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Court of Appeal:
Liability Possible Over Teacher’s Sex With Willing Adult
Panel Reinstates Cause of Action Against School District for Negligent Hiring, Supervision Notwithstanding That It Had No Knowledge of Teacher’s Affair With Consenting Student, 19, and No Previous Misconduct
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday ordered reinstatement of a cause of action against the Orange Unified School District for negligent supervision and retention of a teacher who engaged in a romantic, sexual relationship with the plaintiff, who was at the time a high school senior, even though, at age 19, she was a consenting adult.
Orange Superior Court Judge Deborah C. Servino on June 10, 2022, granted summary judgment in favor of the school district on all causes of action. Yesterday’s opinion reverses the judgment as to the cause of action brought under Government Code §815.2 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.”
School District’s Contention
The school district argued in its brief on appeal:
“This matter involves Appellant, an adult 19-year-old high school senior, who engaged in a consensual relationship with her afterschool [Regional Occupational Program teacher], 28-year-old Eddie Tran in and around March 2019. Appellant and Tran went to great lengths to keep their brief relationship secret; it was only after Appellant’s mother reported the relationship to a school administrator in May 2019 that Respondent was put on notice of the relationship. Appellant cannot demonstrate that prior to May 2019 Respondent had notice of the relationship and the trial court agreed as it granted Respondent’s motion for summary judgment.
“Appellant attempts to mischaracterize the relationship between her and Tran and align it with childhood sexual abuse cases, of which this is not. This is wholly misleading….”
Motoike’s Opinion
Writing for the appeals court was Justice Joanne Motoike. Addressing the matter of the plaintiff, denominated “A.P.,” having been a consenting adult, she said in a footnote:
“At the time the romantic/physical relationship began, A.P. was 19 years old. Therefore, no crime was committed. However, although the District’s appellate brief emphasizes A.P.’s age and suggests the District owed no duty to protect A.P. from Tran because she was a consenting adult at the time, she was still a student and the District was thus subject to its basic duty to protect its students.”
Reversal of Servino’s scuttling of the cause of action under §815.2 was based on what the justice regarded as a failure to analyze the factors set forth in the California Supreme Court’s 1968 opinion in Rowland v. Christian. That case involved a landowner’s liability to those coming upon real property but it has been extended by subsequent case law to other contexts.
Factors Recited
Motoike quoted a 2021 opinion from this district’s Court of Appeal, in Doe v. Lawndale Elementary School District, as applying these Rowland factors to a school district: “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.”
The justice declared:
“In this case, the trial court did not analyze the Rowland factors before determining the scope of the District’s duty. The trial court therefore erred. The Rowland factors are primarily fact-based and connected to the case at hand. Therefore, the interests of justice require that, rather than attempting to make a determination about the Rowland factors ourselves, we remand this matter to the trial court to allow it to determine whether some or all of the factors exist and whether they weigh in favor of limiting the District’s duty to A.P.”
Servino’s Ruling
In finding that the school district was not negligent, Servino said:
“Here, the District has met its initial burden of showing that it was not negligent in the hiring, training, supervision, or the retention of Tran (up until he was placed on administrative leave). The undisputed facts are the following. Tran provided references and was fingerprinted as part of his pre-employment screening. The District provided Tran with employee trainings prior to when he began teaching. Tran recalled that the training included the District’s non-fraternization policy. Tran completed mandated reporter trainings. Tran recalled being evaluated on his work performance during his employment. Apart from the incident with Plaintiff, Tran was never disciplined for anything while employed at the District.”
She continued:
“The undisputed facts demonstrate that there was nothing to put the District on notice that Tran could not be trusted to act properly without being supervised. There was nothing in Tran’s pre-employment screening that would give the District or his supervisor (Principal McCuiston) any indication that Tran would attempt to engage in a romantic relationship with a student. Plaintiff did not tell anyone at the District that she was romantically involved with Tran.”
Device Not Upgraded
The school provided a means by which teachers and students could communicate. A.P. and Tran utilized that system in exchanging private messages.
A.P. argued that the school district was negligent in not paying for an updated system that would have enabled the monitoring of communications.
“Imposing such a duty on this record ‘would be unreasonable,’ ” Servino said, citing precedent.
The Third District Court of Appeal case she cited, Motoike pointed out, was subsequently depublished.
“On remand, the trial court will be allowed to consider any relevant authorities with respect to this issue,” she said.
The case is A.P. v. Orange Unified School District, G061499.
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