C.A. v. William S. Hart Union High School District

Filed 3/8/12

IN THE SUPREME COURT OF CALIFORNIA

C.A., a Minor, etc., )

)

Plaintiff and Appellant, )

) S188982

v. )

) Ct.App. 2/1 B217982

WILLIAM S. HART UNION HIGH )

SCHOOL DISTRICT et al., )

) Los Angeles County

Defendants and Respondents. ) Super. Ct. No. PC044428

____________________________________)

C.A., a minor, sued his public high school guidance counselor and the

school district for damages arising out of sexual harassment and abuse by the

counselor. The trial court sustained the school district’s demurrer, and the Court

of Appeal affirmed. On review, the question presented is whether the district may

be found vicariously liable for the acts of its employees (Gov. Code, § 815.2)1—

not for the acts of the counselor, which were outside the scope of her employment

(see John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 441, 451-452),

but 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.

1 All further unspecified statutory references are to the Government Code.

1

We conclude plaintiff’s theory of vicarious liability for negligent hiring,

retention and supervision is a legally viable one. Ample case authority establishes

that school personnel owe students under their supervision a protective duty of

ordinary care, for breach of which the school district may be held vicariously

liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741,

747; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458-

1461.) If a supervisory or administrative employee of the school district is proven

to have breached that 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.

Accordingly, we reverse the judgment of the Court of Appeal.

FACTUAL AND PROCEDURAL BACKGROUND

To determine whether a demurrer was properly sustained, we review the

allegations of the operative complaint for facts sufficient to state a claim for relief.

In doing so, we treat the demurrer as admitting all material facts properly pleaded.

“ ‘Further, we give the complaint a reasonable interpretation, reading it as a whole

and its parts in their context.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th

1112, 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Through a guardian ad litem, plaintiff C.A. alleged that while he was a

student at Golden Valley High School in the William S. Hart Union High School

District (the District) he was subjected to sexual harassment and abuse by Roselyn

Hubbell, the head guidance counselor at his school. Plaintiff was born in

July 1992, making him 14 to 15 years old at the time of the harassment and abuse,

which is alleged to have begun in or around January 2007 and continued into

September 2007.

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Plaintiff was assigned to Hubbell for school counseling. Representing that

she wished to help him do well at school, Hubbell began to spend many hours with

plaintiff both on and off the high school premises and to drive him home from

school each day. Exploiting her position of authority and trust, Hubbell engaged

in sexual activities with plaintiff and required that he engage in sexual activities,

including sensual embraces and massages, masturbation, oral sex and intercourse.

As a result of the abuse, plaintiff suffered emotional distress, anxiety, nervousness

and fear.

The suit names as defendants Hubbell, the District, and Does 1 through

100. In general terms, each defendant is alleged to be the agent and employee of

the others and to have done the acts alleged within the course and scope of that

agency and employment. On information and belief, plaintiff alleges

“[d]efendants knew that Hubbell had engaged in unlawful sexually-related

conduct with minors in the past, and/or was continuing to engage in such

conduct.” Defendants “knew or should have known and/or were put on notice” of

Hubbell’s past sexual abuse of minors and her “propensity and disposition” to

engage in such abuse; consequently, they “knew or should have known that

Hubbell would commit wrongful sexual acts with minors, including Plaintiff.”

Plaintiff bases this belief on “personnel and/or school records of Defendants [that]

reflect numerous incidents of inappropriate sexual contact and conduct with

minors by teachers, staff, coaches, counselors, advisors, mentors and others,

including incidents involving Hubbell, both on and off the premises of such

Defendants.” Plaintiff’s injuries were the result not only of the molestation but of

the District’s “employees, administrators and/or agents” failing to “properly hire,

train and supervise Hubbell and . . . prevent her from harming” plaintiff.

In a cause of action for negligent supervision, plaintiff alleges (again on

information and belief) that defendants, through their employees, knew or should

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have known of Hubbell’s “dangerous and exploitive propensities” and

nevertheless “failed to provide reasonable supervision” over her and “failed to use

reasonable care in investigating” her. Specifically, defendants neither had in place

nor implemented a system or procedure for investigating and supervising

personnel “to prevent pre-sexual grooming and/or sexual harassment, molestation

and abuse of children.” In a cause of action for negligent hiring and retention,

plaintiff alleges defendants were on notice of Hubbell’s molestation of students

both before and during her employment by the District, but did not reasonably

investigate Hubbell and failed to use reasonable care to prevent her abuse of

plaintiff.

