Rankin v. Long Beach Unified School District CA2/5

Filed 12/29/21 Rankin v. Long Beach Unified School District CA2/5
Reposting correct version
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
KODY RANKIN, a Minor, etc., B303750
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC615886)
v.
LONG BEACH UNIFIED SCHOOL
DISTRICT et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark C. Kim, Judge. Reversed.
McCune Harber, Dana John McCune and Dominic A.
Quiller for Defendants and Appellants.
Kyle Scott Law and Kyle J. Scott; The Ehrlich Law Firm
and Jeffrey I. Ehrlich for Plaintiff and Respondent.
__________________________
Plaintiff Kody Rankin was a kindergartener at an
elementary school in the Long Beach Unified School District
when another student ran into him during physical education
class. The collision caused plaintiff to trip and hit his head on
the ground. Plaintiff, by his guardian ad litem, sued the District
and his P.E. teacher, Malcolm Turner, for negligence and
premises liability.1 After the trial court granted the District’s
summary adjudication motion on the premises liability cause of
action, the jury eventually returned a verdict in plaintiff’s favor.
The District then moved for a new trial and for judgment
notwithstanding the verdict (JNOV) on several grounds,
including misconduct of counsel, insufficiency of the evidence,
and evidentiary errors including the admission of certain expert
testimony. The trial court granted a new trial as to damages,
denied the balance of the new trial motion, and denied JNOV.
We conclude the JNOV motion was improperly denied and
reverse on the ground there was insufficient evidence of
negligence to support the verdict.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Accident
On June 2, 2015, P.E. teacher Turner sent kindergarten
students at Emerson Elementary School on a warm-up run on the
playground’s asphalt blacktop. He told the children to run to the
fence and back in groups of six. Plaintiff took off running with
other students, touched the fence, and then started to run back.
On the return, with a new group of students running towards
plaintiff, a boy running next to plaintiff tripped him. Plaintiff fell
and hit his head on the asphalt. Plaintiff was taken to the
1 Except when the context otherwise indicates, references to
the District include Turner
2
hospital where testing revealed he had a skull fracture. The
hospital released plaintiff with instructions “to be careful with
his head,” and that plaintiff could wear a helmet for protection.
The following year, plaintiff sued the District for negligence
and premises liability. The complaint alleged the school
playground’s asphalt surface was a dangerous condition.
Plaintiff also alleged Turner acted negligently in requiring the
students “to run in a manner that was not reasonable or safe,”
and in failing to adequately supervise the activity.
2. The District’s Motion for Summary Judgment
The District moved for summary judgment or summary
adjudication of both causes of action.2 In opposition, plaintiff
submitted the declaration of civil engineer Brad Avrit. It was
Avrit’s opinion that the District “acted far below the standard of
care” in allowing students to run on asphalt. The District
objected to Avrit’s qualifications, and Judge Klein sustained the
objections “because Brad Avrit, a safety and engineering expert,
is not competent to opine on the standard of care for elementary
school teachers, his opinions lack adequate foundation, and are
conclusory.”
Judge Klein granted summary adjudication of the premises
liability cause of action on the ground the blacktop was not a
dangerous condition. As to the negligence claim, the court denied
summary adjudication because “reasonable minds can differ as to
how closely young students must be supervised.”
2 Judge Ross M. Klein presided over the summary
adjudication proceedings while Judge Mark C. Kim presided over
the jury trial and posttrial motions.
3
3. Trial
A. Plaintiff’s testimony
At trial, plaintiff was 10 years old and testified that, on the
day of the incident, P.E. teacher Turner told the students to run
in groups “to a fence and back for exercise.” According to
plaintiff, the students “were supposed to run or jog, but then
when we got really tired, we could walk.” After the first group
took off, plaintiff ran to the backstop, and then started running
back. He was looking at Turner who was standing at the starting
line when a boy running next to him, Andrew, took “maybe”
seven steps to the right away from plaintiff and then veered back
towards him. Andrew “kind of tripped” plaintiff, and plaintiff
“fell on the ground,” hitting his head. Plaintiff blacked out “for a
bit.” When he came to, he went to where Turner was standing
and Turner called a nurse. Plaintiff told the nurse “ ‘Andrew
tripped me and my head just started hurting a lot.’ ”
B. Turner’s testimony
Turner testified he asked his kindergarten students to
participate in a warm-up run on the blacktop. On his whistle,
groups of six students at a time would start running on the
blacktop 120 feet to a fence, and then run back. Plaintiff and
Andrew were in the same group, and as students were running
back, Turner observed in his peripheral vision plaintiff colliding
with another student and falling. Although the school had a
grassy area and an outdoor area with a rubber ground surface,
Turner instructed the students to run on the blacktop. According
to Turner, the students “were not allowed to be on” the grass
because “it was still growing.”
