The California Court of Appeal for the Second Appellate District has rejected a claim against a school district based upon the contention that the district negligently hired a known child abuser and then allowed the person to closely interact with students as a counselor without adequate supervision.
The case is C.A. (a minor) v. William S. Hart Union High School District (a complete copy of the court's ruling is attached for your convenience).
Bear in mind that this is a very controversial ruling – in fact the 3-judge panel of appellate justices split 2-1 on the issue, and the dissenting opinion is a powerful (albeit minority) refutation of the majority analysis. We expect that this case will be appealed further to the California Supreme Court.
The facts of the C.A. case are compelling. The complaint alleged that C.A. was a student at a public high school operated by the William S. Hart Union High School District. The head guidance counselor and advisor at the high school (an employee of the school district) was assigned to “counsel, advise and mentor” C.A. The complaint alleged that the guidance counselor sexually harassed, abused and molested C.A. on a number of occasions. The complaint further contended that the school district knew that the guidance counselor had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct, but failed to take reasonable steps to prevent further unlawful sexual conduct by the guidance counselor.
The complaint stated causes of action against the school district, the high school, and the guidance counselor for negligence; negligent supervision; negligent hiring and/or retention; negligent failure to warn, train or educate; constructive fraud; intentional infliction of emotional distress; sexual battery; assault; sexual harassment; gender violence; and unfair business practices.
The school district contended that there is no legal right to allege a “negligent hiring claim” against a public entity, and the trial court agreed, dismissing the case. The court of appeal affirmed in a 2-1 decision.
(In a separate portion of the decision, the court reiterated the long standing rule that sexual molestation is beyond the course and scope of employment and, therefore, a school district is not vicariously liable when an employee engages in such conduct. But it is the analysis regarding negligent hiring that is of interest here.)
Citing to past precedent, the court stated: “We find no relevant case law approving a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices. . . Further, there is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices . . . .”
The court also rejected a claim based on the school district’s “mandatory duty” to protect students. Because the court could not find a specific statute that imposed a specific duty on the district, this portion of the clam was dismissed.
But this discussion did not end the matter, for Presiding Justice Mallano vigorously dissented. “According to the complaint,” wrote Justice Mallano, “the school district knew before and after hiring the guidance counselor that she had molested, and was continuing to molest, students. After hiring her, the district knew she was unfit for the job, but took no action to supervise, train, or discharge her. As a consequence, C.A., a high school student, was sexually molested. These allegations are accepted as true. . . . Thus, the school district may be liable for breaching its duty to protect students from physical harm. This court should clearly say so. . . . Although 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.” (Emphasis by Justice Mallano.)
School administrators will surely sit up and take notice of Justice Mallano’s comment that “the administrators’ negligent acts and omissions in hiring, training, supervising, and retaining the guidance counselor may give rise to their personal liability, and, under section 815.2, the school district may be vicariously liable for the administrators’ negligence.” (Emphasis added.)
While this comment is presently embedded in a dissenting opinion, it could gain traction if the California Supreme Court grants a hearing and agrees to review this decision.
And although the specter of personal liability is surely a cause for concern, as employees of governmental entities, public school administrators who are acting withint the course and scope of their employment are entitled to a defense at their employer’s expense, and they can require their employer to pay any judgment based on their negligent conduct. These requirements are clearly set forth in section 825 of the California Government Code.
At Slote & Links, we represent school administrators in a variety of contexts. Please feel free contact us if you need advice in this area.