KIMBERLY COBBS v. LOS ANGELES UNIFIED SCHOOL DISTRICT

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Court of Appeal, Second District, Division 7, California.

KIMBERLY M., by her guardian ad litem Debra COBBS, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

No. B024434.

Decided: December 17, 1987

Lane and Friedman and Barry J. Lane, Los Angeles, for plaintiff and appellant. La Follette, Johnson, De Haas & Fesler and Alfred W. Gerisch, Jr., Los Angeles, for defendant and respondent.

In this opinion, we hold that Los Angeles Unified School District (district) was improperly dismissed as a defendant because we cannot say as a matter of law that plaintiff's injuries were inflicted by the district's employee teacher while acting outside the scope of employment.

Plaintiff through her guardian ad litem filed a tort action seeking damages from the district and Does 1–10 for an alleged sexual assault by Doe 1 (hereafter teacher), plaintiff's teacher.   Plaintiff appeals from an order of dismissal entered against her which sustained the district's demurrer to the first amended complaint for failure to state a cause of action against it under the doctrine of respondeat superior.1

I

FACTS

The allegations of the first cause of action of the first amended complaint (hereafter complaint) which we must accept as true show the following:  On November 18, 1985, plaintiff, a five-year-old student at the district's Russell Elementary School, was molested by her teacher after plaintiff complied with the teacher's order to undress.   Specifically, the complaint states teacher ordered plaintiff “to undress by either lowering or removing both her outer clothing and undergarment and did thereupon insert her finger into plaintiff's pubic area, tearing a portion of the child's anatomy and causing injury thereby.”   The complaint further alleges that teacher, in the course of her contractual duties with the district, maintained strict order in her classroom during classroom hours, and that her students were obligated to comply with her rules, directives and orders or risk being disciplined.

The district demurred to the complaint on the grounds of uncertainty and failure to state a cause of action.   In response to the contention that her complaint was uncertain as to whether the district's liability was predicated upon the doctrine of respondeat superior or direct negligence, plaintiff contended her first cause of action stated a claim against the district under the doctrine of respondeat superior.   Plaintiff argued the district was vicariously liable for her injuries under Government Code section 815.2, subdivision (a),2 because they were inflicted by an employee while acting in the scope of employment.

The court sustained the demurrer without leave to amend.   This appeal followed.

II

ISSUE

On appeal, plaintiff raises only the issue of whether the district may be vicariously liable for a sexual molestation perpetrated by its teacher in a classroom against a five-year-old student.3  Plaintiff contends that the district is vicariously liable under Government Code section 815.2 because her injury was proximately caused by acts of its employee within the scope of employment.

III

DISCUSSION

“It is well settled that ‘[i]n considering the sufficiency of a pleading, we are bound by the rule that on appeal from a judgment entered on demurrer, the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.  (Code Civ.Proc., § 452.)’  [Citation.]   Obviously, the complaint must be read as a whole [citation], and each part must be given the meaning it derives from the total context wherein it appears.  [Citations.]”  (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719, 104 Cal.Rptr. 897.)

 A plaintiff is required only to set forth the essential facts of his or her case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of her cause of action.   (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245, 74 Cal.Rptr. 398, 449 P.2d 462.)  “The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff;  less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff.”  (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 879, 31 Cal.Rptr. 606, 382 P.2d 878.)   This seems particularly applicable to a sexual molestation action against a school district where the plaintiff is a five-year-old child and the alleged abuse occurred at the hands of a teacher in a classroom.  (See Semole v. Sansoucie, supra, 28 Cal.App.3d at p. 719, 104 Cal.Rptr. 897.)

As set forth below, we conclude the amended complaint sets forth facts sufficient to state a cause of action.

A. The School District's and Teacher's Duty to Protect Students

 The State, acting through the Legislature, has vested in school districts and teachers broad power and authority over children.   In fact, attendance is compulsory between the ages of six and sixteen, unless exempted.  (Educ.Code, § 48200.)   Corresponding with this power is the duty owed by the school officials “to supervise at all times the conduct of children on the school grounds.”  (Ziegler v. Santa Cruz City High Sch. Dist. (1959) 168 Cal.App.2d 277, 284, 335 P.2d 709.)  “The school officials, as a body and individually, have a responsibility for maintaining order upon the school premises so that the education, teaching and training of the students may be accomplished in an atmosphere of law and order.”  (In re Donaldson (1969) 269 Cal.App.2d 509, 512, 75 Cal.Rptr. 220, disapproved on other grounds in In re William G. (1985) 40 Cal.3d 550, 559, 221 Cal.Rptr. 118, 709 P.2d 1287.)

