Lead
Opinion
We are called to address the accountability of school districts for actions that occur on their campuses when school grounds are open to students during noninstructional times. In this case, an eighth grade special education student filed suit against a school district after he was sodomized by another student in the school bathroom prior to the beginning of class.
The school district appeals, arguing that it owed no duty of care to the student to prevent the sexual assault. We disagree. The assault occurred on the school’s watch, while the student was entrusted to the school’s care. It was substantially caused by the school’s indifference toward the dangers posed by failing to adequately suрervise its students, particularly special education students. In the published portion of this opinion, we find the school district owed the student a duty of care to protect him from this foreseeable assault.
In the unpublished portion of this opinion, we determine the district was not immune from liability and sufficient evidence supports the jury’s findings of liability and damages. We affirm the judgment.
PROCEDURAL AND FACTUAL HISTORIES
Earl Warren Junior High School is a 20-acre campus in defendant and appellant Panama Buena Vista Union School District (District) in Bakersfield, California, with seventh and eighth grade students. During the 1996-1997 school year, the gates to the school were unlocked at approximately 7:00 a.m. when custodial and cafeteria staff arrived. Custodial staff unlocked the bathrooms sometime between 7:00 a.m. and 7:45 a.m. The school principal typically arrived at 7:15 a.m. and the vice-principal between 7:20 a.m. and 7:30 a.m. Office staff arrived between 7:00 a.m. and 7:30 a.m. The teachers were required to be on duty to supervise at 7:45 a.m., and they arrived at varying times before the start of their shifts. School started at 8:15 a.m. Prior to 8:15 a.m., student access to the campus was unrestricted.
During the 1996-1997 school year, there were 560 students enrolled at the school. The majority of the students arrived on campus between 7:45 a.m. and 8:05 a.m. According to the principal, at 7:15 a.m., there were no more than five or 10 students on campus and sometimes no students at all. The school offered zero-period physical education at 7:30 a.m. for approximately 90 students. Those students typically arrived between 7:15 a.m. and 7:30 a.m. The principal testified that the early morning hours were historically calm and quiet. Prior to May 21, 1997, there were no reported problems in the morning before the start of school.
Each of the four junior high schools in the District had organized, directed supervision 30 minutes before the start of school. Prior to that time, each of the schоols employed a different type of supervision. The decision regarding the type of supervision was left to the discretion of each school’s principal. Two of the junior high schools required students who arrived early to congregate in a common area supervised by an adult.
At Earl Warren, the school had a policy of providing “general” supervision prior to 7:45 a.m., where every adult on campus was charged with the broad responsibility of supervising the students. On this critical point, the principal was impeached with his prior testimony. In his deposition, he testified that between 7:00 a.m. and 7:45 a.m. no one had the responsibility for supervision of the students. He later changed his answer to add “as relates to scheduled teacher supervision only.” In any event, no adult had the responsibility to supervise students in a specific area. No one maintained visual contact over the students who arrived early, and there was
By contrast, “direct” or “scheduled” supervision began at 7:45 a.m., under which an assigned person supervised each area of the campus. The campus was divided into zones that specific individuals were responsible for supervising. The parents were never informed that there was no specific plan for supervision of the students prior to 7:45 a.m. Nor were they ever asked not to bring their children to school prior to 7:45 a.m.
In May 1997, plaintiff and respondent M.W. (the minor), 15 years old at the time, was enrolled in eighth grade at Earl Warren in a special education class. He had a third-grade mentality, and the school categorized him as mentally retarded, a designation that carried special concerns with regard to his safety and well-being. The minor had unique vulnerabilities and was susceptible to being “tricked” and emotionally abused. The principal testified that sexual abuse of special education students was also a concern. The minor attracted attention because he frequently stood by himself. He struggled socially among his peers and complained to school personnel about being teased.
The minor’s mother, a teacher with the District, routinely dropped the minor off at school between 7:15 a.m. and 7:20 a.m. on her way to work. The minor’s mother testified that there were numerous parents transporting their children for the zero-period class and a lot of students walking about the campus. She dropped her son off in front of the school office. Between March and May 1997, the minor was sometimes reluctant to get out of the car. The minor’s mother did not request school personnel to watch out for her son in the morning or to restrict his access to the campus. She never received any notice from the school requesting that she not bring her son early or advising that there was no supervision prior to 7:45 a.m. The minor’s mother believed her son was supervised prior to the start of school.
