IN THE SUPREME COURT OF CALIFORNIA
C.A., a Minor, etc.,
Plaintiff and Appellant,
S188982
v.
Ct.App. 2/1 B217982
WILLIAM S. HART UNION HIGH
SCHOOL DISTRICT et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. PC044428
C.A., a minor, sued his public high school guidance counselor and the
school district for damages arising out of sexual harassment and abuse by the
counselor. The trial court sustained the school district’s demurrer, and the Court
of Appeal affirmed. On review, the question presented is whether the district may
be found vicariously liable for the acts of its employees (Gov. Code, § 815.2)1—
not for the acts of the counselor, which were outside the scope of her employment
(see John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441, 451-452),
but for the negligence of supervisory or administrative personnel who allegedly
knew, or should have known, of the counselor’s propensities and nevertheless
hired, retained and inadequately supervised her.
1
All further unspecified statutory references are to the Government Code.
1
We conclude plaintiff’s theory of vicarious liability for negligent hiring,
retention and supervision is a legally viable one. Ample case authority establishes
that school personnel owe students under their supervision a protective duty of
ordinary care, for breach of which the school district may be held vicariously
liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741,
747; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458-
1461.) If a supervisory or administrative employee of the school district is proven
to have breached that duty by negligently exposing plaintiff to a foreseeable
danger of molestation by his guidance counselor, resulting in his injuries, and
assuming no immunity provision applies, liability falls on the school district under
section 815.2.
Accordingly, we reverse the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
To determine whether a demurrer was properly sustained, we review the
allegations of the operative complaint for facts sufficient to state a claim for relief.
In doing so, we treat the demurrer as admitting all material facts properly pleaded.
“ ‘Further, we give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Through a guardian ad litem, plaintiff C.A. alleged that while he was a
student at Golden Valley High School in the William S. Hart Union High School
District (the District) he was subjected to sexual harassment and abuse by Roselyn
Hubbell, the head guidance counselor at his school. Plaintiff was born in
July 1992, making him 14 to 15 years old at the time of the harassment and abuse,
which is alleged to have begun in or around January 2007 and continued into
September 2007.
2
Plaintiff was assigned to Hubbell for school counseling. Representing that
she wished to help him do well at school, Hubbell began to spend many hours with
plaintiff both on and off the high school premises and to drive him home from
school each day. Exploiting her position of authority and trust, Hubbell engaged
in sexual activities with plaintiff and required that he engage in sexual activities,
including sensual embraces and massages, masturbation, oral sex and intercourse.
As a result of the abuse, plaintiff suffered emotional distress, anxiety, nervousness
and fear.
The suit names as defendants Hubbell, the District, and Does 1 through
100. In general terms, each defendant is alleged to be the agent and employee of
the others and to have done the acts alleged within the course and scope of that
agency and employment. On information and belief, plaintiff alleges
“[d]efendants knew that Hubbell had engaged in unlawful sexually-related
conduct with minors in the past, and/or was continuing to engage in such
conduct.” Defendants “knew or should have known and/or were put on notice” of
Hubbell’s past sexual abuse of minors and her “propensity and disposition” to
engage in such abuse; consequently, they “knew or should have known that
Hubbell would commit wrongful sexual acts with minors, including Plaintiff.”
Plaintiff bases this belief on “personnel and/or school records of Defendants [that]
reflect numerous incidents of inappropriate sexual contact and conduct with
minors by teachers, staff, coaches, counselors, advisors, mentors and others,
including incidents involving Hubbell, both on and off the premises of such
Defendants.” Plaintiff’s injuries were the result not only of the molestation but of
the District’s “employees, administrators and/or agents” failing to “properly hire,
train and supervise Hubbell and . . . prevent her from harming” plaintiff.
In a cause of action for negligent supervision, plaintiff alleges (again on
information and belief) that defendants, through their employees, knew or should
3
have known of Hubbell’s “dangerous and exploitive propensities” and
nevertheless “failed to provide reasonable supervision” over her and “failed to use
reasonable care in investigating” her. Specifically, defendants neither had in place
nor implemented a system or procedure for investigating and supervising
personnel “to prevent pre-sexual grooming and/or sexual harassment, molestation
and abuse of children.” In a cause of action for negligent hiring and retention,
plaintiff alleges defendants were on notice of Hubbell’s molestation of students
both before and during her employment by the District, but did not reasonably
investigate Hubbell and failed to use reasonable care to prevent her abuse of
plaintiff.
