CORDTS v. BOY SCOUTS OF AMERICA INC (1988)

Plaintiff Sandra Cordts appeals from the judgment dismissing her first amended complaint (complaint) against the Boy Scouts of America, Inc. (BSA), entered after the trial court sustained a general demurrer without leave to amend.   The complaint alleges two causes of action respectively for intentional and negligent infliction of emotional distress against defendants BSA and Dean Ray Von Aspern individually and as agent of BSA.   The appeal tenders issues of BSA's vicarious liability for Von Aspern's torts and of BSA's liability to plaintiff as a direct victim of its own tortious conduct.   We shall affirm.

I

 On appeal from a judgment of dismissal after the sustaining of a general demurrer we accept as true all material, well-pled allegations in the complaint.  (See Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216;  Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, 388, 228 Cal.Rptr. 890.)

The complaint alleges BSA “did allow” codefendant Von Aspern “to be a Boy Scout leader.”   BSA represented that in exchange for plaintiff's payment of a fee, plaintiff's two sons would be allowed to participate in scouting activities under the supervision of Von Aspern.   In addition, BSA and Von Aspern represented to plaintiff that her sons' participation in scouting activities would be good for them.   BSA failed to investigate Von Aspern's background and failed to discover that Von Aspern “․ had been discharged from the Air Force for improper sexual conduct and had also been convicted during the course of the acts herein complained of of child abuse in another situation.”   In November or December 1984, plaintiff learned Von Aspern had repeatedly molested her two sons sexually by engaging them in acts of sodomy, oral copulation and other unlawful sexual conduct.   The molestations occurred while plaintiff's sons were participating in scouting activities.

II

Plaintiff contends the allegations of the complaint sufficiently plead the vicarious liability of BSA for the tortious conduct of its agent, Von Aspern, under the theory of respondeat superior.   The theory of respondeat superior here necessarily assumes the liability of Von Aspern to plaintiff.  “The liability of an innocent, nonparticipating principal under the respondeat superior doctrine is based upon the wrongful conduct of the agent;  the principal cannot be liable unless the agent is liable.”  (2 Witkin, Summary of Cal. Law (9th ed. 1986) Agency & Employment, § 116, p. 111.)   Von Aspern apparently remains a defendant in the action but did not join BSA in demurring to the complaint and is not a party to this appeal.   In challenging vicarious liability, BSA does not dispute that Von Aspern is tortiously liable to plaintiff but contends that Von Aspern's tortious conduct was not within the course and scope of his agency.¹  Accordingly, we express no opinion on the question of Von Aspern's liability to plaintiff and address the issue tendered by the parties:  whether Von Aspern acted within the scope of his agency when he molested plaintiff's sons.

 Under the doctrine of respondeat superior, a principal or employer is liable for the wrongful acts of its agent or employee committed “in or as a part of” its business.  (Civ. Code, § 2338.)   This is true even for wilful and malicious torts of the agent or employee so long as the acts were committed within the “scope of the employment.”  (Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 654, 171 P.2d 5;  Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 621, 124 Cal.Rptr. 143.)   The tortious activity of an agent or employee falls outside the scope of employment if it is motivated by “personal malice” (Carr, supra, at p. 656, 171 P.2d 5) or constitutes a substantial deviation from duties for personal purposes.   (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968, 227 Cal.Rptr. 106, 719 P.2d 676;  Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988.)

 Appellate decisions have distilled from the common law a two-prong, disjunctive test according to which the conduct of an agent or employee falls within the scope of his agency or employment if the conduct either (1) was required by or incidental to the duties of the agent or employee and hence was not a substantial deviation from duties for personal reasons or (2) could reasonably have been foreseen by the principal or employer in any event.   (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287;  Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 520, 154 Cal.Rptr. 874.)   The test is the same whether the agent or employee is paid or an unpaid volunteer.  (Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718, 722, 243 Cal.Rptr. 128, fn. 6.)   As the complaint understandably does not allege Von Aspern's conduct was required by BSA, we first consider whether it was incidental to his agency.

