Doe v. Anderson Union High Sch. Dist.

MAURO, ACTING P. J.

NOT TO BE PUBLISHED

(Super. Ct. No. 192696)

ON TRANSFER

MAURO, ACTING P. J.

Daniel Schafer, a teacher at a high school in the Anderson Union High School District (District), had a sexual relationship with one of his students, plaintiff Jane Doe, which included sexual activities in his classroom. Doe sued the District, principal Carol Germano, and superintendent Tim Azevedo for negligent hiring and negligent supervision. We refer to the defendants collectively as the District, except when being more specific is necessary to the discussion. The trial court granted the District's motion for summary judgment and entered judgment in favor of the District, finding there was no evidence the District knew or should have known that Schafer posed a risk of harm to students.

Doe now contends the trial court erred in granting summary judgment because the District had a duty to take reasonable measures to protect Doe, and whether the District breached its duty to Doe is a question for a trier of fact.

We conclude the District had a duty to take reasonable measures to protect Doe from sexual abuse by Schafer. This is so because the District had a special relationship with Doe, and the factors articulated in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) do not weigh in favor of limiting the District's duty. We further conclude that whether the District breached its duty to Doe is a question for a trier of fact. Because the trial court should not have granted the District's motion for summary judgment, we will reverse the judgment.

BACKGROUND

When Doe was 17 years old and a student at a high school in the District, she engaged in sexual activity with Daniel Schafer, a teacher at the high school, over a period of about three months. Doe told her best friend about the activity, and in September 2018, the District learned of the sexual relationship from the mother of Doe's best friend. The District immediately investigated, obtained Schafer's resignation, and notified Doe's parents and law enforcement.

Schafer had been a teacher in the District since 2012, and the District vetted him through education and law enforcement agencies and trained him on prevention of sexual harassment and child abuse. His relationship with Doe began with hand-holding and texting in Schafer's classroom. Eventually, Doe began visiting Schafer's classroom in the evening. On the first day of summer break 2018, Doe again visited Schafer in his classroom, and they engaged in sexual activities. Through the summer, they engaged in additional sexual activities in the classroom and at Schafer's home. Schafer pleaded guilty to crimes associated with this sexual relationship.

When the District hired Schafer in 2012, there were no facts, reports, or rumors that Schafer had ever engaged in any improper relationship. The revelation of his relationship with Doe was a surprise to the District.

A janitor once saw Doe alone with Schafer in his classroom after school but did not see any inappropriate conduct. The janitor told the school receptionist what she had seen, but because she did not think anything was wrong at the time, she did not tell principal Germano until after the District learned of the relationship and obtained Schafer's resignation.

The District maintained outdoor security cameras at the high school, including a camera that recorded video of the doors to Schafer's classroom. Footage from the cameras was saved for only 14 days before automatic erasure. The District's policy was to review the footage only if the District learned of an incident that may have been caught on video. The District also maintained an alarm system that covered the main building and Schafer's classroom. Each employee, including Schafer, had a code to deactivate the alarm. The District had not requested data from the alarm company on when alarms were deactivated or by whom.

Teachers had unrestricted access to the high school campus, but prior to the report of the relationship between Schafer and Doe, there had been no problems with teacher access. Principal Germano was the only administrator supervising the daily activities of the teachers at the high school. She was aware that teachers were on campus after hours, but she did not review video footage or alarm logs because such access had not been a problem.

In opposition to the District's motion for summary judgment, Doe submitted the declaration of David Jackson, a retired principal and school administrator. He had made it a practice at schools where he had worked to obtain and review alarm logs. If he found that a teacher was spending too much time on campus late at night, Jackson would interview the teacher and, possibly, review the video footage. According to Jackson, this review was inexpensive and cost-effective. But Jackson opined that "budgetary issues are never a concern when dealing with the safety of students."

In response to the motion for summary judgment, Doe conceded she did not have evidence to support the negligent hiring cause of action, so the trial court focused on the negligent supervision cause of action, concluding that to prove negligent supervision, Doe had to show not only that Schafer posed a risk of harm, but also that the risk was foreseeable, i.e., that the District knew or should have known of the risk that Schafer posed. The trial court granted the motion for summary judgment and entered judgment against Doe.

On review, this court affirmed. The California Supreme Court granted review and transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of Brown v. USA Taekwondo (2021) 11 Cal.5th 204 (Brown).

STANDARD OF REVIEW

" 'A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." '" (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1085.) The party moving for summary judgment bears the burden of persuasion. (Ibid.) We review de novo the trial court's judgment following the granting of a motion for summary judgment. (Ibid.)

