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Court of Appeal:
LAUSD Could Be Liable to Abused Pupils Without Knowledge of Coach’s Propensities
By a MetNews Staff Writer
The Los Angeles Unified School District could be held liable to three minors who were sexually abused by a school employee even though there was no reason to appreciate his dangerous propensities, Div. One of the Court of Appeal for this district declared yesterday, over a dissent.
Writing for the majority, Justice Gregory Weingart said in an unpublished opinion that based on the special relationship a school district has with its pupils, liability could be found on the part of the defendant to the plaintiffs on a theory of negligent hiring, supervising and retaining John Salinas as an elementary school coach. Acting Presiding Justice Helen I. Bendix joined in his opinion and Justice Victoria Chaney dissented.
The majority’s opinion reverses Los Angeles Superior Court Judge Jon R. Takasugi’s grant of summary judgment in favor of the school district, except to the extent that Takasugi found unavailable a common law negligence theory. Liability, if any, can only be founded, Weingart said, on statute—here Government Code §815.2(a) which provides:
“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.”
Weingart’s Opinion
The justice wrote:
“This appeal requires deciding between two competing tests for the foreseeable injury element of this duty of care. Does foreseeability require as matter of law that school supervisory or administrative personnel knew or should have known the deviant propensities of the employee that commits the abuse and nevertheless hired, retained, or inadequately supervised him or her? Or does foreseeability not require such actual or imputed knowledge about the specific employee, and instead address the foreseeability of risk to students in general from sexual abuse by persons at the school?”
Takasugi applied the former test; Weingart declared it is the latter that should have been utilized.
“A long, lamentable history shows the reasonable foreseeability of sexual abuse by employees of entities that provide activities exclusively for children, even where the organization has no advance knowledge that the particular employee who committed the abuse had a propensity to do so,” Weingart said.
He declared that the school district and its employees “had a duty to use reasonable measures to protect students from such a foreseeable risk of harm even if they did not know or have reason to know of the specific risk posed by Salinas.”
Chaney’s Dissent
Chaney insisted in her dissent:
“To show a district supervisor ‘knew or had reason to know’ that a teacher is prone to sexually abuse a student, a plaintiff must prove either that the supervisor actually knew about the teacher’s deviant propensities…or that circumstances put the supervisor on notice about them.” She said the plaintiffs admitted that Salinas had been subjected to background checks. The evidence showed that he was not retained despite awareness of his propensities rather, he was fired immediately after the first complaint was made by a child’s parents.
As to allegedly negligent supervision, Chaney said:
“[N]o evidence suggested that the district either ignored or set itself up to miss suspicious behavior or potential signs of abuse, and nothing the district observed or reasonably failed to observe gave it constructive knowledge that Salinas was a predator.”
Lacked Knowledge
She wrote:
“[T]he district contested the extent of its actual or imputed knowledge not as an issue of duty but of breach, arguing its conduct was reasonable because it had no actual or constructive knowledge that Salinas was dangerous.
“Therefore, the majority’s holding that LAUSD owed plaintiffs a duty does not answer the issue on appeal: Whether a triable issue exists as to the reasonableness of the district’s conduct in light of what it knew or should have known about Salinas.
“LAUSD presented this issue and answered it, and summary judgment was properly granted.” The case is R.D. v. Los Angeles Unified School District, B308957.
Luis A. Carrillo, Michael S. Carrillo, Laura M. Jimenez of South Pasadena’s Carrillo Law Firm joined with Holly N. Boyer and Kevin K. Nguyen of the Pasadena firm of Esner, Chang, Boyer & Murphy in representing the minors and Michele M. Goldsmith of BDG Law Group in Westwood acted for the school district.
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