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XIII.Supp. Supplemental Cases and Materials
  • 1 Cestonaro v. United States--"The Questionable Park Policy Case"

    Plaintiff and her husband were returning to their car which was parked in an unofficial parking lot. The couple were confronted by two two armed gun men, who shot and killed plaintiff’s husband. The National Park Service (NPS) owned the lot in which the incident occurred. The plaintiff sued the NPS for failing to adequately light and police the lot.

    The NPS argued that their non-maintenance of the lot was a conscious choice in furtherance of a general aesthetic goal. Should courts treat any coherent, agency objective as a part of policy? Also, should courts mostly defer to an agency’s stated policy goals when assessing the “discretionary activity” exception?

    1
    211 F.3d 749 (2000)
    2
    Giovanna Carboniero CESTONARO, Individually and as Personal Representative of the Estate of Danielle Cestonaro, Appellant
    v.
    UNITED STATES of America
    3
    No. 99-3235.
    4

    United States Court of Appeals, Third Circuit.

    5
    Argued December 7, 1999.
    6
    Filed May 1, 2000.
    7

    [751] Vincent A. Colianni (argued), Hunter, Colianni, Cole & Bennett, Christiansted, St. Croix, U.S. Virgin Islands, for Appellant.

    8

    Ernest F. Batenga (argued), Office of United States Attorney, Christiansted, St. Croix, U.S. Virgin Islands, Patricia A. Hooks, United States Department of the Interior, Office of Regional Solicitors, Atlanta, GA, for Appellee.

    9

    Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges

    10
    OPINION OF THE COURT
    11
    SCIRICA, Circuit Judge.
    12

    This appeal requires us to interpret the "discretionary function" exception to the Federal Tort Claims Act's general waiver of sovereign immunity. The District Court dismissed a wrongful death complaint against the United States, finding that the discretionary function exception to the Federal Tort Claim Act's waiver of sovereign immunity, 28 U.S.C. § 2680(a), applied. We will reverse.

    13
    I.
    14

    The underlying facts are undisputed. In December 1993, Daniele Cestonaro, his wife Giovanna, and their daughter, all Italian citizens and residents, were vacationing in St. Croix, Virgin Islands. On the evening of December 28, the Cestonaros parked their rental car in a lot on Hospital Street in Christiansted. Upon returning to their car after dinner, the Cestonaros were confronted by two armed gun men. Daniele Cestonaro was shot and died almost immediately.

    15

    The Hospital Street lot falls within the boundaries of the Christiansted National Historic Site owned and controlled by the United States Department of the Interior, National Park Service. At the time of the murder, the Hospital Street lot was not an official parking lot. There were no signs designating or even indicating that it was a parking lot; it was neither paved nor striped. The lot's appearance, however, differed from the surrounding area in the Christiansted National Historic Site in terms of grade and surface, as it consisted of broken asphalt from a previous paving. Since the 1940s, the general public had used the Hospital Street lot as a parking area. Furthermore, the National Park Service was aware that crimes had occurred in the lot before December 28, 1993. In addition to crime incidents reports from the Virgin Island Police Department and its own park rangers, the National Park Service also received regular complaints about safety in the Hospital Street lot from local business owners.[1]

    16

    [752] It is undisputed that the National Park Service had done nothing to deter nighttime parking in the Hospital Street lot. It had not posted signs prohibiting parking, nor signs warning of dangers of nighttime parking, nor issued tickets for illegal parking. In fact, the lot was lighted at night. Some time after the lot came into the government's possession, five lights were installed illuminating the Hospital Street lot. It is undisputed the National Park Service maintained those lights.[2]

    17

    Giovanna Cestonaro filed a wrongful death action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, and the Virgin Islands Wrongful Death Statute, 5 V.I.C. § 76. In her complaint, Mrs. Cestonaro alleged that "[d]efendant was negligent in failing to provide adequate lighting and correct the known dangerous condition and to warn others about the existence of the dangerous condition" at the Hospital Street lot. The United States filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) asserting the District Court lacked subject matter jurisdiction because the challenged National Park Service actions fell under the discretionary function exception to the FTCA's waiver of sovereign immunity.[2]

    18

    The District Court dismissed the complaint, finding the National Park Service's decisions concerning the Hospital Street lot were grounded in its mission to "safeguard the natural and historic integrity of national parks" and in its policy "to minimally intrude upon the setting of such parks." Cestonaro, Civ. No. 1995-102, slip op. at 11.

    19

    Mrs. Cestonaro appealed.

    20
    II.
    21

    We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the applicability of the discretionary function exception. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997); Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 282 (3d Cir.1995) (en banc). Because the government's challenge to the District Court's jurisdiction was a factual one under Fed.R.Civ.P. 12(b)(1), we are not confined to the allegations in the complaint (nor was the District Court) and can look beyond the pleadings to decide factual matters relating to jurisdiction. See Mortensen v. First Fed. Sav. & Loan. Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

    22
    III.
    23
    A.
    24

    The Federal Tort Claims Act is a partial waiver of the sovereign immunity that [753] would otherwise protect the United States from tort liability stemming from the actions of its employees. The express purpose of the FTCA is to make the United States liable "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. But the FTCA's waiver is tempered by several exceptions. See 28 U.S.C. § 2680. For our purposes, the relevant exception is the "discretionary function exception" that withdraws the waiver of sovereign immunity with regard to:

    25
    Any claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government whether or not the discretion involved be abused.
    26

    28 U.S.C. § 2680(a).

    27

    The exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The FTCA does not, however, define "discretionary function." As a result there has arisen a trove of case law identifying the contours of the government's tort liability. Our holding that the National Park Service's decisions concerning the Hospital Street lot fall outside the scope of the discretionary function exception is consistent with that jurisprudence. See, e.g., Gotha v. United States, 115 F.3d 176 (3d Cir.1997); Cope v. Scott, 45 F.3d 445 (D.C.Cir.1995).

    28
    B.
    29

    The analytical framework of the discretionary function exception has been laid out by the Supreme Court in a trilogy of cases — United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); and United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). See Gotha, 115 F.3d at 179-80.

    30

    The first issue is whether "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If so, the exception cannot apply. If not, the question is whether the governmental action or inaction "is of the kind that the discretionary function exception was designed to shield." Id. If it is, the action constitutes the exercise of protected discretion, and the United States is immune from suit.

    31

    The touchstone of the second step of the discretionary function test is susceptibility to policy analysis. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 ("The focus of the inquiry is not the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis."). As we have previously stated, a plaintiff's claim can only survive if "the challenged actions cannot 'be grounded in the policy of the regulatory regime.'" Gotha, 115 F.3d at 179 (quoting Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). The Court in Gaubert underscored the importance of the relationship between the discretionary decision and policy considerations, noting the exception applies only if the challenged actions can "be said to be based on the purposes that the regulatory regime seeks to accomplish." 499 U.S. at 325 n. 7, 111 S.Ct. 1267.

    32

    Before proceeding to apply the discretionary function analysis to the facts of this case, there is one remaining preliminary issue — we must identify the challenged action. See Rosebush v. United States, 119 F.3d 438, 441 (6th Cir.1997) (noting that a crucial step in determining whether challenged action is protected "is to determine exactly what conduct is at issue"). As noted by the District Court, [754] plaintiff's complaint levels two allegations concerning the National Park Service's conduct:

    33
    Defendant was negligent in failing to provide adequate lighting and correct the known dangerous condition and to warn others about the existence of the dangerous condition.
    34

    Compl. at ¶ 7. In effect, plaintiff challenges the National Park Service's decisions concerning lighting and warning in the Hospital Street lot. From the record, it is unclear whether the National Park Service made a decision not to add lighting or warning signs to the Hospital Street lot or whether that resulted from inaction or a non-decision. As was the case in Gotha, however, "[i]t would appear that ... the action or inaction goes more to the issue of negligence rather than whether the issue of policy discretion is implicated." 115 F.3d at 180. Because the question before us is only whether the nature of the actions taken, or not taken, are susceptible to policy analysis, we need not concern ourselves with whether the National Park Service acted affirmatively regarding either lighting or warning at the Hospital Street lot. See Fisher Bros., 46 F.3d at 284; Smith v. Johns-Manville Corp., 795 F.2d 301, 308-09 (3d Cir.1986) ("The test is not whether the government actually considered each possible alternative in the universe of options, but whether the conduct was of the type associated with the exercise of official discretion.").

