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Cortez v. Ceres Unified School District3/5/2003
Appellant Omar Cortez contends the trial court erred in granting summary judgment in favor of respondent Ceres Unified School District (District) in his action against them for general negligence and negligent supervision and hiring. We conclude the trial court was correct in finding that District was immune from liability and therefore affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In setting forth the relevant facts, we are mindful of the standard of review on appeal from a grant of summary judgment: As an appellate court we strictly construe the evidence of the moving party and liberally construe the evidence of the opposing party. We consider the evidence de novo and indulge every reasonable inference to be drawn from the opposing party's evidence. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886.)
On July 16, 1999, Cortez suffered what the parties have characterized as a "near drowning" incident while at the Ceres High School swimming pool participating in a class activity. At the time, Cortez was a sixth grade student in teacher Cheryl Brewer's class at Walter White Elementary School in Ceres. He had been in that class approximately three weeks when Brewer scheduled the class for a swimming activity at the high school. In order to participate in the activity, students had to have their parents sign a "Voluntary Activities Participation Form." Cortez's father, Alejandro Cortez, signed the form but did not understand its contents or legal significance. The school was aware that Cortez's parents primarily spoke Spanish.
The day before the accident, Cortez's father visited the school and spoke with a Spanish-speaking secretary about safety concerns he had. He was told the school would be providing safety equipment and would take care of Cortez and teach him how to swim. Cortez's father explained to the secretary that Cortez did not know how to swim. This information was not relayed to Cortez's teacher. Cortez attended the swimming activity and, approximately 25 minutes after arriving at the Ceres High School pool, he slipped under the water and nearly drowned.
On July 14, 2000, Cortez, by and through his guardian ad litem Alejandro Cortez, filed a complaint against the District alleging negligence and negligent hiring and supervision. District answered the complaint on or about October 10, 2000, and filed a motion for summary judgment on June 8, 2001. District contended that Cortez's father released all liability by signing a waiver and that Education Code section 35330 afforded District absolute immunity from liability. District further contended it could not be liable for negligent supervision as it had no control over the lifeguards on duty that day. Cortez conceded the negligent hiring cause of action should be dismissed and has not appealed as to that cause of action. Cortez otherwise opposed the motion, arguing the swimming activity was not a "field trip" or "excursion" as defined by section 35330 and that Cortez's father could not waive liability because he could not understand the waiver form. The opposition further contended District negligently misrepresented the swimming activity such that Cortez's father was induced into letting Cortez participate.
The trial court heard argument on the motion on July 11, 2001, though appellant has provided no transcript of this hearing. The court issued its written decision on August 2, 2001, granting the motion. A formal order to that effect was filed and judgment was entered against Cortez on August 3, 2001. Cortez timely appeals.
DISCUSSION
Standard of Review
The standards applicable to appellate court review
Page 1 2 3 4 California Personal Injury Attorneys
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