Government Liability Update

School Personnel Do Not Owe Students Duty to Review Alarm Data and Video Recordings to Constantly Monitor Everyone on Campus

In Doe v. Anderson Union High School Dist., published May 4, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant school district, principal, and superintendent.  A teacher at a high school in the district had a sexual relationship with the plaintiff student, then 17.  The relationship included sexual activity in his classroom.  The school district had no facts, reports, or rumors that the teacher had engaged in any improper relationship.  There were video security cameras aimed at the doors of the classroom.  The video footage was saved for 14 days before automatic erasure.  Per district policy, footage was reviewed only if the district learned of an incident that may have been caught on video.  The district maintained an alarm system that covered the main building and the classroom.  Each employee had a code to deactivate the alarm.  The district had not requested data from the alarm company on when alarms were deactivated or by whom.  The student sued the defendants for negligent hiring and negligent supervision.  The defendants moved for summary judgment on the ground that there was no evidence they knew or should have known that the teacher posed a risk of harm to students.  The plaintiff conceded lack of evidence of negligent hiring, and so focused on negligent supervision.  In opposition to summary judgment, the plaintiff submitted an expert declaration from a retired principal and school administrator.  He opined that the principal had a duty to monitor teachers to determine if they were spending too much time on campus late at night, including interviewing teachers and reviewing video footage.  The trial court ruled that the risk to the plaintiff was not foreseeable.

The appellate court ruled that the district's administrators' duty of supervision to protect students was limited to the risks of harm that were reasonably foreseeable--those known to the administrators or that reasonably should have been known to them.  School districts are not the insurers of their students' physical safety.  Sexual misconduct by school personnel is not inherently foreseeable.  The administrators did not know that the teacher would have se with the student, and had no information that would support a conclusion that they should have known.  They therefore did not have a duty to review alarm data and video recordings to constantly monitor all teachers, students, and campus visitors.  Nor did they have such a duty specifically as to the plaintiff and the teacher.  To impose such a duty on this record would be unreasonable.

Farm States 1st Amendment Retaliation Claim against School District for Discontinuing Field Trips Based on Social Media Posts

In Riley’s American Heritage Farms v. Elsasser, published March 17, 2022, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to public school defendants in a 42 U.S.C. section 1983 case seeking damages and injunctive relief.  Over a 16-year  period, schools within the defendant school district booked field trips with the plaintiff farm.  One of the principal shareholders made controversial statements on his personal social media account.  In response, some parents complained about their students traveling on field trips to the farm, and a local newspaper published an article about the incident.  The school district severed its relationship with the farm.  The farm sued the district, individual board members, and administrators, alleging 1st Amendment retaliation.  The district court granted the defendants summary judgment.

 

The 9th Circuit held that the farm had set forth a prima facie claim for first amendment retaliation.  Because the farm stood in the same position as an independent contractor to the government, the Pickering test for First Amendment retaliation applied.  There was no issue that the farm had engaged in protected expressive activity; that the defendants took an adverse action against the farm; and that the defendants were motivated to do so by the farm’s expressive conduct.  The burden shifted to the school defendants to show that their interests in preventing disruption to their operations and curricular design were so substantial that they outweighed the plaintiff’s free speech interests.  Viewing the evidence in the light most favorable to the plaintiff, because the speech was outside the scope of school communications, did not mention the school, and resulted in only a small number of complaints and coverage, the defendants did not carry their burden sufficiently to obtain summary judgment.  On the second prong of qualified immunity, the individual defendants were entitled to summary judgment, because the law at the time did not place the question of whether they violated the plaintiff’s 1st Amendment rights beyond debate.  The defendants were not entitled to summary judgment against the injunctive relief claim, because the superintendent’s testimony that there was still a policy against booking field trips to the farm was sufficient to create a genuine issue of fact on whether the plaintiff continued to suffer from an ongoing constitutional violation.

