Metropolitan News-Enterprise


Monday, March 29, 2010


Page 1


C.A.: Duty Owed to Students in After-School Programs


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal has revived a suit against the Los Angeles Unified School District by an elementary school student who was physically and sexually assaulted after school on school grounds by her peers.

Div. Three on Thursday rejected Los Angeles Superior Court Judge Michael R. Hoff’s conclusion that school districts owe students an affirmative duty of care due to the compulsory nature of education, but have no such duty when it comes to voluntary after-school programs.

The minor, identified as “J.H.” and then-7 years old, was attending the district’s free after-school playground program in April 2005 and playing with first- and second-grade students in a “kissing club” when one member—another girl—pulled her into an unlocked storage shed, slapped her repeatedly and ordered her to have sex with a boy in the group, who was present in the shed.

She said the incident followed another two days earlier when the boy forcibly kissed her against her will at the group’s encouragement.

Students in the program were not supposed to be on the side of the campus where the shed was located, but the minor claimed the school provided, at most, two adults to supervise the 200 to 300 children on the playground during the program.

The minor sued the district for negligent supervision and other claims. She argued that the school had a special relationship to students and an affirmative duty to protect them, which it violated by failing to provide adequate supervision, failing to break up or monitor the kissing club, and failing to lock the shed and deny access to it.

The district denied the allegations and sought summary judgment. It contended that any special relationship ended when the minor and the others left the part of the campus where program participants were allowed, and that it had no duty to protect the minor because the incidents were not foreseeable.

Hoff granted the request, ruling not only that schools generally owe no duty of care to children participating in voluntary after-school programs, but that the district had no special duty to the minor or the other children in the shed because there was no evidence it was aware the other children had sexual proclivities towards the minor or others.

Presiding Justice Joan Dempsey Klein, however, wrote on appeal that schools have a special relationship to supervise children on their premises, including participants in voluntary programs, giving rise to a duty to provide children reasonable protection.

She also said that the degree of care owed is inversely proportional to a child’s level of maturity, and instructed Hoff to determine whether the district was negligent in running the after-school program and, if so, whether that was the proximate cause of the minor’s injuries.

In doing so, the justice noted:

“Plaintiff need not show that the very type of injury she sustained was foreseeable in the absence of adequate supervision….[A]lthough one might argue that the instant case raises the question whether it is foreseeable that first and second grade students would sexually assault plaintiff, the question is accurately framed as whether it is foreseeable that one child may be assaulted by another child during the [after school program] in the absence of adequate protective safeguards….

“Although a sexual assault on a young student by a child of similar age is shocking, nevertheless playground supervisors are required to be on the lookout for the safety of their charges, including assaults on children, not just for specific forms of assault.”

Representatives of the law firm Carlson & Messer, which represented the district, could not be reached for comment.

Kreindler & Kreindler attorney Stuart R. Fraenkel, co-counsel for the minor, said he was “absolutely thrilled” by the decision and called it “a good day for the safety of children.” He said the Court of Appeal “got it right,” adding that “when the trial court ruled the district had no duty, we were shocked.”

Fraenkel commented that he would not be surprised if the district sought Supreme Court review, but he said he expected the high court would affirm and that the case would return to the trial court. He also remarked that he hoped the district would “see the wisdom of sitting down” and resolving before a trial, which  would only “cause more emotional distress” for his client. Plaintiffs were also represented by Gabriel S. Barenfeld and Jennifer J. Terando of Kreindler & Kreindler, as well as Los Angeles attorney Howard C. Kornberg. Defense counsel included Jeffery J. Carlson, Jeanne L. Zimmer and Edgar N. De Vera.

Justices Patti S. Kitching and Richard D. Aldrich joined Klein in her opinion.

The case is Agbeti v. Los Angeles Unified School District, B211052.


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