Brown v. USA Taekwondo

IN THE SUPREME COURT OF

CALIFORNIA

YAZMIN BROWN et al.,

Plaintiffs and Appellants,

v.

USA TAEKWONDO et al.,

Defendants and Respondents.

S259216

Second Appellate District, Division Seven

B280550

Los Angeles County Superior Court

BC599321

April 1, 2021

Justice Kruger authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Cuéllar, Groban, and Jenkins concurred.

Justice Cuéllar filed a concurring opinion.

BROWN v. USA TAEKWONDO

S259216

Opinion of the Court by Kruger, J.

To state a cause of action for negligence, a plaintiff must

establish the defendant owed a legal duty of care. Generally

speaking, all persons have a duty to take reasonable care in

their activities to avoid causing injury, though particular policy

considerations may weigh in favor of limiting that duty in

certain circumstances. (Civ. Code, § 1714; Rowland v. Christian

(1968) 69 Cal.2d 108 (Rowland).) The issue before us concerns

how courts should decide whether a defendant has a legal duty

to take action to protect the plaintiff from injuries caused by a

third party. Despite a substantial body of case law addressing

the issue, the Courts of Appeal have remained uncertain about

the proper legal framework to apply. Distilling the principles

articulated in prior cases, we now clarify that whether to

recognize a duty to protect is governed by a two-step inquiry.

First, the court must determine whether there exists a special

relationship between the parties or some other set of

circumstances giving rise to an affirmative duty to protect.

Second, if so, the court must consult the factors described in

Rowland to determine whether relevant policy considerations

counsel limiting that duty. Because the Court of Appeal in this

case employed the correct framework for decision, we affirm its

judgment and remand for further proceedings.

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Opinion of the Court by Kruger, J.

I.

This case comes to us at the demurrer stage, so for present

purposes we assume the truth of the allegations in the

complaint. (Southern California Gas Leak Cases (2019) 7

Cal.5th 391, 395 (Gas Leak Cases).) As teenagers, plaintiffs

Yazmin Brown, Kendra Gatt, and Brianna Bordon trained in

the Olympic sport of taekwondo. They traveled to compete at

various events in California and throughout the country with

their coach, Marc Gitelman. Gitelman took advantage of these

opportunities to sexually abuse the young athletes. This went

on for years until the sponsor of these competitions, USA

Taekwondo (USAT), banned Gitelman from coaching. Gitelman

was ultimately convicted of multiple felonies for the sexual

abuse of the minor athletes he trained.

Plaintiffs (to whom we will generally refer as Brown) filed

this civil suit against Gitelman and several others, including

respondents USAT and the United States Olympic Committee

(USOC).1 USOC is a federally chartered nonprofit corporation

whose central function is to coordinate amateur sports

throughout the country for athletes hoping to one day compete

in the Olympics. (See 36 U.S.C. § 220505(c)(1).) In this role,

USOC certifies and oversees each sport’s national governing

body, the entity responsible for conducting and administering

the sport in the United States. USAT is the national governing

body for the sport of taekwondo. If an athlete wishes to compete

in taekwondo at the Olympics or in any other USAT-sponsored

competition (as Brown and the other plaintiffs did), the athlete

1

In June 2019, USOC’s name was changed to the United

States Olympic and Paralympic Committee.

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Opinion of the Court by Kruger, J.

must become a member of USAT and train under a USAT-

registered coach (as Gitelman was before USAT banned him).

As relevant here, Brown alleged that USOC and USAT

were negligent in failing to protect her from Gitelman’s abuse. 2

Brown emphasized that the sexual abuse of young athletes was

a known problem; Gitelman’s abuse came on the heels of a series

of similar instances of abuse of minors by their coaches dating

back to the 1980’s. In the wake of these incidents, USOC

mandated that national governing bodies adopt a Safe Sport

Program to protect athletes from such abuse. Brown alleged

that USAT failed to implement the program in a timely fashion

— a fact known to USOC, which placed USAT on probation as a

result. Brown further alleged that USAT took insufficient steps

to protect Gitelman’s victims once it was made aware of her

allegations: USAT temporarily suspended Gitelman, but

nevertheless permitted him to continue coaching at USAT

competitions for several months before ultimately placing him

on its list of banned coaches.

USOC and USAT both demurred to the complaint. As

relevant here, they argued Brown had not adequately alleged

they had an affirmative duty to take action to protect her and

the other plaintiffs from Gitelman’s abuse. The trial court

sustained both demurrers without leave to amend and entered

judgments of dismissal.

2

Brown also raised various other claims against USOC and

USAT, including claims that USOC and USAT were vicariously

liable for Gitelman’s conduct and claims for negligent hiring and

intentional infliction of emotional distress. Those claims are not

before us here.

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Brown appealed. The Court of Appeal reversed the

judgment dismissing USAT but affirmed as to USOC. (Brown

v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1083 (Brown).)

In determining whether Brown had adequately alleged each

defendant had a legal duty to protect plaintiffs from Gitelman’s

abuse, the court employed a two-part framework. As a general

rule, the court explained, “ ‘ “one owes no duty to control the

conduct of another, nor to warn those endangered by such

conduct.” ’ ” (Id. at p. 1091, quoting Regents of University of

California v. Superior Court (2018) 4 Cal.5th 607, 619

(Regents).) An exception to this no-duty-to-protect rule exists for

cases in which the defendant has a special relationship with

either the dangerous third party or with the victim. (Brown, at

p. 1091.) But even when the so-called special relationship

exception applies, the policy considerations described in

Rowland, supra, 69 Cal.2d 108, may weigh against imposing a

duty to protect in a given case.3 (Brown, at p. 1092.) The court

thus asked, first, whether Brown had adequately alleged a

special relationship between the parties that gave rise to a legal

duty to protect, and second, whether the Rowland factors

weighed in favor of limiting or eliminating this duty.

3

These considerations include “the foreseeability of harm to

the plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of the connection between the defendant’s

conduct and the injury suffered, the moral blame attached to the

defendant’s conduct, the policy of preventing future harm, the

extent of the burden to the defendant and consequences to the

community of imposing a duty to exercise care with resulting

liability for breach, and the availability, cost, and prevalence of

insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at

p. 113.)

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Opinion of the Court by Kruger, J.

Applying this framework, the Court of Appeal concluded

that Brown had adequately alleged that USAT owed a duty to

protect her from Gitelman. The court first concluded Brown had

sufficiently alleged a special relationship between USAT and

Gitelman that enabled USAT to control Gitelman’s actions, as

demonstrated by the fact that USAT had registered him as a

coach, took disciplinary action against him, and ultimately

barred him from coaching. (Brown, supra, 40 Cal.App.5th at

pp. 1094–1095.) The court then went on to consider whether the

Rowland factors counseled against imposing a duty on USAT,

and determined they did not. (Id. at pp. 1095–1101.)

By contrast, the Court of Appeal concluded that USOC,

unlike USAT, had no special relationship with either the

plaintiffs or Gitelman, and thus no legal duty to protect the

plaintiffs from Gitelman’s abuse. The court explained that

Brown’s case for imposing an affirmative duty on USOC rested

largely on allegations that USOC had the ability to regulate

USAT’s conduct. The court considered this insufficient to

establish a special relationship that would enable USOC to

control Gitelman’s conduct, or that would give plaintiffs reason

to look to the USOC for protection. (Brown, supra, 40

Cal.App.5th at pp. 1101–1103.) Having concluded that Brown’s

allegations faltered at the first step of the analysis, the court

declined to consider how the Rowland factors might apply to

USOC. (Id. at p. 1103.)

The Court of Appeal’s decision added to a considerable

body of law addressing the connection between the special

relationship doctrine and the Rowland factors in cases alleging

a duty to protect the plaintiff from harms caused by third

parties. The appellate courts that have addressed the issue

have adopted various approaches. Several other Courts of

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Appeal have employed the same two-part framework as the

court in this case, holding that a plaintiff must satisfy both the

special relationship test and the Rowland factors before a duty

to protect the plaintiff from third party harm can be imposed on

the defendant. (See, e.g., Barenborg v. Sigma Alpha Epsilon

Fraternity (2019) 33 Cal.App.5th 70, 77 [“Thus, plaintiffs

alleging a defendant had a duty to protect them must establish:

(1) that an exception to the general no-duty-to-protect rule

applies and (2) that the Rowland factors support imposition of

the duty.”]; Doe v. United States Youth Soccer Assn., Inc. (2017)

8 Cal.App.5th 1118, 1128 [noting that if courts find a special

relationship, they go on to “balance[] the policy factors set forth

in Rowland [citation] to assist in their determination of the

existence and scope of a defendant’s duty in a particular case”].)

