Filed 3/25/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BRIAN M. GROSSMAN, B283956
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC557349)
v.
SANTA MONICA-MALIBU
UNIFIED SCHOOL DISTRICT,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Affirmed.
Law Office of Michael A. Naso and Michael A. Naso for
Plaintiff and Appellant.
Yukevich Cavanaugh, Cristina M. Ciminelli and Victoria L.
Danna for Defendant and Appellant.
______________
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.
1 Undesignated statutory references are to the Education
Code unless otherwise indicated.
2
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
3
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
4
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
5
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
2 Grossman dismissed the breach of warranty and strict
liability causes of action against the school district and the
booster group on April 11, 2016.
6
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 required to obtain written
permission from the school district to place the slide on the school
premises under the provision in the Rules of Use that specified,
“No structures may be erected or assembled, . . . or other
equipment be brought on school premises unless written approval
has been obtained from the Facility Permit Office.” Thus, the
school district controlled the slide and was responsible for the
dangerous condition of the slide. Grossman also argued there
were triable issues of fact whether the school district had
constructive notice of the dangerous condition of the slide because
7
it failed to inspect the slide or require the booster club to inspect
the slide, and it was foreseeable the slide created a substantial
risk of harm to its users.
E. The Trial Court’s Ruling and Judgment
On April 20, 2017 the trial court granted the school
district’s motion for summary judgment. As a threshold matter,
the trial court ruled Grossman raised a triable issue of fact as to
whether the school district was estopped from arguing Grossman
submitted his claim to the wrong person. The court then
considered whether the school district could be held liable for
negligence under section 38134, subdivision (i)(1). The court
noted that pursuant to Government Code section 835, a public
entity is only liable for an injury caused by a dangerous condition
on its property. But Grossman’s complaint alleged “the inflatable
slide was set up incorrectly, not that the school grounds itself
posed a dangerous condition.” The court rejected Grossman’s
contention the school district had responsibility for the slide
because it had authority to shut down the carnival under its
Rules of Use. In addition, the court found Grossman did not
present “evidence of any prior circumstances that would establish
[the school district’s] actual or constructive knowledge of a
dangerous condition of public property.” The trial court
concluded, “[W]ith no facts showing how [the school district] was
negligent with respect to its ownership or maintenance of the
school facilities or grounds, [Grossman] cannot meet his burden
of proof to show [the school district] breached any duty towards
him.”
8
The court entered judgment in favor of the school district
on June 22, 2017. Grossman timely appealed, and the school
district timely cross-appealed.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Delgadillo v. Television Center, Inc. (2018)
20 Cal.App.5th 1078, 1085.) A defendant moving for summary
judgment has the initial burden of presenting evidence that a
cause of action lacks merit because the plaintiff cannot establish
an element of the cause of action or there is a complete defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Regents of University of
California, at p. 618; Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 853.) If the defendant satisfies this initial burden
of production, the burden shifts to the plaintiff to present
evidence demonstrating there is a triable issue of material fact.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850;
Delgadillo, at p. 1085.)
We independently review the trial court’s grant of
summary judgment, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347 (Hampton); Wilson v. 21st Century Ins. Co.
(2007) 42 Cal.4th 713, 717.) “‘“We liberally construe the evidence
in support of the party opposing summary judgment and resolve
9
doubts concerning the evidence in favor of that party.”’”
(Hampton, at p. 347; accord, Wilson, at p. 717.) “‘[S]ummary
judgment cannot be granted when the facts are susceptible to
more than one reasonable inference . . . .’” (Husman v. Toyota
Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1180; accord,
Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 583.)
Likewise, “[w]e review questions of statutory construction
de novo. Our primary task ‘in interpreting a statute is to
determine the Legislature’s intent, giving effect to the law’s
purpose. [Citation.] We consider first the words of a statute, as
the most reliable indicator of legislative intent. [Citation.]’
[Citation.] We construe the statute’s words in context,
harmonizing statutory provisions to avoid absurd results.
