Alma W. v. Oakland Unified School Dist.

• Decision Date: 28 August 1981
• Citation: 123 Cal.App.3d 133,176 Cal.Rptr. 287
• Court: California Court of Appeals Court of Appeals
• Parties: ALMA W. WHITSON, a minor by and through her guardian ad litem, Ida Young, Plaintiff and Appellant, v. OAKLAND UNIFIED SCHOOL DISTRICT, Defendant and Respondent. Civ. 46462.

Page 287

176 Cal.Rptr. 287

123 Cal.App.3d 133

ALMA W. WHITSON, a minor by and through her guardian ad litem, Ida Young, Plaintiff and Appellant, v. OAKLAND UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Civ. 46462.

Court of Appeal, First District, Division 2, California.

Aug. 28, 1981.

Hearing Denied Oct. 21, 1981.

Thomas V. Roland, Berkeley, for plaintiff and appellant.

Stephen A. McFeely, Crosby, Heafey, Roach & May, Michael S. Sorgen, Legal Advisor, Oakland, for defendant and respondent.

MILLER, Associate Justice.

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 eleven 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, and respondent, alleging, inter alia, sexual molestation and rape. Following interposition of demurrers by the school district and others, appellant filed a first amended complaint on March 14, 1978. The amended complaint sought to establish the school district's liability under the doctrine of respondeat superior for A.B.'s act of sexual molestation and rape. On October 3, 1978, the complaint was dismissed for failure to state cause of action as to the respondent and the school principal, and judgment was entered in their favor.

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 A.B. 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 the torts of employees committed within the course or scope of their employment. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988; Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 617-618, 124 Cal.Rptr. 143.) Accordingly, we look to the interpretation given the phrase "scope of employment" at common law to guide us in resolving the issue of whether the actions of a public employee fall within the scope of his employment.

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 521, 154 Cal.Rptr. 874.)

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, 278 P.2d 114.) 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, 88 Cal.Rptr. 188, 471 P.2d 988; 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, 171 Cal.Rptr. 95; 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 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. A.B.'s action, prompted by wholly personal motivations, was clearly not required or incidental to his duties as a school custodian.

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, 85 P. 694.) 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.

In attempting to establish a nexus between A.B.'s janitorial duties and his act of sexual molestation, appellant places considerable reliance on a number of decisions holding employers vicariously liable for their employees' tortious assaults on third parties: Carr v. Wm. 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. (...