Other Courts of Appeal, however, have held that a

plaintiff can establish a duty to protect by satisfying either the

special relationship doctrine or the Rowland factors. Under this

approach, Rowland serves as an independent source of duty.

(Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377,

401–402, 410–411 [finding duty under Rowland, but concluding

in the alternative that the plaintiff satisfied the special

relationship test]; see Adams v. City of Fremont (1998) 68

Cal.App.4th 243, 267–276, 282–288 (Adams) [noting that

Rowland factors and the special relationship test are sometimes

in conflict and finding no duty to protect under either test, while

concluding that this court has generally favored applying

Rowland’s multifactor test over the special relationship test]; cf.

University of Southern California v. Superior Court (2018) 30

Cal.App.5th 429, 451 [finding no duty under either the special

relationship test or Rowland, though recognizing that applying

Rowland “may be unnecessary”].)

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Still other courts have taken the view that the special

relationship test incorporates the Rowland factors — that is,

that “[r]esolution of the issue whether a special relationship

exists giving rise to a duty to protect (or warn) comprehends

consideration of the same factors underlying any duty of care

analysis” under Rowland. (Hansra v. Superior Court (1992) 7

Cal.App.4th 630, 646 (Hansra); accord, Titus v. Canyon Lake

Property Owners Assn. (2004) 118 Cal.App.4th 906, 911–912

(Titus).) Whereas the Court of Appeal in this case employed a

two-part framework to evaluate defendants’ legal duty to

protect, these courts have reduced the inquiry to a single step,

applying the Rowland factors to determine whether a special

relationship exists.

In view of the different approaches taken by the Courts of

Appeal, we granted review to clarify the applicable framework

for determining whether a defendant has a duty to protect a

plaintiff from harm caused by a third party. We conclude the

two-part framework the Court of Appeal applied in this case

accurately reflects the law as stated in this court’s precedents,

and we accordingly affirm the court’s judgment.4

II.

A.

To establish a cause of action for negligence, the plaintiff

must show that the “defendant had a duty to use due care, that

he breached that duty, and that the breach was the proximate

4

We express no view on the merits of the Court of Appeal’s

application of the special relationship test to either USAT or

USOC. These fact-dependent issues fall outside the scope of the

only question presented for our review.

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Opinion of the Court by Kruger, J.

or legal cause of the resulting injury.” (Nally v. Grace

Community Church (1988) 47 Cal.3d 278, 292.) Recovery for

negligence depends as a threshold matter on the existence of a

legal duty of care. (Gas Leak Cases, supra, 7 Cal.5th at p. 397.)

Duty is not universal; not every defendant owes every

plaintiff a duty of care. A duty exists only if “ ‘the plaintiff’s

interests are entitled to legal protection against the defendant’s

conduct.’ ” (Dillon v. Legg (1968) 68 Cal.2d 728, 734, quoting

Prosser, Torts (3d ed. 1964) § 53, p. 332.) Whether a duty exists

is a question of law to be resolved by the court. (Bily v. Arthur

Young & Co. (1992) 3 Cal.4th 370, 397.)

The “general rule” governing duty is set forth in Civil Code

section 1714 (section 1714). (Cabral v. Ralphs Grocery Co.

(2011) 51 Cal.4th 764, 771 (Cabral).) First enacted in 1872,

section 1714 provides: “Everyone is responsible . . . for an injury

occasioned to another by his or her want of ordinary care or skill

in the management of his or her property or person . . . .” (Id.,

subd. (a).) This statute establishes the default rule that each

person has a duty “to exercise, in his or her activities, reasonable

care for the safety of others.” (Cabral, at p. 768.)

Section 1714 states a broad rule, but it has limits. We

have explained that the law imposes a general duty of care on a

defendant only when it is the defendant who has “ ‘created a

risk’ ” of harm to the plaintiff, including when “ ‘the defendant

is responsible for making the plaintiff’s position worse.’ ” (Lugtu

v. California Highway Patrol (2001) 26 Cal.4th 703, 716, quoting

Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49; see Lugtu,

at p. 716 [“Under general negligence principles, . . . a person

ordinarily is obligated to exercise due care in his or her own

actions so as not to create an unreasonable risk of injury to

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others . . . .” (Citing § 1714.)].) The law does not impose the

same duty on a defendant who did not contribute to the risk that

the plaintiff would suffer the harm alleged. Generally, the

“person who has not created a peril is not liable in tort merely

for failure to take affirmative action to assist or protect another”

from that peril. (Williams v. State of California (1983) 34 Cal.3d

18, 23 (Williams); accord, Weirum, at p. 49; see Rest.3d Torts,

Liability for Physical and Emotional Harm (2012) § 37

[Generally, “[a]n actor whose conduct has not created a risk of

physical or emotional harm to another has no duty of care to the

other.”].) For example, a person who stumbles upon someone

drowning generally has no legal duty to help the victim. The

same rule applies to a person who stumbles upon a mugging, for

“as a general matter, there is no duty to act to protect others

from the conduct of third parties.” (Delgado v. Trax Bar & Grill

(2005) 36 Cal.4th 224, 235 (Delgado); see also Regents, supra, 4

Cal.5th at p. 619 [Generally, “ ‘one owes no duty to control the

conduct of another, nor to warn those endangered by such

conduct.’ ”].)5

This general rule, we have explained, “derives from the

common law’s distinction between misfeasance and

nonfeasance, and its reluctance to impose liability for the

latter.” (Tarasoff v. Regents of University of California (1976)

5

While these examples involve bystanders in the usual

sense of the term, it bears emphasis that the relevant legal

question is whether the defendant has engaged in activities that

created or increased the plaintiff’s risk of harm. A defendant

may have greater involvement in the plaintiff’s activities than a

chance spectator yet play no meaningful part in exposing the

plaintiff to harm. (Cf. conc. opn., post, at p. 7 [rejecting the idea

that USOC was a bystander in this case].)

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17 Cal.3d 425, 435, fn. 5.) That distinction has deep roots in the

law. (See, e.g., Bohlen, The Moral Duty to Aid Others as a Basis

of Tort Liability (1908) 56 U.Pa. L.Rev. 217, 219 [“There is no

distinction more deeply rooted in the common law and more

fundamental than that between misfeasance and non-feasance,

between active misconduct working positive injury to others and

passive in action, a failure to take positive steps to benefit

others, or to protect them from harm not created by any

wrongful act of the defendant.”].)6 And although it may

sometimes produce outcomes that appear “[m]orally

questionable” (Tarasoff, at p. 435, fn. 5), there are several

reasons the no-duty-to-protect rule has endured. The most

commonly cited reason for the rule is rooted in “the liberal

tradition of individual freedom and autonomy” — the idea that

a person should be able to freely choose whether to come to the

aid of a stranger, without fear of incurring legal liability for the

choice. (Rest.3d Torts, supra, § 37, com. e, p. 5.) But our cases

have recognized other reasons as well, including “ ‘the

difficulties of setting any standards of unselfish service to fellow

men,’ ” and the challenge of “ ‘making any workable rule to cover

possible situations where fifty people might fail to rescue.’ ”

(Tarasoff, at p. 435, fn. 5, quoting Prosser, Torts (4th ed. 1971)

§ 56, p. 341.)

6

Although our precedents have sometimes referred to the

distinction between “misfeasance” and “nonfeasance,” we now

understand this terminology to be imprecise and prone to

misinterpretation. “The proper question is not whether an

actor’s failure to exercise reasonable care entails the commission

or omission of a specific act.” (Rest.3d Torts, supra, § 37, com. c,

p. 3.) Rather, it is “whether the actor’s entire conduct created a

risk of harm.” (Ibid.)

