Dread of the Class

Young victims of sexual assault by a substitute teacher sued three San Bernardino County school districts. Each district had formerly employed the substitute teacher, and the victims alleged that the school districts breached a duty of care to protect them from the substitute teacher by failing to report the teacher under California’s mandatory Child Abuse and Neglect Reporting Act (“the Reporting Act”).  A California Court of Appeal recently rejected their claims, reaffirming and clarifying that school districts, as mandated reporters, are not liable under the Reporting Act to future victims of child abuse outside their own districts because of the conduct of a former employee, regardless of whether those school districts suspected the employee of inappropriate conduct while employed.

The allegations in P.S. v. San Bernardino City Unified School District (2009) – Cal Rptr.3d – paint a disturbing picture. In late 2005, Eric Norman Olsen was a substitute teacher for Central School District in Rancho Cucamonga.  Allegations surfaced that he molested four first-grade students of the school district (the plaintiffs). 

Olsen had been previously employed as a substitute teacher in 2004 at Chino Valley Unified School District.  The plaintiffs alleged that Olsen had unlawful contact with a five-year-old and was subsequently “banned” from teaching at Chino Valley.  Chino Valley reported Olsen to the San Bernardino County Superintendent of Schools, but allegedly did not report Olsen to local law enforcement. In 2005, Olsen substituted at San Bernardino City Unified School District where he allegedly engaged in similar conduct with young students.  San Bernardino City permanently banned Olsen from teaching in that district, as well.  San Bernardino City allegedly did not report Olsen to local law enforcement. Plaintiffs also alleged Olsen engaged in inappropriate conduct at the Ontario Montclair School District in 2004 or 2005.

The plaintiffs brought an action against Olsen, the Central School District, and the three former employers of Olsen:  Chino Valley, San Bernardino City, and Ontario Montclair Unified School Districts.  As against the three former employing school districts, the plaintiffs alleged that each of the districts failed to report Olsen under the Reporting Act, and as a result, were liable for the assaults on plaintiffs at the hands of Olsen.

The Reporting Act (Penal Code §11164 et. seq.)  provides that certain professionals, called “mandated reporters,” including teachers and certain other employees of a school, are required to report to city or county law enforcement or a county welfare department, whenever the mandated reporter has knowledge of, observes, or reasonably suspects a child under the reporter’s care or observation has been a victim of abuse or neglect.  A duty to report suspected child abuse arises when the mandated reporter has an objectively reasonable suspicion, based upon facts that could cause a reasonable person in a like position, to suspect child abuse or neglect.

The trial court heard demurrers by the several school districts resulting in separate appeals by the plaintiffs. The Court of Appeal’s written decision in P.S. concerned primarily the San Bernardino City Unified School District’s liability to the plaintiffs for any alleged failure to report the substitute teacher to local law enforcement under the Reporting Act. 

The Court revisited the precedential decision of Randi W. v. Muroc Joint Unified School District (1997) 14 Cal.4th 1066.  In Randi W., a school administrator was suspected of inappropriate sexual conduct with students of junior and senior high schools in four different public school districts. The school administrator was never formally charged or disciplined. The four school districts also allegedly did not report the school administrator to local law enforcement. Based in part on glowing letters of recommendation from one or more of these four school districts, the school administrator was hired by the Livingston School District where he reportedly assaulted another student who brought an action against the four former school districts under several theories of liability. The California Supreme Court held, in part, that since the four former school districts were never “child care custodians” of the assaulted minor, the four former school districts did not owe a duty to the minor to report the school administrator pursuant to the Reporting Act.  However, the Supreme Court held that one or more of the four former school districts could be liable based upon a theory that the district owed a duty of care to potential future victims not to affirmatively misrepresent the facts in describing the qualifications and character of the school administrator, if the misrepresentations presented a substantial, foreseeable risk of physical harm.

The plaintiffs in P.S. argued that the Reporting Act was amended after the ruling in Randi W. to change the language referring to “child care custodian” to “mandated reporter.”  The plaintiffs argued that those amendments altered the California Supreme Court’s ruling in Randi W. with regard to the duty owed by child custodians, such as school employees, to report child abuse under the Reporting Act to prevent harm to future children not under the care of those custodians.  The Court disagreed.  The amendments to the Reporting Act in 2000 were meant only to consolidate the categories of individuals who are required to report child abuse into one code section. The Court found there was no substantive change to the persons designated as mandated reporters nor to their duties under the Act.  The Court of Appeal noted that Randi W. was not intended to extend an open-ended liability to all future children who might be harmed by an individual for the failure to report suspected injury to another child who is within the custodian’s knowledge and observation; nothing in the 2000 amendments to the Reporting Act changed this holding.

Both  P.S.  and Randi W. hold that the duty of mandated reporters under the Reporting Act, such as teachers and school administrators, extends only to reporting abuse of a child for whom those mandated reporters have responsibility to care for or observe.  However, any failure to report by these mandated reporters does not extend liability for harm upon a child who is not under the care or observation of the mandated reporter.

The Legislature did not intend to extend liability under the Reporting Act to future victims of child abuse or neglect who are not or were not under the care or observation of the mandated reporter. For public policy reasons, there are sound reasons not to extend liability beyond what the Supreme Court allowed in Randy W. Especially in these times of economic belt-tightening for school districts, an extension of liability to victims who are difficult to foresee could seriously strain public budgets. 

However, both P.S. and Randi W. raise the possibility that school district employees who engage in inappropriate behavior may move from one school district to the next without being discovered.   The facts alleged in both cases involve a former employee of a school district who, though suspected of inappropriate conduct with students, was able to obtain employment from one school district to another, all the while allegedly engaging in similar conduct at each school district. The offender in both cases allegedly was never reported to local law enforcement by any of the former school districts.  The failure to report may have contributed to the offender’s ability to be employed at another school district.  Randi W. only extends liability to a former school district which actively conceals the suspected inappropriate conduct. P.S. affirms the Supreme Court’s previous holding that there can be no liability predicated on the Reporting Act against the former school districts simply for failure to report.

These cases may result in future Legislation. There is a good public policy argument that extending liability for harm to future victims who are not and were not within the care or observation of the mandated reporter is not consistent with the Reporting Act. The Reporting Act is intended to protect children under the actual care and observation of the reporter, not potential future victims. But the Reporting Act already grants immunity from civil or criminal liability to mandated reporters who report a reasonable suspicion of child abuse unless the reporter knows the report to be false, so there is no reason for a mandated reporter not to report suspected abuse of children who are under their care or observation. It appears something more may be in order to prevent future cases such as these.

Mary Dowell is a partner with Liebert Cassidy Whitmore and Frances Rogers is an associate in the firm’s Frenso office.  Both represent schools and colleges in labor, employment and education law matters.