The minor generally stayed near the school office and would often go inside and talk to the staff. Most of the other students who arrived early stayed inside an amphitheater area near the office. Sometimes the minor played at the basketball court by the gym. The minor was self-sufficient, well-behaved, and could use the restroom without adult assistance. Both the principal and vice-principal were aware that the minor was dropped off at school at 7:15 a.m.
Chris J. was a special education student at Earl Warren with the minor. He turned 14 years old in May 1997. Chris had educational difficulties and was in a resource specialist program. Chris had demonstrated misconduct with multiple individuals, including students, teachers and adults, and was frequently disciplined at school.
During his seventh and eighth grade years at Earl Wаrren, Chris received over 30 instances of discipline. His discipline record included 14 acts of defiance of authority; nine bus tickets for violating bus rules, culminating in suspension from the bus for the remainder of the school year; and six gum-chewing incidents. Chris was disciplined for disrupting class, damaging school property, displaying an inappropriate attitude, throwing food at the principal, and calling the yard supervisor a “bitch.” Chris’s misconduct was not limited to adults. He was also disciplined for spitting food at a student; kicking a male student in the groin; fighting (horseplay) with a student at the bus stop; “flipping off” a student; and punching and teasing the minor. As a result of his conduct, Chris received numerous suspensions from
In November 1996, Chris’s bus privileges were suspended in his eighth grade year. Afterward, Chris’s father dropped him off at 6:20 a.m. or 6:30 a.m. before the school gates opened. School personnel did not have a specific recollection of seeing Chris on campus in the early morning hours. However, the principal testified that if Chris were dropped off at the school that early, he would have expected school personnel to have noticed him.
Chris and other students emotionally tormented the minor on a daily basis by teasing and ridiculing him before school started. They called the minor “stupid” and “retarded” in an effort to take advantage of him. According to Chris, the students did so because they were bored and “like[d] to get kicks out of other people’s weaknesses.” The minor sometimes retreated to the principal’s office to escape the teasing. He сomplained several times to the vice-principal and his teachers about the teasing, but was only told to stay away from Chris. According to the minor, on one occasion in the seventh grade, Chris was sent to the principal’s office after the minor complained, but Chris did not get in much trouble. The minor testified that, while in the eighth grade, he complained to the vice principal three separate times about Chris, but was always given the same response—to stay away from Chris—even after explaining that staying away did not work.
On May 21, 1997, just days before the end of the school year, Chris was “uptight” and “felt like he wanted to have sex that morning.” Chris had been thinking about sex all morning when he witnessed the minor being dropped off at school by his mother. Chris remembered being able to lure the minor into an unlocked and unsupervised classroom in March 1997, where he grabbed the minor by the arms and rubbed his penis against the minor’s penis. The minor did not tell anyone about that incident, which lasted about 10 minutes, because he was scared.
At approximately 7:15 a.m., with no adults in sight, Chris tricked the minor into entering the boy’s restroom and then sodomized him. The two were in the restroom approximately 10 minutes. Chris threatened the minor by saying that if he told anyone, he (Chris) would kill him by punching his nose bone into his brain. Chris stated that he picked the minor “because he believed [the minor’s] mental capacity to be that of a third or fourth grader and did not believe [the minor] could remember the things he had done to him, and therefore, he would not tell anybody, anyone, and also, the threats he made towards [the minor] due to his mentality would scare him enough that he would not ever tell anyone.”
Later that day, the minor told his mother about the assault in the bathroom, and she notified the District and the police. The following day, the minor spoke to the vice-principal about the assault. During the investigation, the District and the minor’s mother first found out about the March 1997 incident in thе classroom. Chris was arrested and subsequently expelled from school.
The minor became quiet and withdrawn. He constantly feared that Chris was going to kill him and obsessed about his own safety. He took excessively long baths, picked at his body and wiped his bottom until it bled. His seizures increased, and
On March 11, 1998, the minor filed a complaint for personal injuries and damages against the District, Chris and Chris’s parents. The minor’s amended complaint alleged one cause of action against the District for negligent failure to supervise and careless failure to guard, maintain, inspect and manage the school premises. The District moved for summary judgment, alleging it did not owе a duty of care to supervise the minor or Chris more closely than it did, since it was unaware that the minor was at risk of a physical or sexual assault by Chris. The District also maintained that the alleged failure to adequately supervise did not render the school restroom a dangerous condition of public property. The trial court denied the motion, finding that the District failed to prove it had a complete defense or that its duty could not be established by the minor.
