Nigel B. v. Burbank Unified Sch. Dist. ( 2023 )

Filed 7/3/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
NIGEL B., a Minor, etc., et al., B317548
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No.
18STCV06782)
v.
BURBANK UNIFIED
SCHOOL DISTRICT et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William D. Stewart, Judge. Reversed.
Liebman, Quigley & Shepard and Jack L. Sheppard;
Greines, Martin, Stein & Richland, Edward L. Xanders and
Nadia A. Sarkis for Defendants and Appellants.
Reily & Jeffery and Janine K. Jeffery; The Ehrlich Law
Firm and Jeffrey I. Ehrlich for Plaintiffs and Respondents.
* Pursuant to California Rules of Court, rule 8.1110, this
opinion is certified for publication with the exception of parts
IV.A and IV.C.
I. INTRODUCTION
After sustaining a knee injury during a mandatory eighth-
grade physical education class’s touch football unit, plaintiff 1
sued, among others, 2 defendants Burbank Unified School District
(the District) and his physical education teacher, Dylan
Washausen (Washausen). A jury returned verdicts in plaintiff’s
favor against defendants, finding that the District breached a
mandatory duty under the Education Code, Washausen was
negligent, and plaintiff suffered resulting harm.
Defendants appeal from the judgment, contending: there
was insufficient evidence that the District’s breach of a
mandatory duty proximately caused plaintiff’s injury; the special
verdict form was fatally defective because it failed to specify
whether the District’s breach of a mandatory duty or
Washausen’s negligence was a substantial factor in causing
plaintiff’s injuries; the trial court erred by failing to instruct the
jury on the primary assumption of risk doctrine; and the court
erred by not allowing the jury to apportion fault to Gianni, thus
precluding defendants from reducing liability for noneconomic
damages. We reverse and remand for the court to enter
judgment in favor of the District and to hold a new trial limited
to the issue of apportionment of fault between Washausen and
Gianni.
1 Plaintiff is Nigel B., by and through his guardian ad litem.
2 Plaintiff also sued Gianni M. (Gianni), the student who
intentionally ran into him, and Gianni’s parents, but those
defendants settled prior to trial.
2
II. FACTUAL BACKGROUND
A. Plaintiff’s Relationship With Gianni
In April 2018, plaintiff was a student in the eighth grade at
John Muir Middle School (John Muir), which was part of the
District. He was 14 years old, 4 feet 8 inches tall, and weighed
approximately 70 pounds. Plaintiff participated in the school’s
show choir.
Gianni, a fellow eighth-grade student at John Muir, was 5
feet 5 inches tall and weighed 110 pounds. He and plaintiff were
in the same show choir class. Gianni was “very disruptive”
during the class and he and plaintiff had a “bully/quiet kid
dynamic.” Gianni made fun of plaintiff’s high-pitched voice. He
also falsely implied that plaintiff and another male student were
in a gay relationship and used a gay slur to refer to plaintiff and
the other student. These remarks embarrassed plaintiff. Gianni
and his friends snickered and made fun of plaintiff’s
performances during show choir, which caused plaintiff to cry
and walk off stage in the middle of his final performance.
Gianni and plaintiff were also in the same mandatory
eighth-grade advanced physical education class. 3 During that
class, Gianni made fun of plaintiff’s lack of athleticism and sports
knowledge. During kickball, Gianni repeatedly threw a ball at
plaintiff “unnecessarily hard.” Although Gianni’s conduct
bothered plaintiff, he did not complain.
Eloise L. (Eloise), a fellow student, observed Gianni’s
conduct toward plaintiff during show choir and physical
3 Physical education teachers decided whether to place a
student in the advanced or regular physical education class.
3
education class. She did not report Gianni’s bullying of plaintiff
to school officials.
B. Physical Education Class
In April 2018, Washausen had been teaching the physical
education class at John Muir for 21 years. Washausen’s class
rotated through multiple sports in five-week units. Students
could not opt out of a particular sport.