In Alma W., an elementary school janitor sexually molested a student during school hours in the janitor's office.  (123 Cal.App.3d at p. 137, 176 Cal.Rptr. 287.)   The court explained, “In assessing whether an employee's wrongful act was required by or incidental to his duties, the law defines occupational duties broadly.   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.  [Citation.]  ․ However, that is not to say, that employers are 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.  [Citations.]  [¶]  This case presents us with a factual situation where the connection between the employee's duties and the employee's wrongful action has become so attenuated that the law will not hold the employer vicariously liable.   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.   Though there may be those cases where personal motivations so mingle with the employee's pursuit of occupational duties that it is arguable whether the employee's action is incidental to his duties, this is not such a case.  [The janitor's] action, prompted by wholly personal motivations, was clearly not required or incidental to his duties as a school custodian.”  (Id., at pp. 139–140, 176 Cal.Rptr. 287)

Alma W. is distinguished in White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493.   There, a deputy sheriff stopped the plaintiff, placed her in his patrol car and drove around for hours, threatening her with rape and murder.  (Id., at p. 568, 212 Cal.Rptr. 493.)   The court held the officer's conduct was incidental to his employment because it arose from his exercise of apparent authority:  “A police officer is entrusted with a great deal of authority.   This authority distinguishes the situation here from the facts of Alma W.   Unlike a school custodian, the police officer carries the authority of the law with him into the community.   The officer is supplied with a conspicuous automobile, a badge and a gun to ensure immediate compliance with his directions.   The officer's method of dealing with this authority is certainly incidental to his duties;  indeed, it is an integral part of them.   Here, unlike Alma W., the wrongful acts flowed from the very exercise of this authority.”  (Id., at p. 571, 212 Cal.Rptr. 493.)   Relying on the doctrine of apparent authority, the court concluded, “It follows that the employer/government must be responsible for acts done during the exercise of this authority.” ²  (Ibid.)

The same court that decided White decided Jeffrey E. v. Central Baptist Church, supra, 197 Cal.App.3d 718, 243 Cal.Rptr. 128.   In Jeffrey E., a volunteer Sunday school teacher sexually molested a second grade student.   The court held the acts of molestation were not incidental to the teacher's employment because the wrongful acts occurred during contacts between teacher and student which were not authorized by the church and were not accomplished as a result of the teacher's apparent authority:  “The distinguishing feature in White is that the errant conduct arose out of an abuse of the employee's official authority.   By virtue of the exercise of this authority, the police officer was able to perpetrate his assault.   The focus is not on whether the police officer's activity is either characteristic or foreseeable, but rather on whether the assault arose out of the exercise of job-created authority over the plaintiff.   That situation is not present here.”  (Id., at p. 723, 243 Cal.Rptr. 128;  original emphasis.)

In neither White nor Jeffrey E. did the court consider whether the wrongful act constituted a substantial deviation from the employee's duties for personal purposes, and thus was not incidental to the employment.  (See Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968, 227 Cal.Rptr. 106, 719 P.2d 676;  Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960, 88 Cal.Rptr. 188, 471 P.2d 988.)   The exception for substantial deviation for personal purposes was considered in Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685.   In that case, the plaintiff sued the Archbishop after she allegedly was impregnated by a priest and shunted off by the church to the Philippines to have the baby.   The plaintiff claimed she submitted to sexual intercourse with several priests after they told her the acts were ethically and religiously permissible.   (Id., at pp. 1456–1457, 232 Cal.Rptr. 685.)   The court tersely rejected liability of the Archbishop for the wrongful acts of the employee priests:  “Plaintiffs could not seriously contend that sexual relations with parishioners are either required by or instant to a priest's duties․”  (Id., at p. 1461, 232 Cal.Rptr. 685.)

In this case, the complaint alleged that Von Aspern's sexual misconduct with plaintiff's sons occurred while they participated in scouting activities.   In her opposition to BSA's demurrer plaintiff proffered additional facts which could be alleged if given the opportunity to amend.   These included allegations that a part of Von Aspern's duties as a scoutmaster included instruction in sex education and that the acts of molestation occurred while Von Aspern instructed plaintiff's sons “․ on sexual education out of the Scout Manual at scout meetings in a back room while the Scout Leader and child were out of the presence of the other Scouts.”

 Plaintiff's proffered allegations, like those in Milla that the parishioner submitted to sexual acts which she was told were “ethically and religiously permissible,” suggest that her sons submitted to sex acts with Von Aspern in reliance on his apparent authority.   However, although Von Aspern may have derived authority from BSA, like the priests in Milla, his misuse of that authority to facilitate sexual misconduct was solely for personal purposes entirely unrelated to his occupation.   A boy scout leader's sexual molestation of a boy scout constitutes a substantial deviation for personal purposes from his duties, and is therefore not incidental to his agency.