    35
    IV.
    36
    A.
    37

    As noted, the first step in our analysis is whether there was discretion over the challenged action, that is, whether a federal regulation or policy specifically prescribes a course of action. See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Plaintiff contends the National Park Service, by virtue of a 1985 agreement with the Virgin Islands, had no discretion with respect to the Hospital Street lot. The 1985 agreement amended the 1952 Memorandum of Agreement that established the historic area. According to the plaintiff, the 1985 Addendum mandated the removal of the Hospital Street lot by 1988, thereby eliminating any National Park Service discretion.

    38

    The 1985 Addendum states that:

    39

    Whereas it is the intent of both parties to implement this addendum as early as possible within the next 3 years; NOW THEREFORE, it is understood that this addendum is for the specific purpose of detailing the specific remaining responsibilities of each party to achieve the purposes and objectives of the said Memorandum of Agreement, as amended.

    The National Park Service shall, subject to the availability of funds, assume and undertake the following responsibilities:

    A. Parking will ... be removed from the area east of Hospital Street and West of Fort Christiansvaern....

    40

    The District Court addressed the argument in two ways. First, it expressed skepticism that the 1985 Addendum constituted the kind of mandate that prevented the government's recourse to the discretionary function exception. Second, it held the plaintiff did not allege negligence on the part of the National Park Service for failing to close the parking lot, but rather for failing to provide adequate lighting or to warn of known dangers associated with nighttime parking in the lot.

    41

    Given the qualification "subject to the availability of funds," the Addendum does not appear to be the kind of express mandate that precludes coverage by the discretionary function exception. See, e.g., Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 ("[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow."). Here, the National Park Service's determination whether there were funds available seems to be the kind of judgment or choice inherent in the discretionary [755] function exception. See id. ("[C]onduct cannot be discretionary unless it involves an element of judgment or choice."). The inclusion of "shall" in the Addendum language does not necessarily destroy the National Park Service's discretion. Cf. Brackin v. United States, 913 F.2d 858, 860 (11th Cir.1990) ("While the language of these guidelines often includes the word shall, it is clear that the decision to use one method as opposed to another is based upon numerous factors including a consideration of a method that the parties can agree on.").

    42

    But we need not determine whether the 1985 Addendum eliminates the National Park Service's discretion regarding the use of the Hospital Street lot. We agree with the District Court that the 1985 Addendum does not mandate a specific course of conduct and cannot be dispositive with respect to lighting and warning decisions in the Hospital Street lot. The lighting and warning decisions here, therefore, remain discretionary.

    43

    But this does not end our inquiry.[4] We must determine whether the discretionary lighting and warning decisions are susceptible to policy analysis and therefore enjoy the protection of the discretionary function exception. See, e.g., Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 ("[E]ven assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception was designed to shield." (internal quotations omitted)); Berkovitz, 486 U.S. at 546-47, 108 S.Ct. 1954 ("[I]f the Bureau's policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful.").

    44

    As recognized by the District Court, we made clear in Gotha that susceptibility analysis "is not a toothless standard that the government can satisfy merely by associating a decision with a regulatory concern." Cestonaro, Civ. No.1995-102, slip op. at 15. In Gotha, plaintiff sought to sue the United States for its alleged negligent failure to install a staircase or bar passage down an embankment at the United States Navy's Underwater Tracking Range in St. Croix, Virgin Islands. Plaintiff slipped and fell while traveling along a footpath down the hillside. The United States contended its actions (or inactions) were motivated by "military, social and economic considerations." Gotha, 115 F.3d at 181 (internal quotations omitted). In rejecting the government's appeal to broad policy considerations that "conceivably could go to any decision by the Navy," we observed that "[t]his case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy's mission as it is possible to get." Id. We also concluded that "it is difficult to conceive of a case more likely to have been within the contemplation of Congress when it abrogated sovereign immunity than the one before us." Id. at 182. That torts stemming from garden variety decisions fall outside the discretionary function exception is consistent with a primary motive behind the FTCA. See Dalehite v. United States, 346 U.S. 15, 28 & n. 19, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (noting that "[u]ppermost in the collective mind of Congress were the ordinary common-law torts" and that "congressional thought was centered on granting relief for the run-of-the-mine [756] accidents"). In our view, the events surrounding Daniele Cestonaro's death are no more related to the National Park Service's policies than were the events surrounding Ms. Gotha's broken ankle related to the Navy's overarching policies. See discussion infra. What was true in Gotha is true here, except the consequences here were far more tragic.

    45
    B.
    46

    The National Park Service contends its decisions (or non-decisions) not to add lighting nor to post warning signs were grounded in its overarching objective of returning the area to its historic appearance.[5] The government points to several documents to ground this policy concern. First, it relies on the original 1952 Memorandum of Agreement, which established the National Historic Site with the purpose of preserving the integrity of the historic structures and grounds. It also points to a 1972 Memorandum of Agreement which recited that its "basic objective in the management of Christiansted National Historic Site is to retain the architectural and historical integrity of the structures and their environment." The National Park Service also argues it is not expressly required to add lighting or post warning signs in the Hospital Street lot.

    47

    The National Park Service's arguments are inapposite. It may be arguable that the initial decision to maintain parking at the Hospital Street lot was protected by the discretionary function exception. But assuming this were so, subsequent decisions concerning the Hospital Street lot were not necessarily protected. See, e.g., Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); George v. United States, 735 F.Supp. 1524 (M.D.Ala.1990).

    48

    Indian Towing involved alleged negligence by the United States Coast Guard in its failure to properly maintain the light on a lighthouse it had established. Despite the Coast Guard's claim of sovereign immunity, the Court found the United States could be held liable under the FTCA for the negligent operation of the lighthouse even though the initial decision to establish a lighthouse was discretionary. The Court explained

    49
    The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.
    50

    Indian Towing Co., 350 U.S. at 69, 76 S.Ct. 122. In reasserting the vitality of Indian Towing, the Supreme Court has stated that

    51
    The [Indian Towing] Court stated that the initial decision to undertake and maintain lighthouse services was a discretionary judgment. The Court held, however, that the failure to maintain the lighthouse in good condition subjected the Government to suit under the FTCA. The latter course of conduct did not involve any permissible exercise of policy judgment.
    52

    Berkovitz, 486 U.S. at 538 n. 3, 108 S.Ct. 1954 (internal citations omitted).

    53

    In George, a District Court rejected the National Forest Service's attempt to invoke [757] the discretionary function exception when Mr. George was attacked by an alligator while swimming in a recreational swimming area designated by the Forest Service. The court held that although the decision to establish the swimming area was discretionary, the subsequent failure to warn the public of known dangers was not covered by the exception. See George, 735 F.Supp. at 1533 ("[O]nce the decision was made, the Forest Service was under a duty to act reasonably for protection of humans, particularly against hidden dangers known to the Service.").

    54

    In a similar case, in which a swimmer was struck and killed by a boat in an unrestricted portion of a lake supervised by the Army Corps of Engineers, the Court of Appeals for the Tenth Circuit held that although a "zoning" decision that resulted in the area having no restrictions was discretionary, the subsequent failure to warn swimmers was not. Boyd v. United States, 881 F.2d 895, 898 (1989). In so holding, the court in Boyd rejected the government's argument that a finding that it had protected discretion with respect to initial "zoning" decisions necessitated a conclusion that the discretionary function exception protected all decisions affecting the zoned area. See id. ("[T]he government asserts that a discretionary decision not to zone an area necessarily makes discretionary a decision that nothing be done there, regardless of potential hazards. We do not agree.").

    55

    Even if there was protected discretion for the National Park Service's decision to maintain parking at the Hospital Street lot, that does not answer whether subsequent decisions were also protected. See Indian Towing, 350 U.S. at 69, 76 S.Ct. 122; Boyd, 881 F.2d at 898; George, 735 F.Supp. at 1533. See also Patel v. United States, 806 F.Supp. 873, 878 (N.D.Cal. 1992) (refusing to hold that "all actions taken in the course of serving a search warrant are protected by the discretionary function exception" despite recognizing that "decisions to investigate the alleged illegal activity, to obtain the search warrant, when and where to serve the warrant" among others were immune from suit because they were "based on public policy considerations").

