Wins

A student sued GMSR’s school district client for injuries sustained in a mandatory physical education class, caused by a push tackle in a touch football game by another student with a history of bullying.  Plaintiff claimed that the class teacher negligently supervised the students and that the district had breached mandatory reporting duties regarding bullying.  A jury awarded plaintiff $1.75 million in economic and non-economic damages, finding the P.E. teacher was negligent and the district breached reporting duties.  The jury found that the tackler acted intentionally, so it skipped any comparative fault allocation.  The trial court had ruled that a Proposition 51 fault allocation for noneconomic damages is inappropriate where a negligent tortfeasor breaches a duty to prevent intentional misconduct.

On appeal, the Second Appellate District, Division Five, reversed.   In an unpublished portion of the decision, the Court of Appeal held that the evidence did not support the breach of mandatory duty claim and that the matter should be remanded with directions for the trial court to enter judgment for the school district.  In a published portion of the decision, the Court of Appeal held that the trial court did not err in refusing to instruct the jury on the primary assumption of risk doctrine but did err in instructing the jury not to conduct a comparative fault allocation.  Embracing the reasoning of Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, the Court of Appeal held that a Proposition 51 comparative fault allocation is required even where the negligent tortfeasor failed to prevent a co-tortfeasor’s intentional misconduct.

To read the Court of Appeal Opinion, click here:  Nigel B. v. Burbank Unified School District (2023) 93 Cal.App.5th 64 [Second District, Division Five]