The District demurred to the complaint, arguing the negligent supervision

and negligent hiring and retention causes of action failed to state a claim because

of the lack of statutory authority for holding a public entity liable for negligent

supervision, hiring or retention of its employees. The trial court sustained the

District’s demurrer to the entire complaint without leave to amend and dismissed

the action as to the District. (The sole named individual defendant, Hubbell, did

not join in the District’s demurrer and is not a party to the present appeal.)

The Court of Appeal affirmed in a divided decision. The majority first

rejected the viability of a vicarious liability theory under section 815.2, on the

ground that “[a]s in John R. [v. Oakland Unified School Dist., supra, 48 Cal.3d

438], in this case the alleged sexual misconduct of the guidance counselor cannot

be considered within the scope of her employment.” Second, the majority held no

theory of direct liability for negligent hiring, supervision or retention could lie

because plaintiff had adduced no statutory authority for it. Quoting de Villers v.

County of San Diego (2007) 156 Cal.App.4th 238, 255-256, the majority

concluded: “ ‘[A] direct claim against a governmental entity asserting negligent

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hiring and supervision, when not grounded in the breach of a statutorily imposed

duty owed by the entity to the injured party, may not be maintained.’ ”

The Court of Appeal dissenter opined that “[a]lthough the school district

cannot be held liable for the intentional misconduct of the guidance counselor, it

may be liable through respondeat superior for the negligence of other employees

who were responsible for hiring, supervising, training, or retaining her.” Because

school personnel were in a special relationship with plaintiff, they owed him a

duty of taking reasonable care to prevent the abuse by Hubbell. Consequently,

“the failure of a school administrator to exercise ordinary care in protecting

students from harm should render a school district liable under section 815.2

where the administrator hires an applicant known to have a history of molesting

students or where, after hiring an applicant, the administrator first learns about the

employee’s sexual misconduct and does not properly supervise, train, or discharge

her.”

We granted plaintiff’s petition for review.

DISCUSSION

The statutory framework upon which the District’s vicarious liability

depends is easily set out. Section 815 establishes that public entity tort liability is

exclusively statutory: “Except as otherwise provided by statute: [¶] (a) A public

entity is not liable for an injury, whether such injury arises out of an act or

omission of the public entity or a public employee or any other person.” Section

815.2, in turn, provides the statutory basis for liability relied on here: “(a) A

public entity is liable for injury proximately caused by an act or omission of an

employee of the public entity within the scope of his employment if the act or

omission would, apart from this section, have given rise to a cause of action

against that employee or his personal representative. [¶] (b) Except as otherwise

provided by statute, a public entity is not liable for an injury resulting from an act

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or omission of an employee of the public entity where the employee is immune

from liability.” Finally, section 820 delineates the liability of public employees

themselves: “(a) Except as otherwise provided by statute (including Section

820.2), a public employee is liable for injury caused by his act or omission to the

same extent as a private person. [¶] (b) The liability of a public employee

established by this part (commencing with Section 814) is subject to any defenses

that would be available to the public employee if he were a private person.” In

other words, “the general rule is that an employee of a public entity is liable for his

torts to the same extent as a private person (§ 820, subd. (a)) and the public entity

is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a))

to the same extent as a private employer (§ 815, subd. (b)).” (Societa per Azioni

de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463.)

The parties’ contentions, as is appropriate under section 815.2, subdivision

(a), focus on whether supervisory and administrative employees of the District,

who allegedly knew or had reason to know of Hubbell’s dangerous propensities

and acted negligently in hiring, supervising and retaining her, would themselves

be subject to liability to plaintiff for his injuries. The District maintains its

employees owed plaintiff no legal duty to protect him against abuse by another

employee; the responsibility for hiring, supervising and dismissing employees

belongs exclusively to the District itself, and no statute provides for the District’s

direct liability in this regard. Plaintiff, in turn, argues the special relationship

between public school personnel and students imposes on the District’s

administrative and supervisory employees a duty of reasonable care to protect a

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student from foreseeable dangers, including those from other school employees.

