Wednesday, August 22, 2007
C.A. Revives Suit Against LAUSD Over Lunchtime Supervision
By KENNETH OFGANG, Staff Writer
An elementary school student who suffered an eye injury when hit by a flying utensil has a viable negligence claim against the Los Angeles Unified School District, the Court of Appeal for this district ruled yesterday.
Div. Seven, in an unpublished opinion by Justice Earl Johnson Jr., said there was evidence from which a jury might decide that a lack of supervision at Sierra Park Elementary School in Los Angeles was a legal cause of the injury suffered by Rudy Plazola Jr., a second grader at the time of the November 2002 incident.
The plaintiff’s evidence in opposition to summary judgment showed that the injury occurred on a rainy day, when the school was on an “inclement weather schedule” requiring students to eat lunch in the auditorium. An assistant principal and six “supervision aides” were scheduled to be present to oversee approximately 200 students during the time that Rudy was at lunch.
The injury allegedly occurred when a friend of Rudy’s, identified only as Peter P., tried to flick a “spork”— a combination spoon and fork—with an orange peel on it through the air. The spork hit Rudy in the right eye.
The district responded with declarations from the assistant principal and a supervision aide that they and their colleagues were in their assigned positions when the injury occurred, and that one of the declarants was in fact 10 feet away at the time of the incident and began moving toward Peter as soon as she saw him “with a spork in one hand and an orange peel in his other hand.”
Los Angeles Superior Court Judge Conrad Aragon ruled for the school district, but Johnson expressed concern “with the evidence indicating the supervisors...were not doing any supervising at the time the incident occurred.”
He cited Peter’s deposition testimony that the supervision aides were standing together, about 35 feet away, and talking to each other, along with Rudy’s testimony that only one aide was in sight after the incident.
“A jury must hear the testimony and decide whether it believes the Supervision Aides were paying attention and doing their jobs as supervisors or whether they were engrossed in conversation with each other and not monitoring the children’s behavior at the time the incident occurred,” the justice declared.
Johnson went on to say that the plaintiff presented sufficient evidence of causation, since a reasonable jury might infer that Peter believed he could get away with breaking the rules because the “lunch ladies,” as he called them” were talking to each other instead of supervising the pupils.
He also noted testimony that other students were flicking objects before the incident in which Rudy was injured, suggesting that if the aides were properly doing their jobs, they would have admonished the students.
The panel did side with the district, however, in concluding that the plaintiff cannot maintain a cause of action for negligence per se, based on regulations requiring that school activities be supervised by certificated employees.
The undisputed evidence, Johnson explained, is that the assistant principal—a certificated employee—was in the auditorium at the time of the incident.
Attorneys on appeal were Michael J. Hemming for the plaintiff and Calvin House and Sarosh Qaiser of Gutierrez, Preciado and House for LAUSD.
The case is Plazola v. Los Angeles Unified School District, B188990.
Copyright 2007, Metropolitan News Company