Filed 1/25/22 Rankin v. Long Beach Unified School District CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

KODY RANKIN, a minor, etc.,

Plaintiff and Respondent,

v.

LONG BEACH UNIFIED 

SCHOOL DISTRICT et al., 

Defendants and Appellants.

 B303750

 (Los Angeles County

Super. Ct. No. BC615886)

ORDER MODIFYING 

OPINION AND DENYING 

PETITION FOR REHEARING

[There is no change in judgment] 

BY THE COURT:

It is ordered that the opinion filed herein on December 29, 2021, 

is modified as follows: 

1. On page 7, final sentence of final paragraph, delete: “We 

begin by describing the misconduct.” 

2. On pages 9 and 10, delete the paragraph that begins, “The 

District points to several,” and ends “compared to that of plaintiff’s 

family.
2

There is no change in judgment.

The petition for rehearing is denied.

____________________________________________________________

RUBIN, P. J. BAKER, J. KIM. J.
Filed 12/29/21 Rankin v. Long Beach Unified School District CA2/5

Reposting correct version. (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not 

been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

KODY RANKIN, a Minor, etc., 

Plaintiff and Respondent,

v.

LONG BEACH UNIFIED SCHOOL 

DISTRICT et al., 

Defendants and Appellants.

 B303750

 (Los Angeles County

Super. Ct. No. BC615886)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mark C. Kim, Judge. Reversed.

McCune Harber, Dana John McCune and Dominic A. 

Quiller for Defendants and Appellants.

Kyle Scott Law and Kyle J. Scott; The Ehrlich Law Firm 

and Jeffrey I. Ehrlich for Plaintiff and Respondent.

__________________________
2

Plaintiff Kody Rankin was a kindergartener at an 

elementary school in the Long Beach Unified School District 

when another student ran into him during physical education 

class. The collision caused plaintiff to trip and hit his head on 

the ground. Plaintiff, by his guardian ad litem, sued the District 

and his P.E. teacher, Malcolm Turner, for negligence and 

premises liability.

1 After the trial court granted the District’s 

summary adjudication motion on the premises liability cause of 

action, the jury eventually returned a verdict in plaintiff’s favor. 

The District then moved for a new trial and for judgment 

notwithstanding the verdict (JNOV) on several grounds, 

including misconduct of counsel, insufficiency of the evidence, 

and evidentiary errors including the admission of certain expert 

testimony. The trial court granted a new trial as to damages, 

denied the balance of the new trial motion, and denied JNOV.

We conclude the JNOV motion was improperly denied and 

reverse on the ground there was insufficient evidence of 

negligence to support the verdict. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident

On June 2, 2015, P.E. teacher Turner sent kindergarten 

students at Emerson Elementary School on a warm-up run on the 

playground’s asphalt blacktop. He told the children to run to the 

fence and back in groups of six. Plaintiff took off running with 

other students, touched the fence, and then started to run back. 

On the return, with a new group of students running towards 

plaintiff, a boy running next to plaintiff tripped him. Plaintiff fell 

and hit his head on the asphalt. Plaintiff was taken to the 

1 Except when the context otherwise indicates, references to 

the District include Turner
3

hospital where testing revealed he had a skull fracture. The

hospital released plaintiff with instructions “to be careful with 

his head,” and that plaintiff could wear a helmet for protection. 

The following year, plaintiff sued the District for negligence 

and premises liability. The complaint alleged the school 

playground’s asphalt surface was a dangerous condition. 

Plaintiff also alleged Turner acted negligently in requiring the 

students “to run in a manner that was not reasonable or safe,”

and in failing to adequately supervise the activity. 

2. The District’s Motion for Summary Judgment 

The District moved for summary judgment or summary 

adjudication of both causes of action.2 In opposition, plaintiff 

submitted the declaration of civil engineer Brad Avrit. It was 

Avrit’s opinion that the District “acted far below the standard of 

care” in allowing students to run on asphalt. The District 

objected to Avrit’s qualifications, and Judge Klein sustained the

objections “because Brad Avrit, a safety and engineering expert, 

is not competent to opine on the standard of care for elementary 

school teachers, his opinions lack adequate foundation, and are 

conclusory.”

