Tuesday, September 1, 2009
City Not Liable for Alleged Sex Assault by Firemen
C.A. Absolves Sacramento in Conduct of Workers Who Attended ‘Porn Star Ball’
By SHERRI M. OKAMOTO, Staff Writer
A landmark California case holding a public employer responsible for a sexual assault committed by a police officer while on duty should not be extended to other types of government employees, the Third District Court of Appeal said yesterday.
A majority of the panel declined to hold the city of Sacramento responsible for an alleged sexual assault on a photographer by two firemen who had attended the Porn Star Costume Ball in 2004. The court affirmed Sacramento Superior Court Judge Shelleyanne W.L. Chang’s grant of summary judgment in favor of the city.
A 24-year old woman identified as M.P. was working as a photographer at the event where she claimed she “came across a crew of firefighters” who “had driven their trucks to the event” and were allowed by their captain to “drink and flirt with many women.”
M.P. said she accompanied Tom Mitchell and Scott Singleton out of the hotel to a fire truck in order to photograph them, but once she entered the vehicle, the men sexually assaulted her.
Alleging that the city and its fire department had policies permitting firefighters to take trucks to bars and parties and “pick up on women and take women on their fire trucks,” M.P. filed suit against the city, Mitchell and Singleton.
Although the fire department was initially named as a defendant, it was later dismissed as a party.
The city moved for summary adjudication, contending there were no triable issues of material fact as to any of M.P.’s causes of action, accepting for purposes of its motion that M.P.’s claim of assault was true. M.P. did not file an opposition.
Chang later ordered entry of judgment in favor of the city, finding that the sexual assault was not within the scope of the firefighters’ employment.
Writing for the appellate court, Presiding Justice Arthur G. Scotland agreed, distinguishing M.P.’s case from Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, which held a public entity that employs a police officer can be vicariously liable for a rape committed by the officer against a woman he detained while on duty.
Acknowledging that the appellate court was bound by the holding of Mary M., Scotland questioned whether that holding remains viable, suggesting that at least two of the high court’s justices would vote to overrule the decision.
But Scotland said Mary M. was not applicable to the alleged sexual misconduct in this case, emphasizing that the firefighters had no coercive authority over their victim in the same way a police officer has over a detainee.
He further noted that the firemen had not purported to be engaged in firefighting duties and that Singleton was off duty at the time of the alleged assault.
As a sexual assault was “not a risk that may fairly be regarded as typical of or broadly incidental to the operations of a firefighter,” Scotland concluded, the sexual misconduct fell outside the scope of the firefighters’ employment.
Justice George Nicholson joined Scotland in his opinion but Justice Tani Cantil-Sakauye dissented, arguing that the city and her colleagues had ignored allegations in the complaint which made the alleged sexual assault foreseeable.
“[T]here is at least a triable issue of fact whether the assault was fairly attributable to the work conditions under which, allegedly, firefighters were permitted to take trucks to bars, drink, and pick up women,” she insisted.
Cantil-Sakauye further urged that the policy goals of respondeat superior favored imposition of vicarious liability since it would lead to the adoption of precautionary measures.
Additionally, she asserted “it is equitable to have the costs of alleged policy, which led to the sexual assault, borne by the entity that benefits from the policy.”
If the city had a policy allowing firefighters to “go to bars, drink and pick up women,” Cantil-Sakauye reasoned the city “presumably had determined the policy has some benefit” and so the city should bear the losses attributable to that policy in the interest of fairness.
The case is M.P. v. City of Sacramento, 09 S.O.S. 5311.
Copyright 2009, Metropolitan News Company