    56

    The National Park Service fails to show how providing some lighting, but not more, is grounded in the policy objectives with respect to the management of the National Historic Site. Similarly, the National Park Service has not presented a viable argument as to how its alleged failure to warn is rooted in its policy objectives. The government has not argued that having some lighting at the Hospital Street lot, but not more lighting, is consistent with its policy objective of preserving the historical integrity of the structures and their environs at the National Historic Site. Nor has it argued that having an allegedly dimly lit parking lot with no warning signs is consistent with its stated objectives. We doubt it can reasonably make such arguments.[6]

    57

    [758] Looking beyond the government's general preservation of historicity argument, the District Court stated that "[f]urther and more importantly, the government argues that the NPS' decision reflected the NPS' hope that it could discourage parking — a use of the Site inconsistent with the Site's historicity — by eliminating all indicia of parking in the lot." Cestanaro, Civ. No. 1995-102, slip op. at 11. But, as noted, the record shows the National Park Service had not eliminated all indicia of parking in the Hospital Street lot. Neither had the National Park Service taken any action to restore the property to grade or surface of the original nor had it any plan to do so.

    58

    In short, there is no evidence to support the government's contention, adopted by the District Court that "the NPS made no improvements to the Site, for fear that improvements would (1) detract from the historic scene; and (2) lead individuals to believe that the Hospital Street lot was a sanctioned parking area and so increase the number of individuals parking there, further undermining the Site's historic character." Id. at 16.[7]

    59

    In its attempt to fashion a policy rationale for the National Park Service's actions, the District Court also relied on the Christiansted General Management Plan, which set forth a management strategy for the site, and which called on the Park Service to:

    60
    preserve the historic site to as closely as possible represent its appearance of the early to mid nineteenth century ... No physical alterations will be undertaken to provide for ... visitor safety, if it is determined that such actions will impair significant architectural features or structural systems.
    61

    Id. at 11-12.

    62

    The District Court accurately noted that the connection between the "above-described policy and the NPS' inaction in the instant matter is somewhat attenuated." Id. at 12. But it concluded that "the NPS' decision not to place improved lighting or signs at the Hospital Street lot can be characterized as part of an overall policy and so falls within the discretionary function exception." Id. We disagree.

    63

    As noted, the Supreme Court has made clear that the proper inquiry in analyzing the discretionary function exception is whether "the challenged acts of a Government [759] employee ... are of the nature and quality that Congress intended to shield from tort liability." Varig, 467 U.S. at 813, 104 S.Ct. 2755. In explaining Congress' intent, the Court emphasized that the core purpose of the exception was to "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 814, 104 S.Ct. 2755. The exception is meant "`to protect the Government from liability that would seriously handicap efficient government operations.'" Id. (quoting United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)).

    64

    In our view, plaintiff's suit does not put the District Court in the position of second guessing a National Park Service administrative decision that is "grounded in social, economic, and political policy." We are unable to find a rational nexus between the National Park Service's lighting or warning decisions (or non-decisions) and social, economic and political concerns. Nor will plaintiff's claim seriously impede the National Park Service's proper functions or operations. The National Park Service remains free to make decisions grounded in policy considerations without risking tort liability; but it cannot make decisions unrelated to policy and then seek shelter under the discretionary function exception. See Sami v. United States, 617 F.2d 755, 766-67 (D.C.Cir.1979) ("[T]he exception exempts the United States from liability only where the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency." (internal quotations omitted)).

    65

    In one of its early treatments of the FTCA, the Supreme Court articulated the Act's purpose in terms that underscore why the National Park Service cannot rely on the discretionary function exception here. The Court stated:

    66
    The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental affairs in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws.
    67

    Indian Towing, 350 U.S. at 68-69, 76 S.Ct. 122. Would a private actor in the National Park Service's shoes be amenable to suit? We believe under the facts presented, the answer is yes. No challenged decision, or non-decision, taken here by the National Park Service was reasonably rooted in policy considerations. As a result, the discretionary function exception does not apply. Plaintiff may or may not prevail on the merits, but the FTCA does not bar her suit.[8]

    68
    C.
    69

    We do not hold that once an agency makes a decision inconsistent with its policies that all subsequent decisions must fall outside the discretionary function exception. Relying on Cope v. Scott, 45 F.3d 445 (D.C.Cir.1995), plaintiff contends that by deciding to maintain a parking lot in [760] the middle of the historic site contrary to its stated objective of returning the area to its early 19th Century appearance, the National Park Service abrogated its policies and cannot rely on them to justify its subsequent decisions concerning the Hospital Street lot. But Cope does not stand for such a broad proposition.

    70

    In Cope, plaintiff was injured in an accident on Beach Drive which passes through Washington, D.C.'s Rock Creek Park. Plaintiff sustained injuries when a car crashed into his after losing traction on a curve in the rain. The National Park Service, which owns and operates Beach Drive, asserted a discretionary function exception defense saying that its decision not to place a "slippery when wet" warning sign before the curve was a discretionary policy decision. The Court of Appeals for the D.C. Circuit reversed the District Court's dismissal based on the discretionary function exception, holding the decision of whether to post the sign was not rooted in policy considerations. See Cope, 45 F.3d at 451-52.

    71

    The Cope Court stated that it was unconvinced by the National Park Service's aesthetics argument given that "twenty-three traffic control, warning, and informational signs already exist on the half-mile stretch bracketing the curve on which the accident occurred — a stretch of road that carries 20,000 vehicles daily." Id. at 452 (internal quotations omitted). Recognizing that other aesthetics-based failure to warn cases had reached the opposite result, the D.C. Circuit stated that those decisions were "easily distinguishable [because] ... the decisions were based on a reasonable desire to protect the experience of the park visitor." Id. We believe the essential holding in Cope to be that a decision (or non-decision) must be reasonably related to a policy consideration to fall under the discretionary function exception.[9]

    72
    V.
    73

    For the reasons stated, we hold the discretionary function exception does not apply to the National Park Service's decisions concerning the Hospital Street lot. We will reverse the judgment of the District Court and remand for proceedings consistent with this opinion.

    74

    [1] The record also reflects the Virgin Islands Police Department and the National Park Service shared information on crimes occurring within the Site's boundaries. Ten days before Mr. Cestonaro's murder, the Virgin Islands Police Department responded to investigate a first degree robbery, attempted assault, carjacking and kidnaping that had taken place in the Hospital Street lot. Despite the information sharing, the National Park Service officials deposed here professed having had no knowledge of this December 18 incident.

    75

    But we need not reconcile these facts here. The National Park Service's knowledge, or lack thereof, of the dangers in the Hospital Street lot relates more directly to the underlying negligence claims than to whether the challenged actions here were protected by the discretionary function exception. See discussion infra.

    76

    [2] Because the Hospital Street lot falls within the boundaries of the National Historic Site, which was so designated in 1952, it is likely that any physical improvements to the parking lot during the subsequent four decades were the result of a government decision. The record, however, contains no information on this point — it does not reflect exactly when the lights were installed; who made the decision to install them; nor why they were installed. As noted, the record does establish that the National Park Service maintains the lights.

    77

    [3] Along with its motion to dismiss, the government also sought, in the alternative, judgment on the pleadings and summary judgment. Because the District Court found that it lacked subject matter jurisdiction, it did not reach the government's alternative arguments. See Cestonaro v. United States, Civ. No.1995-102, slip op. at 1 n. 1, (D.V.I. Sept. 11, 1998). We only address the discretionary function exception; we express no opinion with respect to the government's judgment on the pleadings and summary judgment motions.

    78

    [4] We are mindful that "[w]hen established government policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. That presumption, however, can be rebutted. See id. at 324-25, 111 S.Ct. 1267 (noting that complaint can survive motion to dismiss if "the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime").