For the reasons given below, we agree with plaintiff.2

“While school districts and their employees have never been considered

insurers of the physical safety of students, California law has long imposed on

school authorities a duty to ‘supervise at all times the conduct of the children on

the school grounds and to enforce those rules and regulations necessary to their

protection. [Citations.]’ [Citations.] The standard of care imposed upon school

personnel in carrying out this duty to supervise is identical to that required in the

performance of their other duties. This uniform standard to which they are held is

that degree of care ‘which a person of ordinary prudence, charged with

[comparable] duties, would exercise under the same circumstances.’ [Citations.]

Either a total lack of supervision [citation] or ineffective supervision [citation]

may constitute a lack of ordinary care on the part of those responsible for student

supervision. Under section 815.2, subdivision (a) of the Government Code, a

school district is vicariously liable for injuries proximately caused by such

negligence.” (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 747;

accord, Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932-933;

Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513.)

2 That public school administrators and supervisors owe students a duty of

care and may be responsible for their negligence in hiring, supervising and

retaining staff does not mean they bear the financial risk of damages and defense

costs for such negligence. Even when the individual public employee is sued for

negligence (none has been here), the defense costs and any compensatory damages

will ordinarily be paid by the employer, as a public employee sued for injuries

arising out of negligent acts or omissions within the scope of his or her

employment is generally entitled to a defense and indemnity by the public entity.

(See §§ 825, 825.2, 995.)

7

In addition, a school district and its employees have a special relationship

with the district’s pupils, a relationship arising from the mandatory character of

school attendance and the comprehensive control over students exercised by

school personnel, “analogous in many ways to the relationship between parents

and their children.” (Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at

p. 935; see M.W. v. Panama Buena Vista Union School Dist. (2003) 110

Cal.App.4th 508, 517; Leger v. Stockton Unified School Dist., supra, 202

Cal.App.3d at pp. 1458-1459.) Because of this special relationship, imposing

obligations beyond what each person generally owes others under Civil Code

section 1714, the duty of care owed by school personnel includes the duty to use

reasonable measures to protect students from foreseeable injury at the hands of

third parties acting negligently or intentionally.3 This principle has been applied

in cases of employees’ alleged negligence resulting in injury to a student by

another student (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th

123, 128-129, 141-148; M.W., at pp. 514-515, 517-521), injury to a student by a

nonstudent (Leger, at pp. 1452-1453, 1458-1459) and—on facts remarkably close

to the present case—injuries to a student resulting from a teacher’s sexual assault

(Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848,

1851-1855).

In Virginia G., the plaintiff, a junior high school student, alleged the

defendant district had performed an inadequate background check before hiring as

3 Such a protective duty is appropriate in light of the fundamental public

policy favoring measures to ensure the safety of California’s public school

students. (See Cal. Const., art. I, § 28, subd. (a)(7) [students “have the right to be

safe and secure in their persons”]; see also Ed. Code, §§ 32228-32228.5,

35294.10-35294.15 [establishing various school safety and violence prevention

programs].)

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a teacher Ernest Ferguson, who had been fired from another school for sexual

misconduct with students and who had then sexually harassed and assaulted the

plaintiff. (Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at

p. 1851.) Analyzing the case within the same statutory framework as applies here

(see id. at p. 1854, citing §§ 815.2, subd. (a), 820, subd. (a)), the appellate court

held the district could be liable for Virginia G.’s injuries under a theory of

vicarious liability for other school personnel’s negligent hiring and supervision of

the molester: “In our case, while Ferguson’s conduct in molesting Virginia G. will

not be imputed to the District, if individual District employees responsible for

hiring and/or supervising teachers knew or should have known of Ferguson’s

prior sexual misconduct toward students, and thus, that he posed a reasonably

foreseeable risk of harm to students under his supervision, including Virginia G.,

the employees owed a duty to protect the students from such harm.” (Virginia G.,

at p. 1855, italics added.)