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The no-duty-to-protect rule is not absolute, however; this

court has recognized a number of exceptions. (Delgado, supra,

36 Cal.4th at p. 235.) Under some circumstances, a defendant

may have an affirmative duty to protect the plaintiff from harm

at the hands of a third party, even though the risk of harm is

not of the defendant’s own making. (Ibid.; see also Rest.3d

Torts, supra, § 37.) For example, if a person does choose to

“undertake[] to come to the aid of another,” she may then have

an affirmative duty to exercise reasonable care in that

undertaking. (Williams, supra, 34 Cal.3d at p. 23 [describing

the negligent undertaking doctrine]; see, e.g., Paz v. State of

California (2000) 22 Cal.4th 550, 559; Rest.3d Torts, supra,

§ 42.) We here focus, along with the parties, on another basis

for finding an affirmative duty: In a case involving harm caused

by a third party, a person may have an affirmative duty to

protect the victim of another’s harm if that person is in what the

law calls a “special relationship” with either the victim or the

person who created the harm. (See, e.g., Regents, supra, 4

Cal.5th at pp. 619–620; Delgado, at p. 235; Williams, at p. 23;

see generally Rest.3d Torts, supra, §§ 40, 41.)7

7

This is not an exhaustive list. An affirmative duty to

protect may also arise if, for example, the Legislature imposes

one by statute. (See Hoff v. Vacaville Unified School Dist. (1998)

19 Cal.4th 925, 938; Rest.3d Torts, supra, § 38.) Regardless of

whether there is a basis for recognizing an affirmative duty, the

no-duty-to-protect rule will not relieve the defendant of an

otherwise applicable duty to exercise reasonable care when, by

its own conduct, the defendant has increased the risk of harm to

the plaintiff. (See, e.g., Kesner v. Superior Court (2016) 1

Cal.5th 1132, 1163 [“Although we have held that the existence

of a relationship between the plaintiff and the defendant is one

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A special relationship between the defendant and the

victim is one that “gives the victim a right to expect” protection

from the defendant, while a special relationship between the

defendant and the dangerous third party is one that “entails an

ability to control [the third party’s] conduct.” (Regents, supra, 4

Cal.5th at p. 619.) Relationships between parents and children,

colleges and students, employers and employees, common

carriers and passengers, and innkeepers and guests, are all

examples of special relationships that give rise to an affirmative

duty to protect. (Id. at pp. 619–620; see Rest.3d Torts, supra,

§§ 40–41.) The existence of such a special relationship puts the

defendant in a unique position to protect the plaintiff from

injury. The law requires the defendant to use this position

accordingly. (See, e.g., Rest.3d Torts, supra, § 40, com. h,

pp. 42–43.)

Where the defendant has neither performed an act that

increases the risk of injury to the plaintiff nor sits in a relation

to the parties that creates an affirmative duty to protect the

plaintiff from harm, however, our cases have uniformly held the

defendant owes no legal duty to the plaintiff. Our decision in

Williams, supra, 34 Cal.3d 18, is illustrative. The question there

was whether highway patrol officers who had aided an injured

motorist after an accident had a duty to investigate, secure

information, or preserve evidence for the motorist to use in later

civil litigation against the driver who caused her injury. (Id. at

p. 21.) We began our analysis by reciting the general rule that

basis for finding liability premised on the conduct of a third

party [citations], we have never held that such a relationship is

a prerequisite to finding that a defendant had a duty to prevent

injuries due to its own conduct or possessory control.”].)

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one has no duty to come to the aid of another. (Id. at pp. 23–24.)

We then went on to consider whether the special relationship or

negligent undertaking exceptions to the rule applied.

Answering that question in the negative, we concluded the

officers owed no duty to assist the motorist in preserving

evidence. (Id. at pp. 27–28.) Other cases are to similar effect.

(See, e.g., Davidson v. City of Westminster (1982) 32 Cal.3d 197,

203–209 [officers had no duty to protect victim of assault

because they had not increased the risk of harm to the victim,

they had no special relationship with the assailant or the victim,

and they had not invited the plaintiff to depend on their

protection]; Zelig v. County of Los Angeles (2002) 27 Cal.4th

1112, 1130 [officers had no duty to protect courthouse visitors

from a third party assailant where officers had not increased the

risk of harm to the victim, had no special relationship with

either party, and had not given the victim a false sense of

security by inviting her to depend on special protection].)

B.

Brown argues for a different approach to the duty to

protect. She argues that even if the defendant lacks any special

relationship with the parties and there are no other

circumstances that would give rise to an affirmative duty to

protect, such a duty may nonetheless arise after considering the

policy factors set out in the landmark decision in Rowland,

supra, 69 Cal.2d 108. We reject the argument.

The multifactor test set forth in Rowland was not designed

as a freestanding means of establishing duty, but instead as a

means for deciding whether to limit a duty derived from other

sources. The specific question in Rowland concerned the

relationship between the common law duties of landowners and

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the general duty of care codified in section 1714. At common

law, a landowner’s duty of care to his or her visitors varied based

on the type of visitor. While landowners owed invitees an

ordinary duty of care to maintain the premises in a safe

condition, they generally owed trespassers and licensees only a

duty to refrain from willful injury. (Rowland, supra, 69 Cal.2d

at p. 114.) We held, however, that these “rigid common law

classifications” were incompatible with California law. (Id. at

p. 118.) We explained that “the basic policy of this state set forth

by the Legislature in section 1714 . . . is that everyone is

responsible for an injury caused to another by his want of

ordinary care or skill in the management of his property.”

(Rowland, at pp. 118–119.) And while there are exceptions to

section 1714’s general rule, “in the absence of [a] statutory

provision declaring an exception . . . , no such exception should

be made unless clearly supported by public policy.” (Rowland,

at p. 112.)

In the passage of Rowland that has now become a

touchstone of our negligence jurisprudence, we summarized the

policy considerations that guide the inquiry. To depart from the

general principle that all persons owe a duty of care to avoid

injuring others, we explained, “involves the balancing of a

number of considerations”: “the foreseeability of harm to the

plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of the connection between the defendant’s

conduct and the injury suffered, the moral blame attached to the

defendant’s conduct, the policy of preventing future harm, the

extent of the burden to the defendant and consequences to the

community of imposing a duty to exercise care with resulting

liability for breach, and the availability, cost, and prevalence of

insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at

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pp. 112–113.) We reasoned that while the common law

categories of landowner duties might align with some of these

considerations in some cases, they did not align in every case. It

followed that a victim’s status as a trespasser, licensee, or

invitee cannot be determinative of a landowner’s duties. The

inquiry whether a landowner owes a duty to her invitees instead

begins with the “basic policy” that “everyone is responsible for

an injury caused to another by his want of ordinary care or skill

in the management of his property,” and then considers whether

more particular considerations of policy call for departure from

the basic rule. (Id. at pp. 118–119.)

Rowland itself referred to this multifactor test as a guide

for determining whether to recognize an “exception” to the

general duty of care under section 1714. (Rowland, supra, 69

Cal.2d at p. 113.) And in numerous cases since Rowland, we

have repeated that the Rowland factors serve to determine

whether an exception to section 1714’s general duty of

reasonable care is warranted, not to determine whether a “ ‘new

duty’ ” should be created. (Kesner v. Superior Court, supra, 1

Cal.5th at p. 1143 [“Because Civil Code section 1714 establishes

a general duty to exercise ordinary care in one’s activities, . . .

we rely on these factors not to determine ‘whether a new duty

should be created, but whether an exception to Civil Code section

1714 . . . should be created,’ ” quoting Cabral, supra, 51 Cal.4th

at p. 783]; accord, e.g., Gas Leak Cases, supra, 7 Cal.5th at

p. 398 [“[Under section 1714], we presume the defendant owed

the plaintiff a duty of care and then ask whether the

circumstances ‘justify a departure’ from that usual

presumption.”]; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6

[similar].)

