In Roe v. Hesperia Unified School District, ordered published November 4, 2022, the Fourth District Court of Appeal, Division 2 reversed dismissal of a case after a demurrer was sustained without leave to amend. An elementary school custodian allegedly molested multiple six-year-old students. The plaintiffs sued the school district, alleging negligence in supervising the students and the custodian; negligent hiring and retention; negligence per se; violation of Title IX; failure to perform mandatory duties under CANRA, the mandated reporter act; and sex discrimination in education in violation of Education Code section 220. The trial court sustained the district’s demurrer to the complaint, on the ground that the complaint failed to allege that the district had actual knowledge of prior acts of abuse by the custodian, or that it had actual knowledge that the custodian was abusing the plaintiffs.
The appellate court held that the complaint adequately pled causes of action against the district. The district may be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student. The negligence standard is “knew or should have known.” Therefore, actual knowledge that an employee is prone to harming students, or is actually harming students, is not necessary. Constructive notice is sufficient. Case law applying an actual knowledge requirement when imposing negligence liability for a third party’s sexual abuse of children deal with non-school settings. The complaint adequately alleged facts that would show constructive knowledge. The CANRA cause of action also does not require actual knowledge, because it imposes a duty on mandated reporters to make a report when the reporter “knows or reasonably suspects” a child has been the victim of child abuse. Reasonable suspicion does not require certainty. A breach of CANRA can support a negligence per se cause of action. It would be objectively reasonable for persons in the position of the school’s employees who saw the conduct alleged in the complaint to reasonably suspect that the custodian was sexually abusing the plaintiffs. The trial court properly dismissed the causes of action under Title IX and Education Code section 220, however; those provisions impose liability for a teacher sexually harassing a student only when an official at the district with authority to impose corrective measures on the district’s behalf has actual notice of the misconduct and is deliberately indifferent to it.