The District demurred to the complaint, arguing the negligent supervision
and negligent hiring and retention causes of action failed to state a claim because
of the lack of statutory authority for holding a public entity liable for negligent
supervision, hiring or retention of its employees. The trial court sustained the
District’s demurrer to the entire complaint without leave to amend and dismissed
the action as to the District. (The sole named individual defendant, Hubbell, did
not join in the District’s demurrer and is not a party to the present appeal.)
The Court of Appeal affirmed in a divided decision. The majority first
rejected the viability of a vicarious liability theory under section 815.2, on the
ground that “[a]s in John R. [v. Oakland Unified School Dist., supra, 48 Cal.3d
438], in this case the alleged sexual misconduct of the guidance counselor cannot
be considered within the scope of her employment.” Second, the majority held no
theory of direct liability for negligent hiring, supervision or retention could lie
because plaintiff had adduced no statutory authority for it. Quoting de Villers v.
County of San Diego (2007) 156 Cal.App.4th 238, 255-256, the majority
concluded: “ ‘[A] direct claim against a governmental entity asserting negligent
4
hiring and supervision, when not grounded in the breach of a statutorily imposed
duty owed by the entity to the injured party, may not be maintained.’ ”
The Court of Appeal dissenter opined that “[a]lthough the school district
cannot be held liable for the intentional misconduct of the guidance counselor, it
may be liable through respondeat superior for the negligence of other employees
who were responsible for hiring, supervising, training, or retaining her.” Because
school personnel were in a special relationship with plaintiff, they owed him a
duty of taking reasonable care to prevent the abuse by Hubbell. Consequently,
“the failure of a school administrator to exercise ordinary care in protecting
students from harm should render a school district liable under section 815.2
where the administrator hires an applicant known to have a history of molesting
students or where, after hiring an applicant, the administrator first learns about the
employee’s sexual misconduct and does not properly supervise, train, or discharge
her.”
We granted plaintiff’s petition for review.
DISCUSSION
The statutory framework upon which the District’s vicarious liability
depends is easily set out. Section 815 establishes that public entity tort liability is
exclusively statutory: “Except as otherwise provided by statute: [¶] (a) 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.” Section
815.2, in turn, provides the statutory basis for liability relied on here: “(a) A
public entity is liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment if the act or
omission would, apart from this section, have given rise to a cause of action
against that employee or his personal representative. [¶] (b) Except as otherwise
provided by statute, a public entity is not liable for an injury resulting from an act
5
or omission of an employee of the public entity where the employee is immune
from liability.” Finally, section 820 delineates the liability of public employees
themselves: “(a) Except as otherwise provided by statute (including Section
820.2), a public employee is liable for injury caused by his act or omission to the
same extent as a private person. [¶] (b) The liability of a public employee
established by this part (commencing with Section 814) is subject to any defenses
that would be available to the public employee if he were a private person.” In
other words, “the general rule is that an employee of a public entity is liable for his
torts to the same extent as a private person (§ 820, subd. (a)) and the public entity
is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a))
to the same extent as a private employer (§ 815, subd. (b)).” (Societa per Azioni
de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463.)
The parties’ contentions, as is appropriate under section 815.2, subdivision
(a), focus on whether supervisory and administrative employees of the District,
who allegedly knew or had reason to know of Hubbell’s dangerous propensities
and acted negligently in hiring, supervising and retaining her, would themselves
be subject to liability to plaintiff for his injuries. The District maintains its
employees owed plaintiff no legal duty to protect him against abuse by another
employee; the responsibility for hiring, supervising and dismissing employees
belongs exclusively to the District itself, and no statute provides for the District’s
direct liability in this regard. Plaintiff, in turn, argues the special relationship
between public school personnel and students imposes on the District’s
administrative and supervisory employees a duty of reasonable care to protect a
6
student from foreseeable dangers, including those from other school employees.
For the reasons given below, we agree with plaintiff.2
“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 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. Under section 815.2, subdivision (a) of the Government Code, a
school district is vicariously liable for injuries proximately caused by such
negligence.” (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 747;
accord, Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932-933;
Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513.)
2
That public school administrators and supervisors owe students a duty of
care and may be responsible for their negligence in hiring, supervising and
retaining staff does not mean they bear the financial risk of damages and defense
costs for such negligence. Even when the individual public employee is sued for
negligence (none has been here), the defense costs and any compensatory damages
will ordinarily be paid by the employer, as a public employee sued for injuries
arising out of negligent acts or omissions within the scope of his or her
employment is generally entitled to a defense and indemnity by the public entity.
(See §§ 825, 825.2, 995.)
