Kerwin v. County of San Mateo

BRAY, P. J.

Plaintiffs appeal from a judgment in favor of Jefferson Elementary School District (hereinafter referred to as defendant) entered after order sustaining demurrer to first amended complaint without leave to amend.

[306]

Question Presented

Did defendant owe any duty to plaintiff minor to protect him on his way home from his brother’s school

1

Record

The complaint alleged:

Plaintiff, 11-year-old Richard Courtney, and his brother, 6-year-old Thomas, were pupils of defendant school district. Thomas attended Garden Village School and Richard attended Benjamin Franklin School. On May 14, 1956, Thomas became ill while in attendance at the Garden Village School. The school authorities called Thomas’ home and directed Richard, who was at home alone and absent from school because of illness, to come to the Garden Village School and take Thomas home. Richard then proceeded to the school on a bicycle built for one rider. The complaint then alleged: “When said plaintiff complied with defendants’ directions and instructions, as aforesaid, he became, was and continued under their control, care, management and supervision. At said time and place, defendants negligently and carelessly supervised, controlled, managed and cared for said plaintiff and his said brother Thomas and negligently and carelessly undertook to provide transportation for said plaintiff and his said brother to their home, in that defendants, well knowing that said plaintiff and his said brother both were students and pupils of defendant school district and subject to the control, care, management, rules, instructions and supervision of defendants, failed and neglected to investigate, inspect and ascertain the mode and means of transportation to be used by said minors, and the safety and adequacy thereof, and negligently and carelessly failed and omitted to arrange for and provide a safe and adequate mode and means of transportation for said minors, and negligently and carelessly ordered, directed and instructed said plaintiff then and there to transport his said brother and himself from said school toward their said home on means of transportation to be selected by said plaintiff, and negligently and carelessly permitted both of said minors to ride from said school toward their said home on a bicycle built for one rider. Pursuant to the directions and instructions of defendants, as aforesaid, said plaintiff did endeavor to so transport his said brother and himself upon said bicycle and from said school. Said bicycle was an inadequate unsafe and dangerous mode and means of transporting both of said minors, and defendants knew or should have known it was so inadequate, unsafe and dangerous. ’ ’ As