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Although Rowland itself concerned the general duty of

care in section 1714, we have also routinely applied Rowland to

consider whether to recognize exceptions to affirmative duties to

protect or warn. For example, in our recent decision in Regents,

supra, 4 Cal.5th at page 627, we held that the special

relationship between a university and its students creates a

“duty to use reasonable care to protect their students from

foreseeable acts of violence in the classroom or during curricular

activities.” We then turned to Rowland to decide whether policy

considerations “justif[ied] excusing or limiting” that duty to

protect, and concluded the answer was no. (Regents, at p. 628;

see id. at pp. 628–634.) This is but one example of many; a long

line of cases before Regents had taken the same approach. (C.A.

v. William S. Hart Union High School Dist. (2012) 53 Cal.4th

861, 877 (William S. Hart) [finding special relationship between

school employees and students and then analyzing Rowland

factors to determine “[a]dditional limits” on the “scope of the

duty implicated in this and similar cases”]; id. at pp. 869–871,

877–879; Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213

[finding affirmative duty based on special relationship between

landlord and tenants and then analyzing Rowland factors to

determine “duty’s existence and scope”]; Delgado, supra, 36

Cal.4th at p. 244 [finding special relationship between business

proprietor and its tenants, patrons, and invitees imposed

general duty on proprietor to take “ ‘reasonable steps to secure

common areas against foreseeable criminal acts of third

parties’ ” and then analyzing Rowland factors to determine

scope of duty]; id. at pp. 235–236, 244–247; Morris v. De La

Torre (2005) 36 Cal.4th 260, 269, 271–272, 276–277 [same].)

The cases recognize that even when two parties may be in a

special relationship, the unforeseeability of the kind of harm

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Opinion of the Court by Kruger, J.

suffered by the plaintiff or other policy factors may counsel

against establishing an affirmative duty for one party to protect

the other.

Notwithstanding this considerable body of case law,

Brown points to our decision in Nally v. Grace Community

Church, supra, 47 Cal.3d 278 as evidence that we have

sometimes treated Rowland as an independent source of duty,

and not merely as a guide to whether to create an exception to a

duty otherwise established. In that case, parents of a suicide

victim sued the victim’s nontherapist church counselors for

failure to protect the victim from suicide. (Nally, at p. 292.) We

held the nontherapist counselors had no duty to protect,

consistent with the traditional rule that “one is ordinarily not

liable for the actions of another and is under no duty to protect

another from harm, in the absence of a special relationship of

custody or control.” (Id. at p. 293.) We next held there was no

such special relationship involved in the case. (Id. at p. 296.)

But we then considered the Rowland factors, in belt-and-

suspenders fashion, to “explain further why we should not

impose a duty to prevent suicide on defendants and other

nontherapist counselors.” (Ibid.)

As Brown notes, some Courts of Appeal have understood

Nally to mean that the Rowland factors and the special

relationship test are both sources of duty. (See, e.g., Adams,

supra, 68 Cal.App.4th at p. 267.) This understanding is

mistaken. Nally never squarely addressed the proper role of

Rowland in its analysis, nor did it purport to qualify or limit the

considerable body of case law explaining that Rowland is a guide

to determining when to create exceptions from duties otherwise

established. And as Brown acknowledged at oral argument,

neither Nally nor any other decision of this court has done what

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Brown now asks us to do: rely solely on the Rowland factors to

create a duty to take action to protect the plaintiff from third

party harm.8

8

Although Brown has not raised the point in her briefing,

we acknowledge that certain language in other cases could be

read as suggesting such an approach. For example, in Palma v.

U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, we said of

a suit seeking to impose liability for leaving a commercial truck

unsecured in a high-crime area, where it was stolen and later

used to cause injury: “[O]rdinarily in the absence of a special

relationship there is no duty to control the conduct of a third

person so as to prevent him from harming another, but where

special circumstances exist in which there is ‘a greater

potentiality of foreseeable risk or more serious injury, or [which]

require a lesser burden of preventative action,’ the risk is

deemed unreasonable and imposes a duty to third persons.” (Id.

at pp. 184–185, quoting Hergenrether v. East (1964) 61 Cal.2d

440, 444.) But as the broader context of Palma and other related

cases makes clear, the focus of the duty inquiry in these cases is

not on the defendant’s duty to protect the victim from the

conduct of a third party, but instead on the defendant’s general

duty under section 1714 to exercise due care in his or her own

conduct. While a car owner ordinarily cannot be held liable

simply for allowing her car to be stolen and used for harm

(Cabral, supra, 51 Cal.4th at p. 779), in some cases, like Palma,

the defendant’s decision to leave a vehicle unguarded does

increase the risks the vehicle will be harmfully misused. (See

Rest.3d Torts, supra, § 19, reporters’ note, com. c, p. 222 [citing

vehicle-theft cases to illustrate the proposition that “[i]f the

third party’s misconduct is among the risks making the

defendant’s conduct negligent, then ordinarily plaintiff’s harm

will be within the defendant’s scope of liability” (id., com. c,

p. 216)].) Such cases “can be contrasted to cases in which the

defendant merely takes no action to protect the plaintiff against

the possibility of third-party misconduct” — which is Brown’s

theory of liability in asserting the existence of a special

relationship. (Rest.3d Torts, supra, § 19, com. e, p. 218; see also

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Opinion of the Court by Kruger, J.

Precedent aside, Brown argues we should now take that

step in order to establish what she terms a “more flexible and

holistic approach to duty,” particularly in cases involving minor

victims of sexual abuse. This approach would allow courts to

make a case-by-case policy judgment under Rowland as to

whether a defendant may be held liable for failing to protect the

victim of harm caused by another, even if the defendant were in

no special position to control the wrongdoer or to offer protection

to the victim, and there were no other circumstances giving rise

to an affirmative duty to take action.

Without denying the gravity of the injuries these plaintiffs

suffered, nor the broader problem of sexual abuse of minors in

organized youth sports and other activities, we decline Brown’s

invitation to take that step. The requirement of an affirmative

duty to protect itself embodies a policy judgment of considerable

standing: A defendant cannot be held liable in negligence for

harms it did not cause unless there are special circumstances —

such as a special relationship to the parties — that give the

defendant a special obligation to offer protection or assistance.

This rule reflects a long-standing balance between several

competing interests. It avoids difficult questions about how to

measure the legal liability of the stranger who fails to take

affirmative steps to prevent foreseeable harm, instead leaving

the stranger to make his or her own choices about what

assistance to offer. (See pp. 9–10, ante.) At the same time, it

extends a right of recovery to individuals in relationships

involving dependence or control, and who by virtue of those

relationships have reason to expect the defendant’s protection.

id., illus. 1–3, pp. 218–219 [discussing circumstances where

foreseeable risk makes a defendant’s conduct negligent].)

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Opinion of the Court by Kruger, J.

(See Regents, supra, 4 Cal.5th at p. 621 [“ ‘[A] typical setting for

the recognition of a special relationship is where “the plaintiff is

particularly vulnerable and dependent upon the defendant who,

correspondingly, has some control over the plaintiff’s

welfare.” ’ ”].)

Where such a special relationship exists between the

defendant and a minor, the obligation to provide such protection

and assistance may include a duty to protect the minor from

third party abuse. (See, e.g., William S. Hart, supra, 53 Cal.4th

at pp. 869–872, 879 [imposing such a duty]; Pamela L. v. Farmer

(1980) 112 Cal.App.3d 206, 211 [same].) And there may be other

circumstances that give rise to a comparable affirmative duty to

protect. (Kesner v. Superior Court, supra, 1 Cal.5th at p. 1163.)

But where no such circumstances exist, the Rowland factors do

not serve as an alternative basis for imposing duties to protect.

The purpose of the Rowland factors is to determine whether the

relevant circumstances warrant limiting a duty already

established, not to recognize legal duties in new contexts. (See

Rowland, supra, 69 Cal.2d at p. 113; see also, e.g., Regents,

supra, 4 Cal.5th at p. 628; cf. Rest.3d Torts, supra, § 40, com. b,

p. 40 [“Even though an affirmative duty might exist pursuant to

this Section, a court may decide, based on special problems of

principle or policy, that no duty or a duty other than reasonable

care exists.”].)

The question remains whether Rowland has any role to

play at all in cases concerning affirmative duties to protect. As

noted, some courts have suggested the answer is no; that the

special relationship test essentially encompasses the policy

considerations set out in Rowland and renders it unnecessary to

give separate consideration to the Rowland factors in

determining whether to recognize a legal duty to protect.

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(Compare Hansra, supra, 7 Cal.App.4th at p. 646 [considering

both tests together as one] and Titus, supra, 118 Cal.App.4th at

pp. 911–912 [same] with Adams, supra, 68 Cal.App.4th at

pp. 267–276, 282–288 [recognizing differences between them].)

