Metropolitan News-Enterprise


Monday, January 3, 2022


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C.A. Scraps $1.25 Million Judgment Based on Pupil’s Injury While Running on Playground


By a MetNews Staff Writer


A school district is not liable for injuries to a kindergartener who, in running on a playground along with classmates, at a teacher’s instruction, was bumped into by another child and fell, the Court of Appeal for this district has held.

Presiding Justice Laurence D. Rubin of Div. Five wrote Wednesday’s unpublished opinion. It reverses a $1.25 million judgment in favor of Kody Rankin, a minor, based on a skull fracture he sustained on June 2, 2015.

The boy, at age 10, testified that a classmate, Andrew, “kind of tripped” him, he fell, hit his head, and blacked out “for a bit.”

There is insufficient evidence to support the jury’s verdict against the Long Beach Unified School District, Rubin declared. The case was remanded to the Los Angeles Superior Court for entry of an order granting the school district’s motion for a judgment notwithstanding the verdict.

Judge Mark C. Kim had denied the notion, except to the extent of paring the jury’s $5.75 million damage-award.

Supervision Not Lacking

Rubin said in Wednesday’s unpublished opinion that a school district can be found liable where it provides no supervision of play or fails to act when a danger is spotted, but that neither circumstance pertained. The physical education teacher, Malcolm Turner, watched as the children, six at a time, ran, when he blew a whistle, 120 feet to a fence (or 180 feet according to an expert witness’s estimate), then back.

“In school supervision cases, appellate courts have required more than the mere assertion that additional supervision would have prevented the unanticipated injury,” Rubin said.

In any event, he observed, the evidence was “that the accident occurred suddenly and greater supervision would not have prevented it.” The jurist elaborated: “[P]laintiff here presented expert testimony criticizing Turner’s supervision and opining that it could have been better. But there was no evidence that better supervision—that is, Turner standing in the middle of the run and directing each of the approximately dozen students running at any one time along a 180-foot route—would have prevented Andrew from tripping plaintiff….Plaintiff failed to show a causal link between his injury and any negligent failure to supervise by Turner.”

Two Directions

The expert, civil engineer Brad Avrit, also opined that the activity was unsafe because while children were running back from the fence, others were running toward the fence. Rubin saw no relevance to that factor, pointing out:

“First, it was undisputed plaintiff’s injury was not caused by a head-on collision. Second, the record was bereft of evidence that Andrew was trying to avoid an oncoming student when he collided with plaintiff.”

Avrit expressed the view that it was unsafe for the children to be running on asphalt rather than a surface such as grass, but Rubin said the theory was not supported by substantial evidence.

The school district also called for reversal based on misconduct of the plaintiff’s lawyer, Keith J. Bruno of the Irvine firm of Bruno | Nalu, including uttering intimidating remarks to jurors during closing argument. Rubin said there was no need to peg a reversal on the misconduct, but described it, and inserted in the opinion a direction that the clerk forward a copy to the State Bar.

The case is Rankin v. Long Beach Unified School District, B303750.

Dana John McCune and Dominic A. Quiller of the downtown Los Angeles firm of McCune Harber were lawyers on appeal for the district. Tustin attorney Kyle J. Scott and Claremont lawyer Jeffrey I. Ehrlich represented the minor.


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