Government Liability Update

Neither Child Protective Services Social Worker Nor County Liable for Accidentally Disclosing Identity of Mandated Reporter

In All Angels Preschool/Daycare v. County of Merced, published July 11, 2011, the Fifth District Court of Appeal addressed whether a county social worker or the county that employed him could be sued for the inadvertent violation of Penal Code section 11167(d)(1), which requires that reports of suspected child neglect by mandated reporters be kept confidential.  The plaintiff, a preschool operator, reported suspected child neglect to the county's child protective services.  The county's social worker investigated and concluded no neglect took place; but he inadvertently mailed the report on the investigation to the child's parent.  The parent took the child out of the preschool.

The court concluded that the county could not be held directly liable under Government Code section 815.6, which creates liability for violation of mandatory duties.  After examining Penal Code section 11167 and similar statutes, the court concluded that the legislature did not intend 11167 to protect mandated reporters from specific types of harm resulting from disclosure of their identities, but rather to encourage reporting of suspected neglect.  The social worker was immune from liability under Government Code section 821.6, which immunizes investigations; and the county therefore could not be held vicariously liable.

Special Education Teacher's Negligent Failure to Protect Special Education Student from Sexual Relations Does Not Violate Student's Fourteenth Amendment Rights

In Patel v. Kent School District, published July 11, 2011, the 9th Circuit Court of Appeals ruled that a developmentally disabled high-school student who had several sexual encounters with another developmentally-disabled student while using the restroom could not state a 14th Amendment due process cause of action against the special-education teacher who allowed her to use the restroom unaccompanied.  A plaintiff can state a 14th Amendment claim against a government actor arising out of failure to protect the plaintiff from third parties in only two situations:  Where a special relationship is created because the plaintiff is in government custody; and where the government actor affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger.  Being a public school student is not analogous to being in custody, even if the law requires school attendance.  And the teacher here was not deliberately indifferent to a known or obvious danger; at most, a jury might find her negligent under state law.