I dissent:
The majority opinion finds no duty of care to be owed by the school district to the injured child because, among other *282reasons, it has no legal duty to transport pupils between home and school, there is no specific statutory authority or requirement that it supply traffic protection to pupils en route between home and school; also, that there are specific statutes authorizing cities, unincorporated areas and state highway authorities to expend certain funds for the payment of crossing guards, the installation of flashing signals and the painting of crosswalks in the proximity of the school ground; and finally, by inference, that only the parents owe a duty of care to the child at this time and place.
From this it concludes that it was not intended that any liability or responsibility should rest upon the school district, particularly if it has not undertaken any of the procedure authorized for the safety of their pupils off school grounds. But beyond this, I believe the majority opinion is more concerned with the fact that to hold that the district had a duty of care might establish a policy requiring school districts to establish crossing protection for students at every street crossing between the home of every student and the school.
It is not necessary that in finding or establishing a duty of care on the part of the school district in this case that such a result be reached. We are dealing here with special circumstances as the words “special circumstances” are used in Hergenrether v. East, 61 Cal.2d 440 [39 Cal.Rptr. 4, 393 P.2d 164], The special circumstances are these: Plaintiff, David Wright, is a 5-year-old boy attending kindergarten at the Howe Avenue School. State law makes it mandatory that David attend this particular school and he was directed by those in charge of the school to cross at the intersection where he was injured. The intersection is on a major traffic artery with peak flows of traffic at the hours when the kindergarten children were required to cross. The intersection was controlled by electric traffic signals, traffic signals which a child of 5 years might or might not comprehend. Other children have been struck and injured by automobiles at this intersection and on El Camino Avenue. The intersection was within 500 feet of the sehoolground. The school authorities had full knowledge of the situation, and prior to the accident had maintained a school safety patrol to supervise pupils crossing the intersection. This traffic patrol had been removed over the protest of a parents’ organization.
I find it most easy to fit these special circumstances into the framework of the definition of duty contained in Raymond v. Paradise Unified School Dist., supra (quoted in the *283majority opinion herein). Let us lay the admitted facts alongside the definition of duty contained in Raymond v. Paradise Unified, School Dist., supra (quoted in the majority opinion herein) : “An affirmative declaration of duty simply amounts to a statement that two parties stand in such relationship that the law will impose on one a responsibility for the exercise of care towards the other. Inherent in this simple description are various and sometimes delicate policy judgments. The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct; the kind of person with whom the actor is dealing; . . .” (I think it will be conceded that the social utility of the activity out of which the injury arises, namely, the operation of a kindergarten at the particular time and place, is undeniably beneficial compared with the risks involved in its conduct.) The kind of person is a 5-year-old boy attending kindergarten who belongs to that special class of person requiring a high degree of care. “ [T]he amount of care due to minors increases with their immaturity.” (Satariano v. Sleight, 54 Cal. App.2d 278, 283 [129 P.2d 35].) “So, in all logic, do the occasions for care.” (Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 10 [31 Cal.Rptr. 847].)
The workability of a rule of care, especially in terms of the parties’ relative ability to adopt practical means of preventing injury. The crossing at which David was injured was apparently the narrow neck of the funnel of the children’s traffic to the school and existed within view of the school and with the knowledge on the part of the school that these kindergarten children would have to cross at this point in order to reach the school. In fact, they had been directed by the school authorities to cross at this point. The school had full knowledge that the crossing was dangerous and that children had been injured in traffic at the crossing. It may be possible, or it may not be possible, for the parent of every child to conduct the child across this intersection to the school. However, the relative ability to adopt practical means of preventing injury at this crossing rests with the district by creating some form of patrol at the two critical but short periods of time during the day.
The relative ability of parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread. Given the foregoing conditions, the school district has a greater relative ability to bear the financial burden of the injury to the child by spreading it over the *284entire district than to place the burden upon the innocent child or the parents who may not have the financial means to bear the cost of expensive repairs to a seriously injured child.
The body of statutes and judicial precedents which color the parties’ relationship. The body of the statutes and judicial precedents involved in this situation clearly indicate that it is contemplated that the school district will reach out beyond the boundaries of the schoolground and transport or conduct pupils to the schoolground and also maintain safety patrols at crossings, so that the idea of the extension of the responsibility of the school district beyond the school-ground in itself is not reprehensible, nor does it introduce a new legal concept. The difference being that in one instance the school assumes the duty and if in some manner it fails in its duty, liability is imposed. In the present instance, liability would be imposed upon the school district for failing to exercise that care, when in good conscience it has the ability to do so and ought to act, but fails to do so.
The prophylactic effect of a rule of liability. The imposition of this duty on the school board would insure and compel the school districts to act in those instances where the problems of the safety of kindergarten children are obvious and acute.
In 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. If, as has been pointed out above, the safeguarding of children on their way to and from school is a permissive thing created by statute, it is within the legal powers of the school. The limitations imposed upon it by budget relate to the financial ability of a district to provide adequate crossing protection at two short periods of the day. It is not conceivable that meeting this condition would impose a serious financial burden upon the budget of the district.
And finally, the moral imperatives which judges share with their fellow citizens. I cannot willingly concur with any rule of law which would permit a school district, under the facts here stated, to deny that it owes a legal duty of care to a 5-year-old child attempting to cross a dangerous intersection, which is literally at the front door of the school, with the knowledge the district had of the past bad experiences at that crossing and the present existing danger. The more so, when the child and the parents of the child have been directed to use that crossing. This direction was given for some purpose. Obviously it was intended to be complied with. And if the school has the authority to direct which crossing the *285child must use, then it follows that it must assume some of the responsibility for what occurs when the child carries out the direction of the legal body with which the child would stand in loco parentis for the greater portion of its day.
The majority opinion dismisses the fact that the district had formerly maintained a safety patrol at the intersection and had removed it over the protest of a parents ’ organization, by saying that plaintiff’s counsel did not spell out that David and his parents had been led by this prior conduct to rely upon an expectation of protection at the crossing. The fact that the school district had maintained a safety patrol at this crossing prior to David's accident bears heavily on the determination of whether the district owed a duty of care to David, and it was equally important in determining whether or not the district in having assumed the duty of providing this care was negligent in abandoning it. If the plaintiff were permitted to develop all the facts, it might be clear that the removal of the safety patrol took the district out of that category of no duty where no action taken, which the majority opinion finds, to the category of action taken in the field of safety and improperly carried out. These are the reasons why the case should have been permitted to go to the jury. I would deny the motion for nonsuit.
Education Code section 903 imposing negligence liability on school districts was in force at the time of this accident in 1959. This section was repealed by Statutes of 1963, chapter 1681 (Gov. Code, §§ 810-895.8), which legislation “applies retroactively to the full extent that it constitutionally can be so applied.” (Stats. 1963, ch. 1681, § 45, subd. (a).)
This issue was not presented nor argued at the time of the granting of the motion for nonsuit and comes to this court without either briefing or argument on the point. The vital constitutional question involved has thus not been properly presented to the court; and it cannot be said upon such scanty authority as is presented in the majority opinion, that the plaintiff does not have a vested right to proceed to recover for the detriment caused him by the negligence of the defendant district and of which he may not be constitutionally deprived. There is no basis for sustaining the granting of the motion on these grounds. (Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 65 [195 P.2d 1].)
Appellant’s petition for a hearing by the Supreme Court was denied December 17, 1964. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.
Assigned by Chairman of Judicial Council.