Metropolitan News-Enterprise


Monday, July 20, 2015


Page 1


Court of Appeal Rules:

County Not Liable for Social Worker’s Assault on Foster Child




A county is not liable for the acts of an employee who sexually assaulted a foster child at the social worker’s apartment, the Fourth District Court of Appeal has ruled.

Div. Three affirmed Riverside Superior Court Judge Matthew C. Perantoni’s order granting summary judgment in favor of Riverside County, rejecting the claims of the now-20-year-old plaintiff, identified only as Z.V. The June 17 opinion was certified Thursday for publication.

The plaintiff was 15 when he was assaulted by Sean Birdsong, who pled guilty to one count each of assault with intent to rape or sodomize, lewd acts on a minor, child endangerment, false imprisonment and witness intimidation, and was sentenced to five years in prison in 2010.

Birdsong admitted that  he took the then-teenager, who had been placed in a foster home in the Rubidoux community, to the social worker’s apartment, tried to get him drunk, and touched him inappropriately.

Mary M. Case

In bringing the lawsuit, the plaintiff contended that the county was liable under the principles of Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202. The Mary M. case held that a female motorist stopped late at night by a city police officer on suspicion of drunk driving and subsequently raped by that officer could sue the city under a theory of respondeat superior.

In granting the county’s summary judgment motion, Perantoni ruled that the cases were distinguishable, and Justice William Bedsworth, writing for the Court of Appeal, agreed.

Mary M., the justice suggested, might be limited to the narrow circumstances of a uniformed, armed, on-duty officer. But even if the case applies more broadly, it cannot be stretched as far as the facts of Z.V.’s case, Bedsworth wrote.

“Birdsong was not Z.V.’s assigned social worker, he merely volunteered to transport Z.V. to a new foster home at the end of the workday,” the jurist explained. “The sexual assault took place after 8:30 at night, several hours after Birdsong’s shift would have normally finished, and after he had already completed the task of delivering Z.V. to the new home without incident.  It was several hours after the delivery that Birdsong went back to pick up Z.V. under the pretext of building ‘rapport,’ took him to a liquor store and then to Birdsong’s own apartment, where the attack took place.”

Ninth Circuit Case

Bedsworth also rejected the reasoning of the other major case relied on by the plaintiff, Lu v. Powell (9th Cir. 2010) 621 F.3d 944. Lu applied California law, pursuant to the Federal Tort Claims Act, to hold that the United States, as employer of a federal immigration officer, could be held liable for intentional infliction of emotional distress and violation of the right to asylum based on the officer’s sexual assaults on two asylum applicants.

Noting that the holding, having been rendered by a lower federal court, is not binding on state courts, the justice added that it was unpersuasive and inconsistent with California case law. He agreed with the dissenting judge in that case, Judge Jay Bybee, that a “host” of California decisions have rejected respondeat superior liability for sexual assault or molestation as outside the scope of employment, even where it could be said that the assault was “incident” to employment.

Bedsworth went on to reject the plaintiff’s alternative theory that the county was directly liable for negligent supervision.

For negligent supervision liability to apply, he said, there would have to have been knowledge on the part of a supervisor that Birdsong had the propensity to engage in tortious conduct.

Child’s Hesitancy

While Z.V. said he was hesitant to go with Birdsong on the day he was transported to his new foster home, the justice reasoned, he acknowledged that he never articulated any fear. “The most Z.V. said was there was ‘something about him I didn’t trust,’” Bedsworth wrote.                

Nor does the fact that the county allowed Birdsong to drive a county van establish “a lack of supervision or ineffective supervision,” as argued in the plaintiff’s appellate brief, the justice said. “This argument still fails because propensity is a function of human psychology, not an inanimate instrument which might help facilitate an attack….,” he wrote.

He cited, among other cases, Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, which held that a parent whose home was the site of a sleepover for teenage girls owed no duty to protect one of the guests from a sexual assault that occurred after she left the house without the host parent’s knowledge.

The parent’s duty, was limited to protecting the girls from foreseeable risks, the court held, declining to find the risk of the plaintiff being assaulted foreseeable in the absence of evidence “that such assaults were a risk at teenage parties among appellant’s schoolmates or in that area.”

In this case, the justice said, the connection between the assault and the county van was even more tenuous than that between the assault and the defendant’s home in Margaret W.

The case is Z.V. v. County of Riverside, 15 S.O.S. 3666.


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