In August 1999, the case resulted in a mistrial.
Following a 15-day trial in November and December 2000, the jury returned a verdict in favor of the minor in the amount of $2,547,260, which represented $1,547,260 for economic damages and $1,000,000 for non-economic damages. The jury attributed 85 percent of the fault to the District and 15 percent of the fault to Chris. Judgment was entered against the District in the amount of $2,165,171 (85 percent of $2,547,260). The court granted the minor’s motion for a corrective nunc pro tunc order, and the judgment against the District was amended to $2,397,260 ($1,547,260 plus 85 percent of $1,000,000). The court denied the District’s motions for a new trial and judgmеnt notwithstanding the verdict.
DISCUSSION
The District claims reversible error based on a number of independent grounds: 1) it owed the minor no duty of care to prevent the sexual assault; 2) even assuming it owed and breached its duty of care to the minor, the breach was not the actual cause of the minor’s injuries; 3) it is immune from liability; and 4) there is insufficient evidence to support the jury’s apportionment of fault and the minor’s claim for future damages.
The District maintains it owed the minor no duty to protect him from the sexual assault, since it had no prior actual knowledge of Chris’s propensity to commit the assault. The existence of a duty of care is a question of law decided on a case-by-case basis. (Leger v. Stockton Unified School Dist. (1988)
“ ‘As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.” [Citations.]’ [Citations.]” (Leger v. Stockton Unified School Dist., supra,
A special relationship is formed between a school district and its students resulting in the imposition of an affirmative duty on the school district to take all reasonable steps to protect its students. This affirmative duty arises, in part, based on the compulsory nature of education. (Rodriguez v. Inglewood Unified School Dist. (1986)
The principles pertaining to a school district’s duty to supervise students are well established. “It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. [Citations.] The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect.” (Taylor v. Oakland Scavenger Co. (1941)
The purpose of the law requiring supervision of students on school property is to regulate students’ conduct “so as to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars ....” (Forgnone v. Salvador U. E. School Dist. (1940)
The California Supreme Court explained the standard of care imposed upon a school district in supervising its students as follows: “The standard of care imposed upon school personnel in carrying out [the] duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circum[s]tances.’ [Citations.] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsiblе for student supervision.” (Dailey v. Los Angeles Unified Sch. Dist., supra,
California courts have long recognized that a student may recover for injuries proximately caused by a breach of this duty to supervise. (See, e.g., Hoyem v. Manhattan Beach City Sch. Dist. (1978)
In this case, we decide whether the District owed a duty to protect the minor from a sexual assault by Chris. The existence of a duty of care of a school district toward a student depends, in part, on whether the particular harm to the student is reasonably foreseeable. (Leger v. Stockton Unified School Dist., supra,
“The term ‘duty’ is a conclusory statement which reflects the sum total of policy considerations which leads the law to say a particular plaintiff is entitled to protection against a specific harm. [Citations.] Even though a harm may be foreseeable, ... a concomitant duty to forestall and prevent the harm does not automatically follow. [Citations.] Rather, the question is whether the risk of harm is sufficiently high and the amount of activity needed to protect against harm sufficiently low to bring the duty into existence, a threshold issue of law which requires the court to consider such additional factors as thе burdensomeness of the duty on defendant, the closeness of the relationship between defendant’s conduct and plaintiff’s injury, the moral blame attached to defendant’s conduct and plaintiff’s injury, and the prevention of future harm.” (Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d at pp. 499-500; see also Wiener v. Southcoast Childcare Centers, Inc., supra,
In this case, Earl Warren’s gates were unlocked at approximately 7:00 a.m., 45 minutes before scheduled supervision. After 7:00 a.m., student access to the campus was unrestricted until the start of school at 8:15 a.m. The District was admittedly aware that students were on campus between 7:00 a.m. and 7:45 a.m. However, no adult was charged with the specific responsibility of supervising these students in areas on the campus. In short, no one watched these students or the “trouble spots,” such as the school bathrooms, during this period. The District in no way advised parents not to bring their children prior to 7:45 a.m. Nor did the District inform the parents of the lack of direct supervision in the early morning hours. In fact, the minor’s mother believed her son was supervised prior to the start of school.
