Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC456640, Erik Michael Kaiser Judge.
Charles Schurter and Keith Vickers for Plaintiff and Appellant.
Thompson & Colegate, Susan Knock Brennecke and Lisa V. Todd for Defendant and Respondent.
OPINION
Gaut, J.
Nicole P. (Nicole), an 11-year-old child at the time of the complaint, sued the City of Riverside (City) and the Riverside Unified School District (RUSD) through her guardian ad litem, for injuries she sustained when attempting to jump over a flooded area of a street crosswalk, adjacent to school property, on her way to school. The complaint alleged negligence by the public entities in permitting the existence of a dangerous condition of the street curb, creating a risk of harm to children entering and leaving school grounds during rainy weather due to flooding over the crosswalk. RUSD demurred to the complaint on the grounds that (1) school districts are immune from liability for the conduct or safety of pupils when the pupil is not on school property (Ed. Code, § 44808); (2) RUSD is not liable because it neither owned nor controlled the property where the incident occurred (Gov. Code, § 835); and (3) absent a specific statutory basis, public entities are immune from liability. (Gov. Code, § 815.)
The trial court sustained the demurrer with leave to amend. Nicole elected not to amend the complaint and appeals from the judgment of dismissal as to RUSD. We affirm.
1. Background
Because this appeal is taken from a dismissal entered after an order sustaining a demurrer, we take the facts from the complaint filed September 8, 2006.
The demurrer was sustained with leave to amend, but Nicole elected not to do so.
On September 20, 2005, when she was 10 years old, Nicole crossed Harrison Street in the City of Riverside in a crosswalk at the intersection with Buena Vista Drive, walking to her elementary school. That morning, the sidewalk and the street area at the end of the crosswalk were flooded due to rain. At the end of the crosswalk, the sidewalk was recessed and bounded by a high curb leading onto a grass area that was on or near the school grounds. Nicole attempted to jump over the submerged portion of the surface, but caught her foot on the curb, falling onto the grass area, believed to be situated partly on school grounds owned and controlled by RUSD. The fall resulted in injuries consisting of fracture of her right arm in five places.
Nicole filed a complaint for damages arising from the negligence of the City and RUSD after her claim was denied by the City. RUSD demurred to the complaint on three grounds: (1) school districts are immune from liability for the conduct or safety of pupils at any time the pupil is not on school property (Ed. Code, § 44808); (2) RUSD is not liable because it neither owned nor controlled the property where the incident occurred (Gov. Code, § 835); and (3) public entities are immune from liability in the absence of a statute providing otherwise. (Gov. Code, § 815.)
On December 13, 2006, the trial court sustained the demurrer with leave to amend, but Nicole did not file an amended complaint within the 30-day period allowed. RUSD thus sought an order dismissing the complaint. Judgment of dismissal was filed on February 9, 2007, and notice of entry of the judgment was filed on February 22, 2007. Nicole filed a notice of appeal from the judgment of dismissal after an order sustaining a demurrer on April 13, 2007.
The City was not a party to the demurrer and is not a party to this appeal, which involves only RUSD.
2. Discussion
A. Standard of Review and General Legal Principles Relating to Review of Rulings on Demurrers.
On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Brand v. Regents of University of California (2008) 159 Cal.App.4th 1349, 1360-1361.) First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
We do not, however, assume the truth of contentions, deductions, or conclusions of law. (Lazy Acres Market, Inc. v. Tseng (2007) 152 Cal.App.4th 1431, 1435.) If a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable. (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 426.) When a plaintiff elects not to amend the complaint, it is presumed that the complaint states as strong a case as possible, and the judgment of dismissal must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer. (Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495.)
B. The Demurrer Was Properly Sustained Where the Complaint Failed to Allege a Statutory Basis for Duty and Liability and Where RUSD Is Immune From Liability.
Nicole asserts the court erred in sustaining the demurrer, because her complaint adequately set forth allegations of the elements of a generic negligence action: (1) defendant’s duty of care to plaintiff; (2) defendant’s breach of that duty; (3) injury to plaintiff proximately caused by the breach of duty; and (4) damage to plaintiff. Those elements may govern most tort actions grounded in negligence, but different rules apply to actions against a public entity.
Except as provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity, or a public employee, or any other person. (Gov. Code, § 815, subd. (a).) The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded. (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) Duty cannot be alleged by stating simply that the defendant had a duty under the law, since that is a legal conclusion, not an allegation of fact. (Searcy v. Hemet Unified Sch. Dist. (1986) 177 Cal.App.3d 792, 802.) Since the duty of a governmental agency can only be established by statute, the statute claimed to establish the duty must at least be identified in the complaint. (Ibid.) That was not done in the complaint against RUSD. The complaint here did not allege a statutory basis for liability.