The District acknowledges that a special relationship making an employee

potentially liable for a student’s injury at the hands of a third party “might exist

where the individual employee is in direct charge of and supervising the student,”

but insists that a “principal, school superintendent, or other administrator who

oversees the overall functioning” of the school cannot be liable on this theory:

“They have no special relationship with any particular student. Their relationship

is with the entity.” We disagree. Responsibility for the safety of public school

students is not borne solely by instructional personnel. School principals and

other supervisory employees, to the extent their duties include overseeing the

educational environment and the performance of teachers and counselors, also

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. (See Cal.

9

Code Regs., tit. 5, § 5551 [“The principal is responsible for the supervision and

administration of his school.”]; McGrath v. Burkhard (1955) 131 Cal.App.2d 367,

372 [“[T]he principal has the necessary power which is inherent in his office to

properly administer and supervise his school.”].)

The District further argues that hiring and termination of certificated

employees, including guidance counselors, is by law the responsibility of its

governing board, not of individual administrators. But while the final authority to

formally hire certificated employees belongs to the governing board (see Ed.

Code, §§ 44830-44834), and firing a certificated employee requires action by both

the board and an arbitral body known as a commission on professional

competence (see id., §§ 44932-44945),4 administrators and supervisors have the

power to initiate such actions by, for example, proposing to hire a teacher or

counselor or filing charges that could lead to his or her suspension or termination.

(See id., § 44934 [dismissal proceedings may be initiated by a governing board

formulating charges or by a person filing written and verified charges against the

employee]; see, e.g., California Teachers Assn. v. Governing Bd. of Rialto Unified

School Dist. (1997) 14 Cal.4th 627, 631 [school’s athletic director recommended

to principal that the district hire a particular person as assistant coach; principal

then referred the matter to district’s governing board]; Johnson v. Taft School Dist.

(1937) 19 Cal.App.2d 405, 406 [principal filed complaint with district board

seeking teacher’s dismissal].) That employment decisions are subject to approval

by a school district’s governing board does not necessarily absolve district

administrators and supervisors of liability for their negligence in initiating or

4 The governing board may, however, immediately suspend an employee on

receipt of written charges of certain types of misconduct. (Ed. Code, § 44939.)

10

failing to initiate those decisions. (See Fernelius v. Pierce (1943) 22 Cal.2d 226,

239-241 [civil service board’s ultimate authority to overrule termination decisions

by police chief and city manager did not preclude liability of those administrators

for negligent retention of police officers known to be unfit].)

The complaint, it is true, does not identify by name or position the

District’s “employees, administrators and/or agents” who allegedly failed to

“properly hire, train and supervise Hubbell.” But the 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. To survive a demurrer, the

complaint need only allege facts sufficient to state a cause of action; each

evidentiary fact that might eventually form part of the plaintiff’s proof need not be

alleged. (See Golceff v. Sugarman (1950) 36 Cal.2d 152, 154 [complaint against

employer need not include allegation that negligent act was committed by

employee in order for plaintiff to pursue respondeat superior liability].) We

cannot say from the face of the complaint that the District had no supervisory or

administrative personnel whose responsibilities included hiring, training,

supervising, disciplining or terminating a guidance counselor.

In this connection, the District cites Lopez v. Southern Cal. Rapid Transit

Dist. (1985) 40 Cal.3d 780, 795, in which we explained that because public entity

liability is statutory in nature, facts material to the existence of such liability must

be pleaded with particularity. We went on to hold, however, that the plaintiff had

adequately pled a bus driver’s negligence by alleging the driver, aware of a violent

argument on his bus, “did absolutely nothing to maintain order or protect

passengers from injury . . . .” (Id. at pp. 795-796.) Plaintiff similarly alleges the

District’s employees knew or should have known of the guidance counselor’s

dangerous propensities and ongoing misconduct, but did nothing to prevent or stop

11

her harassment and abuse of plaintiff. 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. (See Perez

v. City of Huntington Park (1992) 7 Cal.App.4th 817, 820-821; Sen. Legis. Com.

com., reprinted at 32 West’s Ann. Gov. Code (1995 ed.) foll. § 815.2, p. 179

[“Under this section, it will not be necessary in every case to identify the particular

employee upon whose act the liability of the public entity is to be predicated.”].) 5

More broadly, the District argues that “[i]ndividual co-workers, whether

peers or supervisors, have no personal legal relationship with other employees”

and therefore cannot be personally liable to third parties for “how they hire, fire,

retain, or discipline co-workers.” As applied here, the argument is a non sequitur.

