Metropolitan News-Enterprise


Friday, September 4, 2009


Page 1


Court: Referral Agency Not Liable for Assault at Day Care


By STEVEN M. ELLIS, Staff Writer


A minor cannot sue the nonprofit corporation that referred him to a family day care home where he was sexually assaulted, this district’s Court of Appeal has ruled.

In an opinion published yesterday, Div. Two held that Children’s Institute Inc. had no duty to protect against the unforeseeable assault by the daycare provider’s visiting 14-year-old grandson, and could not be held vicariously liable for any possible breach of duty by the provider.

Justice Kathryn Doi Todd wrote that the corporation was not liable for any possible breach by provider Yolanda Yglesias because state Education Code provisions outlining the corporation’s supervisory and monitoring obligations did not impose a nondelegable duty to prevent unforeseeable harm, and because Yglesias was an independent contractor.

The justice also opined that the victim’s family had no basis to believe Yglesias was Children’s Institute’s agent absent statements or conduct by the corporation that would reasonably generate such a belief.

The family of the minor, identified as “J.L.,” brought suit for negligence after J.L. was assaulted at a day care facility at Yglesias’ residence in August 2005. Yglesias subsequently surrendered her day care license and closed the facility.

Children’s Institute holds a contract with the state to provide child care services through its own licensed facilities in Los Angeles County and contracts with approximately 45 family day care homes—which are licensed by the state—to which eligible families may be referred.

Families who meet eligibility requirements can request services at one of the corporation’s facilities or may elect to visit and choose from among three contracted family day care homes.

Children’s Institute contracted with Yglesias as an independent contractor and J.L. began receiving services at Yglesias’ home in 2004. However, the child’s mother became concerned the following year when she saw two adult male individuals at Yglesias’ home who Yglesias identified as her grandchildren.

J.L.’s mother notified Children’s Institute case manger Martha Ramirez, who indicated that Yglesias assured her the individuals remained outside doing mechanical work. Ramirez also told J.L.’s mother that individuals needed authorization to be present at the Yglesias home.

Approximately one month later, J.L.’s mother again contacted Ramirez after observing a 14-year-old boy inside the day care area. Ramirez observed the boy at a subsequent visit, but never saw him near any of the children and was told by Yglesias that the boy was her grandson who was visiting while on vacation.

Ramirez said she was neither suspicious of nor concerned by the boy’s presence, as she never observed or received a report about a lack of supervision or inappropriate behavior. She similarly said she never received any information indicating the boy had a history of sexual abuse as either a perpetrator or a victim.

After J.L.’s family brought suit, Children’s Institute sought summary judgment on the grounds that undisputed evidence showed it was not vicariously liable for Yglesias’ acts, and that the corporation was not negligent in referring to and supervising Yglesias, or in failing to warn J.L.’s family of an unforeseeable risk.

Los Angeles Superior Court Judge Michael C. Solner granted the corporation’s request and J.L.’s family argued on appeal that there was a special relationship between the corporation and the child which established a duty as a matter of law.

However, Doi Todd said the lack of any reasonable foreseeability of the assault was dispositive and concluded that Children’s Institute was not subject to a nondelegable duty to ensure the safety of all children referred to a family day care home under Jordy v. County of Humboldt (1992) 11 Cal.App.4th 735.

“[W]hile the Education Code provisions outlining CII’s supervisory and monitoring obligations imposed on CII a duty to prevent foreseeable harm about which it had actual notice, those statutes afforded no basis for imposing a nondelegable duty to prevent the unforeseeable harm that occurred here,” she said.

Noting that Yglesias was an independent contractor, the justice similarly rebuffed an alternative argument that Children’s Institute owed a nondelegable duty because Yglesias operated pursuant to a public license and rejected any attempt to impose liability under an ostensible agency theory.

Presiding Justice Roger W. Boren and Justice Victoria M. Chavez joined Doi Todd in her opinion.

The case is J.L. v. Children’s Institute, Inc., B206959.


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