Government Liability Update

In Lawsuit against School District for Negligent Supervision of Teacher, Court Erred in Excluding Evidence of Alleged Prior Misconduct as Irrelevant

In D.Z. v. Los Angeles Unified School Dist., published May 14, 2019, the Second District Court of Appeal, Division 4, reversed a jury verdict in favor of the defendant district.  The plaintiff high school student alleged that a teacher inappropriately touched her, that school administrators knew or should have known of the danger posed by the teacher, and that the district's failure to respond appropriately to that knowledge caused her harm.  In response to a motion in limine under Evidence Code section 352, the trial court excluded all evidence of alleged misconduct by the teacher apart from inappropriate touching of students.  The evidence excluded included a risque joke about a student's chest that resulted in an investigation of the teacher.  It also included the teacher showing favoritism to female students and offering students rides home.  The trial court also gave, over the plaintiff's objection, jury instructions directing the jury to determine whether the school principal was a district employee and whether the principal acted within the scope of her duties when she harmed the plaintiff.

The appellate court ruled that the trial court abused its discretion by abusing the evidence as irrelevant.  Evidence of alleged misconduct other than the improper touching was relevant to whether the district had notice that the teacher's conduct was reasonably foreseeable, which must be determined under all of the circumstances.  While some of the evidence might not have been relevant, the line the court drew barring all non-touching evidence was improper.  The appellate court noted that trial courts may exclude relevant evidence as inflammatory.  The trial court, however, never reached that issue.  The appellate court ruled the exclusion prejudicial, particularly since the defense counsel used the exclusion to minimize evidence of the teacher's conduct before the alleged touching occurred.  The appellate court further ruled that the jury instructions concerning the principal's employment and scope of duties were improper.  Since the principal's employment and scope of duties were undisputed, the instructions served only to confuse the jury.

School District Sued for Failing to Prevent Employee's Sexual Misconduct Toward Student May Not Raise Student's Comparative Fault or Consent As a Defense, And Cannot Introduce Evidence of Minor's Sexual History

In S.M. v. Los Angeles Unified School District, published September 16, 2015, the Second District Court of Appeal, Division 5 reversed a defense verdict in a lawsuit against the defendant district arising out of a district teacher's sexual misconduct toward a middle school student.  

The appellate court held that the trial court erred in giving a comparative fault instruction.  The court held that comparative fault has no application in a case involving the sexual abuse of a minor student by an adult teacher in a position of authority in a public school setting. The district based the comparative fault defense on the student's consent to the relationship The student's lack of mature judgment in cooperating with her abuser, the court held, was a source of the district's responsibility to her, not a partial excuse from that responsibility.

The appellate court also ruled that the trial court erred in instructing the jury that the minor could consent to the relationship.  The issue of consent, the court ruled, has no place when the minor is the victim of a crime.

The appellate court further ruled that the trial court improperly admitted evidence of the minor's sexual history on the question of the extent of harm.  Under Evidence Code section 1106, the sexual history was not admissible.

The appellate court also held that the trial court improperly instructed the jury that the standard of liability for the district's supervisory and administrative personnel's alleged negligent hiring, supervision, and retention of the teacher included whether they knew or should have known of the teacher's "propensity" for sexual abuse of minors.  Because "propensity" implies a requirement that the employee have a history of sexual abuse, the proper standard is actual or constructive knowledge of the employee's potential for sexual abuse of minors.

The court noted that recent legislation (Civil Code section 1780.5.5, and Evidence Code section 1106, as amended) confirms that defendants cannot raise a minor's consent as a defense in a lawsuit arising out of a minor's sexual relationship with an adult in a position of authority over a minor, which would include a teacher.

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.