Plaintiff relies not on the supervisory or administrative employees’ legal

relationship to Hubbell, their coworker, for the duty of care they owed plaintiff,

but on their recognized special relationship with plaintiff, a pupil under their

control and supervision.6

5 The court in Munoz v. City of Union City (2004) 120 Cal.App.4th 1077,

1113, opined that vicarious liability under section 815.2 “clearly contemplates that

the negligent employee whose conduct is sought to be attributed to the employer at

least be specifically identified, if not joined as a defendant” in order that the trier

of fact may “determine if the elements needed to assert vicarious liability have

been proved.” Munoz, however, was an appeal from a judgment for the plaintiff

after a jury trial (Munoz, at p. 1083), not an appeal from dismissal after a demurrer

as here. Whatever the merits of the quoted remarks as to a jury trial, they have no

application at the pleading stage.

6 The cases the District cites for this argument are inapposite. In Miklosy v.

Regents of University of California (2008) 44 Cal.4th 876, we held a claim for

wrongful termination in violation of public policy under Tameny v. Atlantic

(footnote continued on next page)

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The District relies on three decisions rejecting, on various facts, claims of

public entities’ liability for negligence. As discussed below, none of these

decisions supports the sustaining of a demurrer on the facts alleged here.

In Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175,

we held that because no statute imposed liability on public entities for negligence

in handling emergency calls, the defendant public entities were not directly liable

for a 911 dispatcher’s failure to send appropriate personnel and equipment to the

scene of a household accident; vicarious liability for the dispatcher’s own alleged

negligence was barred by a statute providing qualified immunity for emergency

rescue personnel. (Id. at pp. 1179-1185.) We did not consider in Eastburn any

theory of vicarious liability analogous to that presented here (i.e., that the public

entity was vicariously liable for the actions of administrative or supervisory

personnel in hiring, supervising and retaining other employees), and the qualified

immunity defense that governed vicarious liability in Eastburn has no possible

application here.

De Villers v. County of San Diego, supra, 156 Cal.App.4th 238, involved a

claim of public liability for a county toxicologist’s murder of her husband with

(footnote continued from previous page)

Richfield Co. (1980) 27 Cal.3d 167 “can only be asserted against an employer”

(Miklosy, at p. 900), and found no justification for imposing individual liability on

supervisors for “a common law tort that depends on the existence of an employer-

employee relationship between the tortfeasor and the victim” (id. at p. 901).

Plaintiff’s negligence claims, obviously, do not depend on any employment

relationship between him and the District’s administrative or supervisory

personnel. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158

and Reno v. Baird (1998) 18 Cal.4th 640, which involved employees’ or former

employees’ statutory claims against employers for discrimination and retaliation,

are even further off point. Whatever their personal legal obligations to coworkers

and subordinate employees, school personnel have, as discussed above, a duty of

ordinary care running to the pupils under their control and supervision.

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poison taken from the county coroner’s office in which she worked. Conceding

the county could not be vicariously liable for the toxicologist’s murderous acts,

which were obviously outside the scope of her employment, the plaintiffs

proposed theories of direct and vicarious liability for the county’s negligence in

hiring and supervising her. (Id. at p. 248.) The appellate court rejected direct

liability on the ground that the plaintiffs had failed to “identify any statutory basis

supporting a direct claim against a governmental entity for injuries allegedly

caused by the entity’s generic negligence in hiring and supervising its employees.”

(Id. at p. 253.) Nor, under section 815.2, could the county be vicariously liable for

its employees’ failure to properly investigate the toxicologist when she was hired

or to guard against her theft of poisonous drugs, as “there was no evidence

supporting a conclusion any County employee had undertaken a special protective

relationship toward de Villers.” (De Villers, at p. 249.) In the absence of such a

special relationship, the toxicologist’s supervisors and coworkers owed her

husband no duty to prevent his murder and could therefore not be personally liable

for his death, defeating public entity liability under section 815.2. (De Villers, at

pp. 249-251.)