The suggestion is incorrect. While the Rowland factors do

overlap to some degree with the considerations that determine

the existence of a special relationship, application of one test

does not obviate the need for the other. This is because the two

tests operate differently. A court considers whether the parties

have a special relationship by considering the particular facts

and circumstances of their association with one another. The

Rowland factors, by contrast, consider, “at a relatively broad

level of factual generality,” whether policy considerations justify

limiting any resulting duty of protection. (Cabral, supra, 51

Cal.4th at p. 772; see Regents, supra, 4 Cal.5th at p. 629 [“In

considering [the Rowland factors], we determine ‘not whether

they support an exception to the general duty of reasonable care

on the facts of the particular case before us, but whether carving

out an entire category of cases from that general duty rule is

justified by clear considerations of policy.’ ”].)

Our opinion in Castaneda v. Olsher, supra, 41 Cal.4th

1205 is illustrative of the difference between the two inquiries.

In that case, the plaintiff was injured as a bystander to a gang-

related shooting at the mobilehome park where he lived. He

sued his landlord for negligence. (Id. at pp. 1211–1212.)

Although the parties were in a special relationship, we

concluded that the landlord did not have a duty to “withhold

rental units from those they believe to be gang members” in

order to protect his other tenants. (Id. at p. 1216.) We reasoned

that requiring as much would, as a general proposition, result

in “arbitrary discrimination on the basis of race, ethnicity,

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Opinion of the Court by Kruger, J.

family composition, dress and appearance, or reputation” — all

in service of a tenant screening process that was unlikely to

effectively prevent injuries like those the plaintiff had suffered.

(Ibid.) Thus, despite the existence of a special relationship,

imposing such a duty on landlords would not be “fair or

workable,” nor would it be “consistent with our state’s public

policy as a whole.” (Ibid.)

In other cases, a court might conclude that duty should not

be imposed because, for example, the type of harm the plaintiff

suffered was unforeseeable, or because there was no moral

blameworthiness associated with the defendant’s conduct,

notwithstanding the defendant’s special relationship to the

plaintiff. Put differently, even when a special relationship gives

rise to an affirmative duty to protect, a court must still consider

whether the policy considerations set out in Rowland warrant a

departure from that duty in the relevant category of cases.

III.

Brown alleged that USAT and USOC acted negligently by

failing to take steps to protect her from her coach’s abuse. To

evaluate her claim, the Court of Appeal first asked whether a

duty existed based on a special relationship. Concluding that

USOC had no such relationship with Brown, the court ended its

analysis with respect to that defendant. This approach was

sound. And after concluding that USAT did have a special

relationship with plaintiffs, the court went on to apply Rowland

to determine whether to limit that potential duty — deciding the

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Opinion of the Court by Kruger, J.

answer to that question was no. This, too, was the correct

approach.9

The Court of Appeal’s judgment does not mark the end of

the case. It affirms the trial court’s decision to dismiss one of

several named defendants, USOC, for failure to adequately

allege a special relationship giving rise to an affirmative duty to

protect. Having concluded the Court of Appeal did not err by

declining to apply the Rowland factors as an alternative source

of duty, we now affirm the court’s judgment. On remand, Brown

may continue to pursue her suit against USAT and the other

remaining defendants.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

JENKINS, J.

9

We disapprove the following decisions to the extent they

applied the Rowland factors as an alternative source of duty

where defendant did not create the risk that resulted in

plaintiff’s injuries: University of Southern California v.

Superior Court, supra, 30 Cal.App.5th 429; Juarez v. Boy Scouts

of America, Inc., supra, 81 Cal.App.4th 377; Adams v. City of

Fremont, supra, 68 Cal.App.4th 243; Titus v. Canyon Lake

Property Owners Assn., supra, 118 Cal.App.4th 906; Doe 1 v.

City of Murrieta (2002) 102 Cal.App.4th 899.

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S259216

Concurring Opinion by Justice Cuéllar

The young women who are plaintiffs in this case achieved,

in taekwondo, uncommon excellence. What these young women

nonetheless experienced in the process is all too common:

someone they knew, trusted and relied on — their credentialed

taekwondo coach — betrayed their trust and sexually assaulted

them. The majority opinion specifies how a court must consider

certain presumptions and exceptions when resolving whether

such plaintiffs have any right to recover from entities at whose

events and facilities the wrongs occurred — in this case, the

United States Olympic Committee (USOC). I write separately

to explain how those presumptions and exceptions realize a

fundamental substantive principle: In California, “[t]ort law” —

the law of when and how individuals who have suffered harm

may seek compensation for their injuries through private

actions — “serves society’s interest in allocating risks and costs

to those who can better prevent them, and it provides aggrieved

parties with just compensation.” (Southern California Gas Leak

Cases (2019) 7 Cal.5th 391, 394 (SoCal Gas).)

The majority specifically holds that when a plaintiff

argues defendant owes a duty based on a “special relationship,”

the policy analysis we first discussed in Rowland v. Christian is

only relevant to decide whether to limit that duty. (See maj.

opn., ante, at pp. 15–19; Rowland v. Christian (1968) 69 Cal.2d

108, 112–113, 119 (Rowland).) As the majority opinion explains,

that procedure — first decide whether policy considerations

BROWN v. USA TAEKWONDO

Cuéllar, J., concurring

support a duty based on a “special relationship” and then

consider whether public policy “clearly require[s] an exception”

(Regents of University of California v. Superior Court (2018) 4

Cal.5th 607, 628 (Regents)) — reflects our precedents and

provides a consistent way for courts to answer the threshold

duty question.

I write separately to clarify how that procedure fits with

and furthers our principles and priorities in tort law. First, we

generally start by presuming everyone has a duty of reasonable

care “ ‘in the management of his or her property or person’ ”; we

limit it based on policy considerations like those in Rowland

only in “a particular category of cases” and only if “ ‘ “clearly

supported by public policy.” ’ ” (Kesner v. Superior Court (2016)

1 Cal.5th 1132, 1143, italics added (Kesner).) Second, in some

cases, a defendant may argue that he or she was nothing more

than a disengaged bystander — someone society recognizes as

categorically outside the scope of any responsibility, having no

material role in creating the risk of plaintiff’s harm and so no

duty of reasonable care. Such cases of a named defendant whom

society considers a true bystander are presumably rare. But the

distinction between the putative bystander and the risk creator

can be as subtle in principle as it is challenging to apply in many

cases. So, we have developed a doctrinal mechanism to sidestep

the distinction and make arguable edge cases more tractable:

we allow a plaintiff to establish defendant owed a duty of

reasonable care in virtue of a “special relationship” regardless of

whether defendant contributed to the risk of plaintiff’s harm. As

a matter of tradition, “recognizing” or “identifying” a “special

relationship” is the label for weighing up those policy

considerations our legal system treats as most relevant in such

arguably ambiguous contexts. As the majority explains, once a

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Cuéllar, J., concurring

court recognizes a duty based on a “special relationship,” it

should also confirm that public policy doesn’t clearly support

limiting the duty in a clearly defined category of cases. Third,

ensuring that the duty inquiry remains focused at a relatively

high level of generality on public policy preserves the proper

balance between the court and the jury. And so, fourth, the

procedure we reaffirm today — presuming a general duty of

reasonable care or “recognizing” a “special relationship” before

deciding whether public policy clearly supports limiting that

duty in a category of cases — flexibly serves society’s interest in

providing just compensation to aggrieved parties and allocating

risks and costs to those who can better prevent them.

I.

A.

At the core of California tort law is a rule born of common

law judgments and reaffirmed in statute: “Everyone is

responsible, not only for the result of his or her willful acts, but

also for an injury occasioned to another by his or her want of

ordinary care or skill in the management of his or her property

or person . . . .” (Civ. Code, § 1714, subd. (a).)1 This is the

Legislature’s “conclusory expression[]” that, as “legal duties are

not discoverable facts of nature,” generally speaking, “liability

should be imposed for damage done.” (Tarasoff v. Regents of

University of California (1976) 17 Cal.3d 425, 434 (Tarasoff).)

For “injur[ies] occasioned” to others, this principle cuts — other

things being equal — in favor of widespread liability. (§ 1714,

subd. (a).)