4
C. The District’s expert, Dr. Fraisse
At trial, the District called expert witness Dr. Robert
Fraisse, a retired school superintendent, school administrator,
teacher, and coach. Dr. Fraisse testified the Physical Education
Framework for California Public Schools is the blueprint
California school districts use for drafting lesson plans. It was
Dr. Fraisse’s opinion that the running activity in which plaintiff
participated was consistent with the standards set by the section
on P.E. for kindergarten students. The “commonsense
supervision standard” requires teachers to always be “within
sight and sound of their students,” and, here, Turner met that
standard.
On cross-examination, plaintiff’s counsel quoted from Dr.
Fraisse’s deposition where he was asked whether Turner should
have instructed the students to run “on the grass surface
immediately adjacent to the asphalt surface.” Dr. Fraisse
responded, “I’m not sure if the grass was sufficient to run that
activity and I don’t think in all cases grass is as soft a landing
than asphalt. Depends on the watering system and so forth.” Dr.
Fraisse also testified that he could not opine on why Turner
“made that decision . . . without knowing what the field looked
like in June,” when the accident happened.
D. Plaintiff’s expert, Brad Avrit
Plaintiff’s expert Avrit testified at trial, reiterating his
prior statements made in opposition to summary judgment. 3 He
3 The District moved in limine to exclude Avrit’s testimony
on the same grounds it had raised in support of summary
judgment. The record does not reveal whether the trial court
ruled on the motion.
5
listed his qualifications as a licensed civil engineer and president
of a company that does “construction management work,” “safety
engineering services,” “property assessments,” and “forensic
engineering.” Avrit described the “outdoor area” at the school as
including a lawn and a blacktop. He opined that Turner should
have chosen to hold the running activity on grass or “a rubberized
track surface.”
As he did in the summary judgment proceedings, Avrit
again offered that “the way this activity was designed and the
children were asked to conduct it . . . was uncontrolled and
significantly increased the risk of a collision or loss of balance
. . . .” Avrit also testified that plaintiff and his classmates were
not “properly supervised.”
The District’s counsel objected, and the court sustained the
objection “as to supervision” on the ground it was beyond the
scope of Avrit’s expertise. The court expressly declined to strike
any of Avrit’s remaining testimony. Despite the court’s ruling,
Avrit proceeded to testify that the running activity was not
“reasonably safe” because “the activity is required to be [] directly
supervised.” When the District’s counsel renewed his objection,
the court reversed course, allowing Avrit to testify on supervision
based on his experience investigating “school safety incidents.”
E. The Verdict
The jury returned a verdict against the District and
Turner, finding they had been negligent. The jury apportioned
100 percent of the fault to the District and Turner and awarded
plaintiff $5.75 million in damages.
F. Motions for New Trial and JNOV
The District moved for a new trial on several grounds: the
evidence of negligence and damages was legally insufficient,
6
evidentiary errors deprived the District of a fair trial, and
misconduct by plaintiff’s counsel required reversal. The court
granted the motion for new trial only as to damages and
conditioned it upon plaintiff’s rejection of the court’s remittitur
reducing damages to $1.25 million. Plaintiff rejected the
remittitur. The trial court’s minute order did not discuss the
other grounds for new trial, thus impliedly rejecting them. The
court limited the new trial to damages.
The District also moved for JNOV due to insufficiency of
the evidence. The court denied JNOV. The District and Turner
timely appealed.