 

Government Code Immunity for Mental Examination's Application to School District's Threat Assessment Is Limited

In Cleveland v. Taft Union High School District, published March 25, 2022, the Fifth District Court of Appeal affirmed a judgment entered after a jury verdict.  A high school student told fellow classmates about a dream he had of shooting multiple students.  The school district suspended the student and performed a threat assessment.  As part of the threat assessment, the school psychologist interviewed the student.  The assistant principal oversaw the threat assessment and interviewed other students about the student.  The School Resource Officer searched the student's house for weapons and a "hit list," and did not find anything.  The school psychologist prepared a report determining the student could return to school.  Students made additional complaints about the student over the succeeding months, and the assistant principal assessed those events.  Ten months after making the initial statements, the student brought a shotgun to class and shot the plaintiff.  The plaintiff sued the school district and its administrators for negligence.  The school district asserted that under Government Code section 855.6, which immunizes public entities and employees from liability for inadequate physical and mental examinations made to determine whether a person is a threat to himself or others, it and its employees were immune from liability for making an allegedly inadequate threat assessment.  The trial court determined that the immunity applied only to the school psychologist's examination of the student and his conclusions from that examination, and did not apply to the rest of the threat assessment.  The jury held the school psychologist, the assistant principal, other administrators, and a school security officer were negligent, and assigned them collectively 54% of the fault for the shooting.  The district was held liable for damages.  On appeal, the district contended that section 855.6's immunity applies to the entire threat assessment.

The appellate court agreed with the trial court.  Analyzing the law and policy concerning administrators' duty of care to protect students, as well as the legislative and case law history of section 855.6, the court concluded that the immunity applies to any public employee, not just medical personnel.  But it interpreted the term "mental examination"  in the statute to apply only to the process of inspecting visually, or by use of the other senses, the physical, mental, and emotional state of the person examined.  Typically, this would involve a face-to-face meeting, although it could also include interviews by telephone or videoconference.  The court determined that applying section 855.6 to all negligent acts or omissions of a threat assessment team would undermine the goal of protecting students, rather than encouraging school districts to diligently perform the threat assessment.  The court responded to the concern that the threat of liability would dissuade school districts from performing threat assessments by reasoning that the districts' duties to protect their students would incentivize them to continue to perform the assessments.  The acts and omissions the plaintiff's expert found in the threat assessment's performance were therefore outside the scope of the immunity.

Pollak, Vida & Barer participated in the appeal.

School District Does Not Owe Mandatory Duty to Student to Defend Him When He Is Sued for Injury Caused During School Sports Activity

In Sruouy v. San Diego Unified School Dist., published February 24, 2022, the Fourth District Court of Appeal, Division 1 affirmed dismissal after demurrer of a former high school student's lawsuit against a school district seeking indemnity for defense costs.  During a high school football game, the plaintiff, then still a minor, blocked an opposing player who then fell against a referee's legs, injuring the referee.  The referee sued the school district and the plaintiff.  The plaintiff initially thought the school was defending him, and a default was entered against him.  When he discovered that the school's attorney was not defending him and that he was in default, the student obtained counsel and got the default set aside.  Eventually the referee dismissed the student from the case for a waiver of costs.  The plaintiff then presented a claim to the school district for his attorney fees.  After the claim was denied, the plaintiff, who had graduated, sued the district for express indemnity, equitable indemnity, and implied indemnity.  The student alleged that under Government Code section 815.6, the school district owed the student a mandatory duty to defend him in the lawsuit.  He alleged that the mandatory duty was created by Education Code section 44804 (which imposes liability on a school district for injury occurring off-campus in a school-sponsored activity if the injury occurs through failure to exercise reasonable care); article IX, section 5 of the California Constitution (which provides for free schooling); and title 5, section 350 of the California Code of Regulations (which provides a student shall not be required to pay any fee, deposit, or other charge not specifically authorized by law).  The trial court sustained the district's demurrer without leave to amend, ruling that the plaintiff had failed to plead a mandatory duty to protect or indemnify him from incurring attorney fees.

