24 P.2d 849 | Cal. Ct. App. | 1933
This action was brought by plaintiff, a pupil in an elementary school, seeking to recover damages from the defendant school district for injuries received in a baseball game played in the school yard. Defendants' demurrer to plaintiff's second amended complaint was sustained without leave to amend and from the judgment entered in favor of defendants, plaintiff appeals.
Plaintiff attempted to state a cause of action under section 2.801 of the School Code imposing liability "on account of injury to any pupil arising because of the negligence of the district or its officers or employees". This section was formerly section 1623 of the Political Code and its provisions have been frequently considered. (Ahern v. Livermore Union High SchoolDist.,
The allegations of the complaint herein show that the injuries to plaintiff were directly caused by the swinging of a baseball bat by one of plaintiff's fellow pupils while participating in a baseball game in the school yard. Before discussing the allegations of the complaint by which plaintiff attempted to state a cause of action against the defendant district, we deem it appropriate to make certain observations.
It has long been recognized that the physical development of the child must go hand in hand with his mental development. The importance of physical exercise is therefore stressed in our School Code, which expressly requires that "attention must be given to such physical exercises for the pupils as may be conducive to health and to vigor of body". (School Code, sec. 3.41.) It is a matter of common knowledge that the school authorities have quite generally provided play areas adjacent to the school buildings and have encouraged and sponsored the playing of such games as baseball, basketball, volleyball, handball and the like and have provided equipment therefor. Baseball, as commonly played in school yards, differs from baseball as played upon the baseball field in that an appropriate type of softer ball is ordinarily used which renders negligible the chance of injury in the event that anyone is struck thereby. All of the above-mentioned games contribute to the physical development of the pupils participating and there is nothing inherently dangerous about any of them. They seldom result in injury to either the participants or spectators and are ordinarily played by school children of all ages without adult supervision. Nevertheless it is also a matter of common knowledge that children participating in such games and in fact in any form of play may injure themselves and each other and that no amount of precaution or supervision on the part of parents or others will avoid such injuries. The injuries which may result from the playing of said games are ordinarily of an inconsequential nature and are incurred without fault on the part of anyone. In such cases there is no liability and, of course, the fundamental rules governing liability remain the same even though the particular injury may prove to be of a more serious nature. The law does not make school districts insurers of the safety of the pupils at play or elsewhere and no liability is imposed upon a district under the above-mentioned section in the absence of negligence *736 on the part of the district, its officers or employees. [2] With the foregoing observations in mind we believe that whenever an attempt is made to recover damages from a school district for such injuries, the complaint in the action must set forth facts clearly showing a violation of a duty of care imposed upon the school authorities.
[3] Plaintiff's complaint herein was in two counts. Defendants' demurrer was both general and special. We need not consider the special demurrer challenging the certainty of the complaint in numerous particulars for we believe that under the circumstances the defects in the complaint made it subject to the general demurrer. Plaintiff's claims of negligence appear to have been based on the allegations that the district negligently failed to provide a safe playground for plaintiff in that the pupils were required to play in "one small single enclosed yard" without "segregation or separation"; that the district negligently sponsored the playing of baseball in said yard and negligently supervised the playing of such baseball game. It is alleged "that plaintiff and other children of tender and delicate years were taking part in such game and/or were playing in the immediate vicinity of such game" and that "larger pupils" were participating in the game. We believe these allegations are wholly insufficient. We pause to point out that it is impossible to tell whether plaintiff was a participant in the game or was playing in the immediate vicinity. This may not be of vital importance on the consideration of the general demurrer, but we deem it appropriate to call attention to the confusion brought about by the misuse of the term "and/or". (See Putnam v.Industrial Commission, (Utah) [
From all that appears in the record, we are inclined to believe that plaintiff's unfortunate injury was one of those occasional accidental injuries of a serious nature which befall certain children while at play without fault on the part of anyone. At any rate we are of the opinion that the allegations of plaintiff's complaint were insufficient and that the demurrer was properly sustained.
The judgment is affirmed.
Nourse, P.J., and Sturtevant, J., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 13, 1933. *738