 The schools are not merely empowered to maintain law and order so that learning can take place;  they are required to maintain law and order so that children are kept safe.  “․ California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on school grounds and to enforce those rules and regulations necessary to their protection.’  [Citations.]  The standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties.   This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’   [Citations.]”  (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360.)

Recently, the California voters approved Proposition 8, which amended the California Constitution to include the guaranteed right to safe schools.   (Cal. Const. art. I, § 28, subd. (c).)  That constitutional provision states:  “Right to Safe Schools.   All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful.”  (See Comment, The Right to Safe Schools:  A Newly Recognized Inalienable Right (1985) 14 Pacific L.J. 1309.)

 Obviously the implementation of this right to safe schools must be carried out in no small measure by teachers, who are required to enforce the course of study, rules and regulations prescribed for schools.  (Educ.Code, § 44805.)   Even without the constitutional amendment, every public school teacher is statutorily charged with the duty of holding students “to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.” 4  (Educ.Code, § 44807.)   And teachers are mandated “to impress upon the minds of the pupils the principles of morality, truth, justice, patriotism, and a true comprehension of the rights, duties, and dignity of American citizenship, including kindness toward domestic pets and the humane treatment of living creatures, to teach them to avoid idleness, profanity, and falsehood, and to instruct them in manners and morals and the principles of a free government.”  (Educ.Code, § 44806.)

 With respect to sexual molestation, school districts and teachers have been statutorily charged with the duty of reporting suspected instances of child abuse and neglect.  (Pen.Code, §§ 11165–11174.5.)   The child abuse reporting law, originally covering only physicians, was amended in 1966 to include school superintendents and principals (1966 Cal.Stat. 1st Ex.Sess., ch. 31, § 2, at 325, amending Pen.Code § 11161.5), and was again amended in 1971 to include school teachers (1971 Cal.Stat. ch. 1729, § 7, at 3680).   Thus school teachers and administrative officers are designated “child care custodians” charged with mandatory reporting duties, the violation of which is a misdemeanor.  (Pen.Code, §§ 11165, subd. (h), 11166.1.   See Los Angeles Unified School Dist., Student Health Services Div., Bull. No. 16 (Feb. 11, 1985), Child Abuse—Reporting Nonaccidental Physical Injuries, Injurious Acts or Omissions, Sexual Assaults and/or Neglect of Children.   See generally, Comment, Reporting Child Abuse:  When Moral Obligations Fail (1983) 15 Pacific L.J. 189;  Comment, Child Sexual Abuse in California:  Legislative and Judicial Responses (1985) 15 Golden Gate L.Rev. 437.)

Additionally, the Legislature recently enacted The Maxine Waters Child Abuse Prevention Training Act of 1984 (Welf. & Inst.Code, §§ 18975–18979).   The Legislature, recognizing child abuse and neglect to be a severe and increasing problem in California, found that school districts are able to provide an environment for training children, parents, and appropriate district staff on prevention of child abuse and neglect.  (Welf. & Inst.Code, § 18975.1.)   The intent of the Legislature was to provide primary prevention training for all children in state-funded center based preschools and public schools, kindergarten through grade 12.  (Welf. & Inst.Code, § 18975.2.)   The goal of the primary prevention program is directed toward both preventing the occurrence of child abuse, and “[r]educing the general vulnerability of children, including coordination with and training for parents and school staff.”  (Welf. & Inst.Code, § 18975.7.)   The program includes parent and school staff workshops concerning, inter alia, rights and responsibilities regarding reporting, and school district procedures to facilitate reporting.  (Welf. & Inst.Code, § 18976.)

B. A School District Is Vicariously Liable For Injury Caused By The Misfeasance Of A Teacher Acting In The Scope Of Employment.

As discussed above, case law in California has established that school districts have a duty to exercise ordinary care in supervising students on the school premises.  “If a school district should be negligent in this regard they are liable for injuries proximately caused by their negligence.”  (Perna v. Conejo Valley Unified School Dist., supra, 143 Cal.App.3d at p. 295, 192 Cal.Rptr. 10.) 5  “Failure to exercise care may manifest itself in the course of affirmative action (misfeasance) or in a failure to act (nonfeasance).”  (Wright v. Arcade School Dist., supra, 230 Cal.App.2d at p. 277, 40 Cal.Rptr. 812.)

 School districts may be held vicariously liable under Government Code section 815.2, subdivision (a), for injury proximately caused by the act or omission of an employee within the scope of employment, if the act or omission would, apart from that section, have given rise to a cause of action against the employee.   Generally, the issue of scope of employment is a question of fact, and becomes a question of law only when the facts are undisputed and no conflicting inferences are possible:  “Whether the scope of employment issue is a question of fact or a question of law will turn on the factual background of the particular case:  Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact.   However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law.  [Citation.]”  (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138, 176 Cal.Rptr. 287.)