Judge Klein granted summary adjudication of the premises 

liability cause of action on the ground the blacktop was not a 

dangerous condition. As to the negligence claim, the court denied 

summary adjudication because “reasonable minds can differ as to 

how closely young students must be supervised.”

2 Judge Ross M. Klein presided over the summary 

adjudication proceedings while Judge Mark C. Kim presided over 

the jury trial and posttrial motions. 
4

3. Trial

A. Plaintiff’s testimony

At trial, plaintiff was 10 years old and testified that, on the 

day of the incident, P.E. teacher Turner told the students to run 

in groups “to a fence and back for exercise.” According to 

plaintiff, the students “were supposed to run or jog, but then 

when we got really tired, we could walk.” After the first group 

took off, plaintiff ran to the backstop, and then started running 

back. He was looking at Turner who was standing at the starting 

line when a boy running next to him, Andrew, took “maybe”

seven steps to the right away from plaintiff and then veered back 

towards him. Andrew “kind of tripped” plaintiff, and plaintiff 

“fell on the ground,” hitting his head. Plaintiff blacked out “for a 

bit.” When he came to, he went to where Turner was standing 

and Turner called a nurse. Plaintiff told the nurse “ ‘Andrew 

tripped me and my head just started hurting a lot.’ ”

B. Turner’s testimony

Turner testified he asked his kindergarten students to 

participate in a warm-up run on the blacktop. On his whistle, 

groups of six students at a time would start running on the 

blacktop 120 feet to a fence, and then run back. Plaintiff and 

Andrew were in the same group, and as students were running 

back, Turner observed in his peripheral vision plaintiff colliding 

with another student and falling. Although the school had a 

grassy area and an outdoor area with a rubber ground surface,

Turner instructed the students to run on the blacktop. According 

to Turner, the students “were not allowed to be on” the grass 

because “it was still growing.”
5

C. The District’s expert, Dr. Fraisse 

At trial, the District called expert witness Dr. Robert 

Fraisse, a retired school superintendent, school administrator, 

teacher, and coach. Dr. Fraisse testified the Physical Education 

Framework for California Public Schools is the blueprint 

California school districts use for drafting lesson plans. It was 

Dr. Fraisse’s opinion that the running activity in which plaintiff 

participated was consistent with the standards set by the section 

on P.E. for kindergarten students. The “commonsense 

supervision standard” requires teachers to always be “within 

sight and sound of their students,” and, here, Turner met that 

standard. 

On cross-examination, plaintiff’s counsel quoted from Dr. 

Fraisse’s deposition where he was asked whether Turner should 

have instructed the students to run “on the grass surface 

immediately adjacent to the asphalt surface.” Dr. Fraisse 

responded, “I’m not sure if the grass was sufficient to run that 

activity and I don’t think in all cases grass is as soft a landing 

than asphalt. Depends on the watering system and so forth.” Dr. 

Fraisse also testified that he could not opine on why Turner 

“made that decision . . . without knowing what the field looked 

like in June,” when the accident happened. 

D. Plaintiff’s expert, Brad Avrit

Plaintiff’s expert Avrit testified at trial, reiterating his 

prior statements made in opposition to summary judgment.3 He 

3 The District moved in limine to exclude Avrit’s testimony

on the same grounds it had raised in support of summary 

judgment. The record does not reveal whether the trial court 

ruled on the motion. 
6

listed his qualifications as a licensed civil engineer and president 

of a company that does “construction management work,” “safety 

engineering services,” “property assessments,” and “forensic 

engineering.” Avrit described the “outdoor area” at the school as 

including a lawn and a blacktop. He opined that Turner should 

have chosen to hold the running activity on grass or “a rubberized 

track surface.”