The appellate court agreed.  To create a mandatory duty under Government Code section 815.6, an enactment must be obligatory, rather than discretionary; and the duty must be designed to protect against the particular kind of injury the plaintiff suffered.  None of the enactments cited met those tests.  The district was not required to provide the plaintiff with a legal defense as part of its constitutional free school guarantee.  The constitution guarantees free educational activities, and the lawsuit was not an educational activity.  Further, the free schooling provision pertains to expenses peculiar to education.  Representation in a lawsuit is not peculiar to education.  The argument that the cost of retaining a lawyer was a charge for participating in the football team, in violation of section 350's regulation, failed, because the regulation is based on the constitution's free schooling provision; and because the cost of defense was incurred after the plaintiff graduated and was no longer on the team.  Education Code section 44808 cannot be interpreted to require schools to defend students whenever they are sued for causing injuries while under supervised school activities, because that would make school districts insurers of student safety by requiring them to defend students even absent any fault by the district.  Nothing about the history or interpretations of section 44808 indicate it was intended to broaden the scope of school district liability at all, much less to this extent.  Further, while Education Code section 32221 requires school boards to provide medical insurance for school athletes, providing any other insurance is discretionary rather than mandatory.  Finally, the plaintiff's argument on appeal that the California Constitution's equal protection clause provided a ground for recovery failed, because monetary damages cannot be recovered under that provision.

Subjective Deliberate Indifference Standard Applies to Fourteenth Amendment Claim against School Employee Who Fails to Protect Student from Injury

In Herrera v. Los Angeles Unified School District, published December 1, 2021, the 9th Circuit Court of Appeals affirmed summary judgment granted to the defendant district, a school aide, and other defendants in a 42 U.S.C. section 1983 suit.  During a tenth-grade party at a park, a student told the defendant aide that he was going to the park's swimming pool.  Three lifeguards monitored the pool.  The aide watched the student from a designated observation area.  The aide allegedly knew that the student had asthma and could not swim.  The aide saw the student exit the shallow end of the pool and enter the locker room area.  The aide left the observation area to wait for the student to exit the locker room.  Instead of changing, the student returned to the pool.  Five minutes later, the aide searched for the student and found lifeguards attempting to resuscitate the student, who had drowned.  The student's parents brought suit.

The court of appeals analyzed whether the aide had violated the student's Fourteenth Amendment rights by affirmatively placing the student in danger by acting with deliberate indifference to a known or obvious danger.  Deliberate indifference generally requires that the defendant subjectively recognize the unreasonable risk and actually intend to expose the plaintiff to that risk without regard to the consequences to the plaintiff--to know that something is going to happen but ignore the risk and expose the plaintiff to it.  The 9th Circuit departed from that standard when holding a pretrial detainee can state a due process violation for a government official's failure to act under an objective deliberate indifference standard.  That objective standard has also been applied in excessive force and detention cases.  But the panel here held that, based on precedent, the subjective deliberate indifference standard applied to this failiure-to-protect case, which did not involve a pretrial detainee or excessive force.  Under that standard, considering that the aide protected the student's privacy and independence by not following him into the locker room, and that the pool was guarded by three lifeguards, a reasonable jury could not conclude that the aide acted with deliberate indifference.

School District Administrators Have Duty to Act Reasonably to Protect Students from Molestation Regardless of Actual Knowledge of Molestation, but Cannot Be Held Liable under Mandatory Reporter Statute absent Actual Knowledge

In Doe v. Lawndale Elementary School District, published November 30, 2021, the Second District Court of Appeal, Division 7 reversed in part and affirmed in part summary judgment granted to the defendant district.  A music instructor groomed and then sexually assaulted the plaintiff, then 13, by engaging in a sexual relationship with her.  The plaintiff did not provide any evidence that district administrators had actual knowledge of the instructor's activities toward the plaintiff, or that he had previously engaged in sexual misconduct with minors or had a propensity to do so. But several students provided evidence that the behavior of the two indicated that they were having a relationship.  The trial court granted summary judgment on the plaintiff's negligence cause of action.   It concluded that the district did not have a duty to protect the plaintiff from sexual abuse unless it knew the instructor had previously engaged in sexual misconduct or had a propensity to do so, and because the instructor's outward conduct toward the plaintiff was "ambiguous."  The trial court further ruled that the plaintiff could not recover on her cause of action for breach of the mandatory duty to report suspected abuse under the Child Abuse and Neglect Reporting Act (CANRA), Penal Code section 11164, because none of the district's employees knew or reasonably suspected the sexual assault occurred.