    79

    [5] "The United States has the burden of proving the applicability of the discretionary function exception." National Union Fire Ins. v. United States, 115 F.3d 1415, 1417 (9th Cir. 1997). See also 14 Wright & Miller, Federal Practice and Procedure Jurisdiction 3d. § 3658.1 at 639 (1998) ("[M]ost courts have concluded that the burden of proving the applicability of the discretionary-function exception falls upon the United States.").

    80

    [6] In past cases, the National Park Service has relied on 16 U.S.C. § 1 to argue the discretionary function exception protects its policy decisions made by balancing aesthetic against safety interests. See, e.g., Shansky v. United States, 164 F.3d 688 (1st Cir.1999); Chantal v. United States, 104 F.3d 207 (8th Cir.1997); Bowman v. United States, 820 F.2d 1393 (4th Cir.1987). In the present case, the National Park Service might have argued that its decision not to install further lighting and/or post warning signs regarding the dangers relative to the Hospital Street lot involved a similar balancing given the historical nature of the Christiansted National Historic Site. The National Park Service, however, neither raised this argument before us nor cited the cases reflecting this balancing formula. This alone gives us ground to reject such a balancing formula.

    81

    Accordingly, we see no tension between our decision and those reached in the cases cited. Under proper circumstances, the National Park Service may balance aesthetic and safety interests and avoid liability through the discretionary function exception. To properly invoke an aesthetic interest, there must be a reasonable relationship between that interest and the challenged action. See discussion infra Part IV.C. See also Shansky, 164 F.3d at 695 (recognizing there must be a "plausible nexus between the challenged conduct and the asserted justification"). The Shansky court, relying both on the National Park Service's lack of knowledge of any prior incidents at the site and its demonstrated efforts to restore the site in an historically accurate manner, found the requisite connection between policy and justification satisfied. 164 F.3d at 695-96. As noted, neither factor pertains here. It is clear that the requisite nexus between the challenged action and 16 U.S.C. § 1 is missing.

    82

    [7] As noted, the District Court understood the National Park Service to argue the discretionary function exception applied because it did not post signs so as to avoid unintentionally attracting additional parking, which in turn would be contrary to its policy of restoring the Site's historicity. The National Park Service has made similar claims in past cases involving the discretionary function exception. See Childers v. United States, 40 F.3d 973, 976 (9th Cir.1994). Although the National Park Service in Childers claimed its decision not to post warning signs on unmaintained winter trails in Yellowstone National Park was based, in part, on its cognizance "that posting warning signs would inadvertently attract visitors to unmaintained trails," the court decided the case on other grounds. Id. The National Park Service policy at issue in Childers provided: "`If roads and trails cannot be maintained as designed and built, they should either be closed or the public adequately warned.'" Id. (citation omitted). The Court of Appeals for the Ninth Circuit found the National Park Services decision to provide warnings "though park brochures, visitor center displays, bulletin board information, and personal contacts" rather than by posting signs on trails was protected by the discretionary function exception. Id. Here, there is no evidence the National Park Service warned or attempted to warn of the potential danger of parking in the Hospital Street lot through any means.

    83

    [8] In her appeal, Mrs. Cestonaro also raised whether the District Court abused its discretion in its treatment of her motion for reconsideration, which she claimed contained a request for leave to amend her complaint which was ignored by the District Court. In a footnote in her Motion to Reconsider, plaintiff stated:

    84

    In the event the Court feels that the allegation that the NPS was negligent in failing to prohibit parking in the Hospital Street lot should be pled more explicitly in the Complaint, Plaintiff requests the opportunity to file a Motion to Amend the Complaint to include such allegation.

    85

    In light of our conclusion that the conduct challenged in plaintiff's original complaint, as understood by the District Court, is not covered by the discretionary function exception, we need not address plaintiff's motion for reconsideration. Upon the reinstatement of her suit, plaintiff may request leave to amend her complaint. See Fed.R.Civ.P. 15(a). We express no opinion whether such a motion should be granted.

    86

    [9] Note that this is different than asking whether a policy-based decision was correct or wise because such analysis would run afoul of the statutory command that the exception applies "whether or not the discretion be abused." 28 U.S.C. § 2680(a).

  • 2 Hoyem v. Manhattan Beach City School District -- "The Student Who Got Hurt Playing Hooky"

    Should public schools pay for the injuries a student suffers while cutting class and off school premises?

    1
    150 Cal.Rptr. 1
    2
    22 Cal.3d 508, 585 P.2d 851
    3
    Michael HOYEM, a minor, etc., et al., Plaintiffs and Appellants,
    v.
    MANHATTAN BEACH CITY SCHOOL DISTRICT, Defendant and Respondent.
    4
    L.A. 30857.
    5
    Supreme Court of California
    6
    Oct. 25, 1978.
    7

    [22 Cal.3d 511] [150 Cal.Rptr. 2] [585 P.2d 852] Morgan, Wenzel & McNicholas, Bruce A. Broillet and Darryl L. Dmytriw, Los Angeles, for plaintiffs and appellants.

    8

    Harold Q. Longnecker, Los Angeles, Ellis J. Horvitz, Encino, and Edward J. Horowitz, Los Angeles, for defendant and respondent.

    9

    John H. Larson, County Counsel, Roberta M. Fesler, Deputy County Counsel, Ronald J. Apperson, Los Angeles, and Ralph D. Stern as amici curiae for defendant and respondent.

    10
    TOBRINER, Justice.
    11

    In this case we must determine whether, under California law, a school district may ever be held liable when, as a result [22 Cal.3d 512] of school authorities' negligent supervision of students on school premises, a pupil leaves the school grounds during school hours and is subsequently injured by a motorist. Although the trial court held that school district incurs no liability under such circumstances as a matter of law, we have concluded that the trial court was in error and that, if plaintiffs can prove that the pupil's injury was proximately caused by the school district's negligent supervision, the district may be held liable for the resultant damages.

    12

    In the summer of 1974 plaintiff Michael Hoyem, a 10-year-old boy, attended summer school at Foster A. Begg School in defendant school district. On July 16 Michael [150 Cal.Rptr. 3] [585 P.2d 853] arrived at school to attend classes but before the end of scheduled classes he left the school premises. At a public intersection a motorcycle struck Michael and he was seriously injured. A few hours after after the accident plaintiff Mary Ann Hoyem, Michael's mother, saw him in the hospital and suffered emotional and physical injuries.

    13

    Thereafter, Michael and his mother, alleging that the accident and resulting injuries were proximately caused by the school district's negligent supervision, instituted the present action against the school district.[1] In the third amended complaint Michael sought recovery for the injuries he sustained in the accident, and his mother sought to recover (1) moneys she had expended for Michael's medical care, (2) damages to compensate her for the loss of Michael's "comfort and society," and (3) damages for the physical and emotional injuries she suffered on viewing Michael in his injured state at the hospital. The trial court sustained defendant's demurrer to all causes of action and dismissed the action; plaintiffs now appeal from the resulting judgment.

    14

    As we explain, the trial court erred in dismissing the causes of action seeking to recover damages for Michael's injuries and medical expenses allegedly caused by the school district's negligence. The causes of action based upon Mary Ann's loss of Michael's "comfort and society" and her own injuries allegedly incurred when viewing Michael in the hospital are, however, precluded by recent decisions of this court and were properly dismissed by the trial court.

    15
    [22 Cal.3d 513] 1. A school district bears a duty to supervise students while on the school premises during the school day and the district may be held liable for a student's injuries which are proximately caused by the district's failure to exercise reasonable care under the circumstances.
    16

    Although a school district is not an insurer of its pupils' safety (Taylor v. Oakland Scavenger Co. (1938) 12 Cal.2d 310, 317, 83 P.2d 948), our cases have long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care. (E. g., Taylor v. Oakland Scavenger Co., supra, 12 Cal.2d 310, 83 P.2d 948; Pirkle v. Oakdale Union etc. School Dist. (1953) 40 Cal.2d 207, 253 P.2d 1; Satariano v. Sleight (1942) 54 Cal.App.2d 278, 282-285, 129 P.2d 35. See generally Annot. (1971) 38 A.L.R.3d 830.)

