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The Supreme Court Clarifies the Cause of Action for Negligent Hiring and Supervision – Finally!
— by Jeremy Robinson
(Reprinted with permission from the Consumer Attorneys of San Diego, Trial Bar News)
If you litigate cases against public entities, here is some good news for you: The California Supreme Court has finally brought some clarity to claims for negligent hiring, training, and supervision of employees. This has been a particularly murky area, so the court’s guidance here is very welcome. And while the holding deals with the liability of public entities in particular, it should largely apply to claims against non-governmental defendants as well.
The case is C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861. In it, the California Supreme Court holds that a claim against a public entity for negligent hiring, training, and supervision is legally tenable under Government Code section 815.2. The court also holds that the plaintiff need not identify at the pleading stage the specific employees alleged to have been negligent. But, the court concludes by noting that a plaintiff trying to prove a case of negligent hiring and supervision has a very tough road to travel, and surviving the demurrer might be a pyrrhic victory.
The plaintiff in C.A., a student, alleged that a guidance counselor engaged in an improper sexual relationship with him. He sued the school district, alleging it was vicariously liable for the acts of the counselor under Government Code section 815.2, and also vicariously liable for the acts of its administrators in hiring a guidance counselor with a known history of sexual misconduct and turning her loose in the school.
The District demurred, claiming neither cause of action was viable. The trial court sustained the demurrer, and a divided court of appeal affirmed. But the California Supreme Court took a different view.
The court did not consider the issue of whether the district could be vicariously liable for the acts of the molester, since the case law has clearly established that it cannot. See John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441. Instead, the court framed the issue as whether the district could be vicariously liable for “the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor's propensities and nevertheless hired, retained and inadequately supervised her.”
Distinguishing several cases that have held to the contrary, the Supreme Court held the district could be vicariously liable for negligent hiring, retention and supervision of its employees. “If a supervisory or administrative employee of the school district is proven to have breached [his or her] duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2.”
This holding is important for many reasons. Perhaps the most compelling is that public entities, emboldened by language from several fairly recent decisions, have taken the position that a public entity simply cannot be held liable for negligent hiring or supervision. Ever. No way, no how. Not going to happen. They rely on sweeping statements in cases such as de Villers v. County of San Diego (2007) 156 Cal.App.4th 238 and Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 to that effect.
The C.A. decision shows that to be wrong. To the contrary, even absent a statutorily-imposed duty (beyond liability created by section 815.2), a governmental entity can be held liable for negligent hiring and supervision. At least under the circumstances in C.A., i.e., a student molested by an employee with an allegedly know history of abuse.
The decision in C.A. starts from the premise that a school district and its employees have a special relationship with the district's pupils. This is critical. Indeed, the court declared that “[a]bsent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention, or supervision of a fellow employee, and hence no vicarious liability...” According to the court, this applies equally in cases against public and private entity defendants, so you can expect a challenge to any cases in which negligent hiring and supervision is alleged and there is arguably no special relationship.
In the school setting, the special relationship arises from the comprehensive control over students exercised by school personnel, and is “analogous in many ways to the relationship between parents and their children.” Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 935. Because of this special relationship, the duty owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties. See, e.g., J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 141–148 [injury of one student by another]; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458–1459 student athlete assaulted by nonstudent in school restroom]; and Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1851–1855 [injuries to a student resulting from a teacher's sexual assault].
The District, however, argued that while the special relationship establishes a duty of care on behalf of a student’s teachers and coaches, it does not extend to administrators who oversees the overall functioning of the school. According to the District, they “have no special relationship with any particular student. Their relationship is with the entity.”
The C.A. court disagreed. It held that “[s]chool principals and other supervisory employees... have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.”
The C.A. court also rejected the argument that the plaintiff was required to identify in the complaint which employees he believed acted negligently. “[T]e District cites no statute or decision requiring a plaintiff to specify at the pleading stage which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2.” The district relied on language in Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795, but the C.A. court held that Lopez “does not stand for the proposition that a plaintiff must specifically plead, before undertaking discovery, the identity of a government employee whose alleged negligence is made the basis for vicarious liability under section 815.2, and we doubt such an impracticable rule would be consistent with the legislative intent in enacting that statute.”
Finally, in perhaps the most helpful part of the opinion, the C.A. court distinguished Eastburn v. Regional Fire Protection Authority, supra, 31 Cal.4th 1175, de Villers v. County of San Diego, supra, 156 Cal.App.4th 238, and Munoz v. City of Union City (2004) 120 Cal.App.4th 1077 – the usual suspects advanced by public entity defendants in support of the argument that a public entity can never be held liable for negligent hiring and supervision. In Eastburn, a claim of vicarious liability was denied because the employee was barred by a statute providing qualified immunity for emergency rescue personnel. Id. at pp. 1179–1185. In de Villers, the County of San Diego was held not vicariously liable for the acts of a toxicologist because “there was no evidence supporting a conclusion any County employee had undertaken a special protective relationship toward [the plaintiff].” Id. at p. 249. And, in Munoz, the court rejected a theory of vicarious liability for excessive force by a police officer because the court viewed it as basically trying to convert a claim for direct liability into one for vicarious liability. Id. at p. 1113.
The court in C.A. found all those cases distinguishable on the basis that none involved a special relationship between the plaintiffs and the entity’s employees. School personnel, however, do. “An administrator who hires a known child molester as a guidance counselor and fails to provide adequate training, supervision, or termination when faced with ongoing sexual misconduct has failed to perform the duties within the scope of his or her employment. Under section 815.2, the school district is liable for the administrator's negligence.”
Despite this seemingly positive outcome (at least from the plaintiff’s perspective), the Supreme Court concluded its opinion by reminding attorneys that pleading and proving a negligent hiring and retention case are two entirely different matters. Plaintiffs alleging individual negligence in hiring and firing must prove that the individual employee's actions in the hiring process, or failure to act, were a substantial factor in causing the malefactor to be hired or retained. “[W]e emphasize that a district's liability must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation.” The sexual misconduct, by itself, does not establish or raise any presumption that the employing district should bear liability for the resulting injuries.
Further, the court cautioned that “even when negligence by an administrator or supervisor is established, the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the student than with any other party, and that fact should be reflected in any allocation of comparative fault.”