G. Attorney Misconduct
One of the grounds on which the District seeks reversal is
misconduct of counsel. Although we do not decide the case on that
ground, canon 3D(2) of the California Code of Judicial Ethics
requires a judicial officer to take appropriate corrective action
when he or she has knowledge of attorney misconduct.4 We begin
by describing the misconduct.
4 Canon 3D(2) of the California Code of Judicial Ethics
provides: “Whenever a judge has personal knowledge, or
concludes in a judicial decision, that a lawyer has committed
misconduct or has violated any provision of the Rules of
Professional Conduct, the judge shall take appropriate corrective
action, which may include reporting the violation to the
appropriate authority.” The Advisory Committee commentary to
Canon 3D(2) further explains appropriate corrective action may
include “writing about the misconduct in a judicial decision.”
7
First, plaintiff’s trial counsel Keith J. Bruno made the
following statements during closing argument.5
“I don’t know what ultimately you’ll do, but I’ll find
out soon. And no matter what happens, if nothing else, I’ll
get that piece of paper with your names on it and I’ll know
how much you appraised [plaintiff’s] brain and how much
you appraised what happened here. Your signatures will
be on that and I’ll give it to them. I’ll hand it to them and
they’ll know from you, from citizens of Long Beach, what
this was worth.
When I say I love my job, those are the times I do.
I’ve seen jurors do the right thing and deliver full justice
time and time again. And those are the jurors, when the
judge says you can wait out in the hallway, those are the
jurors that hug the family and hug the kids and stay and
talk and say we hope plaintiff – we want him to get better.
We hope this brings you some peace. And then I’ve seen
the opposite, too. The justice isn’t done and the jurors take
off down the hallway and leave as quickly as they can.
One is better than the other.”
After closing argument, Juror No. 2 gave the trial court a
letter stating, “During final closing statements and instructions, I
discovered that my name and decision will be public information
and provided to the parties. The entire time I believed my
decision would remain anonymous. . . . I now know why
[plaintiff’s] counsel didn’t excuse me from the case . . . I strongly
believe counsel’s decision to keep me is because of my ties to the
5 Bruno represented plaintiff throughout the trial court
proceedings. He is not attorney of record on appeal.
8
community and that this would create a bias in his favor.” Juror
No. 2 was observed by plaintiff’s other attorney, Kyle Scott, to be
“crying in front of other jurors” in the hallway. The court excused
Juror No. 2 and appointed an alternate.
By these comments, trial counsel directly appealed to the
jurors’ personal self-interest when he said he would ensure
plaintiff’s parents knew each juror’s name and verdict, and
suggested that plaintiff’s parents would either be grateful to the
jury, giving out hugs, or angry at them, causing the jurors
fearfully “take off down the hallway and leave as quickly as they
can.” “An attorney’s appeal in closing argument to the jurors’
self-interest is improper and thus is misconduct because such
arguments tend to undermine the jury’s impartiality. [Citation.]”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796; see Du
Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 179
[counsel’s argument was misconduct where counsel “appealed
directly to the jurors’ personal passions and prejudices”].)
Second, plaintiff’s trial counsel made repeated references in
opening, closing, and cross-examination to the District’s
unsuccessful motion for summary judgment in violation of Code
of Civil Procedure section 437c, subdivision (n)(3). Third,
plaintiff’s trial counsel urged the jury to find that Turner was
using his cell phone at the time of the accident when there was
no evidence of such and counsel’s statements violated the trial
court’s express ruling prohibiting the argument.
The District points to several additional acts of misconduct:
plaintiff’s trial counsel (1) implored the jury to see plaintiff as
their own son, (2) asked the jury to teach the District a lesson,
(3) repeatedly commented on the District’s insurance, and
9
(4) emphasized the District’s financial resources compared to that
of plaintiff’s family.
DISCUSSION
The District contends on appeal that the trial court should
have granted JNOV or, in the alternative, a new trial on all
issues for the same reasons offered in its posttrial motions — that
is, misconduct of counsel, insufficiency of the evidence, and
evidentiary errors including in the admission of expert testimony.
As we discuss, we conclude as a matter of law the evidence was
insufficient to demonstrate negligence on the part of the District
and the trial court erred when it denied the District’ JNOV.
We begin our analysis by considering the standard of
review for denial of JNOV and the law on school district liability
for negligence.