7
In addition, a school district and its employees have a special relationship
with the district’s pupils, a relationship 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.” (Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at
p. 935; see M.W. v. Panama Buena Vista Union School Dist. (2003) 110
Cal.App.4th 508, 517; Leger v. Stockton Unified School Dist., supra, 202
Cal.App.3d at pp. 1458-1459.) Because of this special relationship, imposing
obligations beyond what each person generally owes others under Civil Code
section 1714, the duty of care owed by school personnel includes the duty to use
reasonable measures to protect students from foreseeable injury at the hands of
third parties acting negligently or intentionally.3 This principle has been applied
in cases of employees’ alleged negligence resulting in injury to a student by
another student (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th
123, 128-129, 141-148; M.W., at pp. 514-515, 517-521), injury to a student by a
nonstudent (Leger, at pp. 1452-1453, 1458-1459) and—on facts remarkably close
to the present case—injuries to a student resulting from a teacher’s sexual assault
(Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848,
1851-1855).
In Virginia G., the plaintiff, a junior high school student, alleged the
defendant district had performed an inadequate background check before hiring as
3
Such a protective duty is appropriate in light of the fundamental public
policy favoring measures to ensure the safety of California’s public school
students. (See Cal. Const., art. I, § 28, subd. (a)(7) [students “have the right to be
safe and secure in their persons”]; see also Ed. Code, §§ 32228-32228.5,
35294.10-35294.15 [establishing various school safety and violence prevention
programs].)
8
a teacher Ernest Ferguson, who had been fired from another school for sexual
misconduct with students and who had then sexually harassed and assaulted the
plaintiff. (Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at
p. 1851.) Analyzing the case within the same statutory framework as applies here
(see id. at p. 1854, citing §§ 815.2, subd. (a), 820, subd. (a)), the appellate court
held the district could be liable for Virginia G.’s injuries under a theory of
vicarious liability for other school personnel’s negligent hiring and supervision of
the molester: “In our case, while Ferguson’s conduct in molesting Virginia G. will
not be imputed to the District, if individual District employees responsible for
hiring and/or supervising teachers knew or should have known of Ferguson’s
prior sexual misconduct toward students, and thus, that he posed a reasonably
foreseeable risk of harm to students under his supervision, including Virginia G.,
the employees owed a duty to protect the students from such harm.” (Virginia G.,
at p. 1855, italics added.)
The District acknowledges that a special relationship making an employee
potentially liable for a student’s injury at the hands of a third party “might exist
where the individual employee is in direct charge of and supervising the student,”
but insists that a “principal, school superintendent, or other administrator who
oversees the overall functioning” of the school cannot be liable on this theory:
“They have no special relationship with any particular student. Their relationship
is with the entity.” We disagree. Responsibility for the safety of public school
students is not borne solely by instructional personnel. School principals and
other supervisory employees, to the extent their duties include overseeing the
educational environment and the performance of teachers and counselors, also
have the responsibility of taking reasonable measures to guard pupils against
harassment and abuse from foreseeable sources, including any teachers or
counselors they know or have reason to know are prone to such abuse. (See Cal.
9
Code Regs., tit. 5, § 5551 [“The principal is responsible for the supervision and
administration of his school.”]; McGrath v. Burkhard (1955) 131 Cal.App.2d 367,
372 [“[T]he principal has the necessary power which is inherent in his office to
properly administer and supervise his school.”].)
The District further argues that hiring and termination of certificated
employees, including guidance counselors, is by law the responsibility of its
governing board, not of individual administrators. But while the final authority to
formally hire certificated employees belongs to the governing board (see Ed.
Code, §§ 44830-44834), and firing a certificated employee requires action by both
the board and an arbitral body known as a commission on professional
competence (see id., §§ 44932-44945),4 administrators and supervisors have the
power to initiate such actions by, for example, proposing to hire a teacher or
counselor or filing charges that could lead to his or her suspension or termination.
(See id., § 44934 [dismissal proceedings may be initiated by a governing board
formulating charges or by a person filing written and verified charges against the
employee]; see, e.g., California Teachers Assn. v. Governing Bd. of Rialto Unified
School Dist. (1997) 14 Cal.4th 627, 631 [school’s athletic director recommended
to principal that the district hire a particular person as assistant coach; principal
then referred the matter to district’s governing board]; Johnson v. Taft School Dist.
(1937) 19 Cal.App.2d 405, 406 [principal filed complaint with district board
seeking teacher’s dismissal].) That employment decisions are subject to approval
by a school district’s governing board does not necessarily absolve district
administrators and supervisors of liability for their negligence in initiating or
4
The governing board may, however, immediately suspend an employee on
receipt of written charges of certain types of misconduct. (Ed. Code, § 44939.)