Students in Washausen’s class routinely engaged in
roughhousing and often directed “pushing, hitting, slapping, and
the like” at plaintiff. One student, Richard E. (Richard),
routinely pushed plaintiff during class. In October 2017, during
an ultimate frisbee game, Richard grabbed and twisted plaintiff’s
arm, and asked plaintiff if he wanted to die. Plaintiff reported
this incident to Catherine Celaya (Celaya), an assistant principal
at John Muir who oversaw student discipline. Neither Celaya
nor the school principal advised Washausen that plaintiff had
complained about Richard. Richard’s bullying continued after
the complaint.
Another student, Nick F. (Nick), who was a friend of
Gianni’s, threw plaintiff around during a soccer game and hit
him in the shins with a stick during field hockey. During touch
football games, Nick would jump early before the play started
and slam into plaintiff. Approximately one week before the
incident, Nick approached plaintiff from behind, shoved him to
the ground so hard that his head bounced off the ground, and
walked away laughing. Washausen, who had observed Nick’s
conduct, yelled at Nick and, in front of other students, asked
plaintiff whether he wanted Nick to get in trouble. Plaintiff
4
answered “no,” because, in his view, “snitches [got] stitches.”
Washausen did not discipline Nick in any manner.
Washausen’s supervision of the class was “passive.” He
frequently used his cell phone during class to text, make calls,
and access Facebook. As described by Eloise, “pretty much any
time we played any sport, [Washausen] was off on the side in the
shade on his phone.” Washausen often became frustrated with
the students during class and would call them names such as
“idiot” and “loser.” He would also tell them that “they suck[ed].”
In the event of an altercation or injury, Washausen would
admonish students not to “‘go home and whine about this to
[their] parents.’”
C. The Injury
On April 17, 2018, the students in the physical education
class participated in seven-on-seven touch football. A player who
stepped out of bounds or was touched with two hands by a
member of the opposing team was deemed “down.” The students
played four games simultaneously on the school field and none of
the games included a referee. Washausen sat on a folding chair
approximately 220 feet away from the field on which plaintiff
played.
That day, plaintiff and Gianni were on opposing teams.
Gianni “really want[ed] to win th[e] game” as this would enable
his team to play in the championship game. The game was
competitive and the players argued over many plays. Gianni and
his teammates taunted members of plaintiff’s team, calling them
“‘trash’” and “‘pathetic.’”
5
On the play at issue, plaintiff caught a pass and Gianni ran
into him at full speed, causing plaintiff to fly several feet in the
air and land on his left side. Plaintiff—who had suffered a tear
in his anterior cruciate ligament—screamed in pain as he held
his left knee. Gianni laughed in response, called plaintiff a
“baby,” and claimed that plaintiff was “faking it.”
A student ran to get Washausen, who was seated on a
bench doing paperwork. Washausen was shocked to learn that
plaintiff had been hurt. 4
III. PROCEDURAL HISTORY
A. Complaint
The operative first amended complaint asserted claims
against Washausen and the District for negligence and breach of
a mandatory duty in violation of Education Code 5 section 49079.
Plaintiff also alleged causes of action for battery and intentional
infliction of emotional distress against Gianni and his parents.
4 At trial, plaintiff introduced evidence that Celaya failed to
report information about Gianni’s conduct during the touch
football game to teachers or school administrators, but plaintiff
concedes that this post-injury omission did not proximately cause
plaintiff’s injury.
5 Further statutory references are to the Education Code
unless otherwise indicated.
6
B. Jury Instructions
At trial, defendants requested that the trial court instruct
the jury on the primary assumption of risk doctrine. 6 The court
declined, ruling that the doctrine did not apply because plaintiff
was injured while participating in a mandatory class.
