Off-campus molestation: vicarious liability of school district for supervisory employees' negligence in hiring and supervising offending school counselor

April 3, 2012
By Justice Steven Vartabedian (Ret.) on April 3, 2012 6:00 AM |

School.jpgWe all too frequently read about public school teachers developing sexual relationships with their young, impressionable students. Are the schools themselves vulnerable to lawsuits brought by students and their parents when such conduct occurs away from the school environment? In the discussion that follows, a path of relationships, as determined by the California Supreme Court, presents the answer to this question.

To start, California Government Code section 815 sets forth that public-entity liability is strictly statutory; one such basis of liability is found in section 815.2: vicarious liability for the act or omission of an employee acting within the scope of employment if that conduct would give rise to liability outside of the pubic-entity realm, except where the employee is immune. Can a public school district be liable for a school counselor's molestation of a student outside of the scope of employment based on an allegation of vicarious liability for the negligence of school administrators in hiring and supervising the counselor who the administrators knew (or should have known) had propensities for such misconduct?

In C.A. v. William S. Hart Union High School District (filed March 8, 2012) 2012 DJDAR 3131, the state high court unanimously answers yes, reviving plaintiff's case after the trial court had sustained the school district's demurrer to plaintiff's complaint, and the Court of Appeal had affirmed. This reversal by the Supreme Court does not mean that the plaintiff immediately wins his case. It means, as the court states, plaintiff's theory is legally viable and should not be summarily dismissed at the pleading stage. He still will need to prove his case: if supervisory school employees are proven to have breached their "protective duty of ordinary care" by negligently exposing plaintiff to a foreseeable danger of molestation by his counselor, resulting in injury, and assuming no immunity applies, the school district is liable.

The focus of the court is on the duty the school supervising/hiring employee (presumably the school principal) owes to the students. The school district argued it could not be liable because (1) its supervisory employees owed no legal duty for the abusive acts of another employee, and (2) the responsibility for hiring, supervising and dismissing employees rested with the district itself which has no direct statutory liability for such conduct as it affects students. The court instead adopted the duty analysis argued by plaintiff: that the special relationship between public school personnel and students imposes on the school administrators a duty of reasonable care to protect students from foreseeable dangers, including those from other school employees.

The court additionally notes that its holding is limited by requirements of causation. So when the district argues it, not its employees, has the final authority for personnel decisions, the question becomes whether a recommendation of the administrator, if found to be negligent, was a substantial factor in an action or inaction of the district. This proof, as well as the proof of prior bad acts of the counselor, what knowledge the supervisor is charged with and the connection between any personnel decision or lack of supervision and the harm caused, can present significant obstacles.

What I find interesting in this case are the web of relationships found by the court and how it brings those relationships within the scope of employment. While the alleged harmful acts of the counselor result from acts outside of the scope of the counselor's employment, the student's relationship with counselor started on campus. In turn, the school administrator's special relationship with the student, in having a duty to prevent harm from his on-campus counselor, creates potential district liability even for off-campus conduct because the administrator in question is acting within the scope of employment. Finally, while the district itself would not be directly liable for its personnel decisions, it can be vicariously liable for the input, or lack thereof, from its administrative employee.