The de Villers court’s reasoning on vicarious liability distinguishes it from

the present case. As Justice Mallano explained, dissenting below, in de Villers

“[n]o one in the coroner’s office had the responsibility, within the scope of his or

her employment, to ensure that employees were not going to use laboratory poison

to murder their relatives. As a result, section 815.2, authorizing the liability of a

public entity under the doctrine of respondeat superior, did not come into play.”

In contrast, school personnel “have a duty to protect students from harm, which

includes an obligation to exercise ordinary care in hiring, training, supervising,

and discharging school personnel. An administrator who hires a known child

molester as a guidance counselor and fails to provide adequate training,

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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.”

Finally, in Munoz v. City of Union City, supra, 120 Cal.App.4th at pages

1081-1082, the relatives of a woman shot by police, who had been summoned

because of her erratic behavior, sued the officer who shot her and his employing

city. The appellate court held the city could be vicariously liable for the officer’s

unreasonable use of deadly force, but rejected a theory of direct liability based on

the city’s negligence “in the selection, training, retention, supervision, and

discipline of police officers.” (Id. at p. 1112.) As no statute made a public entity

liable for this type of negligence, no direct liability could be established under

section 815 as interpreted in Eastburn v. Regional Fire Protection Authority,

supra, 31 Cal.4th 1175. (Munoz, at pp. 1110-1113.) The court went on to reject

the plaintiffs’ argument that the city’s negligence was actually the basis for

vicarious liability because public entities’ negligence liability is inherently

vicarious. “[W]hile respondents are correct insofar as they state public entities

always act through individuals, that does not convert a claim for direct negligence

into one based on vicarious liability. . . . To accept respondents’ argument would

render the distinction between direct and vicarious liability completely illusory in

all cases except where the employer is an individual.” (Id. at p. 1113.)

Unlike the theory rejected in Munoz, plaintiff’s theory of the District’s

liability does not depend on blurring the line between direct and vicarious liability

or on an assumption that a public entity’s negligence liability is inherently

vicarious. Plaintiff alleges the District’s administrators and employees knew or

should have known of Hubbell’s dangerous propensities, but nevertheless hired,

retained and failed to properly supervise her. These allegations, if proven, could

15

make the District liable under a vicarious liability theory encompassed by section

815.2.

The lead opinion in John R. v. Oakland Unified School Dist., supra, 48

Cal.3d at page 446, it is true, referred to the school district’s potential liability for

negligent hiring and supervision of the molesting teacher as “direct.” In context,

however, that label served merely to distinguish the negligent hiring and

supervision theory from the theory that the district was vicariously liable for the

teacher’s molestation, a theory we rejected on the ground the molestation was

beyond the scope of the teacher’s employment. (Id. at pp. 447-452.) To the same

effect is Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815,

referring to a negligent supervision and retention theory as one of “direct

liability,” where the plaintiff had also sought to hold the employer vicariously

liable for the intentional torts of its employee. (See also Diaz v. Carcamo (2011)

51 Cal.4th 1148, 1152 [characterizing negligent entrustment as a theory making

the employer “liable for its own negligence,” without considering an employer’s

possible vicarious liability for a manager’s negligent entrustment of a vehicle to a

subordinate].) As these decisions did not consider the theory of vicarious liability

posited here—that the District is liable under section 815.2 for the negligence of

its administrative and supervisory personnel—they cannot be taken as either

endorsing or precluding this theory.

This is not the first time we have held public school personnel may be

individually liable for their negligent failure to protect students from harm at

others’ hands. In Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d 741,

one high school student unintentionally killed another while roughhousing during

the lunch recess. The decedent’s parents sued not only the district, but also two

individual members of the school’s physical education staff who were responsible

for the area around the gymnasium where the incident took place but had failed to

16

supervise students in the area during the lunch period. (Id. at pp. 744-746.) We

held that because the evidence was sufficient to support a finding of negligence by

the two instructors, the trial court erred in granting a directed verdict for the

defendants. (Id. at pp. 749-751.) The school district’s liability derived vicariously

from that of the two instructors, resting, as in the present case, on section 815.2.