C. Special Verdict Forms
The parties submitted proposed special verdict forms,
which each asked whether the District’s breach of a mandatory
duty or Washausen’s negligence was a substantial factor in
causing plaintiff’s harm. 7
In addition, defendants requested that the special verdict
forms direct the jury to allocate fault for Gianni’s conduct, even if
the jury found that Gianni acted intentionally rather than
negligently. Defendants cited in support Civil Code section
6 Specifically, defendants requested that the court deliver
CACI No. 470, “Primary Assumption of Risk—Exceptions to
Nonliability—Coparticipant in Sport or Other Recreational
Activity” and CACI No. 471, “Primary Assumption of Risk—
Exception to Nonliability—Instructors, Trainers, or Coaches.”
7 Defendants’ proposed special verdict form stated: “For each
defendant that received a ‘yes’ answer in question 1, answer the
following:
“Was [the District’s] negligence a substantial factor in
causing harm to [plaintiff]?
“____Yes ____No
“Was [Washausen’s] negligence a substantial factor in
causing harm to [plaintiff]?
“____Yes ____No”
7
1431.2 and Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1,
5–6 (Weidenfeller). Plaintiff argued that the jury should not be
permitted to allocate fault to Gianni at all.
Because the parties had submitted conflicting special
verdict forms, the trial court drafted its own proposed special
verdict form. Question number one of the court’s proposed
special verdict form asked the jury to answer yes or no to the
following: “Did [the District] fail to carry out a mandatory duty?”
and “Was [Washausen] negligent?” Defendants did not object to
question number one.
Question number two asked the jury to answer yes or no to
the following question: “Was the negligence or failure to carry
out a mandatory duty a substantial factor in causing harm to
[plaintiff]?” Defendants did not object to question number two.
Finally, as relevant on appeal, question number four asked
the jury, “Did Gianni . . . act towards [plaintiff] on April 17, 2018
in the touch football game in a manner that was negligent or
intentional?” The form then instructed the jury that it should
only proceed to apportion fault between Gianni and defendants if
it concluded that Gianni had acted negligently. Defendants
objected and again argued that the jury should be permitted to
apportion fault to Gianni even if it found that he acted
intentionally rather than negligently. The court, however,
disagreed.
Following a hearing, defendants approved the trial court’s
proposed special verdict form with “[n]o exceptions.”
8
D. Jury Verdict
On September 16, 2021, the jury returned its verdict. It
found that the District failed to carry out a mandatory duty and
that Washausen was negligent. The jury answered “yes” to
question number two of the special verdict form, “Was the
negligence or failure to carry out a mandatory duty a substantial
factor in causing harm to [plaintiff]?” On question number four,
the jury found that Gianni intentionally injured plaintiff.
Accordingly, and as instructed on the special verdict form, the
jury did not answer the next question, which asked it to
apportion fault to Gianni. For damages, the jury awarded
plaintiff: $500,000 for future medical expenses; $750,000 for past
noneconomic damages; and $500,000 for future noneconomic
damages.
The trial court entered judgment on the verdict, and
defendants then filed motions for judgment notwithstanding the
verdict and for new trial, which the trial court denied.
Defendants timely appealed.
IV. DISCUSSION
A. Breach of Mandatory Duty
Defendants contend there was no substantial evidence that
the District’s breach of section 49079’s reporting duty was a
proximate cause of plaintiff’s injury and the District therefore
was entitled to judgment notwithstanding the verdict on this
claim.
9
“‘“A motion for judgment notwithstanding the verdict may
be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support. [Citation.] [¶] . . . As in
the trial court, the standard of review [on appeal] is whether any
substantial evidence—contradicted or uncontradicted—supports
the jury’s conclusion.”’” (Webb v. Special Electric Co., Inc. (2016)
63 Cal.4th 167, 192.)
Section 49079, subdivision (a) requires a school district to
inform teachers about students who have engaged in, or are
reasonably suspected of having engaged in, among other things:
causing or threatening physical injury or willfully using violence
upon another person, except in self-defense (§ 48900, subd. (a)(1)
and (2)); and “intentionally engag[ing] in harassment, threats, or
intimidation, directed against . . . pupils, that is sufficiently
severe or pervasive to have the actual and reasonably expected
effect of materially disrupting classwork, creating substantial
disorder, and invading the rights of . . . pupils by creating an
intimidating or hostile educational environment” (§ 48900.4; see
§ 49079, subd. (a).) Additionally, “[t]he district shall provide the
information to the teacher based upon any records that the
district maintains in its ordinary course of business, or receives
from a law enforcement agency, regarding a pupil described in
this section.” (Ibid.) A public entity may be subject to tort
liability for breaches of a mandatory duty. (Gov. Code, § 815.6;
B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179.)
