# Farmers Insurance Group v. County of Santa Clara

> California Supreme Court · December 6, 1995 · 11 Cal. 4th 992

URL: https://www.frixlaw.com/law-library/cases/9533531

## Case

- **Full name:** FARMERS INSURANCE GROUP Et Al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** December 6, 1995
- **Citations:** 11 Cal. 4th 992; 47 Cal. Rptr. 2d 478; 95 Daily Journal DAR 16145; 906 P.2d 440; 11 I.E.R. Cas. (BNA) 1256; 69 Fair Empl. Prac. Cas. (BNA) 1120; 95 Cal. Daily Op. Serv. 9298; 1995 Cal. LEXIS 6796
- **Precedential status:** Published
- **Opinion:** Concurrence by George
- **Judges:** Baxter, George, Werdegar, Mosk
- **Cited by:** 168 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9533531

## How later opinions describe it (automated extraction)

- holding that the County could not be held vicariously liable for sexual harassment by a deputy sheriff who worked at jail, even though harassment occurred during work hours at the jail, because the misconduct was “motivated for strictly personal reasons unrelated to the guardi…
- holding that fact that nearly all 24 of harassing conduct took place at workplace during work hours was insufficient to establish that 25 wrongdoer was acting within scope of his employment
- acknowledging that the applicable statutes “indicate that respondeat superior and scope of employment principles are supposed to play an integral role in fixing an *51 employer’s liability for both supervisor and nonsupervisor sexual harassment” but applying the aided-by-agenc…
- noting that California cases generally decline to find vicarious liability for sexual misconduct other than in police-officer cases because “it [can] not be demonstrated that the various acts of sexual misconduct ar[i]se from the” conduct of the enterprise
- explaining the operation of the applicable Government Code provisions on municipal employee indemnification

## Opinion text

GEORGE, J., Concurring.
I agree with, and have signed, the majority opinion. I write separately because, in addition to distinguishing the decision in Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202 [ 285 Cal.Rptr. 99 , 814 P.2d 1341 ] (Mary M.) (as does the majority), I would go further and overrule Mary M., because I believe that case was wrongly decided. By declining to overrule that decision at this time, we run the risk that lower courts in future cases will feel constrained to follow the aberrant holding of that decision.
*1021 In Mary M. this court restated the principles governing whether an employee was acting within the scope of employment for purposes of respondeat superior, formulated by the court in cases such as Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 [ 227 Cal.Rptr. 106 , 719 P.2d 676 ] and John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 [ 256 Cal.Rptr. 766 , 769 P.2d 948 ]. Mary M. did not alter these established rules; it only purported to apply these rules in holding that a police officer acts within the scope of his employment when he rapes a woman he has detained. This startling result was based upon the proposition that the “potential for abuse” is inherent in the “extraordinary power and authority” granted to police officers. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, 216-217 .) This court concluded that “[t]he cost resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.” (Id. at p. 217.)
The majority in the present case distinguishes the decision in Mary M. by noting that the holding in that case applies only to “sexual misconduct by on-duty police officers against members of the public.” (Maj. opn., ante, at p. 1006.) The present case is different, because it involves acts of sexual harassment by Deputy Sheriff Craig Nelson against female deputy sheriffs working at a county jail. Nelson was the training officer of one of his victims and told her repeatedly that she would have to perform sexual acts in order successfully to complete her training. As the majority correctly concludes, the decision in Mary M. is not controlling in the present case, even as to the acts of harassment committed by Nelson in his role as training officer, because “the work-related authority of a supervisor over a trainee employee in a county sheriff’s department is in no way comparable to the extraordinary power and authority that police officers exercise over members of the public.” (Maj. opn., ante, at p. 1012; Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1384 [ 35 Cal.Rptr.2d 1 ] [in holding that arson committed by an on-duty fire marshal was outside the scope of his employment, the Court of Appeal observed that Mary M. “appears to have established a special rule for the independent wrongful acts of police officers based upon their unique position of both trust and power in our society”].) I would go further, however, and recognize that the holding in Mary M. is an aberration that should be overruled.
The majority in the present case correctly concludes that Nelson’s acts of sexual harassment were outside the scope of his employment, because they were undertaken solely for his personal gratification and had no purpose connected to his employment. The same was true in Mary M. The rape committed by the police officer in Mary M. was undertaken solely for his *1022 personal gratification and had no purpose connected to his employment. (See Thorn v. City of Glendale, supra, 28 Cal.App.4th 1379, 1383 [arson by an on-duty fire marshal was “the result. . . of a personal compulsion”].)
The circumstance that the police officer in Mary M. abused the authority vested in him in committing the rape does not bring his act within the scope of his employment if the crime was “so unusual or startling” that it cannot fairly be said to have arisen from the employment. As we stated in Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d 962 : “A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer. [Citation.]’ ” (Id. at p. 968.)
Thankfully, it is both unusual and startling for an on-duty police officer to rape a woman whom he has detained. It seems unfair to include the loss resulting from such a heinous and shocking crime among the losses to be expected from the operation of a police force by a public entity. Why should the public bear the financial burden imposed as a result of such misconduct, in situations where there has been no showing that the public entity was negligent either in hiring or supervising its employee?
The decision in Mary M. reached a contrary conclusion, reasoning that “[i]n view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct.” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, 217 .) But it is one thing to say that a public entity must expect that some police officers will abuse their authority by, for example, using excessive force in effectuating an arrest or detention (id. at p. 215) and quite another to conclude that a public entity must expect that some officers will rape women they have detained. Must a public entity similarly expect that some officers will misuse their authority to commit theft or murder while on duty? (See, e.g., People v. Von Villas (1992) 11 Cal.App.4th 175, 196-209 [ 15 Cal.Rptr.2d 112 ].) Is the public entity responsible for such crimes by off-duty police officers if the officers, in perpetrating the offenses, misuse their authority? I do not believe that such crimes, committed solely for personal reasons, fall within the scope of a police officer’s employment. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, 242 (conc. opn. of Baxter, J.).) Of course, if a public entity negligently hires or retains an officer who it knows, or reasonably should know, poses a danger of committing such misconduct, the entity may be held directly liable for the resulting injury.
*1023 Police officers should be governed by the same standard employed in determining whether the misconduct of other employees falls within the scope of employment. Police officers occupy a position of trust and authority in our society, but the same is true of other public employees, such as teachers. As Justice Baxter observed in his concurring opinion in Mary M.: “A schoolteacher alone at his home with an impressionable child has as much power and opportunity to commit a sexual assault against the child, especially one of tender years, as a police officer has to commit an assault against a citizen.” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, 234-235 (conc. opn. of Baxter, J.).)
The decision in Mary M. created special rules, purportedly applicable only to on-duty police officers, for determining whether sexual misconduct falls within the scope of employment for purposes of respondeat superior. I believe we should recognize that the general rules governing the doctrine of respondeat superior—and, in particular, the issue whether particular misconduct comes within the scope of employment—apply in all cases, including those involving sexual misconduct committed by on-duty police officers. Under these general rules, rape of a detainee by a police officer falls outside the scope of employment, because such misconduct is committed solely for the officer’s personal gratification and is “so unusual or startling” that it cannot fairly be said to have arisen from the employment. Accordingly, rather than simply distinguish the present case from Mary M., I believe we should overrule the decision in that case. By explicitly recognizing at this time the flaw in the Mary M. decision, we would assure that, in the future, all cases will be governed by the general rules of respondeat superior ably set forth and applied in the majority opinion.
Lucas, C. J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9533531. Public record. Not legal advice.