    17

    We recently reaffirmed this rule in Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 379, 470 P.2d 360, 363, declaring that "California law has long imposed on school authorities a duty to 'supervise at all times the conduct of the children on school grounds and to enforce those rules and regulations necessary to their protection.' (Citations.) The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care 'which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.' (Citations.)"

    18

    In Dailey, two unsupervised high school students engaged in "slap-boxing" in the school gym during lunch hour, and as a result, one of the students fell, struck his head, and died shortly thereafter. "Slap-boxing" is a rough and forbidden game which, according to the testimony of other students, was never played when a teacher was nearby. In reversing a directed verdict in favor of defendant school district, this court held that the issues of whether or not the school acted negligently in failing to provide adequate supervision of the lunch hour recess and, if so, whether the student's injuries were proximately caused by such [150 Cal.Rptr. 4] [585 P.2d 854] negligence, fell within the province of the jury.

    19

    The pleadings in the instant case are virtually identical to those which our court found sufficient to state a cause of action in Dailey. In both cases the complaint alleged that the school district failed to exercise ordinary care in supervising a student While the student was on school [22 Cal.3d 514] premises, and that such negligence proximately caused the student's resulting injury. Under well established principles, such general allegations of negligence, proximate causation and resulting injury and damages suffice to state a cause of action (see 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, §§ 450, 465, pp. 2103, 2119-2120); the court therefore improperly sustained defendant's general demurrer. Although defendant presents several arguments in an attempt to distinguish Dailey and related authorities, none of the proposed distinctions withstands analysis.

    20

    Defendant district first contends that the duty to supervise pupils applied in Dailey and earlier cases does not include any responsibility for assuring that pupils remain on the school premises during the school day. As the Dailey court pointed out, however, the duty to supervise includes the duty "to enforce those rules and regulations necessary (for pupils') protection." (2 Cal.3d at p. 747, 87 Cal.Rptr. at p. 379, 470 P.2d at p. 363.) Title 5, California Administrative Code, section 303 provides: "A pupil may not leave the school premises at recess, or at any other time before the regular hour for closing school, except in case of emergency, or with the approval of the principal of the school." We have no doubt that this rule is at least in part for the pupils' protection, and that the school authorities therefore bore the duty to exercise ordinary care to enforce the rule.

    21

    Defendant argues, however, that no California case has as yet held a school district liable for an injury incurred off school premises. Viewing the situs of the injury as a limitation on the school district's duty to supervise, defendant contends that while a school district may be obligated to exercise reasonable care to prevent on-campus injuries, it bears no similar duty to supervise students so as to prevent off-campus accidents, unless the school has specifically undertaken to provide off-campus supervision.

    22

    In the first place, defendant's broad assertion that no California decision has held a school district liable for an off-school premises injury is simply inaccurate. In Satariano v. Sleight, supra, 54 Cal.App.2d 278, 129 P.2d 35, a high school athletic field was located across a public street from the school gymnasium, and a 17-year-old student, hit by an automobile as he was crossing the street to get to the athletic field, suffered serious injury. The student brought suit against the school district, claiming that the school authorities' negligent supervision proximately caused his injuries. The evidence at trial indicated that although school authorities were aware that students regularly ran across the street outside of the crosswalk [22 Cal.3d 515] and when a teacher happened to be present the teacher would warn students to correct their behavior, the school had taken no general steps to prevent such dangerous conduct, such as stationing a teacher by the street during appropriate times.

    23

    The trial court in Satariano took the view that the school authorities' duty of supervision "ceased once the child was on a public street" (54 Cal.App.2d at p. 284, 129 P.2d at p. 39) and consequently absolved the school district of all liability for the student's injuries. On appeal, however, the Court of Appeal reversed, holding that in light of the school authorities' knowledge that many students regularly crossed the public street outside of a crosswalk, the jury should have been permitted to determine whether "ordinary care for (the students') protection did not require of the school authorities something more than sporadic warnings to individuals and groups in those accidental instances when teachers happened to be present." (Pp. 284-285, 129 P.2d p. 39.) Thus, Satariano refutes defendant's claim that the off-premises location of an injury is always sufficient, in itself, to insulate school officials from liability.

    24

    [150 Cal.Rptr. 5] [585 P.2d 855] In addition to demonstrating that the off-campus situs of an injury does not ipso facto bar recovery from a school district, Satariano illustrates that, at least in some limited instances, school authorities may bear a responsibility for supervising students when they are not on school property. (See also Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 10-11, 31 Cal.Rptr. 847; Lehmuth v. Long Beach Unified Sch. Dist. (1960) 53 Cal.2d 544, 551-552, 2 Cal.Rptr. 279, 348 P.2d 887.) In the instant case, however, we have no occasion to probe the scope of school authorities' "off premises" supervisory duty, for in this case defendant's alleged negligence relates to the district's firmly established duty to exercise due care in supervising Michael While he was on school premises.

    25

    In this context, defendant's emphasis on the Situs of the injury is totally misplaced. Contrary to defendant's assertion, no California decision suggests that when a school district fails to properly supervise a student on school premises, the district can automatically escape liability simply because the student's ultimate injury occurs off school property. (Cf. Calandri v. Ione Unified School Dist. (1963) 219 Cal.App.2d 542, 549-550, 33 Cal.Rptr. 333 (school district liable for injury student sustained At home as a result of dangerous instrument made in shop class).) Thus, in reversing the trial court decision in this case we neither impose a new duty on school districts nor in any way extend the well-established rule [22 Cal.3d 516] reiterated in Dailey; we merely reaffirm that school districts must exercise reasonable care in supervising their pupils while the pupils are on school premises. A district may be held liable if its breach of that duty proximately causes a student's injury.

    26

    The recent case of Bryant v. United States (10th Cir. 1977) 565 F.2d 650 confirms our conclusion that defendant's potential liability under the facts of this case flows directly from a school district's familiar duty to exercise ordinary care in supervising students on school premises. In Bryant, three young students at a New Mexico boarding school left the school premises without permission and were subsequently trapped in a snowstorm; as a result, the youngsters suffered extreme frostbite, necessitating the amputation of each student's legs. The students subsequently sued the federal authorities who ran the school, alleging that the injuries were proximately caused by the school's negligent supervision, and the jury returned a substantial verdict in favor of the students.

    27

    On appeal, the Tenth Circuit Court of Appeals affirmed the judgment. The court pointed out that under the governing New Mexico law, as in California, although "school authorities do not have responsibility for protective supervision at all places and under all circumstances" (565 F.2d at p. 652), "School authorities (do) have the duty to exercise ordinary care in protecting and supervising students while they are on school grounds. (Citations)." (Emphasis added.) (Id.) Because the evidence in the case established that the school authorities had failed to provide adequate supervision while the students were playing outside of the school dormitories, permitting plaintiffs to run away from the school, the court concluded that the jury could properly conclude that the authorities had breached their duty to provide reasonable "on school ground" supervision and that the school's negligence in this regard was a proximate cause of the students' injuries. In light of the similarity between the applicable New Mexico and California law, the Bryant decision directly supports our conclusion that plaintiff's complaint states a cause of action against defendant district.

    28

    In support of its contention that the off-premises situs of plaintiff's injuries should absolve it of all responsibility, defendant relies on Education Code section 44808 (formerly § 13557.5) which provides, in relevant part: "(N) o school district . . . shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, . . . has undertaken to provide transportation for such pupil to and from [150 Cal.Rptr. 6] [585 P.2d 856] the [22 Cal.3d 517] school premises, has undertaken a school-sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances. . . ." Although defendant contends that this statute cloaks the school with a blanket immunity for off-campus injuries unless the school undertakes to furnish off-campus supervision or sponsors an off-campus activity, neither the language nor the legislative history of the statute supports such an interpretation.

    29

    First, the language of the statute itself specifies that its limitation on liability does not apply to the allegations of the instant complaint. Although the initial portion of the statute provides that "no school district shall be responsible . . . for the conduct or safety of any pupil . . . at any time when such pupil is not on school property," the section goes on explicitly to withdraw this grant of immunity whenever the school district, inter alia, " has failed to exercise reasonable care under the circumstances."[2] Plaintiffs' complaint alleges that the school district failed to exercise reasonable care. Assuming, as we must on appeal from a sustained demurrer, the truth of the allegations of the complaint (see, e. g., Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 165, 101 Cal.Rptr. 880, 496 P.2d 1248; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732), section 44808, by its own terms, does not bar liability in the present case.