As he did in the summary judgment proceedings, Avrit 

again offered that “the way this activity was designed and the 

children were asked to conduct it . . . was uncontrolled and 

significantly increased the risk of a collision or loss of balance 

. . . .” Avrit also testified that plaintiff and his classmates were 

not “properly supervised.”

The District’s counsel objected, and the court sustained the

objection “as to supervision” on the ground it was beyond the 

scope of Avrit’s expertise. The court expressly declined to strike 

any of Avrit’s remaining testimony. Despite the court’s ruling,

Avrit proceeded to testify that the running activity was not 

“reasonably safe” because “the activity is required to be [] directly 

supervised.” When the District’s counsel renewed his objection, 

the court reversed course, allowing Avrit to testify on supervision 

based on his experience investigating “school safety incidents.”

E. The Verdict

The jury returned a verdict against the District and 

Turner, finding they had been negligent. The jury apportioned 

100 percent of the fault to the District and Turner and awarded 

plaintiff $5.75 million in damages. 

F. Motions for New Trial and JNOV

The District moved for a new trial on several grounds: the 

evidence of negligence and damages was legally insufficient,
7

evidentiary errors deprived the District of a fair trial, and 

misconduct by plaintiff’s counsel required reversal. The court 

granted the motion for new trial only as to damages and 

conditioned it upon plaintiff’s rejection of the court’s remittitur 

reducing damages to $1.25 million. Plaintiff rejected the 

remittitur. The trial court’s minute order did not discuss the 

other grounds for new trial, thus impliedly rejecting them. The 

court limited the new trial to damages. 

The District also moved for JNOV due to insufficiency of 

the evidence. The court denied JNOV. The District and Turner

timely appealed.

G. Attorney Misconduct

One of the grounds on which the District seeks reversal is 

misconduct of counsel. Although we do not decide the case on that 

ground, canon 3D(2) of the California Code of Judicial Ethics

requires a judicial officer to take appropriate corrective action 

when he or she has knowledge of attorney misconduct.

4 We begin 

by describing the misconduct. 

4 Canon 3D(2) of the California Code of Judicial Ethics 

provides: “Whenever a judge has personal knowledge, or 

concludes in a judicial decision, that a lawyer has committed 

misconduct or has violated any provision of the Rules of 

Professional Conduct, the judge shall take appropriate corrective 

action, which may include reporting the violation to the 

appropriate authority.” The Advisory Committee commentary to 

Canon 3D(2) further explains appropriate corrective action may

include “writing about the misconduct in a judicial decision.” 
8

First, plaintiff’s trial counsel Keith J. Bruno made the 

following statements during closing argument.

5

“I don’t know what ultimately you’ll do, but I’ll find

out soon. And no matter what happens, if nothing else, I’ll 

get that piece of paper with your names on it and I’ll know 

how much you appraised [plaintiff’s] brain and how much 

you appraised what happened here. Your signatures will 

be on that and I’ll give it to them. I’ll hand it to them and 

they’ll know from you, from citizens of Long Beach, what 

this was worth.

When I say I love my job, those are the times I do.

I’ve seen jurors do the right thing and deliver full justice 

time and time again. And those are the jurors, when the 

judge says you can wait out in the hallway, those are the 

jurors that hug the family and hug the kids and stay and 

talk and say we hope plaintiff – we want him to get better. 

We hope this brings you some peace. And then I’ve seen 

the opposite, too. The justice isn’t done and the jurors take 

off down the hallway and leave as quickly as they can. 

One is better than the other.”

After closing argument, Juror No. 2 gave the trial court a 

letter stating, “During final closing statements and instructions, I 

discovered that my name and decision will be public information 

and provided to the parties. The entire time I believed my 

decision would remain anonymous. . . . I now know why 

[plaintiff’s] counsel didn’t excuse me from the case . . . I strongly 

believe counsel’s decision to keep me is because of my ties to the 

5 Bruno represented plaintiff throughout the trial court 

proceedings. He is not attorney of record on appeal.
9

community and that this would create a bias in his favor.” Juror 

No. 2 was observed by plaintiff’s other attorney, Kyle Scott,to be 

“crying in front of other jurors” in the hallway. The court excused 

Juror No. 2 and appointed an alternate. 