It is true that, in general, a public entity may be liable for “a condition of property that creates a substantial . . . risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830.) A dangerous condition may be found on public property where the entity intends or encourages use of the property that exposes individuals to a risk of harm on adjacent property. (See Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 298 [students encouraged to use a gate on school property that exposed them to risk of injury at a dangerous intersection].) But there are limits on the liability of a public entity for dangerous conditions of adjacent property.
The Education Code provides immunity for school districts for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless it has undertaken to provide transportation for the pupil to and from the school premises, or otherwise assumed responsibility or liability. (Ed. Code, § 44808.) Those cases where schools have been held liable typically involve circumstances where school personnel did something on campus or failed in their supervisory duties on campus (see Guerrero v. South Bay Union School Dist. (2003) 114 Cal.App.4th 264, 270), or where the school district provided transportation for the student to and from school, or undertook school-sponsored activities off the premises, or otherwise assumed responsibility or liability. (Ed. Code, § 44808.)
Nicole relies heavily on the decisions of Bonanno v. Central Contra Costa Transit Auth. (2003) 30 Cal.4th 139 (Bonanno), Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4th 292, and Branzel v. City of Concord (1966) 247 Cal.App.2d 68. However, each of these decisions is distinguishable where the theory of liability there was linked to dangerous conditions on the property owned or controlled by the public entity.
In Bonanno,the defendant transit authority was found liable for injuries to a pedestrian sustained when trying to cross a busy arterial highway to get to the bus stop, using a dangerous crosswalk to reach it. In that case, the dangerous condition was the location of the bus stop, which was maintained by the public entity on property owned by the public entity. Because the transit authority was responsible for the location of the stop, aware of the danger, and could have taken steps to minimize the risk by moving the stop to a safer location, it was held liable. (Bonanno, supra, 30 Cal.4th at p. 151.)
In Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4th 292, the dangerous condition was a gate owned and maintained on school property near a dangerous intersection, which the school encouraged students to use. Thus, while the school district did not control the crosswalk or the intersection, liability was imposed because it did control whether an opening in the fence on school property should be used and assumed responsibility by encouraging its use. (Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4that p. 299.)
In Branzel v. City of Concord, supra, 247 Cal.App.2d 68, the public property was held to be dangerous because of its close proximity to high voltage power lines, where its intended use was for flying model airplanes. Because people were flying the planes in a wide circle at high speeds and high above the ground, it was foreseeable that a person might lose control of the plane, that the guide wire of the plane would come into contact with the high voltage power lines, electrocuting anyone grabbing hold of the guide wires to regain control of the plane. (Id. at pp. 73-74.) Again, the dangerous condition was the use of the field for flying model planes, and the field was owned by the public entity.
None of the above cases impose liability on the public entity for dangerous conditions on adjacent property; in each case the court found a dangerous condition existed on the property of the public entity found to be liable, even where the danger arose from a feature or condition of adjacent property. Where a pupil is not injured on school property, nor while under direct supervision of the school, the immunity provisions of Education Code section 44808, apply. (Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 872.)
Nicole seeks to avoid the statutory immunity by arguing that Education Code section 44804 is limited if the school district failed to exercise reasonable care under the circumstances. Nicole has taken the phrase “exercise reasonable care under the circumstances” out of context. A school district is subject to a negligence claim if (1) the district “has undertaken a school-sponsored activity off the premises of such school,” and (2) the student “is or should be under the immediate and direct supervision of an employee of such district or board.” (Ed. Code, § 44808; see Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 830.) The “circumstances” in which a school district is required to exercise reasonable care refer to circumstances where a school district has assumed responsibility for the safety of the student. Otherwise, a school district is under no obligation to supply traffic protection to students en route to and from school. (Searcy v. Hemet Unified School Dist., supra, 177 Cal.App.3d at pp. 804-805.) The complaint does not allege facts showing RUSD assumed liability or responsibility for Nicole’s injuries on her way to school.
Nicole also alleged RUSD was vicariously liable, based on the allegation that her injuries were proximately caused by the acts or omissions of its employees in the course and scope of their employment. Nicole alleged in the complaint that RUSD had a duty to warn of the danger of flooding on the street after a rain, and failed to take protective measures against the dangerous condition. But she does not refer to a statutory duty of RUSD to warn of a dangerous condition on adjacent property, or to supply protection against flooding in the street. Therefore, the complaint failed to state facts establishing RUSD was responsible for injuries suffered by Nicole before she arrived at school (Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 794) due to RUSD’s direct or vicarious failure to warn of the dangerous condition on adjacent property.
The complaint acknowledges that the dangerous condition existed on the street and sidewalk, which were alleged to be owned or controlled by the City, citing no statutory basis for extending liability to RUSD, or its employees, for failure to warn of conditions on City property. Alleging that RUSD had knowledge that the sidewalk and street flooded when it rained, creating a foreseeable risk to children as they entered school grounds is insufficient to establish a statutory basis for liability for a dangerous condition on adjacent property.
We conclude the trial court properly sustained the demurrer.
3. Disposition
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: Richli, Acting P. J., King, J.