    30

    Second, the decisional history preceding the enactment of section 44808 indicates that the Legislature intended to limit a school district's liability under very different circumstances than those presented here. Two Court of Appeal cases, Kerwin v. County of San Mateo (1959) 176 Cal.App.2d 304, 1 Cal.Rptr. 437, and Girard v. Monrovia City School District (1953) 121 Cal.App.2d 737, 264 P.2d 115, which preceded the enactment of the section and upon which defendant relies heavily, demonstrate that the Legislature was principally concerned with limiting a school district's liability for injuries to pupils either before or after school hours while children were either going to school or coming home after school.

    31

    [22 Cal.3d 518] In Kerwin, a six-year-old boy became ill at school. A school official telephoned the boy's home and, finding no one at home except the boy's eleven-year-old brother, asked the brother to come and take the six-year-old home. The school subsequently released the six-year-old to his brother, and on the boys' way home the Eleven-year-old, who did not attend the younger brother's school, incurred injury. In denying recovery to the injured plaintiff, the Court of Appeal observed in dictum that even with respect to its own pupils "(a) school district is under no duty to supervise, or provide for the protection of its pupils, On their way home, unless it has undertaken to provide transportation for them . . . ." (176 Cal.App.2d at p. 307, 1 Cal.Rptr. at p. 439.) (Emphasis added.) Thus, the language in Kerwin relied upon by defendant simply declared that a school district is not legally responsible for accidents en route once pupils have been released from school, or before they arrive at school. The Legislature, in borrowing from the Kerwin language for section 44808, apparently intended to limit a district's liability under similar circumstances.

    32

    In Girard, also relied on by defendant, the court denied recovery under circumstances analogous to Kerwin. In Girard a boy was killed in a traffic accident on his way home from school. The complaint alleged that defendant school district negligently enrolled the child in the wrong [150 Cal.Rptr. 7] [585 P.2d 857] school, causing him to cross heavily traveled streets on his way home from school. Like Kerwin, Girard held that a school district has no responsibility to see that children travel safely to and from school unless it undertakes to provide transportation. (See also Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 279-280, 40 Cal.Rptr. 812; Gilbert v. Sacramento Unified School Dist. (1968) 258 Cal.App.2d 505, 508-510, 65 Cal.Rptr. 913.) Thus neither case, nor section 44808 which followed them, in any way limits a school district's responsibility to supervise students during school hours on school premises, and these authorities provide no aid to defendant in the instant case.[3]

    33

    Defendant strenuously argues that overwhelming policy considerations militate against the imposition of liability on a district in a case, such as this in which the injured pupil left the school voluntarily, "playing [22 Cal.3d 519] hooky." Holding a school district liable for such an injury to a truant would lead, defendant urges, to "truant-proof" schools, where, to avoid liability, school personnel would be required virtually to chain students to their desks to keep them from leaving. Defendant and amicus school districts spare no metaphor in portraying the fortress-like schools which would allegedly result from our holding that the instant plaintiffs have stated a cause of action against the instant defendant. The construction of these escape-proof schools would, it is stressed, be highly detrimental to education in this state.

    34

    The district's fears in this regard are, however, clearly unwarranted since, as already noted, the district is not liable for an injury sustained by a truant under all circumstances, but rather is legally responsible only for those injuries which proximately result from the district's failure to exercise "that degree of care 'which a person of ordinary prudence, charged with (comparable) duties, would exercise under the same circumstances.' " (Dailey, supra, 2 Cal.3d p. 747, 87 Cal.Rptr. p. 379, 470 P.2d p. 363.) At trial, plaintiffs face the burden of showing that the district's supervisory procedures fell below that degree of care which reasonably prudent persons would exercise, and the jury may well absolve the district of liability in this regard. We require ordinary care, not fortresses; schools must be reasonably supervised, not truant-proof.[4]

    35

    Finally, defendant argues that while a duty to supervise may arise during the school year, when attendance is compulsory, no such duty should be imposed during voluntary summer session. Defendant cites no authority for discarding the duty to supervise in summer session, and we find the proposed distinction artificial. Although a student may not be forced to enroll in summer school, once enrolled he must attend classes.

    36

    Additionally, the measure of the trust that parents place in the school to supervise their children is surely not diminished during summer. A large number of working parents enroll their children in summer school because they cannot afford alternative adult supervision. Surely these parents may legitimately expect adequate supervision. The following language from Satariano v. Sleight, supra, 54 Cal.App.2d 278, 284, 129 P.2d 35, 39, is as relevant to summer session as to the regular school [150 Cal.Rptr. 8] [585 P.2d 858] year: "We entrust the safety of our children to our public school authorities during school [22 Cal.3d 520] hours. They are bound to exercise an amount of care for their safety during that period commensurate with the immaturity of their charges and the importance of their trust."

    37
    2. Whether or not defendant's negligence proximately caused plaintiff's injury is a question of fact for the jury.
    38

    Although defendant primarily argues that a school district bears no "duty" to prevent off-campus injuries, it also claims that as a matter of law negligent on-campus supervision Cannot be the proximate cause of an off-campus injury. Proximate cause, however, is generally a question of fact for the jury, and, as we explain, on the basis of the allegations in the instant case the trial court could not properly hold as a matter of law that defendant's alleged negligent supervision on the campus did not proximately cause plaintiff's off-campus injury. (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 621, p. 2903 and cases cited therein.)

    39

    Defendant initially contends that it should not be expected to foresee that students will take advantage of a lapse in supervision to leave the school premises, and therefore that any off-campus injury is unforeseeable as a matter of law.[5] Since at least the days of Huck Finn and Tom Sawyer, however, adults have been well aware that children are often tempted to wander off from school, and a jury might well conclude that defendants could have reasonably foreseen that this temptation might be especially strong during summer session when a student's friends might not be in school. Indeed, the duty to supervise school children is imposed in large part in recognition of the fact that, without such supervision, students will not always conduct themselves in accordance with school rules or as safely as they ought to. (See, e. g., Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 751, 87 Cal.Rptr. 376, 470 P.2d 300; Satariano v. Sleight, supra, 54 Cal.App.2d at pp. 283-284, 129 P.2d 35.) Thus, we cannot say that Michael's departure from school was unforeseeable as a matter of law.[6]

    40

    [22 Cal.3d 521] Defendant furthermore argues that the conduct of the motorcyclist who hit the plaintiff represents a "superseding cause" which cuts off any liability that the school district might bear for the accident. In Dailey, defendant school district pressed a similar argument, suggesting that the school's negligent supervision was not a proximate cause of the injury because a third party wrongfully hit the plaintiff. We rejected that argument, noting: "(t)he fact that another student's misconduct was the immediate precipitating cause of the injury does not compel a conclusion that negligent supervision was not the proximate cause of Michael's death. Neither the mere involvement of a third party nor that party's wrongful conduct is sufficient in itself to absolve the defendants of liability, once a negligent failure to provide adequate supervision is shown. (Citation.)" (Emphasis added; fn. omitted.) (2 Cal.3d at p. [150 Cal.Rptr. 9] 750, 87 Cal.Rptr. at p. 381, 470 P.2d at p. 365.)

    41

    [585 P.2d 859] As we explained in Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 507, 430 P.2d 57, 65, "where (an) injury was brought about by a later cause of independent origin . . . (the question of proximate cause) revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved of liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries."

    42

    In the instant case, we certainly cannot say that the risk of a student's injury at the hands of a negligent motorist is, as a matter of law, not a foreseeable risk created by a school district's failure to exercise due care in supervising its pupils. (See, e. g., Taylor v. Oakland Scavenger Co., supra, 12 Cal.2d 310, 83 P.2d 948; Satariano v. Sleight, supra, 54 Cal.App.2d 278, 129 P.2d 35.) Thus, the subsequent negligence of the motorist does not necessarily relieve the district of all liability for the injury. Of course, under this court's recent decision in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, the school district is entitled to join the motorcyclist as a cross-defendant in the action in order to pursue a claim for comparative indemnity; thus, if the jury [22 Cal.3d 522] determines that the motorcyclist is principally responsible for the injuries, he will be the party who will bear primary responsibility for the lion's share of the damages.