10
failing to initiate those decisions. (See Fernelius v. Pierce (1943) 22 Cal.2d 226,
239-241 [civil service board’s ultimate authority to overrule termination decisions
by police chief and city manager did not preclude liability of those administrators
for negligent retention of police officers known to be unfit].)
The complaint, it is true, does not identify by name or position the
District’s “employees, administrators and/or agents” who allegedly failed to
“properly hire, train and supervise Hubbell.” But the District cites no statute or
decision requiring a plaintiff to specify at the pleading stage which of the
defendant’s employees committed the negligent acts or omissions for which a
public entity is allegedly liable under section 815.2. To survive a demurrer, the
complaint need only allege facts sufficient to state a cause of action; each
evidentiary fact that might eventually form part of the plaintiff’s proof need not be
alleged. (See Golceff v. Sugarman (1950) 36 Cal.2d 152, 154 [complaint against
employer need not include allegation that negligent act was committed by
employee in order for plaintiff to pursue respondeat superior liability].) We
cannot say from the face of the complaint that the District had no supervisory or
administrative personnel whose responsibilities included hiring, training,
supervising, disciplining or terminating a guidance counselor.
In this connection, the District cites Lopez v. Southern Cal. Rapid Transit
Dist. (1985) 40 Cal.3d 780, 795, in which we explained that because public entity
liability is statutory in nature, facts material to the existence of such liability must
be pleaded with particularity. We went on to hold, however, that the plaintiff had
adequately pled a bus driver’s negligence by alleging the driver, aware of a violent
argument on his bus, “did absolutely nothing to maintain order or protect
passengers from injury . . . .” (Id. at pp. 795-796.) Plaintiff similarly alleges the
District’s employees knew or should have known of the guidance counselor’s
dangerous propensities and ongoing misconduct, but did nothing to prevent or stop
11
her harassment and abuse of plaintiff. Lopez does not stand for the proposition
that a plaintiff must specifically plead, before undertaking discovery, the identity
of a government employee whose alleged negligence is made the basis for
vicarious liability under section 815.2, and we doubt such an impracticable rule
would be consistent with the legislative intent in enacting that statute. (See Perez
v. City of Huntington Park (1992) 7 Cal.App.4th 817, 820-821; Sen. Legis. Com.
com., reprinted at 32 West’s Ann. Gov. Code (1995 ed.) foll. § 815.2, p. 179
[“Under this section, it will not be necessary in every case to identify the particular
employee upon whose act the liability of the public entity is to be predicated.”].)5
More broadly, the District argues that “[i]ndividual co-workers, whether
peers or supervisors, have no personal legal relationship with other employees”
and therefore cannot be personally liable to third parties for “how they hire, fire,
retain, or discipline co-workers.” As applied here, the argument is a non sequitur.
Plaintiff relies not on the supervisory or administrative employees’ legal
relationship to Hubbell, their coworker, for the duty of care they owed plaintiff,
but on their recognized special relationship with plaintiff, a pupil under their
control and supervision.6
5
The court in Munoz v. City of Union City (2004) 120 Cal.App.4th 1077,
1113, opined that vicarious liability under section 815.2 “clearly contemplates that
the negligent employee whose conduct is sought to be attributed to the employer at
least be specifically identified, if not joined as a defendant” in order that the trier
of fact may “determine if the elements needed to assert vicarious liability have
been proved.” Munoz, however, was an appeal from a judgment for the plaintiff
after a jury trial (Munoz, at p. 1083), not an appeal from dismissal after a demurrer
as here. Whatever the merits of the quoted remarks as to a jury trial, they have no
application at the pleading stage.
6
The cases the District cites for this argument are inapposite. In Miklosy v.
Regents of University of California (2008) 44 Cal.4th 876, we held a claim for
wrongful termination in violation of public policy under Tameny v. Atlantic
(footnote continued on next page)
12
The District relies on three decisions rejecting, on various facts, claims of
public entities’ liability for negligence. As discussed below, none of these
decisions supports the sustaining of a demurrer on the facts alleged here.
In Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175,
we held that because no statute imposed liability on public entities for negligence
in handling emergency calls, the defendant public entities were not directly liable
for a 911 dispatcher’s failure to send appropriate personnel and equipment to the
scene of a household accident; vicarious liability for the dispatcher’s own alleged
negligence was barred by a statute providing qualified immunity for emergency
rescue personnel. (Id. at pp. 1179-1185.) We did not consider in Eastburn any
theory of vicarious liability analogous to that presented here (i.e., that the public
entity was vicariously liable for the actions of administrative or supervisory
personnel in hiring, supervising and retaining other employees), and the qualified
immunity defense that governed vicarious liability in Eastburn has no possible
application here.
