Alma W. v. Oakland Unified School District

Opinion

This appeal arises out of a tort action seeking damages from respondent, Oakland Unified School District, for an alleged sexual assault by respondent’s employee, A. B., on appellant. Appellant appeals from a judgment entered against her which sustained respondent’s demurrer for failure to state a cause of action against the school district under the doctrine of respondeat superior.

Appellant alleges that on December 2, 1977, she was a student at respondent’s Lazear Elementary School and that A. B. was respondent’s employee. Appellant, an 11 year old, was sexually molested by A. B., a school custodian. The sexual misconduct occurred on the school premises on a Friday afternoon behind closed doors in A. B.’s custodian’s office.

On January 25, 1978, through her mother as guardian ad litem, appellant filed a complaint for damages against A. B., the school principal,

On appeal, appellant raises only the issue of whether a school district may be liable for a sexual assault perpetrated by a school employee. Appellant contends that sexual assault is a foreseeable risk created by the educational enterprise which gives rise to liability of the school district under the doctrine of respondeat superior where the employee is on duty immediately before and immediately after the assault.

Preliminarily, we note that this case is controlled by Government Code section 815.2, which provides, in pertinent part: “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.” To hold a governmental employer vicariously liable for the wrongful acts of its employees, section 815.2 by its express terms requires a showing that the employee acted within the scope of his employment. 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. (Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.3d 947 , 956 [ 171 Cal.Rptr. 95 ].) Here, resolution of the scope of employment issue is proper on appeal because the facts, seen in the light most favorable to appellant, present no grounds upon which a trial court might base a finding that Bell acted within the scope of his employment.

The general rule of respondeat superior at common law for nongovernmental employers is the same as that set forth in the Government Code for public employers: An employer is vicariously liable for

Our division recently articulated the test for determining whether an employee’s wrongful act falls within the course or scope of employment. “The determination as to whether an employee committed a tort during the course of his employment turns on whether or not: 1) the act performed was either required or ‘incident to his duties’ [citation], or 2) the employee’s misconduct could be reasonably foreseen by the employer in any event [citations].” (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503 , 520 [ 154 Cal.Rptr. 874 ].) If an employee’s actions fall within the range of actions covered by either part of this two-prong test, the employer will be liable for the wrong, even though the employee has acted maliciously and intentionally. (Id., at p. 521.)

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. (Kish v. California S. Automobile Assn. (1922) 190 Cal. 246 , 249 [ 212 P. 27 ].) For example, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to himself and not acts of service, do not take him outside the scope of his employment. (DeMirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758 , 765 [ 188 P.2d 834 ].) 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. (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956 , 960; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652 , 656 [ 171 P.2d 5 ]; Golden West Broadcasters, Inc. v. Superior Court, supra, 114 Cal.App.3d 947 , 957; Figone v. Guisti (1919) 43 Cal.App. 606 , 611 [ 185 P. 694 ].)

This case presents us with a factual situation where the connection between the employee’s duties and the employee’s wrongful action

Appellant’s undisputed allegations that A. B. used school facilities in the commission of his offense do not convince us that A. B.’s action may have been incidental to his custodial duties. Where an employee pursues his own ends, the use of property or facilities entrusted to him by the principal is an inadequate basis for imputing liability to the employer (Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190 , 209 [ 30 Cal.Rptr. 253 ]). For example, the fact that a dry cleaning operation affords an employee a unique opportunity to pilfer items inadvertently left in customer’s clothing does not render the dry cleaning company vicariously liable for the employee’s theft. (Copelin v. Berlin Dye Works etc. Co. (1914) 168 Cal. 715 , 719 [ 144 P. 961 ].) Similarly, the custodian’s use of the janitor’s office, which arguably furnished a unique opportunity for A. B’s action, does not impute liability to the school district. The mere fact that an employee has the opportunity to abuse facilities necessary to the performance of his duties does not render an employer vicariously liable for the abuse.

Nor does the fact that the offense occurred during working hours make A. B.’s action incidental to his employment. Although appellant strenuously argues that the janitor’s presence at his workplace and his attendance to his duties immediately before and immediately after the offense is a determinative factor in resolving the issue of scope of employment, he is unable to cite any authority for that proposition. In fact, mere presence at the place of employment before, during, or after the commission of the offense has not been a decisive factor in resolving the scope of employment issue. (Yates v. Taft Lodge No. 1527 (1935) 6 Cal.App.2d 389 [ 44 P.2d 409 ]; Figone v. Guisti, supra, 43 Cal.App. 606 .) If an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.

We now turn to the second part of our inquiry: Whether the employee’s misconduct was foreseeable in any event. Appellant cites the broad foreseeability test articulated in Rodgers v. Kemper Constr. Co., supra, as support for her argument that the rape occurred within the scope of employment. The Rodgers test reads as follows: “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. 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

Nor does appellant’s reference to the Education Code 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. Although appellant argues that the Legislature’s anticipation of such an eventuality proves that sexual molestation was foreseeable, the legislative action does not in itself meet the foreseeability test that is the law of this state. 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. (Rest.2d Agency (1957) § 245.) Thus, while it might be foreseeable for a school custodian to become involved in a dispute over the manner in which he swept the floors

Reference to California’s workers’ compensation law lends added support to our decision today. Although the rationale underlying respondeat superior and workers’ compensation are not identical, courts have frequently been guided by workers’ compensation decisions in determining whether a particular act was within the scope of employment: “Under the modern rationale for respondeat superior, the test for determining whether an employer is vicariously liable for the tortious conduct of his employee is closely related to the test applied in workers’ compensation cases for determining whether an injury arose out of or in the course of employment. [Citation.] This must necessarily be so because the theoretical basis for placing the loss on the employer in both the tort and workers’ compensation fields is the allocation of the economic cost of an injury resulting from a risk incident to the enterprise. [Citations.] Consequently, our high court has on many occasions relied upon workers’ compensation cases in tort cases. [Citations.]” (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608 , 619.) In looking to workers’ compensation law, we are essentially asking whether any injuries A. B. might have incurred while engaged in the sexual molestation and rape would be compensable under workers’ compensation. Necessarily, if A. B.’s conduct were within the “course and scope” of his employment as a custodian, then any injury to A. B. which occurred while these acts were in progress would be a compensable injury for workers’ compensation purposes. However, to assert that A. B. would be entitled to workers’ compensation benefits had he, for example, injured his back in perpetrating a rape is totally absurd. If A. B. had been injured, it would clearly not be compensable because the alleged misconduct is ipso facto not within the “course and scope of his employment.” It necessarily follows that such conduct would be outside the scope of his employment under a respondeat superior analysis since the latter test is more restrictive than the workers’ compensation standard. (Church v. Arko (1977) 75 Cal.App.3d 291 , 298 [ 142 Cal.Rptr. 92 ].)

Distilled to its essence, appellant’s argument is little more than that the risk of loss from an employee’s sexual assault should fall on the school district as a means of spreading the risk to the community at large. Appellant is leaning on a slender reed. The “spread the risk” concept underlying the doctrine of respondeat superior does not

As we have stated, the act of rape is not attributable to the school district because it is neither a required or incidental duty of a school employee, nor is it a reasonably foreseeable consequence of the educational enterprise. We will not depart from settled precedent to establish a rule that would divert limited educational funds to create a new compulsory insurance fund which would cover virtually all torts of an employee occurring during working hours at the place of employment, regardless of the extremity or personal nature of the act. The facts, construed most favorably for the appellant, will admit of no inference other than that in his rape of the appellant, A. B. stepped outside the scope of his employment.

Taylor, P. J., and Rouse, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied October 21, 1981.