The appellate court ruled that the trial court's analysis of the duty issue regarding the negligence cause of action was erroneous.  The law established that the district's administrators were in a special relationship with the district's students that imposed a duty of care to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse.  The duty includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including a teacher's sexual assault.  The district was vicariously liable for its employees' negligence.  Once a court determines a defendant owes a duty to a plaintiff, the questions of breach and causation are usually questions for the jury.  The exception is where the Rowland v. Christian policy factors establish that a category of cases should be exempted from the general rule of duty.  The appellate court applied the Rowland factors, and determined that molestation cases where the district administrators lack actual knowledge of an employee's sexual abuse or propensity should not be excluded from the general duty to take reasonable measures to protect students from molestation.  The court disagreed with language in multiple cases that might be interpreted otherwise, pointing out that several predated the 2019 California Supreme Court case of Brown v. USA Taekwondo which established the analysis to apply when determining the existence of a duty of care.  The court reversed summary adjudication as to the negligence claim.

But the court also determined, as a matter of first impression that the CANRA cause of action, based on interpretation of the statutory scheme, required that a plaintiff prove it was objectively reasonable for a mandated reporter to suspect abuse based on the facts the reporter actually knew, rather than facts the reporter reasonably could have discovered.  The court therefore affirmed summary adjudication of the CANRA cause of action.

School District and Administrators Immune from Liability for Failure to Prevent Student Bullying Allegedly Causing Victim's Off-Campus Suicide

In Leroy v. Yarboi, ordered published November 16, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant district, its principal, and its assistant principal.  The plaintiffs' decedent, a high school student, suffered from Tourette's Syndrome, sensory integration disorder, and borderline Asperger's Syndrome.  He was in a virtual school program, and attended the high school physically during only two periods.  In one of his classes, several students bullied and harassed the decedent.  The decedent reported one student for harassing him and calling him names.  Both students signed a "no contact" contract agreeing not to have contact with each other.  The day after summer break began, decedent took his own life.  The decedent's parents alleged that the administrators had negligently failed to address and prevent student bullying of the decedent, which caused the decedent to commit suicide; and that the school was vicariously liable for their conduct.  The trial court granted summary judgment on the ground that the administrators did not breach their duties to the decedent, and on the ground that Education Code section 44808 immunized the district and administrators from negligence liability.

The appellate court affirmed the summary judgment on the ground of immunity.  Section 44808 immunizes school districts and their employees from liability for the conduct or safety of students when students are not on school property, unless the district or person has undertaken to provide transportation or a school-sponsored activity, or has otherwise specifically assumed responsibility or liability for off-campus activities.  There is an except for failure to exercise reasonable care under the circumstances.  The plaintiffs asserted that the district and administrators failed to exercise reasonable care under the circumstances.  They argued that the immunity did not cover negligent failure to protect a student from bullying on-campus that led to the student's off-campus suicide.  But the weight of authority holds that 44808 immunize districts and employees from liability for student safety outside school property unless the student was or should have been directly supervised during a specific undertaking.  The provision concerning reasonable care refers to failure to exercise reasonable care during one of the undertakings.  Because the decedent committed suicide off-campus during summer break in his home, while he was not and should not have been supervised by any district employee, and no one at the district had assumed responsibility for his well-being, the district and its administrators were immune from liability under section 44808.

Because the Treble Damages Award for Cover-up of Childhood Sexual Assault Is Primarily Punitive in Nature, Government Code section 818 Bars Treble Damages Awards against Public Entity Defendants

In X.M. V. Superior Court (Hesperia Unified School District), published September 16, 2021, the Fourth District Court of Appeal, Division 2 agreed with Los Angeles Unified School Dist. V. Superior Court (currently being reviewed by the California Supreme Court) and held that the treble-damages provision of Code of Civil Procedure section 340.1 for cover-up of childhood sexual abuse is barred by Government Code section 818, which immunizes public entities such as school districts from punitive damages.  Because by definition they are in addition to compensatory damages, treble damages are generally deemed punitive.  The exceptions are where the legislature intended the provision to be primarily compensatory, or where there is a complex situation that renders compensatory damages an incomplete compensatory remedy.  The court found that the announcements of legislative intent behind the treble damages provision could be read as making sure that victims of cover-up are fully compensated, or they might be read as intending the treble damages to be punitive.  Comparing the treble damages provision in section 340.1 to treble damages provisions that were found not to be primarily punitive, the court determined that the primary purpose of the treble damages provision is punitive.  It is therefore barred as against public entity defendants.