1. Standard of Review for Denial of JNOV
“ ‘ “The purpose of a motion for judgment notwithstanding
the verdict is not to afford a review of the jury’s deliberation but
to prevent a miscarriage of justice in those cases where the
verdict rendered is without foundation.” [Citation.]’ [Citation.]”
(Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280,
284.) We review the denial of JNOV to determine “whether there
is any substantial evidence, contradicted or uncontradicted,
supporting the jury’s verdict.” (Brennan v. Townsend & O’Leary
Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1345.)
The testimony of a single witness may be substantial
evidence, including the testimony of an expert. But, “when an
expert bases his or her conclusion on factors that are ‘speculative,
remote or conjectural,’ or on ‘assumptions . . . not supported by
the record,’ the expert’s opinion ‘cannot rise to the dignity of
substantial evidence’ . . . . [Citations.]” (Wise v. DLA Piper LLP
10
(US) (2013) 220 Cal.App.4th 1180, 1191–1192; see Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117–1118 (Jennings); Johnson & Johnson Talcum Powder
Cases (2019) 37 Cal.App.5th 292, 314 (Talcum Powder Cases).)
“Therefore, an expert’s opinion that something could be true if
certain assumed facts are true, without any foundation for
concluding those assumed facts exist in the case before the jury,
does not provide assistance to the jury because the jury is
charged with determining what occurred in the case before it, not
hypothetical possibilities.” (Jennings, at p. 1117.)
2. School District Liability for Negligence
To establish negligence, a plaintiff must prove duty, breach,
causation, and damages. (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618.)
“As a general matter there is no duty to act to protect
others from the conduct of third parties. [Citation.] One
exception to that general rule is found in the ‘special relationship’
doctrine. A defendant may owe an affirmative duty to protect
another from the conduct of third parties, or to assist another
who has been attacked by third parties, if he or she has a ‘special
relationship’ with the other person.” (Morris v. De La Torre
(2005) 36 Cal.4th 260, 269.)
A school district has a special relationship with students
“arising from the mandatory character of school attendance and
the comprehensive control over students exercised by school
personnel, ‘analogous in many ways to the relationship between
parents and their children.’ [Citations.] Because of this special
relationship, imposing obligations beyond what each person
generally owes others . . . the duty of care owed by school
personnel includes the duty to use reasonable measures to
11
protect students from foreseeable injury at the hands of third
parties acting negligently or intentionally. This principle has
been applied in cases of employees’ alleged negligence resulting
in injury to a student by another student . . . . [Citation.]” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 869–870 (Hart).)6
3. Sufficiency of the Evidence
The District contends the proximate cause of plaintiff’s
injury was classmate Andrew’s actions rather than any act or
omission by teacher Turner. Plaintiff, in turn, attributes
Andrew’s collision with him to Turner’s inadequate supervision
and unsafe design of the run. He relies on expert Avrit’s
testimony that Turner could have prevented the accident if he
had more actively supervised the activity. Avrit also testified the
design of the run increased the potential for collisions and
Turner’s decision to hold the run on asphalt increased the risk of
serious injury. We consider each of the factors identified by
plaintiff to determine whether any of them constitutes
6 In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, the
Supreme Court clarified the applicable framework for
determining whether a defendant has a duty to protect a plaintiff
from harm caused by a third party. The high court established a
two-part inquiry: “First, the court must determine whether there
exists a special relationship between the parties or some other set
of circumstances giving rise to an affirmative duty to protect.
Second, if so, the court must consult the factors described in
Rowland [v. Christian (1968) 69 Cal.2d 108] to determine
whether relevant policy considerations counsel limiting that
duty.” (Id. at p. 209.) The District does not assert the Rowland
factors limited its duty to plaintiff.
12
substantial evidence to support a finding that Turner’s acts or
omissions caused plaintiff’s injury or breached a duty to plaintiff.
A. Lack of Supervision
It was Avrit’s opinion at trial that Turner failed to
adequately supervise the children because he was standing away
from the run and setting up for the next activity rather than
paying close attention to the students.7 According to Avrit,
Turner should have stood in the middle of the activity, directed
the children where to run, and corrected their behavior. We
conclude Avrit’s testimony did not constitute substantial evidence
of inadequate supervision resulting in plaintiff’s injury.