We next consider the second prong of the test:  whether BSA could have reasonably foreseen its scoutmaster would sexually molest boy scouts.   “However, ‘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 other costs of the employer's business.  [Citations.]”  (Emphasis original;  Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at pp. 618–619, 124 Cal.Rptr. 143, quoted in Alma W., supra, 123 Cal.App.3d at pp. 141–142, 176 Cal.Rptr. 287.)

In Milla, the court concluded that sexual conduct between a priest and parishioner is so unusual and startling that it would be unfair to hold the Archbishop liable for the damages caused by that activity:  “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.”  (187 Cal.App.3d at p. 1461, 232 Cal.Rptr. 685.)

Similarly, sexual misconduct between a scoutmaster and his charges is so unusual and startling that it is equally unfair to hold BSA liable under the doctrine of respondeat superior for damages caused by that activity.   We hold the allegations of the complaint do not make out vicarious liability of BSA for Von Aspern's sexual molestation of plaintiff's sons.

III

 We next consider the sufficiency of the complaint to state a cause of action against BSA for intentional infliction of emotional distress.   An essential element of that cause of action is “extreme and outrageous conduct by the defendant.”  (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975.)  “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”   (Ibid.)  The only conduct of that description alleged in the complaint is Von Aspern's sexual molestation of plaintiff's sons for which, as we have seen, BSA is not vicariously liable.

Plaintiff claims however that BSA's alleged failure to investigate and supervise Von Aspern gives rise to liability for intentional infliction of emotional distress.   Plaintiff informed the trial court that if permitted to amend, she would allege that a proper investigation by BSA would have disclosed Von Aspern had previously molested children and was unfit to serve as a scoutmaster.   While BSA's failure to supervise and investigate may have been tortious as to those to whom it owed a duty of care, a question we consider in the next part, it certainly was not so extreme that it exceeded the bounds of behavior tolerated in civilized society.   The demurrer was properly sustained as to this count.

IV

 Finally we consider whether the complaint sufficiently pleads that BSA incurred liability to plaintiff for negligent infliction of emotional distress as a result of its own conduct with regard to plaintiff's sons.   No issue is raised in the appeal as to the liability or not of BSA to plaintiff's sons and we therefore do not address that question.   Moreover since it was plaintiff's sons and not plaintiff who were sexually abused, it is unclear how plaintiff was personally injured by BSA's asserted negligent failure to insure the safety of the children.   However we shall analyze the issue of liability from the perspective of duty.

Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 held that a bystander who witnesses the negligent infliction of death or injury to a third party may recover, under certain circumstances, for emotional suffering.  (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 166, 216 Cal.Rptr. 661, 703 P.2d 1.)  Dillon established guidelines to determine whether the tortfeasor owes the bystander a duty of care:  “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.  (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.  (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.”  (Dillon v. Legg, supra, at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)   Recognizing that she was not a bystander, plaintiff does not contend she has stated or can state a cause of action under Dillon.   Instead, she claims she was the direct victim of BSA's own negligence.

In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the court recognized a cause of action for “negligent infliction of emotional distress” in a case where the plaintiff was not a bystander who witnessed injury to a third party.   In Molien, plaintiff, a husband, sued defendant, a physician, for erroneously and negligently diagnosing plaintiff's wife as having syphilis and advising her to have plaintiff examined for the disease.  (Id., at p. 919–921, 167 Cal.Rptr. 831, 616 P.2d 813.)   The court held plaintiff stated a cause of action to recover for his resulting emotional injury as a “direct victim” of the assertedly negligent act:  “In the case at bar the risk of harm to plaintiff was reasonably foreseeable to defendants.   It is easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord and resultant emotional distress to a married patient's spouse;  Dr. Kilbridge's advice to Mrs. Molien to have her husband examined for the disease confirms that plaintiff was a foreseeable victim of the negligent diagnosis․  [¶] We thus agree with plaintiff that the alleged tortious conduct of defendant was directed to him as well as to his wife.   Because the risk of harm to him was reasonably foreseeable we hold, in negligence parlance, that under these circumstances defendants owed plaintiff a duty to exercise due care in diagnosing the physical condition of his wife․”  (Id., at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)

In Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899, we lamented that Molien failed to provide delimiting criteria to determine when a plaintiff is a “direct victim” of negligent conduct, inevitably foreshadowing a “quagmire of novel claims” (at 609, 208 Cal.Rptr. 899) eructating from “the amorphous nether realm of negligent infliction of emotional distress” (p. 610, 208 Cal.Rptr. 899).