1

All further statutory references are to the Civil Code.

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Cuéllar, J., concurring

Of course, other things aren’t always equal. In Rowland,

we recognized that the simple statutory presumption of a duty

of reasonable care, rather than rigid common law categories,

should generally guide our analysis of whether a defendant

could be responsible at all. (See Rowland, supra, 69 Cal.2d 108,

118 [common law rules for landowner liability “obscure rather

than illuminate the proper considerations which should govern

determination of the question of duty”].) So, Rowland rejected

a common law system that placed great weight on subtle,

perhaps vanishing doctrinal distinctions without obvious

practical or moral significance. (See id. at p. 119 [“we are

satisfied that continued adherence to the common law

distinctions can only lead to injustice or, if we are to avoid

injustice, further fictions with resulting complexity and

confusion”].) It replaced that system with a focus on the

relevant consequences. (See id. at pp. 112–113, 117–119.) As

we’d conveyed earlier that year, duty is just “ ‘an expression of

the sum total of those considerations of policy which lead the

law to say that the particular plaintiff is entitled to protection.’ ”

(Dillon v. Legg (1968) 68 Cal.2d 728, 734.) That focus is how

courts should determine when other things aren’t equal:

presume a general duty of reasonable care, as described in

section 1714, and create an exception only if “clearly supported

by public policy.”2 (Rowland, at p. 112.)

2

Rowland identified a list of such considerations that would

often be relevant. (Rowland, supra, 69 Cal.2d at pp. 112–113.)

We have recognized, though, that the “inquiry hinges not on

mere rote application of the[] separate so-called Rowland

factors, but instead on a comprehensive look at the ‘ “sum total” ’

of the policy considerations at play in the context before us.”

(SoCal Gas, supra, 7 Cal.5th 391, 399.)

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Cuéllar, J., concurring

When we decide on such exceptions, we endeavor to take

account of reasonable inferences about social burdens and

benefits — or “policy considerations.” We do so in relatively

general terms to ensure that public policy as it applies to a

certain broad class of situations with sufficiently common

features, rather than the bespoke details of any particular

case, supports a clearly defined departure from the general

principle that “a person is liable for injuries caused by his failure

to exercise reasonable care in the circumstances.” (Rowland,

supra, 69 Cal.2d at p. 112; see also T.H. v. Novartis

Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 165 (Novartis);

Kesner, supra, 1 Cal.5th 1132, 1143–1144; Cabral v. Ralphs

Grocery Co. (2011) 51 Cal.4th 764, 772 (Cabral); Rest.3d Torts,

Liability for Physical and Emotional Harm (2012) § 7, com. a

(Rest.3d) [“when liability depends on factors applicable to

categories of actors or patterns of conduct, the appropriate rubric

is duty” (italics added)].)

Against this backdrop, a court-imposed limitation on a

duty of care is appropriate “only when a court can promulgate

relatively clear, categorical, bright-line rules of law applicable

to a general class of cases.” (Rest.3d, supra, § 7, com. a; see also

Kesner, supra, 1 Cal.5th 1132, 1143 [“The conclusion that a

defendant did not have a duty constitutes a determination by

the court that public policy concerns outweigh, for a particular

category of cases, the broad principle enacted by the Legislature

. . . ” (italics added)].) And likewise under Rowland and our

subsequent decisions, the relevant policy considerations

primarily relate to the social cost (or benefit) of recognizing a

duty in a category of cases, whether society would be worse off

for having a particular class of defendants potentially liable.

(See Novartis, supra, 4 Cal.5th at p. 168 [we limit duty “ ‘where

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Cuéllar, J., concurring

the social utility of the activity concerned is so great, and

avoidance of the injuries so burdensome to society, as to

outweigh the compensatory and cost-internalization values of

negligence liability’ ” (italics added)]; see also, e.g., Vasilenko v.

Grace Family Church (2017) 3 Cal.5th 1077, 1092, 1096;

Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1216–1218

(Castaneda).)

In deciding whether to limit the general duty, our cases,

starting with Rowland, have repeatedly emphasized

defendants’ reasonable ability to anticipate a particular kind of

harm. A court might limit the duty of some category of

defendants who have no way to anticipate or avoid a category of

harm, ensuring responsibility falls on those who can. (See, e.g.,

Novartis, supra, 4 Cal.5th 145, 166–167; see also Tarasoff,

supra, 17 Cal.3d at pp. 434–435.) As a matter of public policy,

we seek to shift losses to those most able to spread the loss or

prevent the kind of harm in question — doing so reduces the

number of injuries and the costs of reducing the number of

injuries. (See, e.g., Kesner, supra, 1 Cal.5th at p. 1153.) And of

course, such considerations may cut in the other direction and

simply support the usual duty of reasonable care in a certain

category of cases. (See, e.g., Peterson v. San Francisco

Community College Dist. (1984) 36 Cal.3d 799, 807–809

(Peterson); Palma v. U.S. Industrial Fasteners, Inc. (1984) 36

Cal.3d 171, 184–185 (Palma).)

B.

Sometimes defendants may assert that they were mere

bystanders to the risk of plaintiff’s harm — that the risk had

nothing to do with defendants’ “activities” and so defendants

had no duty to exercise “reasonable care for the safety of others.”

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Cuéllar, J., concurring

(Cabral, supra, 51 Cal.4th at p. 768.) Arguments that sound in

this key are particularly relevant in this case.

In some cases, defendant may, of course, just be wrong.

Whether someone is a “bystander” to a particular risk is

shorthand for whether we as a society are willing to say, based

on reasonable inferences about the benefits and burdens of

potential liability, that a particular defendant should bear no

responsibility for the risk. Though the question isn’t before us

in this case, it bears emphasis, given the all-too-common fact

pattern, that USOC is hardly a bystander to plaintiffs’ harm.

USOC is the organizer of the activity where the harm occurred.

Between the organizer of an activity where someone is wronged

and a mere bystander there is generally a world of difference:

one at least sets the stage for what ends up becoming a tragedy;

the other at most stumbles into the theater in the last act, when

the story has unfolded and its casualties are known. The person

who sets the stage owes the players a general duty to exercise

reasonable care. (See Lugtu v. Cal. Highway Patrol (2001) 26

Cal.4th 703, 716 [“one’s general duty to exercise due care

includes the duty not to place another person in a situation in

which the other person is exposed to an unreasonable risk of

harm through the reasonably foreseeable conduct (including the

reasonably foreseeable negligent conduct) of a third person”].)

The organizer, by bringing people together, may “creat[e] the

risk” even if less directly than a criminal or intentional

tortfeasor. (Rest.3d, supra, § 40, com. c.; cf. Williams v. State of

California (1983) 34 Cal.3d 18, 23.) Considering the benefits

and burdens of imposing some responsibility on that person, a

court may decide that an organizer — even one lacking either

awareness of a material risk or full control of every

administrative nuance — is no bystander at all.

7

BROWN v. USA TAEKWONDO

Cuéllar, J., concurring

But in difficult cases, plaintiffs may argue that defendants

owed them a duty of care in virtue of a “special relationship.”

(See maj. opn., ante, at pp. 11–12.) In deciding whether

defendant made plaintiff worse off, courts need not envision a

world where defendant never existed. Instead they can conclude

that: “[r]egardless of whether the actor played any role in the

creation of the risk, a special relationship with others imposes a

duty of reasonable care.” 3 (Rest.3d, supra, § 40, com. c, italics

added; see also Regents, supra, 4 Cal.5th at pp. 619–620;

Tarasoff, supra, 17 Cal.3d at p. 435.)

