Rodrigues v. San Jose Unified School Dist.

157 Cal.App.2d 842 (1958) JULIAN RODRIGUES et al., Appellants,

v.

SAN JOSE UNIFIED SCHOOL DISTRICT, Respondent.

Civ. No. 17527. California Court of Appeals. First Dist., Div. One.

Feb. 25, 1958. Edwin H. Williams for Appellants.

Weinstock, Anderson, Maloney & Chase for Respondent. [845]

McMURRAY, J. pro tem. [fn. *]

Bobby Rodrigues, a 6-year old, first grade pupil in the Horace Mann Elementary School, which is in defendant's district, was found lying unconscious on the blacktopped playground under a horizontal bar which was a piece of playground apparatus in the first grade play area of the school; this was during the noon recess and Bobby was bleeding from a head injury. He was taken to the emergency hospital and died some three and a half hours later as a result of his skull injury.

Mr. and Mrs. Rodrigues, the parents of the deceased boy, sued seeking damages for his wrongful death and this appeal is from a judgment in favor of defendant entered upon a jury verdict.

Appellants first assert that respondent's negligence is established as a matter of law by uncontroverted evidence. There is evidence that Bobby suffered from a type of cerebral palsy and from congenital heart disease, and that he would occasionally have seizures which would affect his vision and cause tremor of the hands which conditions were noticed by his first grade teacher. This teacher had discussed these seizures with Bobby's mother who stated that he could take care of himself and asked the teacher not to tell others of the boy's condition. The teacher had also talked with Bobby who stated that he should not climb on things.

If this testimony were believed by the jury and it felt that the teacher acted as a reasonable person under these circumstances in not communicating Bobby's physical deficiency to others charged with his supervision, appellants' assertion that by reason of Bobby's condition respondent was negligent as a matter of law in not providing him closer supervision fails.

[1] Although Education Code, section 13229, provides in part, "Every teacher in the public schools shall hold pupils to a strict account for their conduct ... on the playgrounds, or during recess," this does not make school districts insurers of the safety of pupils at play or elsewhere (Goodman v. Pasadena City H.S. Dist., 4 Cal.App.2d 65, 68 [40 P.2d 854]). [2] A district's liability is predicated upon section 1007 of the Education Code which provides that a district is liable for damages for injuries arising because of the negligence of the district, its officers or employees and whether or not a district is negligent in affording supervision of pupils on the playground is a question of fact (Tymkowicz v. San Jose etc. Sch. Dist., 151 Cal.App.2d 517, 521 [312 P.2d 388]) unless