Monday, August 6, 2018
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Court of Appeal:
Hiring of Ill-Trained Masseur Doesn’t Create Liability for Sexual Assault
By a MetNews Staff Writer
The First District Court of Appeal has affirmed a summary judgment in favor of a foot message spa that was sued under on a negligent hiring theory by a patron who fell asleep during a treatment and, as she awoke, allegedly found she was being sexually assaulted by the masseur.
Plaintiff/appellant Alexandra Vasstrom argued that Michelle Ho, doing business as Massage Lounge aka Super Foot Spa, was derelict in hiring the massage practitioner, Patrick Foo Tzeng, based on testimony that his certificate of completion of courses came from a discredited diploma mill, and he might actually have attended no classes.
At the time he was hired in October 2012, Tzeng had a certificate from American Vocational College, but lacked a message license; by the time of the incident in question, on Jan. 22, 2013, he had been licensed.
Kline’s Opinion
Affirmance came Thursday in an unpublished opinion for Div. One by Presiding Justice J. Anthony Kline, who wrote:
“[W]hile Tzeng’s allegedly poor or incomplete massage training and lack of a license might be relevant to a claim against respondent based on an injury caused by Tzeng’s deficient performance as a massage practitioner, those facts do not provide a basis for holding respondent liable for his sexual assault on a theory of negligent hiring or supervision. Instead, the relevant question is whether respondent knew or should have known of a propensity on Tzeng’s part to commit sexual assault.”
He added:
Appellant has not alleged the existence of any evidence showing that respondent was on notice that Tzeng had such a propensity, or even that Tzeng had committed a previous sexual assault.”
Denial of Costs
Ho was denied costs on appeal. Kline cited the 2015 case of Z.V. v. County of Riverside which denied relief to a minor who was sexually assaulted by a social worker.
Justice William Bedsworth of the Fourth District’s Div. Three made note of the “trauma experienced” by the plaintiff and said:
“Though we affirm the judgment in favor of the county, we exercise our own discretion to depart from the usual rule that the loser pays costs on appeal.”
The case is Vasstrom v. Tzeng, A149362.
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