“Special relationship” is merely a label for those policy

considerations that our shared experience has taught us to treat

as especially relevant in such contexts. As the Restatement

explains, “The term ‘special relationship’ has no independent

significance. . . . Whether a relationship is deemed special is a

conclusion based on reasons of principle or policy.” (Rest.3d,

supra, § 40, com. h.) Among reasons of principle or policy, our

precedents place special emphasis on two reasons in particular:

defendant’s ability to control the environment, to predict and

prevent the risk, and plaintiff’s reasonable dependency. A

college or university may be well suited to foresee and control

risks to students in the campus environment, and students

3

Courts may have sometimes suggested that a “special

relationship” is relevant when defendant is engaged in

“nonfeasance.” (See maj. opn., ante, at pp. 9–10 & fn. 6.) But

our reference today to the confused and confusing

“misfeasance”/“nonfeasance” distinction is just an

acknowledgement of a now outmoded oddity. (See, e.g., Kesner,

supra, 1 Cal.5th at p. 1163; see also Sommer v. Federal Signal

Corp. (1992) 583 N.Y.S.2d 957, 961–962; Rest.3d, supra, § 37,

com. c.; Abraham & Kendrick, There’s No Such Thing as

Affirmative Duty (2019) 104 Iowa L.Rev. 1649, 1682–1685.)

8

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Cuéllar, J., concurring

reasonably expect such protection and are especially vulnerable

without it. (See, e.g., Regents, supra, 4 Cal.5th at p. 625; see

also Peterson, supra, 36 Cal.3d 799, 807–809, 813–814.) Or a

proprietor should be aware of a danger of assault; customers are

at the mercy of the proprietor; and so the proprietor has a duty

of reasonable care to reduce such risks. (See, e.g., Morris v. De

La Torre (2005) 36 Cal.4th 260, 270; Delgado v. Trax Bar & Grill

(2005) 36 Cal.4th 224, 241–242.) In some cases, we have also

emphasized the burden on defendant of avoiding certain risks.

(See Castaneda, supra, 41 Cal.4th at p. 1213.) This focus on

foreseeability and defendant’s burden tracks defendant’s

particular ability to reduce risk; the focus on reasonable

dependence tracks the value society places on reducing that

risk.

As the majority explains, there is a second step when

considering a duty based on a “special relationship” — whether

public policy supports limiting the duty. (Maj. opn., ante, at pp.

20, 22.) As when we consider the general duty of reasonable

care, the analysis of public policy rationales occurs at a

relatively high level of generality. (See id. at p. 21.) But

identifying a “special relationship” already means that certain

policy reasons — especially defendant’s ability to reduce the risk

in question and blameworthiness for failing to do so — favor

requiring reasonable care. Those reasons are not likely to justify

excusing from liability a category of defendants that includes

the particular defendant. The “special relationship” analysis

determines that any such category, whatever its precise

parameters, would exclude at least the particular defendant.

Instead, primarily the undesirable consequences, the social cost,

of holding a category of defendants liable for a category of risk

would support limiting defendant’s duty if anything would.

9

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Cuéllar, J., concurring

(See, e.g., Castaneda, supra, 41 Cal.4th at p. 1216 [no duty

because requiring landlords to screen tenants for gang

affiliations would lead to discrimination].)

C.

While many of our previous decisions focus on duty, they

readily convey that analyzing duty is just one part of the

negligence inquiry. A duty’s existence does not determine

whether defendant is liable and to what extent. (See Regents,

supra, 4 Cal.5th at p. 634.) Most liability questions are case-

specific and so not amenable to analysis in terms of duty — they

do not allow a categorical determination whether defendant had

to exercise reasonable care at all. (See Cabral, supra, 51 Cal.4th

at pp. 772–774.)

Unlike duty, the remaining liability questions — breach

as well as factual and legal causation — are usually questions

for the jury. What counts as reasonable care in a specific case,

for instance, is characteristically a question of breach. (See

Cabral, supra, 51 Cal.4th at p. 773.) As a policy matter, we tend

to leave questions of breach to the jury as the institutional actor

best situated to express, in a particular case, society’s judgment

of whether the particular cost of avoiding a particular injury

outweighs the particular cost of the injury. (See, e.g., Dobbs et

al., The Law of Torts (2d ed. 2020) §§ 21, 161; cf. Calabresi,

Concerning Cause and the Law of Torts: An Essay for Harry

Kalven Jr. (1975) 43 U. Chi. L.Rev. 69, 75–76.) As we and other

courts have long recognized, that judgment is the heart of what

courts ask in assessing negligence. (See, e.g., United States v.

Carroll Towing Co. (2d Cir. 1947) 159 F.2d 169, 173; Crane v.

Smith (1944) 23 Cal.2d 288, 298 [“ ‘Where an act is one which a

reasonable man would recognize as involving a risk of harm to

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Cuéllar, J., concurring

another, the risk is unreasonable and the act is negligent if the

risk is of such magnitude as to outweigh what the law regards

as the utility of the act or of the particular manner in which it

is done’ ”].)

II.

A.

We granted review for one purpose: to clarify what steps

a court should take when deciding whether a duty based on a

“special relationship” exists. To provide that clarification, the

majority restates the two-step process we endorsed in Rowland

and have regularly followed since — start from a general duty

of reasonable care based on section 1714 or a “special

relationship” and then decide whether public policy requires

limiting it in a clearly defined category of cases. (See maj. opn.,

ante, at pp. 13–17; see also, e.g., Kesner, supra, 1 Cal.5th at pp.

1143–1144.) Through that process, California tort law

structures a court’s threshold decision about how potential

liability affects society’s interests even as it also embodies and

preserves a degree of flexibility. Maintaining the balance

between structure and flexibility, guided by important,

longstanding values — allocating risks and costs to those who

can avoid them, and ensuring just compensation — is critical to

making tort law both relevant and useful.

The following scenario shows how. A plaintiff alleges that

a youth organization did not exercise reasonable care leading to

a program leader molesting him. (See Juarez v. Boy Scouts of

America, Inc. (2000) 81 Cal.App.4th 377, 385–386 (Juarez).)

The defendant organization makes six arguments that it should

not have a duty of reasonable care. First, it argues that it was

merely a bystander. Second, it argues that organizations like it

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are not generally well-situated to predict and prevent

molestation. (See id. at pp. 408–409.) Third, it is specifically

not well-situated to predict and prevent molestation. (See ibid.)

Fourth, requiring organizations like it to prevent molestation

would divert funds from youth programs and charitable

enterprises thus harming society. (See id. at p. 409.) Fifth, it

had procedures in place to prevent molestation. (See id. at pp.

405–406.) And sixth, the likelihood of abuse was low, so

plaintiff’s molestation was not foreseeable. (See id. at pp. 403–

404.)

Of course, the court may reject defendant’s “bystander”

argument out of hand. If it does, the court should start with

defendant’s general duty of reasonable care. And then the court

considers whether large organizations’ purported inability to

prevent molestation and the risk of charities diverting funds

“ ‘clearly support[]’ ” limiting or eliminating the duty in an

“entire category of cases.” (Cabral, supra, 51 Cal.4th at pp. 771,

772.) To assess those arguments, the court will need to

determine whether “large organizations” or “charities” form a

clearly defined category. But those arguments are the right

kind of reason, at the right level of generality, to consider as a

basis for limiting a duty. And so it is a question for the court

whether, in light of any and all other policy considerations, those

reasons are sufficiently substantial to support limiting a duty

for charitable organizations, if that category can be clearly

defined.

On the other hand, the court could worry that defendant

may be no more than a bystander. Perhaps the organization has

an educational mission but primarily licenses its name to local

chapters. Nonetheless, the court may decide defendant is in fact

well-situated to prevent molestation, notwithstanding

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Cuéllar, J., concurring

defendant’s argument to the contrary. For example, the court

might reason that children in the local chapters are especially

vulnerable because they are children, and the organization can

control local chapters’ activities through the licensing process.

So, defendant should exercise reasonable care to limit the risk

of molestation regardless of whether it “created that risk.” In

drawing that inference, the court “recognizes” defendant has a

“special relationship” with plaintiff. The court then proceeds to

a second step: deciding whether public policy “clearly supports”

limiting the duty of reasonable care in a category of cases. At

this step in the analysis, large organizations’ purported inability

to avoid molestation can have little relevance — whatever may

be true of other large organizations, the court has already

rejected the argument as to this organization. But it remains

for the court, in light of all other relevant public policy

considerations, to decide whether concerns about charitable

organizations diverting funds “clearly require an exception.”

(Regents, supra, 4 Cal.5th at p. 628.)

