Metropolitan News-Enterprise


Friday, March 9, 2012


Page 1


Supreme Court Revives Suit Against School District Over Molestation of Student by Counselor




A school district may be liable for negligent hiring, training, and or retention of an employee who molested a student, even if the actual molestation took place when the counselor was acting outside the scope of her employment, the California Supreme Court ruled yesterday.

Reversing a 2010 decision by Div. One of this district’s Court of Appeal, the unanimous court revived a claim by a now-19-year-old plaintiff against the William S. Hart Union High School District in Santa Clarita.

The Court of Appeal held that the counselor could not have been acting within the scope of her employment, and that school districts are immune from liability on theories of negligent supervision, hiring, or training, or failure to warn, train, or educate.

Justice Kathryn M. Werdegar agreed that the counselor was acting outside the scope of employment, but said the plaintiff, identified only as C.A., may proceed with his claim.

“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,” the justice wrote. “...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 [Government Code] section 815.2.”

C.A. filed suit in 2009, claiming he was harassed and molested on numerous occasions in 2007 by Roselyn Hubbell, an employee of Golden Valley High School.

Hubbell resigned in 2008 after being accused of improper conduct with two students. The Signal, a local newspaper, said she tried to check into a motel with an underage boy—not the plaintiff—and was required to register as a sex offender.

No charges were filed involving C.A. because he delayed reporting what transpired, the newspaper said. The molestations involving C.A., according to those accounts, took place at several locations, including the boy’s home, to which his mother had given Hubbell access, believing that the counselor was merely talking to the boy about school matters.

Los Angeles Superior Court Judge Melvin Sandvig sustained the district’s demurrer, finding that Hubbell was acting outside the scope of her employment, and that the plaintiff’s statutory sexual harassment claims could not be brought against a public entity.

The Court of Appeal majority agreed, but the Supreme Court yesterday largely adopted the reasoning of Presiding Justice Robert Mallano, who dissented from the lower panel’s decision.

Under Sec. 815.2, Werdegar noted, “[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.’

Supervisory personnel, the jurist elaborated, have a duty to take reasonable measures to protect students from abuse, including abuse by teachers and counselors when they know or have reason to know of the potential for such abuse.

Werdegar rejected the argument that administrators and supervisors cannot be held responsible for hiring decisions made by the school board, or for retaining employees who are certificated and cannot be fired without the approval of a commission on professional competence.

Administrators have input into those decisions, the justice noted, and liability may exist when they fail to do so in a reasonable manner.

Werdegar cited Mallano’s dissent, in which he argued that 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.”

Mallano wrote:

“An administrator who hires a known child molester as a guidance counselor and fails to provide adequate training, 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.”

Werdegar emphasized that the appeal was from the sustaining of a demurrer, so the court did not address the issue of whether school officials were actually negligent.

The case was argued in the Supreme Court by Stuart B. Esner of Esner, Chang & Boyer for the plaintiff and Robert A. Olson of Greines, Martin, Stein & Richland for the district.

The case is C.A. v. William S. Hart Union High School District, 12 S.O.S. 1151.


Copyright 2012, Metropolitan News Company