De Villers v. County of San Diego, supra, 156 Cal.App.4th 238, involved a
claim of public liability for a county toxicologist’s murder of her husband with
(footnote continued from previous page)
Richfield Co. (1980) 27 Cal.3d 167 “can only be asserted against an employer”
(Miklosy, at p. 900), and found no justification for imposing individual liability on
supervisors for “a common law tort that depends on the existence of an employer-
employee relationship between the tortfeasor and the victim” (id. at p. 901).
Plaintiff’s negligence claims, obviously, do not depend on any employment
relationship between him and the District’s administrative or supervisory
personnel. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158
and Reno v. Baird (1998) 18 Cal.4th 640, which involved employees’ or former
employees’ statutory claims against employers for discrimination and retaliation,
are even further off point. Whatever their personal legal obligations to coworkers
and subordinate employees, school personnel have, as discussed above, a duty of
ordinary care running to the pupils under their control and supervision.
13
poison taken from the county coroner’s office in which she worked. Conceding
the county could not be vicariously liable for the toxicologist’s murderous acts,
which were obviously outside the scope of her employment, the plaintiffs
proposed theories of direct and vicarious liability for the county’s negligence in
hiring and supervising her. (Id. at p. 248.) The appellate court rejected direct
liability on the ground that the plaintiffs had failed to “identify any statutory basis
supporting a direct claim against a governmental entity for injuries allegedly
caused by the entity’s generic negligence in hiring and supervising its employees.”
(Id. at p. 253.) Nor, under section 815.2, could the county be vicariously liable for
its employees’ failure to properly investigate the toxicologist when she was hired
or to guard against her theft of poisonous drugs, as “there was no evidence
supporting a conclusion any County employee had undertaken a special protective
relationship toward de Villers.” (De Villers, at p. 249.) In the absence of such a
special relationship, the toxicologist’s supervisors and coworkers owed her
husband no duty to prevent his murder and could therefore not be personally liable
for his death, defeating public entity liability under section 815.2. (De Villers, at
pp. 249-251.)
The de Villers court’s reasoning on vicarious liability distinguishes it from
the present case. As Justice Mallano explained, dissenting below, in de Villers
“[n]o one in the coroner’s office had the responsibility, within the scope of his or
her employment, to ensure that employees were not going to use laboratory poison
to murder their relatives. As a result, section 815.2, authorizing the liability of a
public entity under the doctrine of respondeat superior, did not come into play.”
In contrast, school personnel “have a duty to protect students from harm, which
includes an obligation to exercise ordinary care in hiring, training, supervising,
and discharging school personnel. An administrator who hires a known child
molester as a guidance counselor and fails to provide adequate training,
14
supervision, or termination when faced with ongoing sexual misconduct has failed
to perform the duties within the scope of his or her employment. Under
section 815.2, the school district is liable for the administrator’s negligence.”
Finally, in Munoz v. City of Union City, supra, 120 Cal.App.4th at pages
1081-1082, the relatives of a woman shot by police, who had been summoned
because of her erratic behavior, sued the officer who shot her and his employing
city. The appellate court held the city could be vicariously liable for the officer’s
unreasonable use of deadly force, but rejected a theory of direct liability based on
the city’s negligence “in the selection, training, retention, supervision, and
discipline of police officers.” (Id. at p. 1112.) As no statute made a public entity
liable for this type of negligence, no direct liability could be established under
section 815 as interpreted in Eastburn v. Regional Fire Protection Authority,
supra, 31 Cal.4th 1175. (Munoz, at pp. 1110-1113.) The court went on to reject
the plaintiffs’ argument that the city’s negligence was actually the basis for
vicarious liability because public entities’ negligence liability is inherently
vicarious. “[W]hile respondents are correct insofar as they state public entities
always act through individuals, that does not convert a claim for direct negligence
into one based on vicarious liability. . . . To accept respondents’ argument would
render the distinction between direct and vicarious liability completely illusory in
all cases except where the employer is an individual.” (Id. at p. 1113.)
Unlike the theory rejected in Munoz, plaintiff’s theory of the District’s
liability does not depend on blurring the line between direct and vicarious liability
or on an assumption that a public entity’s negligence liability is inherently
vicarious. Plaintiff alleges the District’s administrators and employees knew or
should have known of Hubbell’s dangerous propensities, but nevertheless hired,
retained and failed to properly supervise her. These allegations, if proven, could
15
make the District liable under a vicarious liability theory encompassed by section
815.2.