Our Supreme Court has described a school district’s duty of
supervision as follows: “ ‘While school districts and their
employees have never been considered insurers of the physical
safety of students, 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. [Citations.]” ’
[Citations.] The standard of care imposed upon school personnel
in carrying out this 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 circumstances.’ ” [Citations.] Either a
7 For purposes of our decision, we need not decide whether
the trial court erred in allowing plaintiff’s expert to testify on the
standard of care for school supervision. The court so ruled after
it initially stated that Avrit was unqualified to testify on that
topic and after Judge Klein found Avrit unqualified to opine on
the standard of care for elementary school teachers on summary
adjudication.
13
total lack of supervision [citation] or ineffective supervision
[citation] may constitute a lack of ordinary care on the part of
those responsible for student supervision.’ ” (Hart, supra,
53 Cal.4th at p. 869.)
The duty to supervise is not unremitting: The “constant
supervision of all movements of pupils at all times . . . is clearly
not the law.” (Woodsmall v. Mt. Diablo Unified School Dist.
(1961) 188 Cal.App.2d 262, 267 (Woodsmall).) “A contrary
conclusion would unreasonably ‘require virtual round-the-clock
supervision or prison-tight security for school premises, . . .’ ”
(Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d
1448, 1459.)
In school supervision cases, appellate courts have required
more than the mere assertion that additional supervision would
have prevented the unanticipated injury. “When an injury occurs
despite a defendant’s efforts to provide security or supervision, it
is relatively easy to claim that, ipso facto, the security or
supervision provided was ineffective. Without more, such claims
fail.” (Thompson v. Sacramento City Unified School Dist. (2003)
107 Cal.App.4th 1352, 1370 (Thompson).) “To establish
causation, plaintiff must demonstrate that a particular omission
caused the injury.” (Id. at p. 1370.)
In Thompson, the plaintiff was attacked by two other
students in a school restroom during the lunch period.
(Thompson, supra, 107 Cal.App.4th at p. 1358.) The evidence
demonstrated a campus monitor looked into the restroom just
before the fight. He returned two minutes later when he noticed
students going towards the restroom. (Id. at p. 1360.)
The plaintiff presented evidence from a certified protection
professional and security consultant who criticized the school’s
14
security measures and opined that the plaintiff would not have
been attacked if there had been effective supervision in the area
during the lunch period. The court held this type of expert
declaration was insufficient to establish a cause of action for
negligence because “while expert criticism of the defendant’s
security measures may establish abstract negligence, an expert’s
speculative and conjectural conclusion that different measures
might have prevented an injury cannot be relied upon to
establish causation.” (Thompson, supra, 107 Cal.App.4th at
pp. 1372–1373.)
In Woodsmall, supra, 188 Cal.App.2d at page 263, a
student suffered injuries when another student pushed him into
a basketball pole. No teachers or other supervisory personnel
were on the playground at the time. The court found “the
uncontroverted evidence leads to the conclusion that supervision
would have made no difference as the proximate cause of the
accident was the pupil who pushed [the plaintiff].” (Id. at
pp. 264-265; see also Wright v. City of San Bernardino High Sch.
Dist. (1953) 121 Cal.App.2d 342, [“the danger which suddenly
developed could not reasonably be said to have resulted from or
been caused by the absence of the teacher.”].)
By contrast, a school may be found to be negligent where it
failed to provide any supervision for conduct that could have been
prevented. (Dailey v. Los Angeles Unified Sch. Dist. (1970)
2 Cal.3d 741 [the teachers did not hear or see the 10-minute slap
boxing match, which attracted a crowd of approximately 30
spectators, and which took place within a few feet of the gym,
where two teachers were sitting inside]; Forgnone v. Salvador
Union Elementary School Dist. (1940) 41 Cal.App.2d 423, 426–
427 [no supervision in a classroom during the lunch hour where
15
child’s arm was twisted and fractured]; Tymkowicz v. San Jose
Unified School Dist. (1957) 151 Cal.App.2d 517, 520 [no
supervision in yard where a child held his breath while another
squeezed him tightly around the chest until he lost
consciousness].) A school may also be found negligent where
supervision was provided but the supervisor allowed the
dangerous conduct to continue. (Buzzard v. East Lake School
Dist. (1939) 34 Cal.App.2d 316, 318–319 [students allowed to ride
bicycles where other students played at recess].) Those
circumstances did not exist in this case.