In both these versions of the scenario, the court trains

attention on reasons of public policy when deciding whether to

limit a duty. It does so by considering possible consequences at

a high level of generality and with an eye to the loss to society

from imposing liability. A court can more effectively focus at the

appropriate level of generality if it considers policy reasons to

limit a duty after presuming a duty or recognizing the duty of a

specific defendant based on a “special relationship.” (See maj.

opn., ante, at pp. 21–22.) And the requirement that such reasons

clearly support limiting a duty of reasonable care ensures that

courts act for good reason and not based on idle speculation.

By contrast, defendant’s other arguments — about specific

measures it has already taken or its ability to predict that a

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Cuéllar, J., concurring

specific harm would arise — bear simply on the details of the

present case, and not on duty. (See Cabral, supra, 51 Cal.4th at

p. 773.) The argument about having done enough concerns

whether defendant in fact took reasonable care, a question of

breach usually for the jury. (Id. at p. 772.) And the argument

about specific foreseeability would be relevant to whether

plaintiff had established proximate cause, also usually a

question for the jury. (Id. at pp. 772–773.)

Here too, the two-step process we endorse today serves an

important function: it helps courts guard against

inappropriately taking questions from the jury. At the stage of

deciding whether to limit a duty, courts should not look to

features of the specific case but to considerations of public policy,

clearly defined. By first presuming a duty or recognizing a duty

based on a “special relationship” and then deciding whether

public policy clearly requires limiting that duty, courts focus at

the right level of generality at the right time. And that focus

serves as a check on courts wading into fact-specific questions of

breach or causation. (Cabral, supra, 51 Cal.4th at pp. 772–773.)

In addition to these clarifying functions, the procedure we

approve today remains flexible. We don’t disapprove our prior

precedents that quickly or silently presume or recognize a duty

before focusing primarily or entirely on whether policy

considerations support it. (See maj. opn., ante, at pp. 18–19, fn.

8 [discussing Palma, supra, 36 Cal.3d at pp. 184–185].) And

while we disapprove several Court of Appeal cases, we don’t

disapprove them to the extent they presume a general duty of

reasonable care and find the policy considerations in Rowland

support holding defendants to that duty. (See, e.g., Juarez,

supra, 81 Cal.App.4th 377, 401–410.)

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Cuéllar, J., concurring

This flexibility is rooted in tort law’s decidedly limber

structure: a duty of reasonable care based on a “special

relationship” may be functionally indistinguishable from the

general duty of reasonable care. As the Restatement

acknowledges, some special-relationship-type duties “overlap

with the general duty of reasonable care”; they are “a specialized

application” of that general duty. (Rest.3d, supra, § 40, com. h.)

In cases where “the actor’s conduct might have played a role in

creating the risk to the injured party” there is a general “duty of

reasonable care” even without any sort of “special relationship.”

(Id., § 40, com. c, italics added.) What we must discern is if

society has defensible reasons to restrict liability in certain

situations; otherwise, a person’s duty is to exercise reasonable

care. Whether there’s a “special relationship” is a question that

structures, without ever supplanting, the ultimate inquiry —

guiding deliberation just enough to avoid turning every duty

question into a fact-specific monologue about the defendant’s

role in creating the risk. (See, e.g., Tarasoff, supra, 17 Cal.3d at

pp. 434–435; Rest.3d, supra, § 40, com. h.)

B.

Properly understood, the special relationship question

plays a limited but important role under our law. If plaintiffs

don’t want to wade into whether defendants “created the risk”

of the harm plaintiffs experienced, they can argue that

defendant owed a duty of reasonable care, based on a “special

relationship.” To do so, plaintiffs have to show why specific

policy factors under the “special relationship” rubric supported

such a duty. We don’t address whether plaintiffs in this case did

in fact make such a showing. And we don’t address the

possibility, because it was not presented to us, that USOC had

a general duty to exercise reasonable care in the management

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Cuéllar, J., concurring

of its property or person. (See § 1714, subd. (a).) It

presumptively would if it were not a “bystander,” and we

certainly don’t decide public policy clearly supports exempting a

category of organizations including USOC from that general

duty. (See generally House Energy & Commerce Committee,

Nassar and Beyond: A Review of the Olympic Community’s

Efforts to Protect Athletes from Sexual Abuse (Dec. 20, 2018).)

While we don’t address those claims today, we reaffirm

that courts should assess such claims with the ultimate aim of

deciding whether requiring reasonable care serves the goals tort

law embodies: to achieve appropriate deterrence and

compensate victims. (See SoCal Gas, supra, 7 Cal.5th 391, 394;

see also Rest.3d, supra, § 40, com. h.)

III.

Tort law relies heavily on the concept of duty to render

tractable a reality where lives are at risk in the very world that

sustains them, and people are bound by intricate and far-

reaching ties of responsibility and norms of reciprocity. But

“ ‘ “duty” is not sacrosanct in itself’ ”; it is a means to an end,

“ ‘only an expression of the sum total of those considerations of

policy which lead the law to say that the particular plaintiff is

entitled to protection.’ ” (Dillon v. Legg, supra, 68 Cal.2d at p.

734.) The majority opinion today sensibly clarifies the

procedure for recognizing a duty where plaintiff attempts, by

arguing for a “special relationship,” to cut through the knot of

whether defendant did or didn’t create a risk. Specifically, it

holds that the Rowland factors as such just feature in deciding

whether to limit a duty. In so doing, it reaffirms that under

California law everyone presumptively owes a duty of

reasonable care in the management of his or her property or

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Cuéllar, J., concurring

person to avoid injuring others. And it doesn’t suggest that a

corporate person’s duty of reasonable care in the management

of its person or property extends any less than to the limits of

foreseeable harm without substantial, concrete policy reasons to

the contrary.

The two-step procedure we endorse is grounded in long-

established principles, emphasizing not only the importance of

offering civil recourse and compensation to those harmed but

also the value of allocating responsibility for losses to minimize

future harm. We start from the premise that a duty of

reasonable care ordinarily exists, whether arising generally or

based on a “special relationship.” We then consider whether

public policy requires limiting that duty in a clearly defined

category of cases, assessed at the right level of

generality. Implicit in this arrangement is the latitude for

courts to minimize harms through the proper allocation of

losses, and to compensate victims for their uncommon injuries

— including in cases where the facts are not only tragic, but

tragically all-too-common. Which is why I concur.

CUÉLLAR, J.

17

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Brown v. USA Taekwondo

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XX 40 Cal.App.5th 1077

Rehearing Granted

__________________________________________________________________________________

Opinion No. S259216

Date Filed: April 1, 2021

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Michael P. Vicencia

__________________________________________________________________________________

Counsel:

Estey & Bomberger, Stephen J. Estey; Corsiglia McMahon & Allard, B. Robert Allard; Turek Law,

Kenneth C. Turek; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Arbogast Law, David M. Arbogast; Siminou Appeals, Benjamin I. Siminou; Herzog, Yuhas, Ehrlich &

Ardell, Ian I. Herzog; The Bronson Firm and Steven M. Bronson for Consumer Attorneys of California as

Amicus Curiae on behalf of Plaintiffs and Appellants.

Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for National Crime Victim Bar Association

and Manly, Stewart & Finaldi as Amici Curiae on behalf of Plaintiffs and Appellants.

Kjar, McKenna, Stockalper, Patrick E. Stockalper, Matthew A. Schiller and Mina M. Morkos; Horvitz &

Levy, Mitchell C. Tilner, Steven S. Fleischman and Yen-Shyang Tseng for Defendant and Respondent

USA Taekwondo.

Clyde & Co. US, Douglas J. Collodel, Margaret M. Holm, M. Christopher Hall; Covington & Burling, Beth

Brinkmann, Mitch A. Kamin and Carolyn J. Kubota for Defendant and Respondent United States Olympic

Committee.

Munger, Tolles & Olson, Donald B. Verrilli, Jr., Hailyn J. Chen and John B. Major for National Collegiate

Athletic Association as Amicus Curiae on behalf of Defendant and Respondent United States Olympic

Committee.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jon R. Williams

Williams Iagmin LLP

666 State Street

San Diego, CA 92101

(619) 238-0370

Yen-Shyang Tseng

Horvitz & Levy LLP

3601 W. Olive Ave., 8th Floor

Burbank, CA 91505-4681

(818) 995-0800

Beth S. Brinkmann

Covington & Burling LLP

1 CityCenter, 850 10th St. NW

Washington, DC 20001

(202) 662-5312