    43

    In sum, the trial court's decision sustaining defendant's demurrer cannot be justified on the ground that defendant's alleged negligence was not a proximate cause of plaintiff's injuries as a matter of law. The proximate cause issue should properly have been submitted to the jury.

    44

    Accordingly, the trial court erred in dismissing plaintiffs' action seeking recovery for Michael's injuries.

    45
    3. Mary Ann's causes of action for loss of Michael's comfort and society and for her own injuries were properly dismissed.
    46

    Plaintiff May Ann Hoyem's cause of action for her expenditures on Michael's behalf was, like Michael's own cause of action, improperly dismissed. Her other causes of action, however, for loss of Michael's "comfort and society" and for her own injuries on viewing Michael in the hospital, are precluded by recent decisions of this court.

    47

    In Baxter v. Superior Court (1977) 19 Cal.3d 461, 463, 138 Cal.Rptr. 315, 316, 563 P.2d 871, 872, this court declined "to enlarge the parent's cause of action to permit recovery for the loss of affection and society" when a child is injured. Mary Ann's cause of action on this score cannot stand.

    48

    Mary Ann also urges that this court extend the cause of action we recognized in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, to include a plaintiff who suffers emotional and physical injury when seeing the primary victim of defendant's negligence hours after the accident. In Dillon this court set out the rule that "courts should allow recovery to a mother who suffers emotional trauma and physical injury From witnessing the infliction of death or injury to her child for which the tort-feasor is liable in negligence." Emphasis added.) (68 Cal.2d at p. 730, 69 Cal.Rptr. at p. 74, 441 P.2d at p. 914.)

    49

    The Court of Appeal in Deboe v. Horn (1971) 16 Cal.App.3d 221, 94 Cal.Rptr. 77 declined to extend the Dillon rule to include a wife who suffered emotional and physical injury when seeing her husband in the hospital hours after he had been injured in an automobile accident due to defendant's negligence. Recently, in Justus v. Atchison [150 Cal.Rptr. 10] (1977) 19 Cal.3d [22 Cal.3d 523] 564, 139 Cal.Rptr. 97, 565 P.2d 122, we approved the Deboe opinion [585 P.2d 860] and denied recovery to an expectant father who was present in the delivery room when the fetus of his unborn child died, but who did not know of the death until later informed by doctors. We held in Justus that "Dillon requires more than mere physical presence: . . . the shock must also result from a 'direct emotional impact' on the plaintiff caused by 'sensory and contemporaneous observance of the accident.' " (19 Cal.3d at p. 584, 139 Cal.Rptr. at p. 110, 565 P.2d at p. 135.) Mary Ann's Dillon cause of action, was therefore, properly dismissed.

    50
    4. Conclusion.
    51

    As explained above, California school districts have long borne a legal duty to exercise reasonable care in supervising students on school premises during school hours. In the present case, plaintiffs' complaint alleges both that defendant breached this duty of care and that such negligence proximately caused Michael's injuries. These allegations are sufficient to state a cause of action against the school district.

    52

    Contrary to defendant's assertions, our holding in no way expands the supervisory obligations of school districts and does not place a new duty upon school authorities to control the conduct of students when they are off school premises. As we have explained, defendant's liability in this case is posited not on an alleged failure to supervise Michael when he was off the school premises, but rather on an alleged failure to exercise due care In supervision on school premises. Defendant will be held liable for Michael's injuries only if the jury concludes that defendant's on-site supervision was negligent and that such negligence was a proximate cause of those injuries.

    53

    The judgment is affirmed insofar as it dismisses Mary Ann Hoyem's causes of action for loss of Michael's society and comfort and for personal injuries sustained as a result of viewing Michael's injuries after the accident. In all other respects, the judgment is reversed. Plaintiffs shall recover their costs on appeal.

    54

    BIRD, C. J., and MANUEL and NEWMAN, JJ., concur.

    55
    CLARK, Justice, concurring and dissenting.
    56

    Paying only lip service to the established rule a public school district is "not an insurer of its pupils' safety" (Ante, p. 3 of 150 Cal.Rptr., p. ---- of --- P.2d), the majority impose on districts insurmountable [22 Cal.3d 524] duties and financial burdens. We are told a district has an Absolute liability for whatever ill befalls a truant after escaping from school premises because security measures are too lax.[1] Short of complete closure, the majority opinion forces a district to respond in one or both of two ways, either of which imposes impractical if not impossible financial responsibilities.

    57

    First, a district may insure truants against third party tortfeasors for injuries suffered while off school grounds. Even absent the great cost of this added responsibility, it is questionable whether school districts can survive financial burdens already thrust upon them by ever increasing personal injury awards and erosion of sovereign immunity concepts. The State Superintendent of Public Instruction, in a press [150 Cal.Rptr. 11] release on 5 April 1978, stated public schools face an insurance crisis which could bankrupt [585 P.2d 861] them if unchecked. He reported liability insurance premiums in the four preceding years have increased an average of 345 percent for elementary school districts, stating "Costs have gone up so much that some school districts can't afford to pay for the insurance they need to protect themselves. . . . And even if they have the money, coverage is hard to get because many insurance companies are not interested in insuring schools." (See, also Liability Insurance in California Public Schools (Dept. Pub. Ed. 1978); A Report of the Liability and Property Insurance Crisis in Los Angeles County Public Schools (Office of L.A.Co.Super. of Pub.Schs.1977).)

    58

    The report of the Department of Education shows total premiums paid by included school districts rose from $8,272,684 in 1974-1975 to $39,794,451 in 1977-1978, with only minimal expansion in total coverage. The data compiled and reported by the department did not, of course, reflect the further dramatic premium increases today's opinion will produce. In view of the tremendous financial impact resulting from adoption of Proposition 13 in the Primary Election of 1978, the majority [22 Cal.3d 525] decision will surely hasten the insolvency of some school districts as predicted by the State Superintendent of Public Instruction.

    59

    The alternative, itself imposing additional financial and administrative burdens, is to increase security on school campuses to reduce truancy. This can be accomplished by reducing campus size to a manageable enclosure and restricting students either by barriers or by security personnel sufficient in number to watch and police all points of egress essentially a concentration camp.[2]

    60

    An even more serious problem confronting school districts would be in maintaining the quality of education now available on open campuses. In Bright v. Los Angeles Unified School District (1976) 18 Cal.3d 450, 134 Cal.Rptr. 639, 556 P.2d 1090, we dealt with the question of openness of expression on school campuses. Although we now deal with the question of openness of physical freedoms our views in Bright are nevertheless pertinent. We said there that "student communication . . . may cause trouble and lead to disturbance, but 'our history says that it is this sort of hazardous freedom this kind of openness that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.' " (Id., at p. 456, 134 Cal.Rptr. at p. 643, 556 P.2d at p. 1094, quoting from Tinker v. Des Moines School District (1968) 393 U.S. 503, 508-509, 89 S.Ct. 733, 21 L.Ed.2d 731. An enforced atmosphere of confinement and limitation on movement will also discourage off-campus and inter-campus innovative programs and even such programs which require freedom of movement to different facilities within a single campus.

    61

    There is little question the majority decision is grounded on a policy determination that, in their view, yet another element of society should be afforded an insured's protection against mishap.[3] Such policy determination is generally for the Legislature either to make in the first instance or to redetermine after judicial intervention into an area properly a legislative matter. The author of today's majority opinion has [22 Cal.3d 526] addressed the issue of when the court should decline to extend liability. Approximately one short year ago he wrote as author of another majority opinion: " 'Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal [150 Cal.Rptr. 12] consequences of wrongs to a controllable degree.' ( P ) . . . '(N)ot every loss [585 P.2d 862] can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, § 1714), the courts must locate the line between liability and nonliability at some point, A decision which is essentially political.'" (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 446-447, 138 Cal.Rptr. 302, 306, 563 P.2d 858, 862; italics added.)

