jurisprudence
)
citing Griffin,
with the
citing
Court in Crow without
but
Specifically,
defined
in Texas.
Crow court
Abbott Laboratories v. Gravis.
stating
of res
"that a
the doctrine
finally
unquestioned
... can-
It
§
action once
determined
that a
can
claim
suit,
litigated
proceedings.’’
not afterwards be
new
advanced in
state court
as state courts
Moreover,
added).
(emphasis
jurisdiction
exercise concurrent
Id. at 771
with federal
relating
purposeful
school
no evidence
All
information
vexatiousness
surely
alleged negligence
join
the failure to
the two
in single
district’s
claims
they
suit,
4)
filed
to
when
and
stability
available
no threat to the
when
filed the
their state lawsuit as
court judgment.
state
this,
Beyond
sug-
there
no
federal suit.
accurately
that Gilbert
agree
We cannot
any
necessary
the fil-
gestion that
fact
to
states the Texas law. Gilbert
purports
plain-
ing of the
1983 action first came
subjective policy-based
make
determina-
tiffs’ attention after
state action
case,
practice
each
but
it
will
been decided.
as,
nearly
likely
prove
as mechanical
and
Flores,
would have us overlook
arbitrary than the
more
constructs it pur-
diligence
permit
succes-
this issue
ports
reject.
great
There is no
waste of
prosecuted
long
to be
as the
sive suits
judicial
any
resources
case decided sum-
judi-
policies underlying the doctrine of res
marily;
no
there is
risk of
double
are,
course,
We
cata are
offended.
any
case
where
lost his first
ap-
rule if
obliged to
it is
suit; purposeful vexatiousness will seldom
proach that would be followed in the Texas
appear, and Gilbert would raise no bar
courts,
3, supra,
see note
and this
splintering
where
of the actions is not
appear
framework
have
purposefully;
finally,
stability
done
adopted
Ap-
the Texas Courts of Civil
imperiled only
aof
if an issue
peals in Dallas and Houston.
suit,
has been
decided
in which
Inc.,
Enterprises,
Gilbert
Fireside
estoppel
case
collateral
already
doctrine
(Tex.Civ.App.1980),
the Dal-
relitigation.
bars
possible ways
las court reviewed several
brief,
rule
draws sev
of action”
be defined for
“cause
intersecting
eral
lines based on concepts of
judicata purposes,
ultimately
con-
judicial economy and stability rather than a
cluded that
the Texas courts have em-
single
diligence
line
based
ployed
case-by-case approach
a functional
plaintiff.
approach
This
without
designed to
effectuate the
considera- merit,
yet
adopted
and might
underlying
judica-
tions
the doctrine of res
Court at
future
some
time.
“promotion
judicial
ta:
economy, preven-
conclude, however,
We
law
litigation, prevention
tion of vexatious
*6
judicata,
of res
as enunciated
the Texas
recovery,
promotion
double
of the sta-
Supreme
for
a century,
Court
well over
of decisions.” Id.
bility
877. If consid-
states,
not
constricted. As
is
Griffin
pose
eration of
second suit would
no
actually litigated
sues of fact
and deter
any
interests,
threat
of
these
the court
mined in
are
one suit
barred
all later
concluded,
may
the successive action
suits, whether
not
the later suit arises
entertained. This formulation
later
action;
only
from
same cause of
when
by the
v.
Cohen
followed
Houston court in
subsequent
suit is on a different cause
Cohen,
617,
(Tex.Civ.App.
620
action
of
will those issues which have not
1984).
accepted
district court below
actually litigated
been
and determined not
the Gilbert
formulation as an accurate
be barred.
779 Wilson, F.Supp. 152, A determination. different Wilson v. 532 objective 155 theory (M.D.La.1980), merely aff'd, (5th F.2d action is not different 667 497 cert, Cir.), denied, recovery; differ in “the theories 458 it should U.S. 102 S.Ct. recovery, facts, and the 73 L.Ed.2d operative 1368 As the Navarro, judicata, suit was barred recovery,” Dobbs v. measure for (Tex.Civ.App.1974) judgment be re added). rule, (emphasis contrary A süch as versed and entered for the de court, adopted by Gilbert cannot fendants. that holding harmonized in Moore REVERSED. upon all the is- operates plaintiff’s complaint. tendered in
sues
GARZA, Circuit Judge, specially concur-
'good law, having
plainly
Moore is
still
As
ring:
cited in
of the recent Texas
several
Although Judge Higginbotham presents
decisions,
we conclude
argument
an excellent
the proposition
is not an
statement
authoritative
the Texas law of
pre-
judicata.
Texas law of res
us,
section
cludes the
1983 action before
I
Plaintiffs, by acting diligently, disagree with the majority’s interpretation
in the
brought
have
all
their claims
could
of Texas law and believe that the Texas
original
Texas
suit in the
courts. Conse courts
appellee’s
pre-
would
find
claim
grounded
in the
quently, a successive
Although
cluded.