The lead opinion in John R. v. Oakland Unified School Dist., supra, 48
Cal.3d at page 446, it is true, referred to the school district’s potential liability for
negligent hiring and supervision of the molesting teacher as “direct.” In context,
however, that label served merely to distinguish the negligent hiring and
supervision theory from the theory that the district was vicariously liable for the
teacher’s molestation, a theory we rejected on the ground the molestation was
beyond the scope of the teacher’s employment. (Id. at pp. 447-452.) To the same
effect is Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815,
referring to a negligent supervision and retention theory as one of “direct
liability,” where the plaintiff had also sought to hold the employer vicariously
liable for the intentional torts of its employee. (See also Diaz v. Carcamo (2011)
51 Cal.4th 1148, 1152 [characterizing negligent entrustment as a theory making
the employer “liable for its own negligence,” without considering an employer’s
possible vicarious liability for a manager’s negligent entrustment of a vehicle to a
subordinate].) As these decisions did not consider the theory of vicarious liability
posited here—that the District is liable under section 815.2 for the negligence of
its administrative and supervisory personnel—they cannot be taken as either
endorsing or precluding this theory.
This is not the first time we have held public school personnel may be
individually liable for their negligent failure to protect students from harm at
others’ hands. In Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d 741,
one high school student unintentionally killed another while roughhousing during
the lunch recess. The decedent’s parents sued not only the district, but also two
individual members of the school’s physical education staff who were responsible
for the area around the gymnasium where the incident took place but had failed to
16
supervise students in the area during the lunch period. (Id. at pp. 744-746.) We
held that because the evidence was sufficient to support a finding of negligence by
the two instructors, the trial court erred in granting a directed verdict for the
defendants. (Id. at pp. 749-751.) The school district’s liability derived vicariously
from that of the two instructors, resting, as in the present case, on section 815.2.
(Dailey, at p. 747; see also J.H. v. Los Angeles Unified School Dist., supra, 183
Cal.App.4th at pp. 128, 148-149 [recognizing potential liability on part of
individual school employees as well as district for failing to protect student from
attack]; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp.
1452-1453 [same].)7
Nor does our holding that public school administrators and supervisors may
be held legally responsible for their negligence in hiring and retaining as well as
supervising school staff subject the great majority of public school personnel,
much less other employees, to potential liability for acts committed by their fellow
workers. The scope and effect of our holding on individual liability is limited by
requirements of causation and duty, elements of liability that must be established
in every tort action. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
666, 673.)
With regard to causation, plaintiff alleges he suffered emotional and
physical injuries “[a]s a result of” defendants’ negligent hiring and retention of the
guidance counselor, and the District does not argue the causation element is
inadequately pled. But where an individual defendant did not have final authority
over the hiring or firing of the malefactor employee, but was merely in a position
7
As noted earlier, however (see fn. 2, ante), public employees, including
school personnel, are entitled to a defense and indemnity for negligent torts within
the scope of their employment.
17
to propose or recommend such action, proving causation may present a significant
obstacle. Plaintiff here, and those similarly alleging individual negligence in
hiring and firing, must demonstrate that the individual employee’s proposal or
recommendation, or failure to take such action, was a substantial factor (Mitchell
v. Gonzales (1991) 54 Cal.3d 1041, 1052) in causing the malefactor to be hired or
retained. While it may well be possible to prove that a public school principal’s
recommendation, particularly as to hiring, effectively determined the governing
board’s decision, the same could not be said of every individual employee who
recommends to management that a particular person be hired into the organization,
or who could have, but did not, seek a coworker’s discipline or termination. Even
if other elements of the tort action were established, then, an employee who did
not actually make the hiring or retention decision and whose recommendations
were not, in the particular circumstances of the organization, likely to be highly
influential to the decision maker would not face the potential for individual
liability.
Turning to the duty element, we have explained that the potential legal
responsibility of District administrators and supervisors for negligently hiring or
retaining Hubbell arises from the special relationship they had with plaintiff, a
student under their supervision, which relationship entailed the duty to take
reasonable measures to protect plaintiff from injuries at the hands of others in the
school environment. Absent such a special relationship, there can be no individual
liability to third parties for negligent hiring, retention or supervision of a fellow
employee, and hence no vicarious liability under section 815.2 (or, for private
organizations, under common law respondeat superior principles). For example,
in de Villers v. County of San Diego, supra, 156 Cal.App.4th at pages 249-250,
because other employees of the coroner’s office had no special relationship with
the husband of the homicidal toxicologist, they had no duty to protect him against
18
his wife, and there could be no individual liability (or vicarious liability by the
county) for their failure to investigate the toxicologist before hiring her.