Instead, as in Thompson, Woodsmall, and Murphy, “the
uncontroverted evidence leads to the conclusion that supervision
would have made no difference.” (Woodsmall, supra,
188 Cal.App.2d at p. 264.) The evidence is that the accident
occurred suddenly and greater supervision would not have
prevented it. Avrit acknowledged he did not know what Turner
could have done to stop the collision between the boys. 8 Plaintiff
8 At trial, Avrit testified as follows:
Q And at your deposition, you both agreed that Andrew
veering over to the right and veering back to the left
occurred in a matter of seconds, right?
A Yes
Q Now, what can Mr. Turner have done – well, was
there any evidence that Andrew announced to Kody that he
was going to veer to the right and come back?
A No
Q So given this occurred in a matter of seconds, Andrew
did not forewarn anybody he was going to do this, what
could Mr. Turner have done to stop this collision?
16
testified the accident occurred “pretty quickly” and it
“surprise[d]” him.
Like the plaintiff in Thompson, plaintiff here presented
expert testimony criticizing Turner’s supervision and opining
that it could have been better. But there was no evidence that
better supervision—that is, Turner standing in the middle of the
run and directing each of the approximately dozen students
running at any one time along a 180-foot route—would have
prevented Andrew from tripping plaintiff.9 Avrit’s “speculative
and conjectural conclusion that different measures might have
prevented an injury cannot be relied upon to establish causation.”
(Thompson, supra, 107 Cal.App.4th at pp. 1372–1373.) Plaintiff
failed to show a causal link between his injury and any negligent
failure to supervise by Turner.
B. The Design of the Run
Avrit next opined the run was unsafe because Turner
instructed the children to run directly at each other, which
increased the risk of a head-on collision or could cause them to
lose their balance while trying to avoid a collision with an
oncoming student.
First, it was undisputed plaintiff’s injury was not caused by
a head-on collision. Second, the record was bereft of evidence
A I don’t know. I don’t know enough about exactly what
happened. He would have to be there to be able to say
whether or not Andrew would be the – left his direct path
and for what reason. We can’t tell because there isn’t an
eyewitness that saw the reasoning behind why Andrew
veered off.
9 Turner testified each group consisted of approximately six
children. Avrit estimated one leg of the route to be 180 feet.
17
that Andrew was trying to avoid an oncoming student when he
collided with plaintiff. Avrit acknowledged there was no evidence
that Andrew was trying to avoid an oncoming student since “[t]he
teacher didn’t see it. So we don’t have an eyewitness and we
don’t have testimony from Andrew.” Turner testified he only saw
the students fall from his peripheral vision but did not believe
Andrew was trying to avoid an oncoming student when he
tripped plaintiff. Turner further testified without contradiction
that students ran at varying speeds, with some taking up to five
minutes to walk the lap, which created additional space between
the runners.
Plaintiff testified he and Andrew had reached the backstop,
touched it, and had turned around for the final leg of their run.
He testified Andrew then veered over to the right by
approximately seven steps and then veered back into plaintiff,
tripping him. Plaintiff did not testify that he observed Andrew
was attempting to avoid one or more oncoming students at the
time of the collision. He instead testified it happened suddenly
and “it was a surprise.”
Because the predicate to Avrit’s opinion—that Andrew was
trying to avoid an oncoming student—relied purely on
speculation or an assumption unsupported by the record, Avrit’s
opinion that the design of the run was unsafe due to oncoming
runners “cannot rise to the dignity of substantial evidence.”
(Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d
1113, 1135–1136; Talcum Powder Cases, supra, 37 Cal.App.5th at
p. 314.)
Nor does the evidence show that Avrit’s suggestions for a
better-designed run would have prevented Andrew from tripping
plaintiff. Avrit suggested the children run in an oval or in lanes
18
separated by cones. There was no evidence that this design likely
would have prevented Andrew from tripping plaintiff as the two
boys would still have been running side by side. Avrit also
suggested the children be released in intervals, spread out, and
told to run to a different stopping point. These measures would
not have prevented the accident since Turner did release the
children in intervals and in small groups to spread them out.
