County Is Not Vicariously Liable for Social Worker's Sexual Assault on Foster Child

In Z.V. v. County of Riverside, published July 16, 2015, the Fourth District Court of Appeal, Division 3, affirmed summary judgment in favor of the defendant county in a suit brought by a foster child whom a county social worker sexually assaulted.  The appellate court ruled that under the undisputed facts, viewed in the light most favorable to the plaintiff, the county could not be held vicariously liable for the assault under respondeat superior.  The court analyzed Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, in which the California Supreme Court held that a police department could be held liable for a police officer's on-duty rape of a detained person, and concluded that to the extent it remained viable law, it applied only to a police officer's on-duty acts.  Even if Mary M. could apply to a social worker, the court continued, it would not apply here.  The assault occurred after the social worker had dropped the plaintiff off at a foster placement, had gone home, and was off-duty.  That the social worker used his position to persuade the plaintiff to contact the plaintiff, leave the foster home, get into the social worker's van (which had the county's logo), go to a liquor store, and go to the worker's apartment did not transform the act into the sort of on-duty act that gave rise to vicarious liability under Mary M.  The court also rejected a 9th Circuit opinion interpreting California law,  Lu v. Powell (9th Cir. 2010) 621 F.3d 944, as misinterpreting state law on respondeat superior liability for sexual misconduct.  The court also rejected the alternative theory of negligent supervision of the social worker, since there was no evidence any supervisor had notice of the social worker's propensity to sexually assault a foster child.