 In defining scope of employment, the law defines occupational duties broadly.  (Id., at p. 139, 176 Cal.Rptr. 287.)  “The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.”   (Ibid.)  But if an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee's actions.  (Ibid.)

C. Employers Have Been Held Vicariously Liable For Tortious Assaults By Their Employees

Courts have held employers vicariously liable for their employees' tortious assaults on third parties.   According to the Alma court's analysis of this line of cases,6 the fundamental issue “is whether the wrongful act was committed' in the course of a series of acts of the agent which were authorized by the principal․' ”  (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 141, 176 Cal.Rptr. 287.)   For vicarious liability does not attach “ ‘where the agent, for however brief a space of time, has ceased to serve his principal․’ ”  (Ibid.)

Courts have also found employers subject to vicarious liability for injuries allegedly caused by their employees' acts of false imprisonment and threatened murder and sexual assault (White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493),7 and rape (Berger v. Southern Pac. Co. (1956) 144 Cal.App.2d 1, 300 P.2d 170 (Pullman Company vicariously liable for rape of passenger by its porter).)   In each of these cases, a special relationship arose between the tortfeasor employee and the victim plaintiff, giving rise to a duty of care to the plaintiff.  (See Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352;  Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 191 Cal.Rptr. 704;  Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82.) 8

In White v. County of Orange, supra, 166 Cal.App.3d 566, 212 Cal.Rptr. 493, the appellate court rejected the argument that the officer's conduct was, as a matter of law, outside the scope of employment.   The court concluded the wrongful acts directly flowed from the officer's exercise of official authority:  “Had Loudermilk not been a deputy sheriff, in uniform, in a marked patrol vehicle using flashing red lights, White would not have stopped at his direction and the events that followed would not have occurred.   Because the County placed Loudermilk in this position of authority, it will be liable for his actions should White prove her allegations at trial.  [¶] The use of authority is incidental to the duties of a police officer.   The County enjoys tremendous benefits from the public's respect for that authority.   Therefore, it must suffer the consequences when the authority is abused.”  (White, supra, 166 Cal.App.3d at p. 572, 212 Cal.Rptr. 493.)

Similarly, in Berger v. Southern Pac. Co., supra, 144 Cal.App.2d 1, 300 P.2d 170, the court stated it was “not concerned” with the scope of employment issue because the porter's duties “were directed solely to the comfort and protection of the passengers on his car and in his care.   It was in connection with these duties that he came into intimate contact with Mrs. Berger.”   (Id., at p. 7, 300 P.2d 170.)   The court went on to state that although sleeping car companies are not regarded as common carriers except by statute, “California holds that a sleeping car company owes the same obligation to its passengers as does a common carrier.”  (Id., at p. 6, 300 P.2d 170.)

The Berger court held a special duty of protection comparable to that of common carrier was owed by the Pullman Company to its passengers.9  (Berger v. Southern Pacific Co., supra, 144 Cal.App.2d at pp. 7–9, 300 P.2d 170.)   The Berger court noted that the modern trend in cases involving tortious assaults by employees was to define scope of employment broadly even where there was no special duty of protection owed by the employer to the injured plaintiff.  (Id., at p. 8, 300 P.2d 170.)

D. We Cannot Determine As a Matter of Law That the District is Immune from Liability

We now turn to the factual background of this case, as alleged in the first cause of action:  Plaintiff, a five-year-old child, complied with her teacher's order to undress, and was sexually molested by her teacher in the classroom.

 There is no doubt of the existence of a special relationship between plaintiff and her teacher giving rise to a duty of care.   As we previously discussed, parents who entrust their children to public schools, as they must pursuant to our compulsory education laws,10 may legitimately expect adequate supervision in schools that are safe.11  And, of necessity, the Legislature and school districts have delegated a large measure of this supervisory responsibility to teachers.

 Although teachers do not have the trappings of authority that police officers have, teachers are nevertheless authority figures.   Buttressing a teacher's authority are truancy laws and internal school rules and regulations.   And to a five-year-old child, the teacher's authority is very great.

A five-year-old child has no control over what happens in the classroom.   Like the passenger on a bus, train or airplane, a five-year-old child in a classroom is subject to the control of the employee entrusted with her care.   A teacher of a five-year-old child is not just an educator;  realistically this teacher must also assume parental caretaking functions.

“[T]he amount of care due to minors increases with their immaturity․”  (Satariano v. Sleight (1942) 54 Cal.App.2d 278, 283, 129 P.2d 35.)  “So, in all logic, do the occasions for care.”  (Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 10, 31 Cal.Rptr. 847.)   Parents entrusting their young children to public schools should be able to expect that teachers will be compassionate and caring of their children's physical immaturity.   Five-year-old children may need assistance in many ways that parents anticipate teachers understand, even though all these needs are not explicitly spelled out in a teaching manual.   And we think the existence of this increased obligation owed by teachers toward young children is recognized by the license given to teachers to exercise the “same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning.”  (Educ.Code, § 44807.)