[Citation.] If the statutory text is susceptible to more than one
reasonable construction, we may consider extrinsic aids such as
legislative history to facilitate our interpretative analysis.”
(California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, United Riggers
& Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082,
1089.)
B. The School District Is Not Liable for Grossman’s Injuries
Under Section 38134
1. School district liability under the Civic Center Act
Under the Civic Center Act, “each and every public school
facility and grounds” is designated “a civic center.” (§ 38131,
subd. (a).) Pursuant to section 38134, subdivision (a)(1), a school
district must allow nonprofit organizations “organized to promote
youth and school activities” to use school facilities and grounds
10
under its control. Section 38134, subdivision (i)(1), apportions
liability between the school district and the entity using the
school facilities or grounds. “A school district authorizing the use
of school facilities or grounds under subdivision (a) is liable for an
injury resulting from the negligence of the school district in the
ownership and maintenance of the school facilities or grounds.
An entity using school facilities or grounds under this section is
liable for an injury resulting from the negligence of that entity
during the use of the school facilities or grounds. The school
district and entity using the school facilities or grounds under
this section shall each bear the cost of insuring against its
respective risks and shall each bear the costs of defending itself
against claims arising from those risks.” (§ 38134, subd. (i)(1).)
Section 38134, subdivision (i)(2), provides further,
“Notwithstanding any other law, this subdivision shall not be
waived. This subdivision does not limit or affect the immunity or
liability of a school district under [the Government Claims Act]
for an injury caused by a dangerous condition of public property.”
“Under the Government Claims Act, ‘[a] public entity is not liable
for an injury,’ ‘[e]xcept as otherwise provided by statute.’”
(Hampton, supra, 62 Cal.4th at p. 347, quoting Gov. Code, § 815,
subd. (a);3 accord, Guzman v. County of Monterey (2009)
46 Cal.4th 887, 897 [“there is no common law tort liability for
3 Government Code section 815, subdivision (a), provides
that, except as otherwise provided by statute, “[a] public entity is
not liable for an injury, whether such injury arises out of an act
or omission of the public entity or a public employee or any other
person.”
11
public entities”].) Under Government Code section 835,4 a public
entity’s liability for the foreseeable risk of injury arising from a
dangerous condition of its property is limited to specified
circumstances, including when “either an employee’s negligence
or wrongful act or omission caused the dangerous condition or the
entity was on ‘actual or constructive notice’ of the condition in
time to have taken preventive measures.” (Hampton, at
pp. 347-348, quoting Gov. Code, § 835; accord, Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 66
(Cornette).) “A dangerous condition is one that ‘creates a
substantial . . . risk of injury’ when the property is ‘used with due
care in a manner in which it is reasonably foreseeable that it will
be used.’” (Hampton, at p. 348, quoting Gov. Code, § 830, subd.
(a); accord, Garcia v. American Golf Corp. (2017) 11 Cal.App.5th
532, 539.)
Grossman contends Education Code section 38134,
subdivision (i)(1), creates a statutory waiver of sovereign
immunity independent of government liability for a dangerous
4 Government Code section 835 provides that “a public entity
is liable for injury caused by a dangerous condition of its property
if the plaintiff establishes that the property was in a dangerous
condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the
dangerous condition created a reasonably foreseeable risk of the
kind of injury which was incurred, and that either: [¶] (a) A
negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or constructive
notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against
the dangerous condition.”
12
condition of public property under Government Code section 835.
But this reading of section 38134 ignores subdivision (i)(2), which
expressly provides that “[t]his subdivision does not limit or affect
the immunity or liability of a school district . . . for an injury
caused by a dangerous condition of public property.” Because the
school district’s immunity and liability under the Government
Claims Act are not limited or affected by section 38134,
subdivision (i)(1), it follows that the school district’s liability for
negligence “in the ownership and maintenance of the school
facilities or grounds” is limited to injuries caused by a dangerous
condition of public property as defined by Government Code
section 835.
Our interpretation of section 38134, subdivision (i), is
consistent with the section’s legislative history. In 1990 the
Legislature passed Assembly Bill No. 3006 (1989-1990 Reg.
