Thursday, October 10, 2019
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Court of Appeal:
Nonprofit Might Be Liable to Victims of Sexual Child Abuse
Olympic Committee’s National Governing Body for Taekwondo Had ‘Special Relationship’ With Coach, a Predator, Creating Duty, Under Facts Alleged, to Protect the Plaintiffs, Opinion Says
By a MetNews Staff Writer
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MARC GITELMAN Sex Offender |
The Court of Appeal for this district has resuscitated an action against the United States Olympic Committee’s “national governing body” for competition in taekwondo, a Korean martial art, brought by three women who were under the age of consent when their coach had sex with them.
Tuesday’s decision by Div. Seven reverses Los Angeles Superior Court Judge Michael P. Vicencia’s dismissal of the action brought by Yasmin Brown, Kendra Gatt and Brianna Bordon, now adults, against USA Taekwondo (“USAT”), a nonprofit corporation headquartered in Colorado Springs. Writing for the panel, Justice Michelle Feuer said there was a duty on the part of USAT to take steps to protect the athletes based on the “special relationship” it had with the coaches.
The federal Amateur Sports Act of 1978 (now known as the “Ted Stevens Olympic and Amateur Sports Act”) created the United States Olympic Committee (“USOC”) and authorized it to provide a national governing body for each Olympic sport.
While bringing USAT back into the litigation, Feuer’s opinion affirms the judgment of dismissal of USOC as a defendant, which followed Valencia’s sustaining of demurrers without leave to amend. Feuer said the committee had no special relationship with the coach, explaining:
“Although USOC had the ability to control USAT, including requiring it to adopt policies to protect youth athletes, it did not have direct control over the conduct of coaches.”
Action Against Coach
The former coach, Marc Gitelman, was also sued. Valencia in July 2017 ordered entry of a $60 million default judgment against him but the collectability of the money is doubtful.
Gitelman was convicted by a jury on Sept. 8, 2015, of one count each of unlawful sexual intercourse with Brown and oral copulation of her and one count of commission of a lewd or lascivious act involving Gatt, and was sentenced by Los Angeles Superior Court Judge Bruce Marrs on Oct. 26, 2015 to four years and four months in prison.
The judgment was affirmed on June 19, 2017 by Div. One of this district’s Court of Appeal, in a majority opinion by Justice Victoria Chaney.
Decision in Regents
Feuer pointed to the California Supreme Court’s decision last year in Regents of University of California v. Superior Court. It was held in that case that while, generally, there is no duty to control a dangerous person or warn a potential victim of that person’s proclivities, “a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct.”
USAT had a special relationship with Gitelman, Feuer said, “because Gitelman was required to register with USAT to coach taekwondo at USAT-sponsored competitions, athletes could only compete in competitions with registered coaches, USAT could (and later did) implement policies and procedures to protect athletes from sexual abuse by their coaches, and USAT could (and later did) bar Gitelman from coaching athletes at taekwondo competitions for his violations of USAT’s policies and procedures.”
She continued:
“USAT was therefore in a unique position to protect taekwondo youth athletes from harm.”
Rowlands v. Christian
Feuer said that the reversal follows an “examination of the Rowland factors,” upon which the court in Regents had relied. Rowland v. Christian is a 1968 state high court case dealing with the liability of landowners to persons on their property.
The majority said in that case that a departure from the general rule of liability for negligence “involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”
Each of those considerations was discussed by Feuer in connection with the action against USAT. She declared:
“[O]n the facts as alleged, the Rowland factors support recognition of USAT’s duty to use reasonable care to protect taekwondo youth athletes from foreseeable sexual abuse by their coaches.
Allegations of Complaint
The allegations included:
“By 2007 sexual abuse of minors by figures of authorities, like priests, coaches, and scout leaders was a widely known risk in American society. Plaintiffs are informed and believe and thereon allege that at all times herein mentioned, defendants….were aware that female taekwondo athletes, and Olympian level athletes in general were frequently victims of sexual molestation by their coaches yet did nothing to protect these athletes from such abuse. Plaintiffs are informed and believe and thereon allege that defendants regularly received complaints from athletes or their parents regarding improper sexual conduct by coaches and that these complaints were discussed in ‘executive sessions’ of defendants… various boards of directors.”
The complaint sets forth that sexual abuse by coaches “was so rampant that by 1999 defendant USOC required all [national governing bodies] to have specific insurance to cover coach sexual abuse” and that USAT did purchase such insurance in 1999. It contains an averment that USAT was “aware that female taekwondo athletes, and Olympian level athletes in general were frequently victims of sexual molestation by their coaches yet did nothing to protect these athletes from such abuse.”
Feuer said:
Based on these allegations, it was foreseeable youth athletes attending Olympic qualifying competitions with their coaches might be sexually molested by their coaches, regardless of whether USAT had knowledge of prior sexual misconduct by Gitelman.”
The case is Brown v. USA Taekwondo, 2019 S.O.S. 3077.
Federal Lawsuit
Last year, a putative class action was filed in the U.S. District Court for the District of Colorado by four female athletes alleging that USOC and USAT “have exposed hundreds of young female athletes to two adult sexual predators: the coach of USA Taekwondo and his own brother, who he is supposed to monitor and supervise.”
It forced them to be trained by and travel with these two men, the pleading states, and that they were the victims of sexual abuse, assault, and rape.
The First Amended Complaint declares, at the outset:
“This class action involves over two decades of sexual abuse, exploitation, and trafficking of Team USA’s Olympic taekwondo athletes by the Olympic entities, officials, coaches, and mentors who were entrusted to protect them.”
That case, Gilbert v. United States Olympic Committee, remains pending.
The plaintiffs on Sept. 30 voluntarily dismissed USOC as a defendant.
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