This case is readily distinguishable from that relied on by the district, Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 176 Cal.Rptr. 287.   There, the school district was not held vicariously liable for a rape committed by a school custodian in his office against a student.   School custodians, however, are not certified employees charged with the duty of supervising, teaching, and protecting children as are teachers.   Teachers and their students have a special statutory relationship giving rise to a duty of care, but there is no such comparable statutory relationship between a school custodian and a student.   A custodian's contact with students is merely tangential to his or her cleaning and maintenance duties.   As the court stated in Alma:  “Sexual molestation is in no way related to mopping floors, cleaning rooms, or any of the other tasks that are required of a school custodian.”  (Id., at p. 140, 176 Cal.Rptr. 287.)

Alma is distinguishable from this case involving a statutory relationship between a teacher and her five-year-old student.   Teachers are “child care custodians” with the responsibility of reporting suspected cases of child abuse and neglect.  (Pen.Code, § 11165.)   When teachers themselves sexually abuse children in their classrooms, there occurs a grave and serious breach of a specific statutory duty of care.   (For a discussion of the duty of care owed to children by virtue of special relationships and statute, see Comment, 15 Pac.L.J., supra, at pp. 202–207.)

Nor may the district find support in Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685, to argue that sexual molestation of students falls outside the teacher's scope of employment as a matter of law.   Milla involved a complaint by a 16–year–old female who was seduced by several parish priests and impregnated.   The Milla court concluded that the sexual activity of the priests with their parishioner fell outside the scope of their employment.  (Id., at p. 1461, 232 Cal.Rptr. 685.)   However, Milla is factually distinguishable from this case.

Milla is factually dissimilar from this case because the priests had no actual authority over the plaintiff and did not accomplish the assaults through the official exercise of their job related duties.

We think the facts asserted in this case are analogous to the situations described in White v. County of Orange, supra, 166 Cal.App.3d 566, 212 Cal.Rptr. 493.   If the trier of fact concludes Doe 1 negligently inflicted the injury while acting within the scope of her duties, the district can be held vicariously liable.  (Perna v. Conejo Valley Unified School Dist., supra, 143 Cal.App.3d 292, 192 Cal.Rptr. 10.)   And if the trier of fact concludes Doe 1 intentionally inflicted the injury while acting within the scope of her duties, the district can also be held liable.  (White v. County of Orange, supra, 166 Cal.App.3d 566, 212 Cal.Rptr. 493.)

In our view, governmental entities should be held liable for the intentional torts committed within the scope of employment by public employees such as police officers and school teachers, who are entrusted with great authority.   The intentional abuse of that authority may be avoided if we encourage the careful selection of these vital employees.12  We think this rationale is all the more applicable here in view of our compulsory education and reporting laws.

We conclude the demurrer was improperly sustained.   Scope of employment must be broadly defined (Alma v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139, 176 Cal.Rptr. 287), and teachers of young children are given virtually complete control over the well being of students in their classroom.   We cannot determine as a matter of law that the district is immune from liability, because here, as in White the harm directly flowed from her exercise of authority over the student in her classroom.13

We therefore hold that the district was improperly dismissed as a defendant, and the demurrer was erroneously sustained.   We feel this holding, which permits the deliberate allocation of a risk as a matter of policy, protects both innocent teachers and innocent students and parents.   Were we to hold otherwise, a teacher charged with sexual molestation could be left defenseless if the district refused to provide a defense because it was, as a matter of law, free from liability.  (See Gov.Code, § 825.)   Moreover, parents have greater hope of recovery against school districts, which are better able to absorb and distribute the costs through taxation to the community at large.   We find that the district and the community it serves enjoys tremendous benefits from the students' respect for the authority placed in teachers.   Therefore, it must suffer the consequences when the authority is abused.  (See White v. County of Orange, supra, 166 Cal.App.3d at p. 572, 212 Cal.Rptr. 493.)

DISPOSITION

The judgment (order of dismissal) is reversed.   Plaintiff shall recover costs on appeal.

I respectfully dissent.   In my view demurrer of the Los Angeles School District was properly sustained.   I would affirm the judgment (order) of dismissal.

The majority's theory of liability herein appears to be based on the following rationale:  (1) teachers are “child care custodians” in a special relationship with their students;  (2) teachers have specific statutory duties of care and great authority and control over students in the classroom;  (3) when a teacher abuses this authority by breaching a specific statutory duty of care, the teacher is acting within the scope of employment and the school district is vicariously liable.  (Gov.Code, § 815.2, subd. (a).)