Additional limits emerge from our consideration, under Rowland v.
Christian (1968) 69 Cal.2d 108 (Rowland),8 of the scope of the duty implicated in
this and similar cases. In Randi W. v. Muroc Joint Unified School Dist. (1997) 14
Cal.4th 1066, 1077-1081, we decided, through a Rowland analysis, that staff at
school districts previously employing a teacher with a history of sexual contact
with students bore a duty not to misrepresent the teacher’s qualifications and
character. But, by the same analysis, we limited potential liability for letters of
recommendation to actual misrepresentations, as distinct from nondisclosures, and
to circumstances in which the misrepresentation “present[ed] a substantial,
foreseeable risk of physical injury to the third persons.” (Randi W., at p. 1081.)
A similar analysis is appropriate here in order to decide under what general
circumstances the protective duty arising from the special relationship between
individual school administrators, supervisors and students extends to a duty of care
in taking or failing to take action to further the hiring or firing of subordinate
school staff.
8
In Rowland, we outlined several factors to be used in determining a tort
duty’s existence and scope: “[T]he foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury suffered, the moral
blame attached to the defendant’s conduct, the policy of preventing future harm,
the extent of the burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk involved.” (Rowland,
supra, 69 Cal.2d at p. 113.) We have previously used this analysis to decide the
scope of duty arising from a special relationship. (See Castaneda v. Olsher (2007)
41 Cal.4th 1205, 1213-1218.)
19
In this factual context, foreseeability and its related Rowland factors (see
Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774) depend largely on the
same factual question we have discussed in relation to causation: whether the
individual whose negligence allegedly led to the malefactor employee’s hiring or
retention was, under the circumstances, likely to be highly influential to the actual
decision maker. It is not generally foreseeable, for example, that a hiring
recommendation made by an employee outside an organization’s circles of
authority and influence will cause harm to a third party.
Additional duty limits are suggested by the Rowland considerations of the
extent of moral blame and the policy balance between the prevention of future
harm and the burdens created by imposing a duty of care. (See Cabral v. Ralphs
Grocery Co., supra, 51 Cal.4th at pp. 781-782.) Unless the individual alleged to
be negligent in a hiring or retention decision knew or should have known of the
dangerous propensities of the employee who injured the plaintiff, there is little or
no moral blame attached to the person’s action or inaction. And unless the
employee’s propensities posed a substantial risk of personal injury to the plaintiff
or others in the same circumstances, there is again little moral blame to assign, and
the undesirable consequences of imposing potential liability—the possible chilling
of recommendations and proposals for hiring and retention—will tend to outweigh
the policy of preventing harm by imposing costs on negligent conduct. (See
Randi W. v. Muroc Joint Unified School Dist., supra, 14 Cal.4th at p. 1081.)
In John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at page 451,
we noted with concern the undesirable consequences that could flow from
imposing vicarious liability on public school districts for sexual misconduct by
teachers, including “the diversion of needed funds from the classroom to cover
claims” and the likelihood districts would be deterred “from encouraging, or even
authorizing, extracurricular and/or one-on-one contacts between teachers and
20
students.” To these still valid concerns we should add the possibility that
unsubstantiated rumors of sexual misconduct might curtail or destroy the careers
of innocent teachers, counselors or other employees. Against these concerns, we
have weighed in this case the value of negligence actions in providing
compensation to injured parties and preventing future harm of the same nature,
and have followed John R.’s suggestion that these remedial goals are best
addressed “by holding school districts to the exercise of due care” in their
administrators’ and supervisors’ “selection of [instructional] employees and the
close monitoring of their conduct,” rather than by making districts vicariously
liable for the intentional sexual misconduct of teachers and other employees.
(Ibid.) At the same time, we emphasize that a district’s liability must be based on
evidence of negligent hiring, supervision or retention, not on assumptions or
speculation. That an individual school employee has committed sexual
misconduct with a student or students does not of itself establish, or raise any
presumption, that the employing district should bear liability for the resulting
injuries. We note, as well, that even when negligence by an administrator or
supervisor is established, the greater share of fault will ordinarily lie with the
individual who intentionally abused or harassed the student than with any other
party, and that fact should be reflected in any allocation of comparative fault.