Plaintiff testified Andrew took approximately seven steps away
from him (and presumably seven steps back towards him) before
tripping him. Given this testimony, Avrit’s testimony that the
children should have been separated by a greater distance to
avoid collision was speculative. As to the children running to a
different stopping point, that would not have prevented the
accident because it is undisputed a head-on collision did not occur
and Andrew would still have run by plaintiff’s side.
C. The Use of Asphalt
We next turn to Avrit’s criticism of Turner’s decision to
direct the children run on asphalt rather than grass or
rubberized track, thus “increas[ing] the risk of a more serious
injury if they were to fall for any reason.” The District contends
Avrit’s testimony was improperly admitted because the issue of
whether asphalt is a dangerous condition was summarily
adjudicated by Judge Klein. Plaintiff asserts the District
misapprehends his argument at trial. He acknowledges,
“Asphalt itself is not a dangerous condition.” According to
plaintiff, he did not argue that the asphalt itself was unsafe but
that the manner in which it was used was unsafe.10 His theory at
10 Although plaintiff acknowledges asphalt is not a dangerous
condition, he continues to assert the run should not have been
19
trial was that Turner’s decision to hold the run on asphalt fell
below the standard of care due to the high risk of falls caused by
how the activity was designed and the risk of serious injury
should a young child fall on asphalt rather than a softer surface.
In support, Plaintiff relies on Avrit’s opinion regarding the
safety of the run in general. Avrit briefly testified he reached his
opinion after conducting a site inspection, reviewing the
depositions and other evidence, and considering the “standards
by which . . . recess and such is supposed to be conducted.” Aside
from his conclusion the run was unsafe, Avrit did not testify how
the run fell below the standard of care. He failed to identify what
standards he used or how the design of the run deviated from
these standards. This is not substantial evidence to support a
finding that Turner’s conduct fell below the standard of care.
(Taylor v. Trimble (2017) 13 Cal.App.5th 934, 945, fn. 15 [“An
expert opinion that does not contain ‘a reasoned explanation
illuminating why the facts have convinced the expert’ need not be
relied on”]; see Evid. Code, § 802 [“A witness testifying in the
held on asphalt because the run was not designed to be safe on
that surface. In the summary adjudication ruling that the
asphalt did not create a dangerous condition, Judge Klein
rejected this argument and Avrit’s testimony that supported it.
Judge Klein reasoned, “To the extent that Plaintiff claims that
asking kindergarteners to run in a group on such a surface, the
condition of the property itself is not implicated. The Court has
sustained objections to the Avrit declaration which purported the
surface is dangerous. He had no foundation for his
characterization of students ‘running in a chaotic and
uncontrolled fashion.’ Even if the Court accepted that as
competent, it does not transform an ordinary asphalt surface into
a ‘dangerous condition.’ ” Plaintiff did not via cross appeal
challenge Judge Klein’s ruling.
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form of an opinion may state . . . the reasons for his opinion and
the matter . . . upon which it is based . . .”].)
On the other hand, the District presented expert testimony
regarding the “blueprint” used by California school districts for
drafting lesson plans for physical education. Its expert, Dr.
Fraisse, identified how the standards were established, set out
what the standards were, and testified how the run was
consistent with these standards.
We are mindful of the deferential standard of review for
denial of a motion for JNOV: we must affirm if substantial
evidence — contradicted or uncontradicted — supports the jury’s
conclusion. After our review of the evidence, we conclude that it
was legally insufficient for the jury to have found for plaintiff on
causation and breach of duty. The trial court improperly denied
the District’s JNOV motion. Given our conclusion, we need not
consider the remaining arguments raised by the District on
appeal.
DISPOSITION
The trial court’s denial of the District’s JNOV motion is
reversed. The trial court is directed to enter an order granting
the District’s JNOV motion. The trial court’s order granting the
District’s motion for a new trial on damages is vacated as moot.
The parties are to bear their own costs on appeal.
RUBIN, P. J.
WE CONCUR:
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BAKER, J.
KIM, J.
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