By these comments, trial counsel directly appealed to the 

jurors’ personal self-interest when he said he would ensure 

plaintiff’s parents knew each juror’s name and verdict, and 

suggested that plaintiff’s parents would either be grateful to the 

jury, giving out hugs, or angry at them, causing the jurors 

fearfully “take off down the hallway and leave as quickly as they 

can.” “An attorney’s appeal in closing argument to the jurors’

self-interest is improper and thus is misconduct because such 

arguments tend to undermine the jury’s impartiality. [Citation.]” 

(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796; see Du 

Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 179 

[counsel’s argument was misconduct where counsel “appealed 

directly to the jurors’ personal passions and prejudices”].)

Second, plaintiff’s trial counsel made repeated references in 

opening, closing, and cross-examination to the District’s 

unsuccessful motion for summary judgment in violation of Code 

of Civil Procedure section 437c, subdivision (n)(3). Third, 

plaintiff’s trial counsel urged the jury to find that Turner was 

using his cell phone at the time of the accident when there was 

no evidence of such and counsel’s statements violated the trial 

court’s express ruling prohibiting the argument.

The District points to several additional acts of misconduct: 

plaintiff’s trial counsel (1) implored the jury to see plaintiff as 

their own son, (2) asked the jury to teach the District a lesson, 

(3) repeatedly commented on the District’s insurance, and 
10

(4) emphasized the District’s financial resources compared to that 

of plaintiff’s family. 

DISCUSSION

The District contends on appealthat the trial court should 

have granted JNOV or, in the alternative, a new trial on all 

issues for the same reasons offered in its posttrial motions — that 

is, misconduct of counsel, insufficiency of the evidence, and 

evidentiary errors including in the admission of expert testimony.

As we discuss, we conclude as a matter of law the evidence was 

insufficient to demonstrate negligence on the part of the District

and the trial court erred when it denied the District’ JNOV. 

We begin our analysis by considering the standard of 

review for denial of JNOV and the law on school district liability 

for negligence.

1. Standard of Review for Denial of JNOV

“ ‘ “The purpose of a motion for judgment notwithstanding 

the verdict is not to afford a review of the jury’s deliberation but 

to prevent a miscarriage of justice in those cases where the 

verdict rendered is without foundation.” [Citation.]’ [Citation.]”

(Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 

284.) We review the denial of JNOV to determine “whether there 

is any substantial evidence, contradicted or uncontradicted, 

supporting the jury’s verdict.” (Brennan v. Townsend & O’Leary 

Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1345.) 

The testimony of a single witness may be substantial 

evidence, including the testimony of an expert. But, “when an 

expert bases his or her conclusion on factors that are ‘speculative, 

remote or conjectural,’ or on ‘assumptions . . . not supported by 

the record,’ the expert’s opinion ‘cannot rise to the dignity of 

substantial evidence’ . . . . [Citations.]” (Wise v. DLA Piper LLP
11

(US) (2013) 220 Cal.App.4th 1180, 1191–1192; see Jennings v. 

Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 

1108, 1117–1118 (Jennings); Johnson & Johnson Talcum Powder 

Cases (2019) 37 Cal.App.5th 292, 314 (Talcum Powder Cases).) 

“Therefore, an expert’s opinion that something could be true if 

certain assumed facts are true, without any foundation for 

concluding those assumed facts exist in the case before the jury, 

does not provide assistance to the jury because the jury is 

charged with determining what occurred in the case before it, not 

hypothetical possibilities.” (Jennings, at p. 1117.)

2. School District Liability for Negligence 

To establish negligence, a plaintiff must prove duty, breach, 

causation, and damages. (Regents of University of California v. 

Superior Court (2018) 4 Cal.5th 607, 618.)