I do not quarrel with the generalized discussion of the first and second points above;  however, I disagree that those precepts, and the authorities the majority cites to support them, have any relevance to a respondeat superior analysis.   Moreover, there is neither pleaded in this case nor argued by the majority, any specific statutory duty applicable to the factual circumstances herein.   In order for the District to be liable under the respondeat superior theory, it must be established that (1) the act performed was either required or incident to Doe 1's duties or (2) Doe 1's misconduct could be reasonably foreseen by the employer in any event.  (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287.)

The sexual assault by Doe 1 was not “incident to her duties” within the meaning of that phrase under respondeat superior analysis.   Although the law defines occupational duties broadly, employers are not strictly liable for all actions of their employees during working hours;  if an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee's actions.  (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139, 176 Cal.Rptr. 287.)   The fundamental issue is whether the wrongful act was committed in the course of a series of acts of the agent which were authorized by the principal.   (Id., at p. 141, 176 Cal.Rptr. 287.)

The instant complaint fails to allege any facts showing that the sexual assault, or even the removal of plaintiff's clothes, occurred in the course of acts authorized by the school district.   Concededly, Doe 1's duties bring her into social contact with students, unlike the duties of the school janitor in Alma W.;   however, the instant complaint fails to allege facts showing a nexus between Doe 1's duties and the sexual molestation.   The complaint alleges her duties to be:  “(a) To teach student[s] in her classroom;  (b) To maintain order and discipline amongst students during the classroom hours;  (c) To mete out necessary punishment as may from time to time be deemed necessary to maintain the orderly conduct of the classroom;  (d) To take all steps necessary to insure that students within the classroom learned and understood the classroom instructional material․”  Although plaintiff attempted to torture the facts of her case to fit those in White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493, involving a false imprisonment by a police officer, by pleading that “Doe 1's actions are characterized ‘under the color of the law’ with respect to her teaching obligations,” and that Doe 1 carried the authority of the law with her into the classroom, I consider such allegations to be mere conclusions of fact or law, which are not deemed true for purposes of evaluating the sufficiency of a complaint against a general demurrer.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

The majority seems to imply that the sexual assault herein may have occurred in the course of Doe 1's assumption of “parental caretaking functions.”   However, the pleading does not so state.   Rather, it states simply that Doe 1 ordered plaintiff “to undress ․ and did thereupon insert her finger into plaintiff's pubic area․”  Thus, no nexus is established between Doe 1's duties and the sexual assault which, one can only reasonably conclude from this pleading, was a substantial deviation from duties for personal purposes.

The court in White impliedly found a nexus to exist between the duties of a police officer and the officer's false imprisonment and threatened assault of plaintiff because of a police officer's authority in the eyes of the public.   The analysis in White seems to be predicated upon the proposition that the mere opportunity for tortious activity that may be provided by an employment situation is sufficient for liability of the employer.  (White v. County of Orange, supra, 166 Cal.App.3d at pp. 571–572, 212 Cal.Rptr. 493.)   The court in Alma W. implicitly recognizes that mere opportunity provided by an employment situation is not enough and that the acts leading up to the tort must bear some relation to the employee's duties.  (123 Cal.App.3d at pp. 140, 141, 176 Cal.Rptr. 287.)

Other jurisdictions have considered the issue of the vicarious liability of a school district for a teacher's sexual assault on a student.   The court in Bozarth v. Harper Creek Bd. of Ed. (1979), 94 Mich.App. 351, 288 N.W.2d 424, 426, held that “A teacher's homosexual assaults on his student constitute conduct clearly outside the scope of the teacher's employment and outside the teacher's apparent authority.   The mere fact that an employee's employment situation may offer an opportunity for tortious activity does not make the employer liable to the victim of that activity.”

Similarly, a sexual assault on a 12–year–old deaf, blind, and mute student by Boyd, a teacher, was held not to be within the scope of his employment with the District of Columbia public schools:  “Appellant Boykin would have us hold that the assault was a direct outgrowth of Boyd's assignment because that assignment necessarily included some physical contact with Valerie.   She notes that a deaf, blind and mute child can be taught only through the sense of touch.   The fact that physical touching was necessarily a part of the teacher-student relationship made it foreseeable that sexual assaults could occur, she argues.   We reject this connection as too attenuated.   We do not believe that a sexual assault may be deemed a direct outgrowth of a school official's authorization to take a student by the hand or arm in guiding her past obstacles in the building.”  (Boykin v. District of Columbia (D.C.App.1984) 484 A.2d 560, 562.)

If a sexual assault where physical touching is part of a teacher's duties is not within the scope of employment, then there is even less reason to consider a sexual assault where physical touching is not part of the teacher's duties to be within the scope of employment.