(Dailey, at p. 747; see also J.H. v. Los Angeles Unified School Dist., supra, 183

Cal.App.4th at pp. 128, 148-149 [recognizing potential liability on part of

individual school employees as well as district for failing to protect student from

attack]; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp.

1452-1453 [same].)7

Nor does our holding that public school administrators and supervisors may

be held legally responsible for their negligence in hiring and retaining as well as

supervising school staff subject the great majority of public school personnel,

much less other employees, to potential liability for acts committed by their fellow

workers. The scope and effect of our holding on individual liability is limited by

requirements of causation and duty, elements of liability that must be established

in every tort action. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th

666, 673.)

With regard to causation, plaintiff alleges he suffered emotional and

physical injuries “[a]s a result of” defendants’ negligent hiring and retention of the

guidance counselor, and the District does not argue the causation element is

inadequately pled. But where an individual defendant did not have final authority

over the hiring or firing of the malefactor employee, but was merely in a position

7 As noted earlier, however (see fn. 2, ante), public employees, including

school personnel, are entitled to a defense and indemnity for negligent torts within

the scope of their employment.

17

to propose or recommend such action, proving causation may present a significant

obstacle. Plaintiff here, and those similarly alleging individual negligence in

hiring and firing, must demonstrate that the individual employee’s proposal or

recommendation, or failure to take such action, was a substantial factor (Mitchell

v. Gonzales (1991) 54 Cal.3d 1041, 1052) in causing the malefactor to be hired or

retained. While it may well be possible to prove that a public school principal’s

recommendation, particularly as to hiring, effectively determined the governing

board’s decision, the same could not be said of every individual employee who

recommends to management that a particular person be hired into the organization,

or who could have, but did not, seek a coworker’s discipline or termination. Even

if other elements of the tort action were established, then, an employee who did

not actually make the hiring or retention decision and whose recommendations

were not, in the particular circumstances of the organization, likely to be highly

influential to the decision maker would not face the potential for individual

liability.

Turning to the duty element, we have explained that the potential legal

responsibility of District administrators and supervisors for negligently hiring or

retaining Hubbell arises from the special relationship they had with plaintiff, a

student under their supervision, which relationship entailed the duty to take

reasonable measures to protect plaintiff from injuries at the hands of others in the

school environment. Absent 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 under section 815.2 (or, for private

organizations, under common law respondeat superior principles). For example,

in de Villers v. County of San Diego, supra, 156 Cal.App.4th at pages 249-250,

because other employees of the coroner’s office had no special relationship with

the husband of the homicidal toxicologist, they had no duty to protect him against

18

his wife, and there could be no individual liability (or vicarious liability by the

county) for their failure to investigate the toxicologist before hiring her.

Additional limits emerge from our consideration, under Rowland v.

Christian (1968) 69 Cal.2d 108 (Rowland),8 of the scope of the duty implicated in

this and similar cases. In Randi W. v. Muroc Joint Unified School Dist. (1997) 14

Cal.4th 1066, 1077-1081, we decided, through a Rowland analysis, that staff at

school districts previously employing a teacher with a history of sexual contact

with students bore a duty not to misrepresent the teacher’s qualifications and

character. But, by the same analysis, we limited potential liability for letters of

recommendation to actual misrepresentations, as distinct from nondisclosures, and

to circumstances in which the misrepresentation “present[ed] a substantial,

foreseeable risk of physical injury to the third persons.” (Randi W., at p. 1081.)

A similar analysis is appropriate here in order to decide under what general

circumstances the protective duty arising from the special relationship between

individual school administrators, supervisors and students extends to a duty of care

in taking or failing to take action to further the hiring or firing of subordinate

school staff.

8 In Rowland, we outlined several factors to be used in determining a tort

duty’s existence and scope: “[T]he 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.) We have previously used this analysis to decide the

scope of duty arising from a special relationship. (See Castaneda v. Olsher (2007)

41 Cal.4th 1205, 1213-1218.)

19

In this factual context, foreseeability and its related Rowland factors (see

Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774) depend largely on the

same factual question we have discussed in relation to causation: whether the

individual whose negligence allegedly led to the malefactor employee’s hiring or

retention was, under the circumstances, likely to be highly influential to the actual

decision maker. It is not generally foreseeable, for example, that a hiring

recommendation made by an employee outside an organization’s circles of

authority and influence will cause harm to a third party.