“As a general matter there is no duty to act to protect 

others from the conduct of third parties. [Citation.] One 

exception to that general rule is found in the ‘special relationship’ 

doctrine. A defendant may owe an affirmative duty to protect 

another from the conduct of third parties, or to assist another 

who has been attacked by third parties, if he or she has a ‘special 

relationship’ with the other person.” (Morris v. De La Torre

(2005) 36 Cal.4th 260, 269.)

A school district has a special relationship with students 

“arising from the mandatory character of school attendance and 

the comprehensive control over students exercised by school 

personnel, ‘analogous in many ways to the relationship between 

parents and their children.’ [Citations.] Because of this special 

relationship, imposing obligations beyond what each person 

generally owes others . . . the duty of care owed by school 

personnel includes the duty to use reasonable measures to 
12

protect students from foreseeable injury at the hands of third 

parties acting negligently or intentionally. This principle has 

been applied in cases of employees’ alleged negligence resulting 

in injury to a student by another student . . . . [Citation.]” (C.A. 

v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 

861, 869–870 (Hart).)6 

3. Sufficiency of the Evidence 

The District contends the proximate cause of plaintiff’s 

injury was classmate Andrew’s actions rather than any act or 

omission by teacher Turner. Plaintiff, in turn, attributes 

Andrew’s collision with him to Turner’s inadequate supervision 

and unsafe design of the run. He relies on expert Avrit’s 

testimony that Turner could have prevented the accident if he 

had more actively supervised the activity. Avrit also testified the 

design of the run increased the potential for collisions and 

Turner’s decision to hold the run on asphalt increased the risk of 

serious injury. We consider each of the factors identified by 

plaintiff to determine whether any of them constitutes 

6 In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, the 

Supreme Court clarified the applicable framework for 

determining whether a defendant has a duty to protect a plaintiff 

from harm caused by a third party. The high court established a 

two-part inquiry: “First, the court must determine whether there 

exists a special relationship between the parties or some other set 

of circumstances giving rise to an affirmative duty to protect. 

Second, if so, the court must consult the factors described in 

Rowland [v. Christian (1968) 69 Cal.2d 108] to determine 

whether relevant policy considerations counsel limiting that 

duty.” (Id. at p. 209.) The District does not assert the Rowland 

factors limited its duty to plaintiff. 
13

substantial evidence to support a finding that Turner’s acts or 

omissions caused plaintiff’s injury or breached a duty to plaintiff.

A. Lack of Supervision

It was Avrit’s opinion at trial that Turner failed to 

adequately supervise the children because he was standing away 

from the run and setting up for the next activity rather than 

paying close attention to the students.7 According to Avrit, 

Turner should have stood in the middle of the activity, directed

the children where to run, and corrected their behavior. We 

conclude Avrit’s testimony did not constitute substantial evidence 

of inadequate supervision resulting in plaintiff’s injury. 

Our Supreme Court has described a school district’s duty of 

supervision as follows: “ ‘While school districts and their 

employees have never been considered insurers of the physical 

safety of students, California law has long imposed on school 

authorities a duty to “ ‘supervise at all times the conduct of the 

children on the school grounds and to enforce those rules and 

regulations necessary to their protection. [Citations.]” ’

[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.] Either a 

7 For purposes of our decision, we need not decide whether 

the trial court erred in allowing plaintiff’s expert to testify on the 

standard of care for school supervision. The court so ruled after 

it initially stated that Avrit was unqualified to testify on that 

topic and after Judge Klein found Avrit unqualified to opine on 

the standard of care for elementary school teachers on summary 

adjudication.
14

total lack of supervision [citation] or ineffective supervision 

[citation] may constitute a lack of ordinary care on the part of 

those responsible for student supervision.’ ” (Hart, supra,

53 Cal.4th at p. 869.) 

The duty to supervise is not unremitting: The “constant 

supervision of all movements of pupils at all times . . . is clearly 

not the law.” (Woodsmall v. Mt. Diablo Unified School Dist. 