    62

    The restraints suggested in Borer are particularly applicable when public liability is sought to be extended, as in the instant case. In Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 131 Cal.Rptr. 854, plaintiff sought to create a new area of school district liability for "educational malpractice." In concluding liability should Not be extended, the court stated: "(J)udicial recognition of such duty . . . is initially to be dictated or precluded by considerations of public policy. . . . '(I)n the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget; and finally, the moral imperatives which judges share with their fellow citizens such are the factors which play a role in the determination of duty. . . . ' (Raymond v. Paradise Unified School Dist., supra, 218 Cal.App.2d 1, 8-9, 31 Cal.Rptr. 847 . . . ) ( P ) In Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 . . . the Supreme Court used similar terminology in defining various public policy considerations as exceptional factors which might alone warrant NonLiability for negligence. . . . ( P ) . . . (T)he major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. . . . (Rowland v. Christian, supra, 69 Cal.2d 108 at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561. . . .)'' (Id.,At pp. 822-823, 131 Cal.Rptr. at pp. 859-860.)

    63

    Obviously, the factors mentioned by us in Rowland and relied on in Peter W. a case closely in point with the instant case should persuade us to exercise the restraint urged in Borer. Here the district could not [22 Cal.3d 527] foresee the particular harm to plaintiff; the certainty plaintiff would suffer harm as a truant was no greater than had he been properly dismissed from school on the day in question; there is only remote connection between the district's alleged negligence and the injury suffered; there is little if any moral blame in the district's conduct; the burden on the district is, as stated, insurmountable; the effect of imposing liability on the district will be negative and far-reaching; and the cost of insurance, even if available, will impose a burden the district may well not be able to overcome.

    64

    The judgment should be affirmed.

    65
    RICHARDSON, Justice, dissenting.
    66

    I respectfully dissent and, agreeing with the reasoning and conclusions of Justice Clark in his dissent, only wish to add the following.

    67

    As a policy matter I oppose the imposition of civil liability upon a school district for injuries sustained off the school premises by a truant school pupil who has voluntarily and knowingly left the school premises during school hours. In my view, the fastening of liability on a school under these circumstances goes too far. Just 10 years ago in Dillon v. Legg (1968) 68 Cal.2d 728, at page 734, 69 Cal.Rptr. 72, at page 76, 441 P.2d 912, at page 916, we repeated the wise admonition of Dean Prosser that whether a duty of care exists turns on " ' . . . whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. . . . "Duty" [150 Cal.Rptr. 13] is not sacrosanct in itself, but only an Expression of the sum total of those considerations [585 P.2d 863] of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Prosser, Law of Torts, supra (3d ed. 1964), at pp. 332-333.)" (Italics added.)

    68

    These "considerations of policy" in the case before us should, among other things, include the fundamental function, purpose, and role of a school and its staff, the nature and probable degree of supervision required to prevent truancy, the physical variables of entrances and exits to school grounds, the financial costs of adequate supervision to prevent truancy, the relative moral culpability of pupil, parent, and school administration, the historical experience of schools in the supervision of pupils, truant and nontruant, the expense of adequate insurance to cover the extension of liability herein, and other factors. Weighing these different considerations, I conclude that for policy reasons we should not impose such a duty of care on a school district. A line should be drawn [22 Cal.3d 528] limiting a school's liability to injuries to a pupil which occur on school property, or when the pupil is transported to, or participating in, a school-sponsored or school-related activity, in the manner contemplated by Education Code section 44808 (formerly § 13557.5).

    69

    The instant case involved a truant who was injured at an intersection four blocks from the schoolyard by a third party motorcyclist. I cannot say that the next case may not involve a truant who without anyone's permission or knowledge deliberately slipped away from school unnoticed, hopped a freight train and was injured when he fell off a car four days later in Duluth, Minnesota.

    70

    We should recognize that some children's activities are not risk-proof. One of the continuing hazards, by reason of the very nature of a school's operations, is that a school child during school hours, purposely and surreptitiously may escape from the schoolyard and the school environment and run off on a lark of his own and thereby be injured. If this happens, the event is unfortunate perhaps tragic indeed, but I would not require that the liability protection of a school district must, like a shadow, follow the youngster as he wanders around town.

    71

    I believe this is what the Legislature had in mind in its enactment of Education Code section 44808 (formerly § 13557.5).

    72

    MOSK, J., concurs.

    73

    [*] Pursuant to Constitution, article VI, section 21.

    74

    [1] Plaintiffs have filed a separate action against the driver of the motorcycle and the issue of the driver's liability is not before us.

    75

    [2] That the "reasonable care" exception in the statute is not accidental is clear from the legislative history. The original bill, passed by the Assembly, was identical to the current statute but did not include the final phrase about reasonable care. That phrase was added by Senate amendment (4 Sen.J. (1972 Reg.Sess.) p. 6247) and then approved unanimously by the Assembly. (4 Assem.J. (1972 Reg.Sess.) p. 7049.) The intent of the Legislature is clear: when a school district fails to exercise reasonable care the immunity of this section evaporates.

    76

    [3] Defendant also relies on Castro v. Los Angeles Bd. of Education (1976) 54 Cal.App.3d 232, 126 Cal.Rptr. 537 which, in dicta interpreting the instant statute, states: "Students who participate in nonrequired trips or excursions . . . are effectively on-their-own; the voluntary nature of the event absolves the district of liability." (54 Cal.App.3d at p. 236, 126 Cal.Rptr. at p. 540.) Castro, however, is distinguishable from the instant case because it dealt not with an allegation that the school district failed to exercise reasonable care in supervising students on school premises, but with an accident occurring at a school-sponsored ROTC outing. The Castro court held the district liable because the activity was school-related.

    77

    [4] Moreover, if the jury finds that the truant student's negligence was a proximate cause of his injuries, defendant's liability for such injuries will, of course, be diminished on the basis of comparative negligence principles. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.)

    78

    [5] Defendant does not contend that the trial court could conclude that its alleged negligence was not an actual or "but for" cause of the accident as a matter of law. Plaintiff alleges that if defendant had provided adequate supervision, Michael would never have left the school premises and would not have sustained his subsequent injuries. On the basis of this pleading, the issue of actual causation is clearly a question of fact for the jury.

    79

    [6] Although defendant argues that its negligent supervision should not be considered a proximate cause of the accident because the accident might easily have occurred at a time of day during which the district bore no duty of supervision, under traditional negligence principles such a speculative possibility cannot absolve the district of liability for the accident. Thus, in Dailey, for example, although the district could have similarly claimed that the slap-boxing incident might have occurred during nonschool hours, our opinion made clear that the district could be held liable so long as its negligent supervision was an actual ("but for") cause of the injury and the general type of injury was reasonably foreseeable. (See 2 Cal.3d at pp. 750-751 and fn. 7, 87 Cal.Rptr. 376, 470 P.2d 300.) The same principles apply here.

    80

    __________

    81

    [1] We are not told of the majority position in the case of students who, having permission to be off campus or having terminated their school day, are injured by third party tortfeasors while proceeding to their homes. Certainly the majority do not intend to afford the truant greater benefits than is afforded students conforming to established rules. Yet the Legislature has expressly denied protection to such students. (Ed.Code, § 44808, formerly § 13557.5.) The majority do not explain such conflict nor do they attempt to square today's decision with decisions holding a district is not liable for off-campus injuries suffered by a student while returning home from school (Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 264 P.2d 115; Angelis v. Foster (1938) 24 Cal.App.2d 541, 75 P.2d 650), while away from school with express permission (see Kerwin v. County of San Mateo (1959) 176 Cal.App.2d 304, 1 Cal.Rptr. 437), or even while on an errand for the teacher (see 38 A.L.R. 830, 844).

    82

    [2] There is actually little a school district can do to restrain a student who wishes to leave a campus. Even a habitual truant cannot be suspended or removed from school rolls. (Ed.Code, § 48900.) The majority thus propose to make a school district an insurer of the safety of such persons although the district lacks the power to control their movements.

    83

    [3] If a school district is negligent because a truant is able to leave campus, and such negligent conduct is the actual and proximate cause of injuries suffered when struck by a negligently operated motorcycle, is not the school district liable to a motorcycle driver injured when that truant negligently darts into the motorcycle's path?

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