There was insufficient evidence that the District breached a
mandatory duty to report Gianni’s conduct toward plaintiff to
teachers. Although there was ample testimony that Gianni had
engaged in intimidating and disruptive conduct against plaintiff
10
during show choir and physical education class, there was no
substantial evidence that the District either knew or reasonably
suspected Gianni was engaged in such conduct prior to the
April 17, 2018, injury. Specifically, there was no evidence that
plaintiff complained about Gianni to a teacher or school
administrator and Eloise testified that she did not do so. 8
Finally, there was no evidence that an employee or officer of the
District witnessed, or reasonably suspected, Gianni engage in
any conduct described in section 49079, subdivision (a) against
plaintiff prior to plaintiff’s injury.
Further, although plaintiff produced evidence that
Washausen failed to report Nick’s conduct to others, there was no
substantial evidence that such failure was a substantial factor in
causing plaintiff’s injury. “Where a claim of liability is premised
on the administration’s failure to inform a teacher of a student’s
disciplinary record, the finder of fact must engage in a difficult
inquiry into whether the teacher’s lack of this specific
information was a substantial factor in bringing about the
harmful conflict.” (Skinner v. Vacaville Unified School Dist.
(1995) 37 Cal.App.4th 31, 42.) Moreover, “[t]he value to a teacher
of information about a student’s prior disciplinary record will
vary with the circumstances of a particular class. In many
instances, the teacher may have an opportunity to observe the
student that makes the information superfluous or nearly so.”
(Ibid.) Here, based on his first-hand observations, Washausen
8 Indeed, plaintiff in his brief concedes that there is a lack of
any such reports, stating that “because of the demonstrated
practice at the school for teachers not to report misconduct that
fell within section 49079, these incidents [between Gianni and
plaintiff] were not reported.”
11
was well aware of Nick’s conduct toward plaintiff, which
“conveyed [Nick’s] potential for troublemaking far more
effectively than the dry communication of his eighth grade
disciplinary record.” (Ibid.) Accordingly, there is insufficient
evidence to support a finding that Washausen’s failure to report
Nick’s conduct proximately caused plaintiff’s injury.
Finally, although there was evidence that the District was
aware of but failed to report Richard’s conduct toward plaintiff to
teachers in violation of section 49079, subdivision (a), there was
no substantial evidence that such failure proximately caused
plaintiff’s injury. “‘“As a matter of practical necessity, legal
responsibility must be limited to those causes which are so close
to the result, or of such significance as causes, that the law is
justified in making the defendant pay.”’” (Modisette v. Apple Inc.
(2018) 30 Cal.App.5th 136, 154.) It was Gianni, not Richard, who
caused plaintiff’s injury. Thus, the District’s failure to inform
Washausen about Richard’s conduct toward plaintiff does not
justify imposing liability against the District for Gianni’s conduct
toward plaintiff. Accordingly, there is insufficient evidence to
support the judgment against the District. 9 We therefore reverse
9 Plaintiff cites to a jury instruction which informed the jury
that school districts and teachers have a duty to supervise the
conduct of children on school grounds. (See C.A. v. William S.
Hart Union High School Dist. (2012) 53 Cal.4th 861, 869
[“‘California law has long imposed on school authorities a duty 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”’”].) Plaintiff, however, did not assert at trial
that the District was liable for its failure to supervise students.