(1961) 188 Cal.App.2d 262, 267 (Woodsmall).) “A contrary

conclusion would unreasonably ‘require virtual round-the-clock 

supervision or prison-tight security for school premises, . . .’ ”

(Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 

1448, 1459.)

In school supervision cases, appellate courts have required 

more than the mere assertion that additional supervision would 

have prevented the unanticipated injury. “When an injury occurs 

despite a defendant’s efforts to provide security or supervision, it 

is relatively easy to claim that, ipso facto, the security or 

supervision provided was ineffective. Without more, such claims 

fail.” (Thompson v. Sacramento City Unified School Dist. (2003)

107 Cal.App.4th 1352, 1370 (Thompson).) “To establish 

causation, plaintiff must demonstrate that a particular omission 

caused the injury.” (Id. at p. 1370.)

In Thompson, the plaintiff was attacked by two other 

students in a school restroom during the lunch period. 

(Thompson, supra, 107 Cal.App.4th at p. 1358.) The evidence 

demonstrated a campus monitor looked into the restroom just 

before the fight. He returned two minutes later when he noticed 

students going towards the restroom. (Id. at p. 1360.) 

The plaintiff presented evidence from a certified protection 

professional and security consultant who criticized the school’s 
15

security measures and opined that the plaintiff would not have 

been attacked if there had been effective supervision in the area

during the lunch period. The court held this type of expert 

declaration was insufficient to establish a cause of action for 

negligence because “while expert criticism of the defendant’s 

security measures may establish abstract negligence, an expert’s 

speculative and conjectural conclusion that different measures 

might have prevented an injury cannot be relied upon to 

establish causation.” (Thompson, supra, 107 Cal.App.4th at 

pp. 1372–1373.)

In Woodsmall, supra, 188 Cal.App.2d at page 263, a 

student suffered injuries when another student pushed him into 

a basketball pole. No teachers or other supervisory personnel 

were on the playground at the time. The court found “the 

uncontroverted evidence leads to the conclusion that supervision 

would have made no difference as the proximate cause of the 

accident was the pupil who pushed [the plaintiff].” (Id. at 

pp. 264-265; see also Wright v. City of San Bernardino High Sch. 

Dist. (1953) 121 Cal.App.2d 342, [“the danger which suddenly 

developed could not reasonably be said to have resulted from or 

been caused by the absence of the teacher.”].)

By contrast, a school may be found to be negligent where it 

failed to provide any supervision for conduct that could have been 

prevented. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 

2 Cal.3d 741 [the teachers did not hear or see the 10-minute slap 

boxing match, which attracted a crowd of approximately 30 

spectators, and which took place within a few feet of the gym, 

where two teachers were sitting inside]; Forgnone v. Salvador 

Union Elementary School Dist. (1940) 41 Cal.App.2d 423, 426–

427 [no supervision in a classroom during the lunch hour where 
16

child’s arm was twisted and fractured]; Tymkowicz v. San Jose 

Unified School Dist. (1957) 151 Cal.App.2d 517, 520 [no 

supervision in yard where a child held his breath while another 

squeezed him tightly around the chest until he lost 

consciousness].) A school may also be found negligent where 

supervision was provided but the supervisor allowed the

dangerous conduct to continue. (Buzzard v. East Lake School 

Dist. (1939) 34 Cal.App.2d 316, 318–319 [students allowed to ride 

bicycles where other students played at recess].) Those 

circumstances did not exist in this case. 

Instead, as in Thompson, Woodsmall, and Murphy, “the 

uncontroverted evidence leads to the conclusion that supervision 

would have made no difference.” (Woodsmall, supra, 

188 Cal.App.2d at p. 264.) The evidence is that the accident 

occurred suddenly and greater supervision would not have 

prevented it. Avrit acknowledged he did not know what Turner 

could have done to stop the collision between the boys.8 Plaintiff 

8 At trial, Avrit testified as follows: 

Q And at your deposition, you both agreed that Andrew 

veering over to the right and veering back to the left 

occurred in a matter of seconds, right?