In Newton v. Kaiser Foundation Hospitals, supra, 184 Cal.App.3d 386, 228 Cal.Rptr. 890, we predicted the lack of a concrete context in which to evaluate these “novel claims” would lead to an endless “quest for foreseeability ․ because foreseeability, like light, travels indefinitely in a vacuum․” (at 391, 228 Cal.Rptr. 890.)

Andalon involved a cause of action by parents against a physician whose allegedly negligent prenatal care of the mother resulted in the unwanted birth of a child afflicted with Down's Syndrome.   We sought to circumscribe Molien 's direct victim concept within the theory of Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16.   As explained in Newton, supra, “Biakanja had ruled that the duty of care for tortious breach of a contract extended to third party beneficiaries of a contract.   The application of this principle [in Andalon ] removed discussion of Molien direct victims from an ‘amorphous nether realm’ to the concrete context in which the case came before the court:  the patient-doctor relationship․  [B]y linking foreseeability with that [legal] relationship, the degree to which an existing duty is to be extended could be rationally analyzed.  (162 Cal.App.3d at pp. 609–610, 208 Cal.Rptr. 899.)   Thus in both Molien and Andalon the doctor-patient relationship with the wife directly implicated the interest of the husband:  in Molien, misdiagnosis of a venereal disease directly implicated the sexual component of the marriage in which Mr. Molien obviously had an interest, while in Andalon the failure to diagnose a genetically malformed fetus implicated ‘the reproductive life of the ․ couple and its lawful choices' in which Mr. Andalon also had an interest albeit subordinate to his wife's.  (Id., 162 Cal.App.3d at p. 611, 208 Cal.Rptr. 899 and fn. 7.)”  (Newton v. Kaiser Foundation Hospitals, supra, 184 Cal.App.3d at pp. 391–392, 228 Cal.Rptr. 890.)

At issue in Newton was the liability of a hospital for the emotional distress of the parents of an infant born with Erb's Palsy, permanent paralysis of the upper arm.   The parent's complaint alleged a physician employed at the hospital caused the paralysis by negligent use of forceps during the infant's delivery.  (Id., at p. 388, 228 Cal.Rptr. 890.)   We suggested the proper way to determine whether the parents were “direct victims” of the hospital's negligence under Molien, i.e., whether the hospital owed the parents a duty of care, was to treat the parents' contention as one for tortious breach of contract.  (Id., at pp. 391–392, 228 Cal.Rptr. 890.)   We explained:  “In this case, an obstetrician-patient relationship existed.   It cannot be gainsaid that the mother is a direct victim of the alleged negligence committed in the execution of this relationship which resulted in injuries to her child․  [¶] [H]ere Kaiser entered into a contract with the mother to provide care for herself and child during the birth process.   A duty of care may arise from contract even though there would otherwise be none.  (Eads v. Marks (1952) 39 Cal.2d 807, 810, 249 P.2d 257․)  The mother had a contract with Kaiser by which it undertook, for consideration, to provide care and treatment for the delivery of a healthy fetus.   Kaiser's contract was the source of its duty and a determination of foreseeability is unnecessary to establish a duty of care.   Under Andalon, that duty extended to the father as well.   In short, nothing in Dillon purports to diminish duties which arise as a result of contractual relationships between the parties.”  (Id., 184 Cal.App.3d at p. 392, 228 Cal.Rptr. 890;  fn. omitted.) ³

We are of course committed to the Andalon–Newton formulation in analyzing whether plaintiff is a direct victim.   Even if we assume BSA breached a duty of care to plaintiff's sons in negligently failing to investigate and discover Van Aspern's previous sexual misconduct thus placing him in a position in which he inflicted harm upon them, does BSA's duty of care extend to plaintiff as a direct victim?   To the extent the legal relationship is defined exclusively by tort, we think not.