Plaintiff also did not assert a theory of vicarious liability against
the District for Washausen’s negligence. Instead, the sole claim
12
that judgment and remand for the trial court to enter judgment
in favor of the District. (Frank v. County of Los Angeles (2007)
149 Cal.App.4th 805, 833.)
B. Primary Assumption of Risk
Defendants contend that the trial court erred by failing to
instruct the jury on the primary assumption of risk doctrine.
Whether the doctrine applies to a negligence claim is a legal
question involving the duty of care which we review de novo.
(Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148,
161.)
“‘Although persons generally owe a duty of due care not to
cause an unreasonable risk of harm to others (Civ. Code, § 1714,
subd. (a)), some activities—and, specifically, many sports—are
against the District presented to the jury at trial was for a
violation of section 49079, subdivision (a). (See Drink Tank
Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71
Cal.App.5th 528, 545 [for special verdict forms, parties are
limited to jury’s express findings, and courts cannot imply
findings in support of verdict]; see also Bailon v. Appellate
Division (2002) 98 Cal.App.4th 1331, 1339 [“a respondent may
assert a new theory to establish that an order was correct on that
theory ‘unless doing so would unfairly prejudice appellant by
depriving him or her of the opportunity to litigate an issue of
fact’”]; Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th
1515, 1520–1521 [“The plaintiff bears the burden” of proving
vicarious liability].)
During oral argument, defendants conceded that “the
District is vicariously liable for Mr. Washausen’s conduct.”
Whether the District is obligated to pay for plaintiff’s injuries
under an indemnification agreement or otherwise is not an issue
before us on appeal.
13
inherently dangerous. Imposing a duty to mitigate those
inherent dangers could alter the nature of the activity or inhibit
vigorous participation.’ [Citation.] The primary assumption of
risk doctrine, a rule of limited duty, developed to avoid such a
chilling effect. [Citations.] Where the doctrine applies to a
recreational activity, operators, instructors and participants in
the activity owe other participants only the duty not to act so as
to increase the risk of injury over that inherent in the activity.”
(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154
(Nalwa).)
“[T]he primary assumption of risk doctrine is not limited to
activities classified as sports, but applies as well to other
recreational activities ‘involving an inherent risk of injury to
voluntary participants . . . where the risk cannot be eliminated
without altering the fundamental nature of the activity.’
[Citation.] [¶] The primary assumption of risk doctrine rests on
a straightforward policy foundation: the need to avoid chilling
vigorous participation in or sponsorship of recreational activities
by imposing a tort duty to eliminate or reduce the risks of harm
inherent in those activities. It operates on the premise that
imposing such a legal duty ‘would work a basic alteration—or
cause abandonment’ of the activity.” (Nalwa, supra, 55 Cal.4th
at p. 1156.) “Allowing voluntary participants in an active
recreational pursuit to sue other participants or sponsors for
failing to eliminate or mitigate the activity’s inherent risks would
threaten the activity’s very existence and nature.” (Id. at
p. 1157.)
Thus, courts have applied the primary assumption of risk
doctrine to a range of school activities including extracurricular
programs (see Cann v. Stefanec (2013) 217 Cal.App.4th 462, 470–
14
471 [mandatory weight lifting session for members of college
swim team]; Lilley v. Elk Grove Unified School Dist. (1998) 68
Cal.App.4th 939, 945–946 [after-school wrestling program]; Aaris
v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112,
1119 [cheerleading practice]) and elective classes (see Fortier v.
Los Rios Community College Dist. (1996) 45 Cal.App.4th 430,
432–433, 440 [plaintiff enrolled in advanced football class]). In
each of these examples, a plaintiff, in the first instance,
voluntarily participated in an activity (which may have required
the undertaking of certain related tasks), such that application of
the doctrine was appropriate. (See, e.g., Swigart v. Bruno (2017)
13 Cal.App.5th 529, 537, italics added [“Primary assumption of
risk is a defense that relieves a defendant of any duty to the
plaintiff when the plaintiff is injured due to a risk that is
inherent in an activity in which the plaintiff chose to
participate”]; Jimenez v. Roseville City School Dist. (2016) 247
Cal.App.4th 594, 600, italics added [“‘Primary assumption of risk
occurs where a plaintiff voluntarily participates in a sporting
event or activity involving certain inherent risks’”]; Rosencrans v.
Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082, italics
added [“Primary assumption of the risk means that the plaintiff
has voluntarily participated in a sport that includes various
inherent risks, and therefore, the defendant is relieved of his or
her duty to use due care to avoid the plaintiff suffering an injury
as a result of those inherently risky aspects of the sport”].)
Here, it is undisputed that plaintiff’s participation in the
physical education class was not voluntary on his part, but rather
was required by the middle school’s curriculum. We decline to
extend the application of the doctrine to a sports activity that is,
as here, part of a mandatory physical education class. Indeed, it
15
is the compulsory nature of education that imposes, in part, a
duty upon school districts to take reasonable steps to protect
their students. (See § 48200 [“Each person between the ages of 6
and 18 years not exempted . . . is subject to compulsory full-time
education”]; J.H. v. Los Angeles Unified School Dist. (2010) 183
Cal.App.4th 123, 142; see also West v. Sundown Little League of
Stockton, Inc. (2002) 96 Cal.App.4th 351, 357 [application of the
doctrine “turns on the nature of the sport or activity in question
and on the parties’ general relationship to the activity and to
each other”].) Accordingly, the trial court did not err when it
refused to instruct the jury on the primary assumption of risk
doctrine.
C. Special Verdict Form—Ambiguity of Question Number Two
Defendants additionally argue that if we conclude there
was no substantial evidence for the breach of a mandatory duty
claim—and we have so concluded—then question number two of
the special verdict form was fatally defective on the negligence
claim, such that we must remand for a new trial. According to
defendants, by using the disjunctive “or”—in asking the jury,
“Was the negligence or failure to carry out a mandatory duty a
substantial factor in causing harm to [plaintiff]?” (italics added)—
the verdict form permitted the jury to find that the District’s
failure to carry out a mandatory duty was a substantial factor in
causing plaintiff’s harm, but Washausen’s negligence was not. 10
10 Defendants do not dispute there was sufficient evidence to
support a finding that Washausen’s negligence caused plaintiff
harm.
16
Defendants, however, failed to object to the special verdict
form in the trial court and instead expressly approved of the
language about which they now complain. Moreover, after the
jury rendered its verdict and was polled, defendants did not raise
any concern about the verdict with the court. Nor did they ask to
have the jury correct or clarify the verdict before the court
discharged the jury. (Code Civ. Proc., § 619 [“When the verdict is
announced, if it is informal or insufficient, in not covering the
issue submitted, it may be corrected by the jury under the advice
of the court, or the jury may be again sent out”].) Accordingly,
defendants have forfeited on appeal their challenge to question
number two of the special verdict form. (See Taylor v. Nabors
Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242–1243
[challenge to jury’s skipping questions on confusing verdict form
forfeited where the “appellant did not raise the defective verdict
issue until after the jury had been discharged”].)
D. Special Verdict Form—Comparative Fault
Finally, defendants argue that question number four of the
special verdict form misadvised the jury that it could not
apportion fault between defendants and Gianni if it concluded
that Gianni had engaged in an intentional act. On question
number four, defendants raised an objection in the trial court
but, following the court’s ruling against them, agreed to the
language. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316,
329 [invited error not applicable where party “‘“‘“endeavor[s] to
make the best of a bad situation”’”’”].) On this record, we will
consider the merits of defendants’ argument on appeal. “We
analyze the special verdict form de novo.” (Id. at p. 325.)
17
“Section 1431.2 became part of the Civil Code in June 1986,
through the electorate’s adoption of Proposition 51, an initiative
measure entitled the Fair Responsibility Act of 1986.” (B.B. v.
County of Los Angeles (2020) 10 Cal.5th 1, 8–9 (B.B.).) Civil Code
section 1431.2, subdivision (a) provides: “In any action for
personal injury, property damage, or wrongful death, based upon
principles of comparative fault, the liability of each defendant for
non-economic damages shall be several only and shall not be
joint. Each defendant shall be liable only for the amount of non-
economic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault, and a separate
judgment shall be rendered against that defendant for that
amount.”