I
concur
the result
operative
cannot
main
facts
now be
reached
the majority, I would reverse
done
Plaintiffs have
no more
tained.
this case on the merits
appellee
because the
§ 1983
than to advance a new
action
failed to establish that his section 1983
theory of recovery;
asser
claim occurred as a result of an
“[t]he
official
theory
custom,
of a
from policy,
different
usage
of the school dis-
enough
the first suit
to state
Consequently,
respectfully
trict.1
I
file
special
cause of
under
law.”
a new
this
concurrence.
issue,
Although
accept respondent’s argument
I
sub-
discuss
I have
To
that the con-
ruling
doubts
would
stantial
scrutiny
withstand
duct
the state
officials in
case constitut-
alleged wrong
on other
issues.
ed a violation of the Fourteenth Amendment
"sufficiently egregious
to be
this case is not
‘constitutionally’
necessarily
turning
would almost
result
See
tortious.”
Dollar v. Haral-
alleged
may
have been
(11th Cir.),
County, 704
1543-44
son
F.2d
acting
inflicted
state official
under "color
cert,
-
denied,
-,
U.S.
of law” into a
violation
Fourteenth
(1983) (county’s
L.Ed.2d
failure to construct
cognizable
Amendment
under
1983. It is
bridge
place
over
"most
creek at
needed
perceive any logical stopping place
hard to
county” did
not rise
the level of a constitu-
reasoning. Presumably,
such a line of
under
Duncanville,
violation);
tional
Hull
of
(city’s negligent
any party
this rationale
is involved
who
Cir.1982)
(5th
F.2d
nothing more than an automobile accident
crossing
properly railway
to maintain
failure
allege
with a state official
could
constitu-
1983) (quoting
actionable under
Wil-
section
tional violation under
Such
§ 1983.
reason-
*7
695,
1980),
(5th
Kelley,
v.
liams
624 F.2d
697
Cir.
ing "would make the Fourteenth Amendment
cert, denied,
1019,
3009,
451 U.S.
101 S.Ct.
69
superimposed upon
a
of tort law to
font
be
(1981)); Hays
County,
v.
L.Ed.2d 391
Jefferson
already
systems may
whatever
be adminis-
cert,
869,
denied,
(6th Cir.),
F.2d
668
872
459
tered
the states.” We
not think that the
do
833,
75,
(1982)
U.S.
103 S.Ct.
780 Kownslar, 531, Corp. Credit preclusive determining
In
effect
Gilbert at 877.
(Tex.1973);
532
federal courts
prior
judgments,
apply
the law of the state from
The
case
none
instant
offends
of these
McCurry,
Allen v.
emerged.
policy
economy
considerations.
Judicial
90,
411,
449
101
Texas law on this issue. Examine Flores
practice of the school district.
v. Edinburg
Independent
Consolidated
City Dept,
Monell v. New York
District,
School
F.Supp. 974,
554
980-82
Services,
Social
U.S.
S.Ct.
(S.D.Tex.1983).
These
considera-
(1978),
56 L.Ed.2d
the Su
promotion
judicial
tions include “the
preme
municipalities may
Court held that
prevention
economy,
litigation,
of vexatious
responsible
for the constitutional
torts
prevention of
promo-
double
employees
of their
injuries
such
resulted
of decisions.” stability
custom,
municipal
policy,
usage,
from a
at 877.
will not
courts
though
even
a custom had not been formal
subsequent
to a
action unless it
ly
decision-making
endorsed
body.
substantially contravenes one
more of
690-91,
436 U.S. at
S.Ct.
Westinghouse
these policy
considerations.
L.Ed.2d at 635-36.
majority
appears
contends that
of its
§
result
1983 is more elusive than it
at first
is not
decision
too harsh because "Flores has
may
susceptible
blush.
It
well not be
of a
join
offered no excuse for
failure to
spectrum
uniform
across
answer
the entire
action with
tort
At the
§ the state
claim.”
conceivable constitutional
violations which
brought
time his
state district court
subject
of a
1983 action.
*8
8, 1979), however,
(Jan.
it was unclear whether
McCollan,
139-40,
Baker
443 U.S.
or not a
could maintain a
section
2689, 2692,
61 L.Ed.2d
It was
negligence.
Rehnquist
action for
As Justice
not-
Taylor,
not until
Parratt
451 U.S.
majority opinion,
ed in a 1979
(1981),
S.Ct.