The District schooled special education students and was aware that at least one, the minor, arrived on campus at 7:15 a.m. The District acknowledged that, as a special education and mentally retarded student, the minor had unique vulnerabilities and was susceptible to abuse. The principal of Earl Warren, himself, testified that the sexual abuse of special education students was a concern. The minor complained several times about Chris, who
In short, we find it reasonably foreseeable that, given the lack of direct supervision in the early morning hours, a special education student, such as the minor, was at risk for a sexual or other physical assault. The District’s superintendent acknowledged that supervision has a special meaning to educators on the issue of safety and entails observing the person being supervised. This simply did not occur at Earl Warren prior to 7:45 a.m. Given the unique vulnerabilities of special education students, the District knew or reasonably should have known that the minor was subject to the risk of an assault, including a sexual assault, from Chris.
It is not necessary for the District to have foreseen that an act of sodomy could have occurred. We find no distinction between a physical assault and a sexual assault for purposes of foreseeability in this case. (See Wiener v. Southcoast Childcare Centers, Inc., supra, 107 Cal.App.4th at pp. 1436-1437 [defendants’ alleged negligent conduct in failing to erect sufficient barrier between childhood learning center playground and adjacent street sufficiently likely to result in kind of harm experienced—children being struck by automobile driven on playground—that liability appropriately imposed regardless of whether criminal act of driver was foreseeable]; see also Claxton v. Atlantic Richfield Co. (2003)
When a school district instructs special education children, it takes on the unique responsibilities associated with this instruction and the special neеds of these children. Further, the burden on school districts to provide adequate supervision for such students prior to the start of school is minimal. In fact, a school district could satisfy its responsibility merely by precluding students from coming on campus in the early morning hours. More over,
Given the foreseeability of harm to special education students, the well-settled statutory duty of school districts to take all reasonable steps to protect them, the relatively minimal burden on school districts to ensure adequate supervision for any students they permit on their campuses prior to the start of school, and the paramount policy concern of providing our children with safe learning environments, we find the District owed the minor a duty of care to protect him from an assault on campus. (See Thompson v. Sacramento City Unified School Dist., supra, 107 Cal.App.4th at pp. 1364-1365 [articulating factors considered in determining whether duty was owed].)
The District relies on Romero v. Superior Court, supra,
The Chaney rule was applied in Romero, where a 16-year-old boy assaulted a 13-year-old girl while the two were visiting a friend’s home. The girl’s mother had indicated her desire to the friend’s parents that they supervise the teenagers, and the assault occurred when the parents left home for an hour. (Romero v. Superior Court, supra, 89 Cal.App.4th at pp. 1073-1075.)
“Prior to the incident, [the 16-year-old boy] had a long history of school misconduct, including sexual harassment of female students, fighting, and other misbehavior that resulted in numerous detentions and suspensions. He had been arrested and charged with vandalism and violating curfew. [One of the friend’s parents] was aware of [the boy’s] curfew violations, but there [was] no evidence the [parents] knew about the arrests and [the boy’s] misconduct
The parents thus had no knowledge of the boy’s propensity “to inflict violence on female minors,” and they did not know about the existence of his school disciplinary record. (Romero v. Superior Court, supra,
In holding that summary judgment should have been granted on the negligent supervision claim, the appellate court reasoned:
“We believe ... that sound public policy requires that where one invitee minor sexually assaults another in the defendant’s home, the question of whether the defendant owed a duty of reasonable care to the injured minor depends on whether the assailant minor’s conduct was reasonably foreseeable, but that conduct will be deemed to have been reasonably foreseeable only if the defendant had actual knowledge of the assaultive propensities of the teenage assailant. [*}[] ... [][]
“We adopt and apply the Chaney duty rule and hold as a matter of law that an adult defendant who assumed a special relationship with a minor by inviting the minor into his or her home will be deemed to have owed a duty of care to take reasonable measures to protect the minor against an assault by another minor invitee while in the defendant’s home when the evidence and surrounding circumstances establish that the defendant had actual knowledge of, and thus must have known, the offending minor’s assaultive propensities. Under the California ‘no duty to aid’ rule ..., no liability may be imposed on such a defendant for negligent supervision of an injured minor invitee under a nonfeasance theory of liability solely upon evidence that the defendant had constructive knowledge or notice of, and thus ‘should have known’ about, the minor assailant’s assaultive propensities.