We agree with defendants that the jury should have been
directed to apportion fault to Gianni even if it concluded—as it
ultimately did—that Gianni acted intentionally rather than
negligently. As the court in Weidenfeller, supra, 1 Cal.App.4th at
page 6 explained: “It is inconceivable the voters intended that a
negligent tortfeasor’s obligation to pay only its proportionate
share of the noneconomic loss, here 20 percent, would become
disproportionate increasing to 95 percent solely because the only
other responsible tortfeasor acted intentionally. To penalize the
negligent tortfeasor in such circumstances not only frustrates the
purpose of the statute but violates the commonsense notion that
a more culpable party should bear the financial burden caused by
its intentional act.”
Our Supreme Court’s opinion in B.B., supra, is not to the
contrary. Although the court rejected a defendant’s argument
that an intentional tortfeasor can seek apportionment against a
negligent tortfeasor under Civil Code section 1431.2, it
18
“express[ed] no opinion on whether negligent tortfeasors may,
under [Civil Code] section 1431.2, subdivision (a), obtain a
reduction in their liability for noneconomic damages based on the
extent to which an intentional tortfeasor contributed to the
injured party’s injuries.” (B.B., supra, 10 Cal.5th at p. 29, fn. 4.)
It also “express[ed] no opinion on whether, for policy reasons,
existing common law principles of comparative fault should be
changed vis-à-vis intentional tortfeasors.” (Ibid.)
We find the reasoning of Weidenfeller, supra, to be
persuasive. Gianni’s act of intentionally running into plaintiff
was a substantial causative factor in plaintiff’s injury and
Washausen therefore should have been entitled to seek allocation
of fault pursuant to Civil Code section 1431.2. 11
Because the trial court failed to instruct the jury on
comparative fault principles, we will remand for retrial on the
11 Plaintiff argues that because of the special relationship
between school districts, their employees, and the districts’
pupils, Proposition 51 should not apply here. Plaintiff further
contends that these facts are distinguishable from those in
Weidenfeller, supra, because defendants had a special
relationship with the intentional tortfeasor Gianni. We are
unpersuaded. “The express purpose of Proposition 51 was to
eliminate the perceived unfairness of imposing ‘all the damage’
on defendants who were ‘found to share [only] a fraction of the
fault.’ ([Civ. Code,] § 1431.1, subd. (b).) In this context, the only
reasonable construction of [Civil Code] section 1431.2 is that a
‘defendant[’s]’ liability for noneconomic damages cannot exceed
his or her proportionate share of fault as compared with all fault
responsible for the plaintiff’s injuries, not merely that of
‘defendant[s]’ present in the lawsuit.” (DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 603.)
19
apportionment of fault. (Collins v. Plant Insulation Co. (2010)
185 Cal.App.4th 260, 276 (Collins).) 12
12 Defendants contend that the issue of damages must also be
retried. We reject this contention. “A limited retrial may be
ordered if the issue to be tried ‘“can be separately tried without
such confusion or uncertainty as would amount to a denial of a
fair trial.”’” (Collins, supra, 185 Cal.App.4th at p. 276.) Here, the
jury found Washausen liable for causing plaintiff’s injury.
Moreover, defendants do not challenge the amount of damages
awarded. Thus, “a retrial can properly be limited to the issue of
apportionment of fault without causing ‘confusion or
uncertainty.’” (Ibid.)
20
V. DISPOSITION
The judgment is reversed and the cause is remanded. On
remand, the trial court is directed to enter judgment in favor of
the District on the breach of a mandatory duty claim, the only
claim against the District on which the jury rendered a verdict.
The court is further directed to hold a retrial limited to
apportionment of fault between Washausen and Gianni as to the
noneconomic damages found by the jury on the negligence claim
against Washausen. Defendants are entitled to recover their
costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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