Recently, graders permitted after much and students to use the en banc defined official question even sitting policy guard saw after the removed. as: statement, ordinance, regu- 1. A plaintiff’s The evidence of incidents
lation, officially or decision that safety negligence lax and part on the of the promulgated by and adopted munici- indicate, instructor fails to as a matter lawmaking byor pality’s officers an offi- law, safety that these deficiencies were the to whom the cial lawmakers have dele- policy, result of official delegation policy-making authority; gated or policy-making authority, or so and common persistent, practice of widespread 2. A well settled as constitute a custom. which, al- city employees, officials or policy, to official As the evidence in the though by officially not authorized case reveals that school district officials adopted promulgated policy, and safety were concerned of their stu- common well settled as constitute dents. The fact that school did officials fairly represents municipal a custom that promulgate rules specifically address- policy. Actual or constructive knowl- safety woodshop ing class does not mean edge of such custom must be attributa- that the school had an official policy of governing body ble to the the munici- creating condoning or unsafe classroom body pality or to an official to that whom conditions. It expect unrealistic delegated policy-making authority. pol- school officials to create safety written governing every icies Slidell, conceivable set of City Bennett at circumstances that arise in disparate Cir.1984) (5th (rehearing petition de- Moreover, classrooms. the school district Houston, nied); Webster v. general did make statements reflected Cir.1984). (5th at 840 F.2d safety, a concern about student and empha- Appellee argues jurors that reasonable during training sized concern in-service conclude, at could on evidence admitted sessions. trial, policies the custom or The record evidence not support pervasive school district created a risk conclusion that the school district officials using dangerous harm to school children delegated policy-making authority to Can- machinery, proximately causing depriva- Webster, tu. this court stated that: rights. tion of Flores’s constitutional The ‘policymaker’ reveals must one record some evidence that estab- who takes [a] place appellee “safety governing body lishes what terms a in a designated city presented at area administration: Appellee vaccum” the school. safety evidence about various deficiencies City policymakers only govern con- design duct; in the and maintenance of the wood- goals particu- decide the for a shop. pointed guard He out city lar function and devise means of power saw that achieving goals. Policymakers caused the those act missing3 place governing noted that school officials in the body promulgate woodshop level failed to area of their responsibility; they are not pursuant supervised except safety requir- rules to state law totality performance. ing adopt govern- schools to written rules ing safety well-being students. delegation authority of policymaking (226.52.- regulations,. T.E.A. Section 133.1 requires than showing more of mere 01.101). Finally, appellee notes decisionmaking discretion or authority on shop part evidence that instruc- delegee.... govern- heard unsupervised al- ing body expressly tor left students and/or impliedly ac- eighth graders knowledge agent to monitor seventh lowed board acts occasionally re- 3. The teacher testified that he "dado” blade. the blade to facilitate students’ use of the moved *9 governing body goals high in lieu of the to set discussion or degree publici- of a design and to structure and ty.’ the area of delegated responsibility, subject only Bennett, (quoting 768.). At 842 728 F.2d at power governing body little, any, There is evidence discharge control finances and to or cur- teachers, shop record that other or other authority agent tail the or board. teachers created or maintained unsafe con- Webster, (quoting at 841 Bennett v. Moreover, ditions in their classrooms.
Slidell, (5th Cir.1984) (en there is little or no evidence that there was banc)). There was some evidence that any persistent, widespread practice of this partially delegated school district officials Indeed, nature. injury student rule for safety responsibility principals some the school district was low. Compare Record, VI, E.g., individual teachers. vol. Plaintiff’s exhibits 35 and 37. hand, at 297-98. On the other brief, appellee correctly admitted in found the evidence that Cantu was negligent removing also indicated that teachers lacked the au- guard from the thority equipment. to make decisions about injury. saw that caused the Proof of this brief, Appellee’s 23-25; Record, VI, at vol. act, negligent isolated is insuffi- 282; IV, addition, at id. vol. at 338-39. justify cient to policy, verdict that a apparent officials, it is that school district custom, usage safety proce- of unsafe Cantu, responsible were alleged Appellee dures existed. produce failed to negligent design woodshop class- evidence sufficient negli- to show that the IV, E.g., room. Record vol. at 341. The gent actions of Cantu were made known to record evidence is insufficient to establish officials, the district were so common and expressly the school district or im- they settled that should be attributed to pliedly acknowledged that Cantu act- officials, school they provoked ing in lieu of district officials or that Cantu “public high discussion or degree ... a place took the of the school district in the publicity” such as to constitute a custom woodshop safety area of regulation. fairly representing a school policy. district The evidence of a custom of unsafe con- The record reveals that the instructor in ditions is also justify insufficient question had not had another serious jury verdict. We stated in Webster that: years his class in ten teaching. If city employees actions of are to be Record, V, 99-100, vol. at 106. The text- prove used to a custom for which the book students used repeatedly stressed municipality liable, those actions must information, safety Plaintiff’s exhibit have occurred long for so or so frequent- and the portions instructor reviewed these ly that the course of conduct warrants Record, frequently. IV, 259; E.g., vol. at governing attribution to the body of VI, 361; Ill, id. vol. at id. vol. at 37. knowledge that objectionable conduct addition, the instructor demonstrated safe- expected, is the accepted practice city ty techniques and had students write down employees. The trier of fact must be safety VI, 361; rules. Id. vol. id. vol. charge governing body able to IV, at 256. knowledge actual or constructive of such law, As a matter failed to of subordinates. actions There was no establish that it was the school district’s
proof of actual knowledge here. ‘Con- policy to maintain unsafe conditions knowledge may structive be attributed to class, woodshop governing body district had dele- ground on the that it gated safety regulation Cantu, would have known of or that the violations if it practices properly Cantu’s responsibil- persistent exercised its were so ities, example, widespread as for where the as to violations constitute a custom. Therefore, persistent widespread were I concur in the result reached subject prolonged public majority. were