“Were we to hold otherwise, parents who invite into their homes teenage minors they do not know intimately would face lawsuits and potentially devastating financial liability in tort in the event one invitee minor assaults another under circumstances in which the assaultive propensities of the offending teenager were not known to them. Parents possessing any information suggesting that a teenager that they or their own children may wish to invite into the home may have been involved in physical conduct that resulted, for example, in disciplinary action at school would be required to conduct an investigation in order to protect themselves against potential liability. They would be hampered in their investigative efforts by legitimate and well-established rules of confidentiality regarding juvenile matters.” (Romero v. Superior Court, supra, 89 Cal.App.4th at pp. 1081, 1083.)
The court concluded that, in spite of the special relationship between the parents and the teenage invitees, the parents did not owe a duty of care to supervise the victim at all times during her visit, to warn her, or to protect her against the sexual assault. This was because there was no evidence the parents had prior actual knowledge of the assailant’s propensity to sexually assault female minors. (Romero v. Superior Court, supra,
“The circumstantial evidence on which plaintiffs relied included (among other things) [the boy’s] school records showing he had a long history of misconduct, including sexual harassment of female students, fighting and other misbehavior that resulted in numerous detentions and suspensions; as well as evidence that [the boy] had been arrested and charged with vandalism. There is no evidence in the record to show that the [parents] knew about this misconduct. We conclude the evidence presented by [the girl] was insufficient as a matter of law to show that the [parents] owed her a duty to supervise and protect her from a sexual assault by [the boy] during the short period of time the [parents] were away from home .... [The girl] cites no authority, and we are aware of none, that requires adults to assume that a male teenage invitee will sexually assault a female teenage invitee simply because the adults are away from the house for an hour.” (Romero v. Superior Court, supra,
Relying on Chaney, the Romero court noted that the plaintiffs must allege facts showing that sexual misconduct was foreseeable. (Romero v. Superior Court, supra,
“To impose on an adult a duty to supervise and protect a female teenage invitee against sexual misconduct by a male teenage invitee, it is not enough to assert that [it] [is] conceivable the latter might engage in sexual misconduct during a brief absence of adult supervision. As we have already held, the imposition of such a duty of care requires evidence of facts from which a trier of fact could reasonably find that the defendant adult had prior actual knowledge of the teenage assailant’s propensity to sexually molest other minors. [][] Here, the record is devoid of any such evidence. [The girl] presented no evidence, direct or circumstantial, from which the trier of fact could reasonably conclude that the [parents] must have known of [the boy’s] history of misconduct at school, his arrеsts, or his propensity to sexually assault a female minor.” (Romero v. Superior Court, supra,
The District implores us to extend the Romero/Chaney rule to this case. We find no authority to support the District’s position and decline to adopt it. The public policy reasons surrounding the Romero/Chaney rule do not exist in the context of a school district’s supervisory responsibilities. Simply put, the school grounds provide a different setting than an adult’s home. And there are differing public policy concerns related to the responsibilities of school districts that provide mandatory education as compared to adults who invite children into their home on a voluntary basis.
School districts are subject to well-established statutory duties mandating adequate supervision for the protection of the students. These affirmative duties arise from the compulsory nature of school attendance, the expectation and reliance of parents and students on schools for safe buildings and grounds, and the importance to society of the learning activity that takes place in schools. (See Rodriguez v. Inglewood Unified School Dist., supra,
II.-IV.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
Notes
There are no court minutes or other documents in our record relating to the mistrial. However, the mistrial is referenced in the District’s renewed motion for summary judgment.
See footnote, ante, page 508.
Dissenting Opinion
The victim in this case suffered grievous harm. Moreover, Chris, the 14-year-old perpetrator, unquestionably had serious behavior problems. However, I cannot agree that it was reasonably foreseeable that a student, who had been disciplined primarily for defiant and disruptive behavior, would rape another student while on school grounds. The majority’s contrary position expands the concept of duty to the point of essentially imposing strict liability on school districts for the criminal conduct of any student with a discipline record that includes hitting and kicking othеr students. This is a clear departure from established California law. Therefore, I respectfully dissent.
