Grossman v. Santa Monica-Malibu Unified Sch. Dist.

33 Cal.App.5th 458

245 Cal.Rptr.3d 205

Brian M. GROSSMAN, Plaintiff and Appellant,

v.SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

B283956

Court of Appeal, Second District, Division 7, California.

Filed March 25, 2019

Law Office of Michael A. Naso and Michael A. Naso, Irvine, for Plaintiff and Appellant.

Yukevich Cavanaugh, Cristina M. Ciminelli, Los Angeles, and Victoria L. Danna for Defendant and Appellant.

FEUER, J.

Brian M. Grossman suffered serious injuries when he fell off a 27-foot-tall inflatable slide while attending a carnival held at a school campus owned by the Santa Monica-Malibu Unified School District (the school district). Grossman sued the school district, the school booster group, and others for negligence, alleging he fell because the inflatable slide was not tethered to the ground. Grossman appeals from the judgment entered after the trial court granted the summary judgment motion filed by the school district. Grossman contends there were triable issues of fact whether the school district was liable for its breach of a duty of care owed to him under Education Code section 38134, subdivision (i)(1).¹ The school district cross-appeals from the trial court’s ruling that the school district was equitably estopped from arguing Grossman failed to comply with the Government Claims Act ( Gov. Code, § 810 et seq. ).

We conclude the Education Code allocates liability for negligence between school districts and entities allowed to use school district grounds, including in this case the booster group that planned and held the carnival fundraiser. The school district was "liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds." ( § 38134, subd. (i)(1).) By contrast, "[a]n entity using the school facilities or grounds ... is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds." (Ibid. ) Here, Grossman’s injuries resulted from the alleged negligence of the booster group and others "during the use of" the school grounds, not from the school district’s ownership and maintenance of the grounds. Further, section 38134, subdivision (i)(2), clarifies that the Education Code does not alter the provision in Government Code section 835 limiting a public entity’s liability to "an injury caused by a dangerous condition of public property." As a matter of law the inflatable slide was not a dangerous condition of public property within the meaning of Government Code section 835. We affirm the judgment and dismiss the school district’s cross-appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Carnival Fundraiser

On August 21, 2012 the booster group and parent-teacher association (PTA) submitted an availability request form to the school district for various events, including a carnival fundraiser at Roosevelt Elementary School (the school). The carnival is an annual fundraising event that has been held at the school since at least 2008. Both the booster group and the PTA are nonprofit entities independent from the school district, organized to promote youth and school activities. The school district approved the use of its facilities and grounds by the booster group and PTA for the carnival. The school district did not charge the booster group or PTA for using the school grounds.

Heike Macklin, the president of the booster group at the time, was the primary organizer of the carnival. Macklin contracted with WOW Party Rental, Inc. (WOW Rental), to lease an inflatable slide. She also contracted with James Event Productions, Inc. (James Event), to provide other attractions at the carnival and the generator that powered the inflatable slide. No one from the school or the school district gave Macklin any written materials or oral instructions relating to safety precautions for the event, or advised her to perform safety inspections.

The school allowed the booster group to promote the carnival on the school Web site, place banners on school grounds, and advertise on the school’s marquee. In addition, school teachers distributed flyers about the event. But the school district did not plan, set up, operate, or supervise the carnival, including the inflatable slide. Similarly, the school district did not inspect the rides to determine whether they were safe. Any teacher that staffed a carnival attraction served as a volunteer for the booster group.

On the morning of the carnival, WOW Rental employees set up the inflatable slide on the playground. Macklin selected the location for the slide, which was in the same place as in prior years. The booster group had used a similar slide for the past three years as a carnival attraction, without any injuries.

B. Grossman’s Accident

On June 1, 2013 Grossman attended the carnival and purchased tickets from the booster group for the carnival attractions. Grossman gave his tickets to a volunteer stationed at the slide, Beth Eckstein, so his three-year-old son Merrick could go on the 27-foot-tall inflatable slide. When Merrick climbed up the stairs to the top of the landing, he became scared of the height and called out for help. Grossman asked Eckstein what to do, and she instructed him to go to the top of the slide to bring Merrick down. The stairs leading to the top of the slide were blocked by three other people, so Eckstein told Grossman to climb up the middle of the slide. When Grossman reached the landing, he held Merrick on his lap to comfort him. A moment later, the landing of the slide suddenly deflated, and Grossman and Merrick were thrown backwards to the back of the slide. Merrick screamed for help, and Grossman pulled him onto his chest. At that moment, the slide began to tip over. Grossman was able to hold onto Merrick and another three-year-old boy to protect them as all three fell over 20 feet down to the concrete below. Grossman landed on his feet, but his left foot and heel took the brunt of the fall, and he twisted his knee, then landed flat on his back.

After the accident, the slide was placed back upright. Grossman noticed the rope tethers at the top of the slide were not staked into the ground. He recalled it was a windy day with winds gusting over 15 miles per hour on the school playground.

C. The Complaint

On September 10, 2014 Grossman sued the school district and James Event. On January 15, 2016 Grossman filed the operative second amended complaint against the school district, booster group, WOW Rental, and James Event for negligence, breach of warranty, and strict liability. Grossman alleged the school district owned and operated the school; the booster group planned the carnival and operated the rides, including the slide; WOW Rental rented the slide to the booster group; and James Event rented the generator used to inflate the slide, as well as other rides and booths, to the booster group.

Grossman alleged the slide was improperly set up on the side of the grass infield immediately adjacent to the concrete. In addition, the rope tethers located at the top of the slide were not staked to the ground, which would have prevented it from falling over. As a result, Grossman, Merrick, and the other young boy were thrown off the slide onto the concrete over 20 feet below, causing Grossman permanent severe injuries. Grossman alleged the school district and other defendants "knew or should have known that the slide which caused [his] injuries was not set up and secured as it was supposed to be, and was not being operated properly, and constituted a dangerous condition causing an unreasonable risk of injury to its users, including [him]."

D. The School District’s Summary Judgment Motion

On June 14, 2016 the school district moved for summary judgment on the negligence cause of action.² The school district contended Grossman failed to comply with the procedure for filing a claim under the Government Claims Act ( Gov. Code, § 810 et seq. ). The school district also argued that although it made the school premises available to the booster group for the carnival as required by the Civic Center Act (§ 38130 et seq.), it had no involvement in the selection, approval, rental, installation, inspection, or supervision of the inflatable slide. The school district asserted Grossman’s allegations of negligence arose from the placement and setup of the inflatable slide, for which the school district had no role. Neither did the school district own or control the inflatable slide. Rather, it was the independent nonprofit booster group that organized and put on the carnival and Wow Rental that rented the slide to the booster group for that purpose. The school district also argued the alleged dangerous condition (the inflatable slide) was not "of public property"; thus, the school district owed no duty to Grossman.

In support of its summary judgment motion, the school district submitted a declaration from Carey Upton, the director of the facility use department for the school district since 2008. He stated the school district did not select, approve, or enter into a contract for any of the carnival attractions, including the inflatable slide. The school district also did not inspect, set up, or supervise the attractions, or agree to do so. School district employees did not work at the carnival, except for a janitor requested by the booster group. The school district billed the booster group for use of the janitor’s services. Prior to the accident, no one complained to the school district about the unsafe condition of the inflatable slide. In addition, Upton was not aware of any other injuries resulting from the use of an inflatable slide at the school.

In his opposition, Grossman argued the school district failed to provide Macklin with its "Rules of Use for Facilities" (Rules of Use) or other safety instructions, and failed to advise Macklin to conduct safety inspections of the slide. According to Grossman, the booster group was...