Metropolitan News-Enterprise


Friday, April 2, 2021


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California Supreme Court:

No Duty to Protect Against Third Parties Exists Absent ‘Special Relationship’


By a MetNews Staff Writer


The U.S. Olympic and Paralympic Committee cannot be held liable for the sexual abuse of three teenage athletes by their coach because it did not have a special relationship with them, the California Supreme Court held yesterday in a unanimous opinion, saying the inquiry ends there without an examination of other factors.

Justice Leondra Kruger authored that opinion. Justice Mariano-Florentino Cuéllar, while signing it, added a concurring opinion.

The high court affirmed an Oct. 8, 2019 decision by Div. Seven of this district’s Court of Appeal. That court, in an opinion by Justice Gail Ruderman Feuer, affirmed Los Angeles Superior Court Judge Michael P. Vicencia’s dismissal of the action by former taekwondo competitors Yasmin Brown, Kendra Gatt and Brianna Bordon against what was then called the United States Olympic Committee (“USOC”) but reversed dismissal as to USA Taekwondo (“USAT”).

Feuer said that USOC “did not owe a duty to plaintiffs because it did not have a special relationship with” the coach, Mark Gitelman, or the plaintiffs. She explained:

“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.”

Gitelman was convicted in 2015 of oral copulation of a person under 18, unlawful sexual intercourse and lewd act upon a child, and is now incarcerated.

Kruger’s Opinion

Kruger agreed with the approach taken by Feuer. Having found a special relationship lacking, she did not proceed to analyze the case in light of the policy considerations set forth in the California Supreme Court’s 1968 decision in Rowland v. Christian.

Factors delineated there include “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.”

Some courts of appeal have held that a plaintiff suing over a failure to protect may proceed under either the special relationship test or the Rowland factors, while yet others have required that both tests be met, and yet others view the special relationship test as including the Rowland factors, Kruger noted.

Rowland Factors’ Purpose

She declared:

“The multifactor test set forth in Rowland was not designed as a freestanding means of establishing duty, but instead as a means for deciding whether to limit a duty derived from other sources.”

Kruger went on to say:

“But where no such circumstances exist, the Rowland factors do not serve as an alternative basis for imposing duties to protect.  The purpose of the Rowland factors is to determine whether the relevant circumstances warrant limiting a duty already established, not to recognize legal duties in new contexts.”

Feuer appropriately did consider the Rowland factors in connection with USAT, Kruger said, because it did find a special relationship there.

Cuéllar, in a 17-page opinion, analyzed the majority’s opinion and expressed his agreement with it.

The case is Brown v. USA Taekwondo, 2021 S.O.S. 1336.

Brown, Gatt and Bordon obtained a $60 million default judgment against Gitelman on July 24, 2017, the collectability of which is in doubt.

The matter has been on hiatus awaiting the Supreme Court’s opinion, with no date set for the trial of the action against USAT.


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