As noted by the majority, a school district has a general legal duty to exercise reasonable care in supervising the conduct of the students on school grounds and may be held liable for injuries proximately caused by the failure to exercise such care. (Hoyem v. Manhattan Beach City Sch. Dist. (1978)
With respect to the district’s alleged negligent supervision in the context of this particular incident, the district cannot be held liable for the minor’s injuries in the absence of a legal duty to protect its students from sexual assaults perpetrated by other students while on campus. Such a duty exists only if the risk of the particular type of harm was reasonably foreseeable when it occurred. (Dillon v. Legg (1968)
The majority asserts that the district knew or reasonably should have known that the minor was subject to the risk of an assault, including a sexual assault, from Chris. However, the majority does not adequately explain why this is so. The majority simply focuses on the victim’s status. According to the lead opinion, the “unique vulnerabilities of special education students” (lead opn., ante, at p. 520) and the “unique responsibilities” associated with their instruction and their “special needs” (id. at p. 521) made this particular type of harm, i.e., a sexual assault, foreseeable. The deficiency in this analysis is that no consideration is given to whether it was reasonably foreseeable that another student would commit such a crime. Under California law, a duty to protect the minor from a sexual assault does not exist unless it was reasonably foreseeable that this kind of harm could occur. (Leger v. Stockton Unified School Dist. (1988)
Although the law generally does not impose a duty on a defendant to control the conduct of another or to warn of such conduct, the special relationship that exists between a school district and its students may impose such a duty. (Rodriguez v. Inglewood Unified School Dist. (1986)
To determine the scope of a school district’s duty to control the conduct of one of its students, the California Supreme Court has looked to the common law duty that parents owe third parties to supervise and control the conduct of their children. In Hoff v. Vacaville Unified School Dist. (1998)
California law finds a special relationship between parent and child. (Hoff v. Vacaville Unified School Dist., supra,
Applying this analysis here, it is my position that the district cannot be held liable for injuries arising out of this criminal conduct under a theory of negligent supervision unless it had knowledge of Chris’s “specific dangerous tendencies,” i.e., his tendencies to commit sexual assaults. Admittedly, Chris was a discipline problem. However, defiance and disruption are not indications of such “dangerous tendencies.” Further, Chris’s prior acts of physical violence, i.e., punching respondent in seventh grade and kicking another student in the groin in eighth grade, would not lead one to reasonably anticipate that he would commit a sexual assault.
In contrast, the majority finds no distinction between a physical assault and a sexual assault for purposes of foreseeability in this case. The majority offers no justification for this position. Apparently, in the majority’s view, each type of assault results in the same kind of harm. However, the facts of this case belie this cоnclusion. Before this sexual assault occurred, the minor had been physically assaulted, i.e., punched by Chris, without any apparent long-term adverse consequences. In contrast, the minor was devastated by this sexual assault. Moreover, if physical assaults and sexual assaults are considered equivalent in this context, school districts will be compelled to view every defiant and disruptive child as a potential rapist. This is an unreasonable burden.
Additionally, contrary to the majority, I consider the analogous situation presented in Romero v. Superior Court (2001)
In reaching this conclusion, the Romero court adopted the rule set forth in Chaney v. Superior Court (1995)
This “actual knowledge” requirement is equally applicable here. Without actual knowledge of Chris’s deviant tendencies, the district could not reasonably foresee the danger he posed. The district had no knowledge of Chris’s propensity to commit sexual assaults. Before this outrageous incident, there had never been any sexual misconduct at any school in the district for at least 31 years. These circumstances mandate the finding that it was not reasonably foreseeable that this junior high school boy would rape a special education student on school grounds.
The lead opinion dismisses the Chaney/Romero line of authority on the ground that “school grounds provide a different setting than an adult’s home.” (Lead opn., ante, at p. 524.) The lead opinion further states, without elaboration, that “there are differing public policy concerns related to the responsibilities of school districts that provide mandatory education as compared to adults who invite children into their home on a voluntary basis.” (Ibid.) However, both school districts and adults whо invite children into their homes are acting in loco parentis. Thus, in taking this position, the majority is effectively elevating a school district’s duty to exercise reasonable care to control a minor child above that of a parent.
In sum, under these circumstances, the district should not be held liable for the sexual assault perpetrated by one of its students. The district had no knowledge of that student’s propensity to commit such an act. Consequently, the district did not owe a legal duty to the minor to protect him from this unforeseeable event. Accordingly, I would reverse the judgment on this ground.
A petition for a rehearing was denied August 1, 2003, and appellant’s petition for review by the Supreme Court was denied October I, 2003. Baxter, L, Chin, J., and Brown, L, were of the opinion that the petition should be granted.
Concurrence Opinion
I concur fully in Justice Wiseman’s opinion. I write separately to make further comments as to the existence of the school district’s duty toward the minor victim in this case. First, I note that Ann M. v. Pacific Plaza Shopping Center (1993)
Second, in my view, even if Romero v. Superior Court (2001)