Sess.), which added what is now section 38134, subdivision (i), to
the Civic Center Act. (Former § 40043, subd. (h); Stats. 1990, ch.
377, § 1, pp. 1718-1720.) The state PTA advocated for passage of
Assembly Bill No. 3006 because “‘school districts around the state
[had] been requiring their local PTA units to sign sweeping “hold
harmless” agreements and/or name the school district as an
“additional insured” on the PTA insurance policy in order to use
school property for PTA events.’” (Sen. Com. on Judiciary,
Analysis on Assem. Bill No. 3006 (1989-1990 Reg. Sess.) as
amended Apr. 16, 1990, p. 2 (Sen. Com. on Judiciary, Analysis on
Assem. Bill No. 3006); see Sen. Rules Com., Office of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 3006 (1989-1990
Reg. Sess.) June 25, 1990, p. 2 [“The purpose of this bill is to
preclude school districts from requiring specified organizations
which use school facilities to sign hold harmless agreements
13
which immunizes the school district from any liability for injuries
occurring on the school grounds, including injuries resulting from
the school district’s negligence.”].)
Assembly Bill No. 3006 codified a 1989 legal advisory
opinion from the Superintendent of Public Instruction in
response to a complaint from the PTA. (Sen. Com. on Judiciary,
Analysis on Assem. Bill No. 3006, at pp. 2-3.) The advisory
opinion concluded the “‘hold harmless agreements, imposed by
districts as a condition of school facility use, are impermissible to
the extent that they require the PTA to assume liability for any
claim “however caused” or “caused in any way” by the use of
school facilities.’” (Id. at p. 3.) Further, “‘a school district should
not require the PTA to assume the cost of insuring against
injuries caused by the negligent acts or omissions of the district,
since that is a cost ordinarily borne by the district.’” (Ibid.)
The Senate Committee on Judiciary noted the advisory
opinion was supported by the holding in Ellis v. Board of
Education (1945) 27 Cal.2d 322, in which the Supreme Court
acknowledged that a school district was improperly demanding
users of its facilities to provide insurance protection to cover the
school district as the owner or manager of the school property
because “[t]he cost of that protection is a cost of maintenance and
management” of the school’s facilities.5 (Sen. Com. on Judiciary,
Analysis on Assem. Bill No. 3006, p. 3.)
5 In Ellis, the school district required an organization that
requested use of a school auditorium to furnish public liability
insurance naming the district as an insured. (Ellis v. Board of
Education, supra, 27 Cal.2d at p. 324.) The Supreme Court held
the insurance requirement violated the Civic Center Act, which
required the school district to grant the organization use of the
school property free of charge. (Id. at pp. 328-329.) The court
14
The committee explained the “key issue” was whether “the
liability, cost of insurance, and cost of defense [should] be
apportioned between school districts and organizations that use
school facilities on the basis of the parties’ respective
responsibilities and fault.” (Sen. Com. on Judiciary, Analysis on
Assem. Bill No. 3006, p. 1.) The committee’s report stated the bill
would address this issue by holding school districts “liable for any
injuries resulting from the negligent ownership, operation, or
maintenance of the facilities or grounds,” whereas “[g]roups using
school facilities or grounds would be liable for any injuries
resulting from the negligence of the group during use of the
facilities or grounds.” (Id. at p. 2.)
The Senate Committee on Judiciary was concerned the
language in Assembly Bill No. 3006, making the school district
“‘liable for any injuries resulting from the negligence of the
district in the ownership and management of those facilities or
grounds,’” would broaden the school district’s liability beyond
Government Code section 835 and affect its absolute immunity
explained, “The policy required would not insure the school
district against injury to the school building or other property of
the school district, or against liability for injuries resulting from
conduct of those attending or protesting the meeting for which
[the school district] would not be responsible. It would insure the
district only against liability for injuries to others arising out of
the hazards incident to the school district’s ownership and
management of the building, schoolgrounds, and equipment.