Nor do the alleged facts of this case satisfy the alternate prong for imposition of liability on District, requiring that Doe 1's misconduct be reasonably foreseen by the employer.   Foreseeability in this context must be distinguished from foreseeability as a test for negligence.   In the latter sense “foreseeable” means a level of probability which would lead a prudent person to take effective precautions whereas “foreseeability” as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer's business.  (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1228, 227 Cal.Rptr. 763.)  “[T]he inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.”  (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968, 227 Cal.Rptr. 106, 719 P.2d 676, citing Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619, 124 Cal.Rptr. 143.)

It defies logic and fairness to say that sexual molestation by public school teachers of students is characteristic of a school district's activities.   As the court stated in Alma W.:  “While ․ the foreseeability test for respondeat superior is broader than that for negligence, the decision also limits liability to those torts which ‘may fairly be said to be characteristic’ of the enterprise's activities․  A quarrel among employees over the use of equipment at a construction site might fairly be considered characteristic of the construction industry.   But it defies every notion of fairness to say that rape is characteristic of a school district's activities.  [¶] Nor does appellant's reference to the Education Code [sections 44425 and 45123] redeem her argument.   Efforts by the California Legislature to guard against sexual assaults on public school students hardly prove that the state Legislature believed sexual molestation to be characteristic of public school employees.   The fact that the Legislature has taken the action it has in no way alters the fact that sexual molestation is an aberrational act․  The test is not whether it is foreseeable that one or more employees might at some time act in such a way as to give rise to civil liability, but rather, whether the employee's act is foreseeable in light of the duties the employee is hired to perform.”  (123 Cal.App.3d at pp. 142–143, 176 Cal.Rptr. 287;  original emphasis.)

In this case, there is no aspect of the alleged duties of Doe 1 that would make the sexual assault herein anything other than unusual and startling.   This conclusion is also supported by Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685, a case involving the claim that several priests had sexual relations with a parishioner.   The court there stated:  “This court sees no difference in the rationale in Alma W. to the facts of this case.   It would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church.   There is simply no basis for imputing liability for the alleged conduct of the individual defendant-priests in this instance to the respondent Archbishop.”  (187 Cal.App.3d at p. 1462, 232 Cal.Rptr. 685.)

While I recognize the principle, cited by the majority, that pleadings should be liberally construed with a view to attaining substantial justice among the parties, it is difficult to apply that principle here where the pleadings do not explain when, how, or under what circumstances the alleged assault took place.   The pleadings amount to little more than legal conclusions on the issue of scope of employment.   Moreover, while the majority seems willing to accept less particularity in pleading because a five-year-old has alleged abuse by a teacher in the classroom, it can hardly be assumed here that the school district has superior access to, or knowledge of, facts inasmuch as plaintiff is apparently uncertain of the true identity of the teacher-perpetrator and calls her “Doe 1.”   Thus, substantial justice is not promoted among the instant parties by speculating that the instant assault occurred while Doe 1 was performing parental caretaking functions or exercising physical control necessary to maintain classroom order.

The alleged facts admit of no reasonable inference other than that Doe 1's sexual molestation occurred outside the scope of her employment.   The District itself is not alleged to have engaged in any negligent conduct in connection with the molestation nor does plaintiff purport to impose liability on District on any basis other than respondeat superior.   Given the fact that the sole issue presented below as well as on appeal is whether District can be vicariously liable for the tort of Doe 1, District was properly dismissed and the judgment (order of dismissal) should be affirmed.

FOOTNOTES

1.   Although plaintiff appeals from the unappealable order sustaining the demurrer without leave to amend (Sher v. Leiderman (1986) 181 Cal.App.3d 867, 885, 226 Cal.Rptr. 698), we construe the appeal to be from the appealable order of dismissal (Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 166, 139 Cal.Rptr. 314).   Although the order of dismissal is not contained in the record on appeal, both parties agree it was filed.The order of dismissal involved only the first cause of action of the first amended complaint.   There was no demurrer to the second and third causes of action against Doe I for intentional tort and malice.

