In A.H. v. Tamalpais Union High School Dist., published September 9, 2024, the First District Court of Appeal, Division 2 affirmed a judgment against the district entered after jury trial. The plaintiff was molested by his school tennis coach. Before the molestation occurred, the school principal received a report that the coach had touched a student's genitals while measuring body fat. After investigation, the principal wrote the coach a letter of warning in which he stated he would create a protocol for body fat measurement. The principal did not place the letter in the coach's personnel file, did not create the protocol, and did not tell other P.E. teachers or supervisors about the complaint. Before plaintiff's molestation, the coach improperly touched multiple other students during body fat measurements and massages. After the plaintiff graduated, the principal received a second complaint about the coach involving a body fat test. In closing argument, the plaintiff asked the jury to apportion 90% fault to the district and 10% to the coach. The district's counsel asked the jury to apportion 75-90% fault to the coach. The jury awarded $10 million in noneconomic damages, and apportioned 100% responsibility to the district and 0% to the coach. The district did not criticize the verdict regarding apportionment of fault after the jury returned it. The district did not move for new trial. The district appealed, arguing that the trial court failed to properly instruct the jury and that the fault apportionment showed the error was prejudicial. It also argued that the trial court abused its discretion in admitting evidence of the molestations that were not reported to the district, the complaint after the plaintiff graduated, and of the coach's conviction 16 years after the plaintiff graduated.
The court rejected the claims of error. The district complained that the trial court did not give its requested instructions that the district could not be held vicariously liable for the molestation, and could be held liable only for supervisors' negligence in hiring, supervision, and retention. The appellate court ruled that the instructions given adequately communicated these concepts to the jury. The district argued that the trial court should have given the district's proposed special instruction based on language in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 noting that ordinarily lie with the individual who intentionally abused or harassed the students, and that the fact should be reflected in any allocation of comparative fault. The court agreed with the trial court that the language did not create an actual standard, but was instead a comment by the Supreme Court regarding what happens at times. CACI No. 406, which was given, correctly instructs the jury on apportionment. Instructing the jury with the proposed language would have confused the jury. Because the district failed to show instructional error, the majority declined to reach the district's argument that the "legally impossible" verdict apportioning no fault to the molester showed prejudicial error. The court noted that the district did not separately claim insufficiency of the evidence as to the jury's apportionment finding. The court also rejected the evidentiary arguments, finding the trial court did not abuse its discretion in deeming the unreported molestations relevant to the pervasiveness of the coach's molestation and the negligence of the supervisors in failing to detect or prevent it, the subsequent molestation as relevant to lack of reasonable supervision following the earlier complaint, and the later conviction relevant to damages because the plaintiff testified at the criminal trial.
A dissenting justice opined that despite the district's failure to raise insufficiency of the evidence to attack the fault apportionment, the court should have addressed the issue sua sponte and reversed the apportionment as improper as a matter of law. The justice urged the California Supreme Court to grant review of the decision.
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