Additional duty limits are suggested by the Rowland considerations of the

extent of moral blame and the policy balance between the prevention of future

harm and the burdens created by imposing a duty of care. (See Cabral v. Ralphs

Grocery Co., supra, 51 Cal.4th at pp. 781-782.) Unless the individual alleged to

be negligent in a hiring or retention decision knew or should have known of the

dangerous propensities of the employee who injured the plaintiff, there is little or

no moral blame attached to the person’s action or inaction. And unless the

employee’s propensities posed a substantial risk of personal injury to the plaintiff

or others in the same circumstances, there is again little moral blame to assign, and

the undesirable consequences of imposing potential liability—the possible chilling

of recommendations and proposals for hiring and retention—will tend to outweigh

the policy of preventing harm by imposing costs on negligent conduct. (See

Randi W. v. Muroc Joint Unified School Dist., supra, 14 Cal.4th at p. 1081.)

In John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at page 451,

we noted with concern the undesirable consequences that could flow from

imposing vicarious liability on public school districts for sexual misconduct by

teachers, including “the diversion of needed funds from the classroom to cover

claims” and the likelihood districts would be deterred “from encouraging, or even

authorizing, extracurricular and/or one-on-one contacts between teachers and

20

students.” To these still valid concerns we should add the possibility that

unsubstantiated rumors of sexual misconduct might curtail or destroy the careers

of innocent teachers, counselors or other employees. Against these concerns, we

have weighed in this case the value of negligence actions in providing

compensation to injured parties and preventing future harm of the same nature,

and have followed John R.’s suggestion that these remedial goals are best

addressed “by holding school districts to the exercise of due care” in their

administrators’ and supervisors’ “selection of [instructional] employees and the

close monitoring of their conduct,” rather than by making districts vicariously

liable for the intentional sexual misconduct of teachers and other employees.

(Ibid.) At the same time, we emphasize that a district’s liability must be based on

evidence of negligent hiring, supervision or retention, not on assumptions or

speculation. That an individual school employee has committed sexual

misconduct with a student or students does not of itself establish, or raise any

presumption, that the employing district should bear liability for the resulting

injuries. We note, as well, 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.

Within these limits, we conclude a public school district may be vicariously

liable under section 815.2 for the negligence of administrators or supervisors in

hiring, supervising and retaining a school employee who sexually harasses and

abuses a student. Whether plaintiff in this case can prove the District’s

administrative or supervisory personnel were actually negligent in this respect is

not a question we address in this appeal from dismissal on the sustaining of a

demurrer.

21

DISPOSITION

The judgment of the Court of Appeal is reversed, and the matter is

remanded to that court for further proceedings consistent with our opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

22

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

Name of Opinion C.A. v. William S. Hart Union High School District

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 189 Cal.App.4th 1166

Rehearing Granted

__________________________________________________________________________________

Opinion No. S188982

Date Filed: March 8, 2012

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Melvin D. Sandvig

__________________________________________________________________________________

Counsel:

Manly & Stewart, Vince W. Finaldi, John C. Manly; Esner, Chang & Boyer, Stuart B. Esner and Holly N.

Boyer for Plaintiff and Appellant.

Greines, Martin, Stein & Richland, Robert A. Olson, Feris M. Greenberger, Timothy T. Coates; McCune &

Harber, Stephen M. Harber and Joseph W. Cheung for Defendants and Respondents.

Dannis Woliver Kelley, Sue Ann Salmon Evans and Chad William Herrington for Education Legal

Alliance of the California School Boards Association as Amicus Curiae on behalf of Defendants and

Respondents.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici

Curiae on behalf of Defendants and Respondents.

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

Stuart B. Esner

Esner, Chang & Boyer

234 East Colorado Boulevard, Suite 750

Glendale, CA 91101

(626) 535-9860

Robert A. Olson

Greines, Martin, Stein & Richland

5900 Wilshire Boulevard, 12th Floor

Los Angeles, CA 90036

(310) 859-7811