A Yes

Q Now, what can Mr. Turner have done – well, was 

there any evidence that Andrew announced to Kody that he 

was going to veer to the right and come back?

A No

Q So given this occurred in a matter of seconds, Andrew 

did not forewarn anybody he was going to do this, what 

could Mr. Turner have done to stop this collision? 
17

testified the accident occurred “pretty quickly” and it 

“surprise[d]” him. 

Like the plaintiff in Thompson, plaintiff here presented 

expert testimony criticizing Turner’s supervision and opining 

that it could have been better. But there was no evidence that 

better supervision—that is, Turner standing in the middle of the 

run and directing each of the approximately dozen students 

running at any one time along a 180-foot route—would have 

prevented Andrew from tripping plaintiff.9 Avrit’s “speculative 

and conjectural conclusion that different measures might have 

prevented an injury cannot be relied upon to establish causation.”

(Thompson, supra, 107 Cal.App.4th at pp. 1372–1373.) Plaintiff

failed to show a causal link between his injury and any negligent 

failure to supervise by Turner. 

B. The Design of the Run

Avrit next opined the run was unsafe because Turner 

instructed the children to run directly at each other, which 

increased the risk of a head-on collision or could cause them to 

lose their balance while trying to avoid a collision with an 

oncoming student.

First, it was undisputed plaintiff’s injury was not caused by 

a head-on collision. Second, the record was bereft of evidence 

A I don’t know. I don’t know enough about exactly what 

happened. He would have to be there to be able to say 

whether or not Andrew would be the – left his direct path 

and for what reason. We can’t tell because there isn’t an 

eyewitness that saw the reasoning behind why Andrew 

veered off.

9 Turner testified each group consisted of approximately six 

children. Avrit estimated one leg of the route to be 180 feet. 
18

that Andrew was trying to avoid an oncoming student when he 

collided with plaintiff. Avrit acknowledged there was no evidence 

that Andrew was trying to avoid an oncoming student since “[t]he 

teacher didn’t see it. So we don’t have an eyewitness and we 

don’t have testimony from Andrew.” Turner testified he only saw 

the students fall from his peripheral vision but did not believe 

Andrew was trying to avoid an oncoming student when he 

tripped plaintiff. Turner further testified without contradiction 

that students ran at varying speeds, with some taking up to five 

minutes to walk the lap, which created additional space between 

the runners. 

Plaintiff testified he and Andrew had reached the backstop, 

touched it, and had turned around for the final leg of their run. 

He testified Andrew then veered over to the right by 

approximately seven steps and then veered back into plaintiff, 

tripping him. Plaintiff did not testify that he observed Andrew 

was attempting to avoid one or more oncoming students at the 

time of the collision. He instead testified it happened suddenly 

and “it was a surprise.”

Because the predicate to Avrit’s opinion—that Andrew was 

trying to avoid an oncoming student—relied purely on 

speculation or an assumption unsupported by the record, Avrit’s

opinion that the design of the run was unsafe due to oncoming 

runners “cannot rise to the dignity of substantial evidence.”

(Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 

1113, 1135–1136; Talcum Powder Cases, supra, 37 Cal.App.5th at 

p. 314.)

Nor does the evidence show that Avrit’s suggestions for a 

better-designed run would have prevented Andrew from tripping 

plaintiff. Avrit suggested the children run in an oval or in lanes 
19

separated by cones. There was no evidence that this design likely 

would have prevented Andrew from tripping plaintiff as the two 

boys would still have been running side by side. Avrit also 

suggested the children be released in intervals, spread out, and 

told to run to a different stopping point. These measures would 

not have prevented the accident since Turner did release the 

children in intervals and in small groups to spread them out. 

Plaintiff testified Andrew took approximately seven steps away 

from him (and presumably seven steps back towards him) before 

tripping him. Given this testimony, Avrit’s testimony that the 

children should have been separated by a greater distance to 

avoid collision was speculative. As to the children running to a 

different stopping point, that would not have prevented the 

accident because it is undisputed a head-on collision did not occur 

and Andrew would still have run by plaintiff’s side.