DISCUSSION

Doe contends the District had a duty to take reasonable measures to protect her, and whether the District breached its duty to her is a question for a trier of fact.

A

Our first task is to determine whether the District had a duty to take reasonable measures to protect Doe from sexual abuse by Schafer. This determination is made by the court as a matter of law. (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 831-832 (KFC).)

The formulation of a duty of care does not depend on the specific facts of the case. "An approach that [focuses] the duty inquiry on case-specific facts would tend to 'eliminate the role of the [trier of fact] in negligence cases, transforming the question of whether a defendant breached the duty of care under the facts of a particular case into a legal issue to be decided by the court ....' [Citation.]" (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 773.) Citing Cabral and other authorities, Justice Cuellar, in a concurring opinion in Brown, emphasized that duty must be expressed at a high level of generality because what constitutes reasonable care in a specific case usually involves whether the defendant breached a duty. (Brown, supra, 11 Cal.5th at pp. 228-229 (conc. opn. of Cuellar, J.), citing Cabral, at p. 773.)

On the question of duty, we apply a two-step process. "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." (Brown, supra, 11 Cal.5th at p. 209; see also Rowland, supra, 69 Cal.2d 108.)

"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.' [Citation.] 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. [Citations.] 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. [Citation.]" (Brown, supra, 11 Cal.5th at p. 216.)

"[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.' [Citations.] 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. This principle has been applied in cases of employees' alleged negligence resulting in injury to a student by another student [citations], injury to a student by a nonstudent [citation,] and . . . 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)." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869-870, fn. omitted (C.A.); but see Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 499 [the school district had no special relationship with a child injured on the playground after hours because the child was not a student of the school and was not on school grounds for school attendance or a school function].)

"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. [Citations.]" (C.A., supra, 53 Cal.4th at p. 871.)

Here, the special relationship between the District and Doe gave rise to an affirmative duty to take reasonable measures to protect Doe from sexual assault by Schafer unless the Rowland factors counsel in favor of limiting such a duty.

The Rowland factors 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; see Brown, supra, 11 Cal.5th at p. 211, fn. 3.)

The first Rowland factor is the foreseeability of harm to the plaintiff. In addressing this factor, we do not consider the specific facts of the case but make our determination at a higher level of generality. Our task is not to decide whether Doe's particular injury was reasonably foreseeable in light of Schafer's particular conduct, but rather to evaluate more generally whether the category of alleged negligent conduct is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. (Cabral, supra, 51 Cal.4th at p. 772.) Accordingly, we consider whether negligent supervision of a teacher is sufficiently likely to result in sexual harm to a student to justify the imposition of liability. At this high level of generality, we conclude there is foreseeability. (See Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 131-132; cf. Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629-630 (Regents).)

The District urges the opposite conclusion on foreseeability, citing a California Supreme Court footnote suggesting it is "an unduly pessimistic view of human nature" to conclude "sexual misconduct is foreseeable any time a minor and an adult are alone in a room together ...." (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 450, fn. 9 (John R.).) But that statement was not made as part of a determination of the duty of care. Rather, it supported the Supreme Court's conclusion that a school district may not be held vicariously liable under a respondeat superior theory for a teacher's misconduct, a proposition now well-established. (Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 107 ["Courts have generally held that an employer is not liable under the doctrine of respondeat superior for sexual assaults committed by an employee."].) But a school district may be held liable for the negligence of administrators acting on behalf of the school district, as Doe seeks to do in this case. (Regents, supra, 4 Cal.5th at p. 619 [public agency vicariously liable for negligence of employees within the scope of their employment].) As to whether it is foreseeable that a school district's negligent supervision may result in sexual harm to students, consideration at a high level of generality supports this threshold finding of foreseeability. The statement in John R. about specific foreseeability of sexual harm "any time a minor and an adult are alone in a room together" (John R., at p. 450, fn. 9) is therefore not controlling in this case.

The District also cites authority for the proposition that a district's duty of supervision is limited to risks of harm that were known or reasonably should have been known to the district. (Virginia G. v ABC Unified School Dist., supra, 15 Cal.App.4th at p. 1851.) However, what a district actually knew, or what it should have known, are the types of case-specific factual questions generally left to the trier of fact. (Cabral, supra, 51 Cal.4th at p. 773)

The second Rowland factor is the degree of certainty that the plaintiff suffered injury, which may come into play when the plaintiff allegedly suffered intangible harm. (Regents, supra, 4 Cal.5th at p. 630.) There is no dispute here that Doe was harmed.

