Luna v. Needles Elementary School District

This is an action for damages for an injury suffered by the minor plaintiff, a pupil at a kindergarten maintained by the defendant, which resulted in the loss of his left index finger to the first joint. The accident happened on September 26, 1952, which was the minor plaintiff’s fifth birthday. It appears from a map in evidence that this kindergarten building was toward the rear of the school grounds, and there was a black-top sidewalk leading from

The complaint alleged that the boy’s finger was cut or pinched off and that he suffered this injury by reason of the dangerous condition and imperfect construction of this gate, and “by reason of the negligence of said defendant district and its employees in conducting and supervising said kindergarten school.”

At the time of the trial, April 2, 1956, the minor plaintiff was 8% years old. The boy’s sister testified that her mother called her and asked her to go and see about this matter, and that she met the boy and the nurse at the doctor’s office. She also testified about what later happened at their home. The boy’s mother testified that the boy’s teacher phoned her about five minutes to three on that day and that “I called my daughter-to go after him.” She also testified that the boy went back to school in about a week and a half, and that since the accident “he feels kind of ashamed and shy, he is kind of shyish. ’ ’

The only evidence relating to the accident itself or how or why it happened consists of the map of the school grounds, several photographs of the gate and the near-by kindergarten room, and the testimony of the minor plaintiff. The gate appears to be a well constructed iron or steel gate of the usual type, and opened by a spring lever the handle of which is well above the top of the gate. The gate is apparently some 20 or 30 feet from a door into the kindergarten room.

The minor plaintiff first testified that he did not remember the day he was hurt, and did not remember anything about it. He later testified that he was going to this kindergarten but did not remember how long he had been going; that he hurt his finger in the gate; that he was climbing up the fence and was going to sit on top of it; that as he was climbing on the fence the gate was open; and that other children were there. When asked how his finger got hurt he replied: ‘1 He

After producing tMs evidence the plaintiffs rested and the defendant moved for a nonsmt on the grounds that there was no proof that any dangerous or defective condition existed of which the school board had any knowledge, and that there was no proof of proper service of a claim as required by law. In the argument wMch followed the plaintiffs offered to produce further evidence as to a proper serving of a claim, and the other issue as to whether there was any negligence on the part of the defendant in failing to have proper supervision at the time and place in question was also fully argued and considered. The court pointed out that there was no evidence of any defective condition with respect to tMs wall or gate; that there was no evidence that the accident occurred at recess time, or that the boy was on the playground in connection with school activities; that there was no evidence concerning supervision, or its necessity, or whether or not supervision of any

The appellants first contend that, in view of the overwhelming evidence showing the district’s negligence in failing to provide proper supervision of the pupils in the kindergarten, the court’s action in granting the nonsuit may have been based on a supposed lack of evidence with respect to filing and serving the claim for damages. It clearly appears from the record that this matter had no controlling effect on the order made.

It is next contended that the evidence was sufficient to show negligence of the school district in the matter of supervision. It is argued that the fact that only the teacher came when the boy was hurt shows that there was no other person, such as a playground director, actually present on duty; that the gate was swinging open and children were swinging on the gate and climbing on the fence although they had been told not to do so; and that even if some other person were present who was supposed to be on duty he was not giving the attention and supervision which was required, and such failure was the cause of the accident. It is further contended that the same evidence which supports the claim of negligence supports the claim that this property was in a dangerous and defective condition. It is argued that the map shows that the gate in question is in a cement and masonry fence surrounding the kindergarten playground; that it is a service gate only and not intended for use of the teachers and pupils; that a heavy steel gate which can easily be opened by kindergarten children is a dangerous equipment on a kindergarten playground; that this fact was recognized because the teacher had told the children that they must not climb on the fence

There is no evidence that would justify the inference that this gate was improperly designed or that it was in a dangerous or defective condition, considered in relation to its ordinary, usual and customary use, which should have been known to the defendant district. (Woodman v. Hemet Union High Sch. Dist., 136 Cal.App. 544 [ 29 P.2d 257 ].) There is no evidence that any accident had previously happened in that connection or that the respondent had notice of any dangerous character in the existing condition. (Howard v. City of Fresno, 22 Cal.App.2d 41 [ 70 P.2d 502 ].) The danger of having a finger caught by opening or closing this gate was exactly the same as that which appears in connection with the opening or closing of any door or gate.

The standard of care required of any officer or employee of such a school is that which a person of ordinary prudence, charged with his duties, would exercise under the same circumstances. (Pirkle v. Oakdale Union Grammar Sch. Dist., 40 Cal.2d 207 [ 253 P.2d 1 ].) There is no evidence here as to whether this accident occurred at a recess, whether school had closed for the day, or whether this boy had previously gone out to the main entrance. There is no evidence that the gate was used only as a service gate or that it was not used for the ingress or egress of kindergarten pupils. So far as appears from the record, school may have closed and there may have been no more than two other pupils there, aside from the boy who was hurt. The accident occurred while the boy was climbing the wall (although he had been told not to do so), by the action of another boy who may have been merely on his way out of the gate. There is no evidence as to what the teacher was doing at the time or how long she had been in the room. There was no substantial evidence to show negligence on the part of the teacher, and negligence could not be inferred from the mere fact that the accident occurred on school ground while the teacher was not at the particular spot at that moment. There is no evidence that would justify the inference that this teacher should reasonably have expected not only that this boy would climb