Such hazards would arise from the failure of the district to
maintain the premises and equipment in a reasonably safe
condition or to fulfill its duties in managing the property.” (Id. at
p. 327.)
15
under section 831.2.6 (Sen. Com. on Judiciary, Analysis on
Assem. Bill No. 3006, pp. 3-4.) The Senate responded by
amending the bill to include the language now found in
Education Code section 38134, subdivision (i)(2) (Ed. Code,
former § 40043, subd. (h)), “to preclude the inadvertent
broadening of school district liability.” (Sen. Com. on Judiciary,
Analysis on Assem. Bill No. 3006, p. 4; see Amendment to Assem.
Bill No. 3006 (1989-1990 Reg. Sess.) as amended April 16, 1990
[“Nothing in this subdivision shall be construed to limit or affect
a school district’s immunity or liability under provisions of the
Government Code for injuries caused by a dangerous condition of
public property.”]; Concurrence in Senate Amendments to Assem.
Bill No. 3006 (1989-1990 Reg. Sess.) as amended June 26, 1990,
at p. 1 [“The Senate amendments provide that nothing in this bill
shall be construed to affect a school district’s immunity or
liability under the Tort Claims Act, commencing with
Government Code Section 810.” (Underscoring omitted.)].)
2. The school district was not liable for the booster
group’s use of the school grounds
Grossman contends the school district breached its duty to
use due care in the ownership and maintenance of its school
6 Government Code section 831.2 provides, “Neither a public
entity nor a public employee is liable for an injury caused by a
natural condition of any unimproved public property . . . .” (See
Alana M. v. State of California (2016) 245 Cal.App.4th 1482, 1488
[“The natural condition immunity applies even ‘where the public
entity had knowledge of a dangerous condition which amounted
to a hidden trap.’”]; Arroyo v. State of California (1995)
34 Cal.App.4th 755, 762-764 [state had no duty to place warning
signs about dangers of mountain lions in state park].)
16
grounds before and during the carnival, rendering it liable under
section 38134, subdivision (i)(1). But Grossman’s negligence
claim is premised on the negligent set up and operation of the
inflatable slide, not the negligent ownership and maintenance of
school grounds. In his second amended complaint, Grossman
alleged the slide was improperly set up on the grass infield
adjacent to the concrete and the rope tethers at the top of the
slide were not staked to the ground.7 It is undisputed the school
district did not plan, set up, operate, inspect, or supervise the
carnival attractions, including the inflatable slide. Macklin
selected the location of the inflatable slide; WOW Rental
employees set up the slide on the day of the carnival; and a
booster club parent volunteer operated the slide.
Grossman seeks to hold the school district liable for an
injury resulting from the alleged negligence of the booster group
“during the use of the school facilities or grounds,” which is
precisely the liability allocated under section 38134, subdivision
(i)(1), to the booster group as the entity using the school grounds.
As section 38134, subdivision (i)(1), makes clear, the “school
district and the entity using the school facilities or grounds . . .
shall each bear the costs of defending itself against claims arising
from those risks.” This would be a different case had Grossman
7 We consider the allegations in the operative second
amended complaint because it sets the boundaries of the issues to
be resolved in a motion for summary judgment. (Martine v.
Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715,
725 [defendant “was not required to refute liability on theoretical
issues not raised in the complaint”]; Alki Partners, LP v. DB
Fund Services, LLC (2016) 4 Cal.App.5th 574, 597 [defendant
“was not required to refute liability on a theory not included in
the operative complaint”].)
17
tripped on a negligently maintained sprinkler head on school
grounds, which could be a dangerous condition if Grossman met
the other requirements for liability under Government Code
section 835.
Moreover, Grossman cannot establish the inflatable slide
constitutes a “dangerous condition” of the school district’s
property under Government Code section 835. Grossman did not
prove his injuries were caused either by an employee’s negligence
or that the school district had actual or constructive notice of a
dangerous condition. (Gov. Code, § 835; Hampton, supra,
62 Cal.4th at pp. 347-348; Cornette, supra, 26 Cal.4th at p. 66.)
Grossman argues a school district employee was negligent in
failing to provide Macklin with the school district’s Rules of Use
prior to the carnival and, had Macklin been given the rules, the
accident could have been avoided.8 But nowhere in the Rules of
Use did the school district require an inflatable slide be tethered
to the ground or the user of the grounds perform safety
inspections.