2.   Government Code section 815.2, subdivision (a), 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.”

3.   The original complaint filed on April 24, 1986, alleged direct negligence against the district for negligently training and supervising plaintiff's teacher, who was identified by name.   The amended complaint at issue herein does not contain an allegation of direct negligence against the district;  plaintiff apparently conceded below that her theory of liability was solely based on the doctrine of respondeat superior.It is error to sustain a demurrer where a plaintiff has stated a cause of action under any possible legal theory.  (Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 1117, 222 Cal.Rptr. 239.)   But for plaintiff's apparent concession, the demurrer should not have been sustained without leave to amend in that there is a reasonable possibility plaintiff can amend her complaint to allege the necessary facts to state a valid cause of action for direct negligence against the district.As is discussed, infra, a school district has the duty to exercise ordinary care in supervising students on the school premises.  “If a school district should be negligent in this regard they are liable for injuries proximately caused by their negligence.”  (Perna v. Conejo Valley Unified School Dist. (1983) 143 Cal.App.3d 292, 295, 192 Cal.Rptr. 10;  see Annot. (1971) 38 A.L.R.3d 830, and later cases (1987 pocket supp.) p. 60;  R. Seitz, Legal Responsibility Under Tort Law of School Personnel and School Districts as Regards Negligent Conduct Toward Pupils (1964) 15 Hastings L.J. 495.)  “Failure to exercise care may manifest itself in the course of affirmative action (misfeasance) or in a failure to act (nonfeasance).   One who voluntarily engages in affirmative action has a duty to use care in performing the assumed task.  [Citation.]”  (Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812.)

4.   Although California recently abolished corporal punishment in the schools (Educ.Code, § 49001), teachers during the performance of their duties are still authorized, without being subject to criminal prosecution or criminal penalties, to exercise the “same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils or to maintain proper and appropriate conditions conducive to learning.”  (Educ.Code, § 44807.)

5.   In Perna, the teacher of a 14–year–old student requested she stay after school to help grade papers.   When the student and her 12–year–old sister left, the school crossing guard was no longer on duty.   The girls were struck by a car and sustained injuries for which they sued the driver, the city, and the district.   With respect to the district, the complaint alleged that the teacher who asked the student to stay after school knew, or in the exercise of reasonable care should have known, that the school crossing guard would be gone from the intersection where the plaintiffs would cross on their way home.   The trial court sustained the district's demurrer to the third amended complaint without leave to amend, and the appellate court reversed.   The appellate court held whether the teacher's conduct in keeping the student after school until the crossing guard had left constituted negligence was for the jury to decide.   (Perna v. Conejo Valley Unified School Dist., supra, 143 Cal.App.3d at p. 296, 192 Cal.Rptr. 10.)

6.   The following line of cases was cited in Alma v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 141, 176 Cal.Rptr. 287:  “Carr v. William C. Crowell Co., supra, 28 Cal.2d 652, 171 P.2d 5 (construction employee threw hammer during dispute over construction procedure);  Fields v. Sanders (1947) 29 Cal.2d 834, 180 P.2d 684 (employee truck driver assaulted third party driver during dispute over truck driver's performance of his driving duties);  Hiroshima v. Pacific Gas & Elec. Co. (1936) 18 Cal.App.2d 24, 63 P.2d 340 (dispute over employee's collection of employer's bill);  Pritchard v. Gilbert (1951) 107 Cal.App.2d 1, 236 P.2d 412 (dispute between traveling salesman and passing motorist over near accident);  and Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608, 124 Cal.Rptr. 143 (dispute over employee's right to use employer's equipment).”

7.   In White, the appellate court concluded the County could not escape liability as a matter of law for the intentional acts of its employee deputy sheriff.   There, the plaintiff was stopped by the deputy and inexplicably placed in his patrol car.   The deputy drove plaintiff to an isolated area, and threatened her with rape and murder.   Plaintiff sued the deputy for false imprisonment, assault and intentional infliction of emotional distress.   She also sued the County on the theory of respondeat superior.   The trial court granted the County's summary judgment motion, on the ground the deputy's actions were beyond the scope of employment as a matter of law.The appellate court reversed, concluding the County “will be liable for the actions of [the deputy] should those actions be proven at trial.”   (White v. County of Orange, supra, 166 Cal.App.3d at p. 571, 212 Cal.Rptr. 493.)

8.   In Johnson v. State of California, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, the court held the state owed a duty of care to warn plaintiff that it was placing a foster youth in her home with known homicidal tendencies.  (Id., at pp. 785–786, 73 Cal.Rptr. 240, 447 P.2d 352.)   There, the state placed the victim in danger and thus it was “a straightforward case of liability based on failure to warn of a foreseeable peril created by the defendant and not readily discoverable by the potential victim.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 208, 185 Cal.Rptr. 252, 649 P.2d 894.)Johnson v. County of Los Angeles, supra, 143 Cal.App.3d 298, 191 Cal.Rptr. 704, sheriff's officers employed by the County detained an obviously suicidal schizophrenic and assured his wife that he would be cared for in a custodial setting.   But they then released him without notifying his family, after which he committed suicide.   We found the officers had entered into a special relationship with decedent and plaintiffs, giving rise to a duty to warn.  (Id., at p. 311, 191 Cal.Rptr. 704.)And in Mann v. State of California, supra, 70 Cal.App.3d 773, 139 Cal.Rptr. 82, a highway patrol officer positioned his patrol car with flashing lights behind two stalled cars on a freeway and then left without warning or placing protective flares, after which one of the cars was sideswiped and persons nearby were injured.   The court found the officer's decision to stop and investigate gave rise to a duty to exercise reasonable care:  “[T]he police officer's conduct contributed to, increased, or changed the risk which would have otherwise existed.   The officer stopped to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought.”   (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 208, 185 Cal.Rptr. 252, 649 P.2d 894.)