Within these limits, we conclude a public school district may be vicariously
liable under section 815.2 for the negligence of administrators or supervisors in
hiring, supervising and retaining a school employee who sexually harasses and
abuses a student. Whether plaintiff in this case can prove the District’s
administrative or supervisory personnel were actually negligent in this respect is
not a question we address in this appeal from dismissal on the sustaining of a
demurrer.
21
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with our opinion.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion C.A. v. William S. Hart Union High School District
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 189 Cal.App.4th 1166
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S188982Date Filed: March 8, 2012
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Melvin D. Sandvig
__________________________________________________________________________________
Counsel:
Manly & Stewart, Vince W. Finaldi, John C. Manly; Esner, Chang & Boyer, Stuart B. Esner and Holly N.Boyer for Plaintiff and Appellant.
Greines, Martin, Stein & Richland, Robert A. Olson, Feris M. Greenberger, Timothy T. Coates; McCune &
Harber, Stephen M. Harber and Joseph W. Cheung for Defendants and Respondents.
Dannis Woliver Kelley, Sue Ann Salmon Evans and Chad William Herrington for Education Legal
Alliance of the California School Boards Association as Amicus Curiae on behalf of Defendants and
Respondents.
Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Stuart B. EsnerEsner, Chang & Boyer
234 East Colorado Boulevard, Suite 750
Glendale, CA 91101
(626) 535-9860
Robert A. Olson
Greines, Martin, Stein & Richland
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90036
(310) 859-7811
| Date: | Citation: | Docket Number: | Cross Referenced Cases: |
| Thu, 03/08/2012 | 53 Cal. 4th 861, 270 P.3d 699, 138 Cal. Rptr. 3d 1 | S188982 | 48 Cal. 3d 438 |
| Opinion Authors | |
| Opinion | Justice Kathryn M. Werdegar |
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| Jun 8, 2012 Annotated by Martin Ellison | Facts: Plaintiff, a minor, sued his public high school guidance counselor and the school district for damages arising out of sexual harassment and abuse by the guidance counselor. The school district demurred, arguing that the plaintiff’s theory of liability failed to state a legally cognizable claim. The school district’s argument rested on its interpretation of California Government Code Section 815, the statute governing public entity tort liability. The school district denied vicarious liability for its supervisors’ and administrators’ negligent hiring, training, and inadequate discipline of the counselor, based on its belief that Section 815 did not create any statutorily imposed duty owed by the school district to the injured party. Procedural History: The trial court sustained the school district’s demurrer without leave to amend and dismissed the action as to the district. A divided Court of Appeal affirmed. Issue: Whether the school district may be found vicariously liable for the negligence of its supervisory and administrative personnel in hiring, retaining, and inadequately supervising an employee who those personnel knew, or should have known, had a propensity to harm the students of the school district. Holding: Yes, vicarious liability under such circumstances is a legally viable one. The decision of the trial court and the Court of Appeal is reversed, and the matter remanded for further proceedings. Analysis: Section 815 of the California Government Code establishes that a public entity cannot be held liable for a tort unless the claim is explicitly authorized by statute. Section 815.2 identifies one such type of claim: “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” The Court summarized public entity tort liability in the following terms: “the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).” The school district argued that this statutory language does not establish tort liability, because the scope of its supervisory and administrative personnel’s employment does not include a legal duty to protect students from another employee. The Court disagreed, reasoning that “a school district and its employees have a special relationship with the district’s pupils” that is “analogous in many ways to the relationship between parents and their children.” (Citing Hoff v. Vacaville Unified School District, 19 Cal. 4th 925, 935 (1998)). This special relationship, the Court continued, establishes “a protective duty of ordinary care,” which requires school district employees to use “reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.” Citing earlier cases, the Court noted that tortfeasor third parties can include other students, nonstudents, and school employees. Having established the viability of a vicarious liability claim against the school district, the Court then provided some clarifying remarks. The Court stated that a plaintiff’s claims against school supervisors and administrators are still limited by the “requirements of causation and duty.” With respect to causation, a plaintiff must demonstrate how the school employees’ action or inaction “was a substantial factor in causing the malefactor to be hired or retained.” With respect to duty, the Court noted that the protective duty of ordinary care is not applicable to the employees of all public entities, whose actions are normally governed by California Civil Code Section 1714. However, long-held precedent and public policy justified additional responsibilities for school employees. Finally, the Court stated that “even when negligence by an administrator or supervisor is established, the greater share of the fault will ordinarily lie with the individual who intentionally abused or harassed the student than with any other party, and that fact should be reflected in any allocation of comparative fault.” Tags |
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