Under Evidence Code Sections 1106 and 783, "Sexual Conduct" include Sexual Abuse

In Doe v. Superior Court (Mountain View School District), published October 29, 2021, the Second District Court of Appeal, Division 2 denied a writ petition challenging a trial court's decision to allow the defendant school district to present evidence of a plaintiff student's past sexual abuse.  The plaintiff sued the school district for allegedly negligently supervising a fourth-grade teacher who molested the plaintiff in 2010 and 2011.  The district sought to introduce evidence that a family friend sexually abused the plaintiff in 2013.  The plaintiff moved in limine to exclude the evidence under Evidence Code sections 1106 and 352.  In civil actions alleging sexual misconduct, section 1106 bars evidence of specific instances of the plaintiff's sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  An exception to the bar is evidence admissible under Evidence Code section 783, which allows evidence of sexual misconduct by the plaintiff offered to attack the credibility of the plaintiff if the court (in a motion proceeding described by the statute) concludes the evidence is relevant and is not barred under Evidence Code section 352 (requiring evidence be more probative than prejudicial).  The district filed a motion for admission of the evidence under section 783.  The trial court ruled that neither section 1106 nor section 783 applied, because "sexual conduct" was limited to voluntary sexual misconduct.  The court then ruled the evidence was not barred by section 352.

The appellate court concluded that the trial court erred in interpreting sections 1106 and 783 to exclude involuntary sexual conduct.  Section 1106 was intended both to exclude evidence of a civil plaintiff's character trait for promiscuity, and to encourage civil complainants to bring lawsuits without fear of having the sexual aspects of their lives scrutinized.  The second, privacy-focused objective applies to both voluntary and involuntary sexual conduct.  Further, interpreting the statute not to apply to sexual abuse would lead to absurd results, such as allowing admission of evidence of all sexual conduct of a person under 18.  The weight of precedent in California and other states also interpreted "sexual conduct" to reach involuntary sexual conduct inflicted on a victim.  Although the trial court erred, the appellate court ruled that the error was not prejudicial, because the section 352 analysis the court conducted adhered to all but one aspect of the section 783 motion procedure.

Failure to Adopt Recommendations in Department of Education "Dear Colleague" Letters Is Not Actionable Failure to Accommodate

In Csutoras v. Paradise High School, published September 7, 2021, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant school and district in a lawsuit seeking money damages under Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973.  The plaintiff high school student requested and was granted accommodations under a section 504 plan concerning his schoolwork.  A male classmate assaulted the plaintiff at a football game while he was talking to a girl.  The assailant's motivation was jealousy over the girl.  It was not motivated in any way by the plaintiff's disability.  The school had no prior knowledge of harassment or bullying involving the plaintiff.  The plaintiff alleged that the school violated the ADA and Rehabilitation Act by failing to satisfy various Dear Colleague letters issued by the Department of Education.  The district court concluded that the Dear Colleague letters were not binding.

The 9th Circuit agreed.  While the letters set out a four-factor test for determining whether the Department may seek enforcement against a claimed violation of the ADA and Rehabilitation Act where a student is bullied based on a disability, the bullying is sufficiently serious to create a hostile environment, school officials knew or should have known of the bullying, and the school does not respond appropriately, the letters themselves limit the test to administrative enforcement actions and suits for injunctive relief.  Precedent creates a much higher bar for plaintiffs seeking damages under the ADA and Rehabilitation Act:  They must prove that the defendant intended to discriminate on the basis of the disability, or was deliberately indifferent to the disability.  The letters also disclaim any binding authority, and explicitly state that they do not apply to private suits for money damages.