The third Rowland factor is the closeness of the connection between defendant's conduct and the injury. (Regents, supra, 4 Cal.5th at p. 630.) Viewed once again with a higher level of generality, a district's negligent supervision is not so attenuated from sexual harm that it would support limiting the relevant duty. (Cf. id. at pp. 630-631; Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 678-679.)

The California Supreme Court has explained that the first through third Rowland factors relate to foreseeability, whereas the fourth through seventh factors involve considerations of public policy." 'A duty of care will not be held to exist even as to foreseeable injuries . . . where 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.' [Citations.]" (Regents, supra, 4 Cal.5th at p. 631.)

The fourth Rowland factor is the amount of moral blame that attaches to the defendant's conduct. Again viewed as a general matter, the blame for negligent supervision is not inconsequential and does not militate in favor of limiting the duty to take reasonable measures to protect students. (See Regents, supra, 4 Cal.5th at p. 631.)

The fifth Rowland factor is the policy of preventing future harm. (Rowland, supra, 69 Cal.2d at p. 113.) Because, on a general level, imposing a duty to take reasonable measures to protect students has the potential to avert an incident of sexual harm, recognizing such a duty serves the policy of preventing future harm. (Regents, supra, 4 Cal.5th at p. 632.) Of course, there remains the specific factual question of whether the District acted reasonably under the circumstances. "The reasonableness of a school's actions in response to a potential threat is a question of breach." (Id. at p. 633.)

The sixth Rowland factor is the extent of the burden on the defendant and the consequences to the community in imposing a duty. (Rowland, supra, 69 Cal.2d at p. 113.) Viewed at a higher level, a general duty to take reasonable measures to protect students does not seem overly burdensome, given that districts already have measures in place to protect students from various harms. (Doe v. Lawndale Elementary School Dist., supra, 72 Cal.App.5th at p. 137.) Although there is a specific argument in this case that raises a concern about the extent of the burden on the defendants and the consequences to the community -- the argument that the district superintendent or principal should have routinely monitored or reviewed security camera footage and alarm data -- we acknowledge that this concern is more appropriately addressed by a trier of fact in determining whether defendants breached their duty to take reasonable measures to protect Doe. We remain concerned that imposing an expectation on district and school leadership to engage in constant surveillance of teachers and students, without a reasonable basis for suspicion, would be unreasonably burdensome and would dilute trust and morale. But we accept that our analysis of the sixth Rowland factor must be at a higher level of generality, and that the more specific question is for a trier of fact. For example, a trier of fact could agree with David Jackson that it would have been a simple and minimally intrusive task to monitor or review security camera and alarm information. Or a trier of fact might conclude that it would have been overly burdensome and intrusive to expect daily surveillance and monitoring of all employees, students, and visitors, and therefore the District did not breach its duty to take reasonable measures to protect Doe. We leave it to a trier of fact to decide these questions.

The seventh Rowland factor is the availability and prevalence of insurance to cover the alleged negligence. (Rowland, supra, 69 Cal.2d at p. 113.) The District represents that it is a member of joint powers organizations that effectively self-insure the District for negligence. But the record does not contain sufficient evidence in this regard.

When considered on the appropriately general level, the Rowland factors do not weigh in favor of limiting the District's duty to take reasonable measures to protect Doe from sexual abuse by Schafer.

B

If a court determines that a duty exists, the next question is whether the defendant breached that duty by failing to use reasonable care. (KFC, supra, 14 Cal.4th at pp. 831832.) As we have indicated, courts tend to leave questions of breach to a trier of fact. (Brown, supra, 11 Cal.5th at pp. 228-229 (conc. opn. of Cuellar, J.), citing Cabral, supra, 51 Cal.4th at p. 773.) Generally, a trier of fact decides whether the defendant used the care that a reasonable person would use under the circumstances to avoid harm to the plaintiff. (Ibid.) Although a motion for summary judgment may be granted when all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law (Code Civ. Proc., § 437c, subd. (c)), Doe contends the District failed to carry its burden of establishing there are no remaining material facts to be tried. (See ibid.)

We agree that on this record, triable issues of fact exist. As we have explained, the District had a duty to take reasonable measures to protect Doe. Whether the District took reasonable measures to meet its duty is for a trier of fact to decide. The motion for summary judgment should not have been granted.

DISPOSITION

The judgment is reversed. Doe is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

We concur: DUARTE, J., KRAUSE, J.