9.   For a discussion of the common carrier's duty to protect passengers from assaults by fellow passengers, see Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 221 Cal.Rptr. 840, 710 P.2d 907.   Therein the Court noted that “some relationships by their very nature are ‘special’ ones giving rise to an ‘initial duty’ to come to the aid of others, regardless of whether there has been detrimental reliance in a particular case.   The relationship between a common carrier and its passengers is just such a special relationship, as is the relationship between an innkeeper and his or her guests, between a possessor of land and those who enter in response to the landowner's invitation and between a psychiatrist and his or her patients.  [Citations.]”  (Id., at p. 789, 221 Cal.Rptr. 840, 710 P.2d 907.)

10.   Plaintiff turned six on December 6, 1985;  the incident occurred on November 18, 1985.   Even if perhaps not technically subject to compulsory education laws on November 18, 1985, plaintiff and her teacher were involved in a special relationship giving rise to a duty of care.   (See Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 519, 150 Cal.Rptr. 1, 585 P.2d 851 (duty to supervise arises during voluntary summer session when attendance is not compulsory).)   The school district had no discretion to refuse to enroll plaintiff even though she had not turned six, if plaintiff qualified under Education Code section 48000.   (Educ.Code., § 48001.)

11.   We note that school districts also owe a duty of care to protect students from sexual assaults by fellow students.   In Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, 228 Cal.Rptr. 776, an 8–year–old female student was sexually assaulted and raped by a fellow 13–year–old male student.   Although the school authorities were aware of the sexual assaults preceding the rape, they withheld that information from the victim's mother.   The appellate court reversed the trial court's order sustaining the school district's demurrer to the mother's causes of action for intentional and negligent infliction of emotional distress.   The appellate court concluded the mother's causes of action could be amended to allege the existence of a special relationship giving rise to a duty to warn her of the sexual assaults when the authorities first learned of them:  “While Ciera [the victim] attended school, her care was entrusted to defendants.   Defendants stood in loco parentis and owed a duty of care not only to Ciera, but under the circumstances of this case, to Ciera's mother as well․  Defendants did not properly supervise Dario [the perpetrator] and did not take the necessary step to insure Ciera's safety, nor did they notify petitioner who could have taken such steps herself.”  (Id., at p. 1196, 228 Cal.Rptr. 776.)

12.   A majority of the courts have held employers vicariously liable for punitive damages arising from acts within the scope of employment, even in the absence of approval or ratification.  (See Prosser and Keeton, The Law of Torts (5th ed. 1984) § 2, p. 13.)   As one commentator explained, these courts “have been concerned primarily with the deterrent effect of the award of exemplary damages, and have said that if such damages will encourage employers to exercise closer control over their servants for the prevention of outrageous torts, that is sufficient ground for awarding them.”   (Ibid.)While California does not completely follow this majority view, California does impose vicarious liability without ratification or authorization for punitive damages awarded for actions of employees in a managerial capacity.  (Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 550, 98 Cal.Rptr. 588;  see Agarwal v. Johnson (1979) 25 Cal.3d 932, 947, 160 Cal.Rptr. 141, 603 P.2d 58.)   As explained by our Supreme Court in Agarwal, the reason for the imposition of liability absent ratification or authorization with respect to employees acting in a managerial capacity “is to encourage careful selection and control of persons placed in important management positions.”  (Agarwal, supra, 25 Cal.3d at p. 947, 160 Cal.Rptr. 141, 603 P.2d 58.)

13.   The holding herein is limited to our determination that the district cannot escape liability as a matter of law.   Its liability has yet to be determined.The citations from other jurisdictions cited by the dissent (Bozarth v. Harper Creek Board of Education (1979), 94 Mich.App. 351, 288 N.W.2d 424;  Boykin v. District of Columbia (D.C.App.1984) 484 A.2d 560), do not squarely address the issues raised herein.   The court in Boykin expressly declined to address the issue of the district's liability arising from its special relationship with the students entrusted to its care through compulsory attendance laws.  (484 A.2d at p. 564, fn. 3.)   And the Bozarth opinion makes no mention of the time, place and manner by which the teacher sexually assaulted the student.   It is not clear whether the teacher in Bozarth was involved in a teacher-student relationship with the student, or whether the assault occurred on school grounds.

THOMPSON, Associate Justice.

JOHNSON, J., concurs.