In Ochoa v. Superior Court, supra, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, the court held that parents who watched as their 13–year–old son lay dying in a juvenile hall, all the while insisting that the authorities obtain outside medical attention for him stated a Dillon bystander cause of action for negligent infliction of emotional distress.  (At pp. 162–165, 216 Cal.Rptr. 661, 703 P.2d 1.)   In dicta, the court said that the parents did not state a cause of action as “direct victims” of the juvenile authorities' negligence because that negligence was directed primarily toward the decedent, not toward the parents.  (At pp. 172–173, 216 Cal.Rptr. 661, 703 P.2d 1.)   As in Ochoa, BSA's asserted negligence was directed primarily toward plaintiff's sons, not toward her as a direct victim.

However, as in Andalon and Newton, plaintiff's complaint suggests a contractual relationship existed between BSA, the tortfeasor, and plaintiff, the putative secondary victim.  “A duty of care may arise from contract even though there would otherwise be none.”  (Newton, supra, 184 Cal.App.3d at p. 392, 228 Cal.Rptr. 390.)   The complaint alleges that “B.S.A. did obtain physical custody of Plaintiff's children, ․ upon the representation to Plaintiff that Plaintiff's children would be participating in activities of B.S.A., Inc., and that in exchange for participation by her children, Plaintiff would have to pay a fee.   In reliance upon these representations Plaintiff paid a fee and consented to allowing her children being with defendant, Von Aspern, and Defendant, B.S.A.”

The object and purpose of the agreement as pleaded was simply to allow plaintiff's children to participate in scouting activities.   BSA did not undertake to insulate or protect plaintiff's children from any and all harm that might befall them or to act as a guarantor against every conceivable mischance or misadventure to which they might be subject.   In contrast, the contracts in Andalon and Newton created a physician-patient relationship from the negligent breach of which the injury to plaintiffs directly arose.   Granted, plaintiff has a significant interest in the protection of her children from sexual molestation.   But there is no nexus here between that interest and the “end and aim” of her agreement with BSA that for payment of a fee her sons would be allowed to participate in scouting activities (see Andalon, supra, 162 Cal.App.3d at p. 610–611, 208 Cal.Rptr. 899).   Accordingly the complaint does not allege facts sufficient to bring plaintiff within the ambit of the Molien class of direct victims.

V

 When a demurrer has been sustained without leave to amend, we consider whether there is a reasonable possibility that the defect can be cured by amendment;  if it can be, the trial court abused its discretion in denying leave to amend.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)   In her opposition to the demurrer, plaintiff proffered amendments to the complaint which, if allowed, would simply have reiterated certain allegations of the complaint although perhaps in stronger language.   The only new matter was plaintiff's proposed allegation that a part of Von Aspern's duties as scoutmaster was to instruct plaintiff's children in sex education.   As to that, we see no relationship between sex education and sexual misconduct of the kind alleged here.   Plaintiff's proposed amendments change nothing so far as vicarious liability is concerned or with respect to the “end and aim” of the agreement as pled in the complaint.

The trial court did not abuse its discretion in denying leave to amend.

The judgment is affirmed.

FOOTNOTES

1.   Although the complaint does not directly allege Von Aspern was an agent of BSA, it recites that Von Aspern is sued individually and as an agent of BSA.   BSA has not raised the issue of agency and we assume for present purposes that Von Aspern was an agent of BSA.

2.   Witkin explains the doctrine of apparent authority, in the fraud context, as follows:  “If the principal places the agent in a position to defraud, and the third person relies upon his apparent authority to make the representations, the principal is liable even though the agent is acting for his own purposes.  (Rest.2d, Agency §§ 261, 262, and Appendix, Rep. Notes, pp. 420, 429.)   The theory is that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transactions [sic] seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.   It is immaterial that the principal receives no benefits from the transaction.”  (2 Witkin, op. cit. supra, at § 141, pp. 138–139;  original emphasis.)

3.   A commentator has extolled the Newton analysis as an effective limitation on the boundless foreseeability inherent in Molien 's amorphous formulation of the direct victim test.  (Note, Newton v. Kaiser Hospital:  Defining the Direct Victim (1987) 18 Pacific L.J. 1303.)

PUGLIA, Presiding Justice.

BLEASE and SPARKS, JJ., concur.