Instead, Grossman points to rules 7, 8, and 11 of the Rules
of Use, none of which would have required the inflatable slide be
tethered to the ground or inspected. Rule 8 provided, “No
structures may be erected or assembled, nor may any electrical,
mechanical, or other equipment be brought on school premises
unless written approval has been obtained from the Facility
8 The Rules of Use required a user of school facilities or
grounds to sign and date an acknowledgement that “I have read
and understand the above Rules of Use for Facilities.” It is
undisputed the school district did not provide Macklin with the
Rules of Use until after the carnival.
18
Permit Office.”9 Even if this requirement of prior approval
applied to an inflatable slide,10 Grossman did not show that
compliance with the requirement for prior written approval
would have resulted in the inflatable slide being tethered to the
ground. Indeed, the school district had provided its written
approval for the booster group to use the school grounds for a
carnival, which in prior years had included an inflatable slide.
There is likewise no merit to Grossman’s argument the
inflatable slide violated rule 11, which states, “There are to be no
physical changes made to facilities or equipment.” As
acknowledged by Grossman, the inflatable slide was only
temporarily on the school grounds and was removed at the end of
the carnival. Thus, the inflatable slide did not constitute a
physical change to the school facilities or equipment.11
9 Rules 7 and 11 appear on page one of the Rules of Use; rule
8 appears on a separately numbered Rules of Use at page 2.
10 Grossman’s argument the inflatable slide was a “structure”
that was “erected” on the school grounds ignores the fact the slide
was not a building or something constructed on school grounds,
but rather, was simply inflated. (See, e.g., Merriam-Webster’s
Collegiate Dict. (11th ed. 2003) p. 1238, col. 2 [defining a
structure as “something (as a building) that is constructed.”];
Oxford English Dist. Online (2019) [as of Mar. 25,
2019] [defining a structure as “[a] building or other object
constructed from several parts”].)
11 Grossman also argues rule 7 prohibited the use of any gas-
powered generator on the campus. However, Grossman only
produced evidence that Macklin rented a generator from James
Event, not that it was gas-operated, nor did he submit any
evidence the generator in any way caused the accident.
Moreover, rule 7 is not directed at gas generators, instead
19
Alternatively, Grossman contends the school district had
actual or constructive notice of a dangerous condition. Yet
Grossman failed to present any evidence the school district was
on actual or constructive notice the inflatable slide was not
tethered to the ground or was otherwise dangerous. As noted, it
is undisputed the school district did not plan, set up, operate,
inspect, or supervise the inflatable slide. Prior to the accident, no
one complained to the school district about the unsafe condition
of the inflatable slide. In addition, the booster group had used a
similar slide at the school carnival for the prior three years
without injuries.
The trial court therefore properly granted summary
judgment because there was no evidence the school district was
negligent in the ownership and maintenance of its school
facilities or grounds (§ 38134, subd. (i)). In addition, Grossman’s
injuries were not caused by a dangerous condition of the school
district’s property within the meaning of Government Code
section 835. Because we affirm the trial court’s grant of
summary judgment on Grossman’s negligence cause of action, we
dismiss as moot the school district’s cross-appeal from the trial
court’s finding it was equitably estopped from arguing lack of
compliance with the Government Claims Act.
providing, “Skateboards, bicycles, roller skates/blades, scooters,
electrical- or gas-powered devices may not be used on campus.
They must be walked or carried.”
20
DISPOSITION
The judgment is affirmed. The school district’s appeal is
dismissed as moot. The school district shall recover its costs on
appeal from Grossman.
FEUER, J.
WE CONCUR:
PERLUSS, P. J.
SEGAL, J.
21
Grossman v. Santa Monica-Malibu Unified School Dist.
Combined Opinion