C. The Use of Asphalt

We next turn to Avrit’s criticism of Turner’s decision to 

direct the children run on asphalt rather than grass or 

rubberized track, thus “increas[ing] the risk of a more serious 

injury if they were to fall for any reason.” The District contends 

Avrit’s testimony was improperly admitted because the issue of 

whether asphalt is a dangerous condition was summarily 

adjudicated by Judge Klein. Plaintiff asserts the District 

misapprehends his argument at trial. He acknowledges, 

“Asphalt itself is not a dangerous condition.” According to 

plaintiff, he did not argue that the asphalt itself was unsafe but 

that the manner in which it was used was unsafe.10 His theory at 

10 Although plaintiff acknowledges asphalt is not a dangerous 

condition, he continues to assert the run should not have been 
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trial was that Turner’s decision to hold the run on asphalt fell 

below the standard of care due to the high risk of falls caused by 

how the activity was designed and the risk of serious injury 

should a young child fall on asphalt rather than a softer surface.

In support, Plaintiff relies on Avrit’s opinion regarding the 

safety of the run in general. Avrit briefly testified he reached his 

opinion after conducting a site inspection, reviewing the 

depositions and other evidence, and considering the “standards 

by which . . . recess and such is supposed to be conducted.” Aside 

from his conclusion the run was unsafe, Avrit did not testify how 

the run fell below the standard of care. He failed to identify what 

standards he used or how the design of the run deviated from 

these standards. This is not substantial evidence to support a 

finding that Turner’s conduct fell below the standard of care. 

(Taylor v. Trimble (2017) 13 Cal.App.5th 934, 945, fn. 15 [“An 

expert opinion that does not contain ‘a reasoned explanation 

illuminating why the facts have convinced the expert’ need not be 

relied on”]; see Evid. Code, § 802 [“A witness testifying in the 

held on asphalt because the run was not designed to be safe on 

that surface. In the summary adjudication ruling that the 

asphalt did not create a dangerous condition, Judge Klein 

rejected this argument and Avrit’s testimony that supported it. 

Judge Klein reasoned, “To the extent that Plaintiff claims that 

asking kindergarteners to run in a group on such a surface, the 

condition of the property itself is not implicated. The Court has 

sustained objections to the Avrit declaration which purported the 

surface is dangerous. He had no foundation for his 

characterization of students ‘running in a chaotic and 

uncontrolled fashion.’ Even if the Court accepted that as 

competent, it does not transform an ordinary asphalt surface into 

a ‘dangerous condition.’ ” Plaintiff did not via cross appeal 

challenge Judge Klein’s ruling.
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form of an opinion may state . . . the reasons for his opinion and 

the matter . . . upon which it is based . . .”].)

On the other hand, the District presented expert testimony

regarding the “blueprint” used by California school districts for 

drafting lesson plans for physical education. Its expert, Dr. 

Fraisse, identified how the standards were established, set out 

what the standards were, and testified how the run was 

consistent with these standards. 

We are mindful of the deferential standard of review for 

denial of a motion for JNOV: we must affirm if substantial 

evidence — contradicted or uncontradicted — supports the jury’s 

conclusion. After our review of the evidence, we conclude that it 

was legally insufficient for the jury to have found for plaintiff on 

causation and breach of duty. The trial court improperly denied 

the District’s JNOV motion. Given our conclusion, we need not 

consider the remaining arguments raised by the District on 

appeal. 

DISPOSITION

The trial court’s denial of the District’s JNOV motion is 

reversed. The trial court is directed to enter an order granting 

the District’s JNOV motion. The trial court’s order granting the 

District’s motion for a new trial on damages is vacated as moot. 

The parties are to bear their own costs on appeal.

RUBIN, P. J.

WE CONCUR:
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BAKER, J. 

KIM, J.