De Villers v. County of San Diego

• Decision Date: 19 October 2007
• Docket Number: No. D048974.,D048974.
• Citation: 67 Cal.Rptr.3d 253,156 Cal.App.4th 238
• Court: California Court of Appeals Court of Appeals
• Parties: Marie DE VILLERS et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO, Defendant and Appellant.

67 Cal.Rptr.3d 253

156 Cal.App.4th 238

Marie DE VILLERS et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO, Defendant and Appellant.

No. D048974.

Court of Appeal, Fourth District, Division 1.

October 19, 2007.

John J. Sansone, County Counsel, and Deborah A. McCarthy, Senior Deputy County Counsel, for Defendant and Appellant.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant.

The John Gomez Law Firm, John H. Gomez, San Diego; Sullivan, Hill, Lewin, Rez & Engel, Candace M. Carroll, San Diego, and Suzanne M. Davidson, Glendale, for Plaintiffs and Respondents.

McDONALD, Acting P.J.

Kristin Rossum (Rossum) took toxic materials from her employer, the County of San Diego (County), and used them to murder her husband, Greg de Villers (de Villers). The trial court ruled County could be liable in wrongful death damages for de Villers's death. The jury awarded damages against County. We reverse.

I FACTUAL BACKGROUND

A. The Relationship Between Rossum and de Villers

Rossum became addicted to methamphetamine during high school. She continued to use methamphetamine periodically during college. In December 1994, while in college, Rossum left school without telling her parents, and went to San Diego to hide a relapse into methamphetamine use. At that time, she met de Villers, they became lovers, and Rossum moved into de Villers's apartment.

De Villers helped Rossum quit using methamphetamine, and in the fall of 1995 she re-enrolled in college, majoring in Chemistry. She avoided drug use and graduated with honors in May 2000. Rossum married de Villers in June 1999.

B. Rossum's Employment at the Office of the Medical Examiner

In 1997, while still in college, Rossum was employed as a student worker at County's Office of the Medical Examiner (OME). At that time, she had not used drugs for approximately two years. In 1997, OME had no policy requiring applicants to pass a drug or alcohol test, and Rossum's employment application did not inquire about prior drug or alcohol use or criminal history.

In March 2000, OME promoted Rossum from a student worker to a permanent position as a Toxicologist I. A toxicologist analyzes body fluids for the purpose of determining whether drugs are present. At the time OME promoted Rossum, OME was unaware of her earlier drug history or juvenile record.¹ OME did not conduct a drug test or a background check on Rossum, although County's policy, at that time required all OME applicants to pass a drug and alcohol test and the job description for toxicologist specified the applicant was required to undergo a law enforcement background investigation. Janet Enright, the Administrative Services Manager for OME, thought Rossum should have been drug-tested but was told by County's Human Resources department that Rossum was not required to be tested because she already worked at OME. Although Rossum signed a waiver agreeing to be tested, OME never arranged for the tests. However, there was no evidence suggesting Rossum had relapsed into drug use at the time she applied for and received the promotion, and neither her physical appearance nor her job performance suggested she had resumed using methamphetamine. Instead, the evidence suggested she did not resume her drug use until late September 2000.

Enright also thought all employees were required to undergo a background check, and asked Mr. Amborn (OME's Operations Administrator) whether Rossum should undergo a background check. Amborn told Enright it would be unnecessary. Although Amborn decided in June 2000 to have the Sheriffs Department conduct background checks on all employees hired in 2000, and Enright secured a waiver from Rossum permitting a background check, Amborn elected not to conduct a background check on Rossum. However, after de Villers was murdered, Amborn conducted a background check on Rossum and it disclosed no offenses.

C. The Robertson/Rossum Affair

Michael Robertson (Robertson) began working at OME in the Spring of 2000. Robertson was Rossum's supervisor. By May 2000 coworkers suspected he and Rossum were involved in an affair and complained to Enright, who relayed the complaints to Amborn. However, when Amborn questioned some coworkers, they denied seeing the two hugging or kissing. Amborn also asked Robertson (on two occasions) whether he was involved with Rossum, and Robertson denied it. Amborn did not ask Rossum about the rumors or examine the e-mails between Rossum and Robertson.

By October 2000, Rossum had relapsed into methamphetamine use.² Robertson became aware of her renewed usage but, contrary to County's policy requiring supervisors to report any workplace drug use, did not report Rossum's renewed usage of drugs.

D. De Villers's Death

On Thursday November 2, 2000, de Villers confronted Rossum. He told her he suspected she was using drugs and having an affair with Robertson, and demanded she quit her job at OME. He threatened to reveal her drug use and her affair with Robertson to OME if she refused to quit her job. However, when Rossum and de Villers visited with her parents the following night, the parents did not notice anything to suggest Rossum had relapsed into drug use.

On Monday, November 6, at 9:22 p.m., Rossum called 911 and told the operator de Villers had not been feeling well and that he had suddenly stopped breathing. Paramedics arrived minutes later and found de Villers's body on the floor next to his bed. Fresh looking red rose petals were strewn around his body. The paramedics transported de Villers to the hospital, where he was pronounced dead at 10:19 p.m. (People v. Rossum (Jun. 13, 2005, D041343) [nonpub. opn.] at pp. 5-6, 2005 WL 1385312.)

E. The Investigation

San Diego County Medical Examiner, Dr. Brian Blackbourne, performed an autopsy on de Villers's body the day after his death. He concluded de Villers had been dead for at "least an hour or so" by the time paramedics arrived, and that de Villers had been "stuporous or semi-conscious or comatose" for a minimum of six to 12 hours prior to his death. Blackbourne also found needle marks on de Villers's body. (People v. Rossum, supra, D041343, at p. 6.) However, neither the autopsy nor the initial toxicology tests³ showed the cause of his death.

Based on subsequent toxicology results of de Villers's body fluids, Blackbourne determined de Villers had died of acute fentanyl intoxication. The toxicology results also showed de Villers had oxycodone and clonazepam in his system at the time of his death.

Shortly thereafter, an audit was conducted at OME for the purpose of determining whether any fentanyl was missing from its supply. Fifteen fentanyl patches impounded in three different cases and the contents of a vial of the fentanyl standard⁴ were missing from OME. Rossum had been involved in all three cases in question and had logged in the fentanyl standard. Robertson also had authorized access to all drugs stored at OME. Robertson and Rossum, who both knew OME did not routinely test for fentanyl, had traveled together in October 2000 to attend a conference of forensic toxicologists at which they received a copy of a journal that included a paper discussing 25 deaths caused by fentanyl.

In December 2000 and January 2001, OME toxicologist Lowe conducted two further evidentiary audits to determine whether any methamphetamine or other drugs were missing from OME. The audits found impounded methamphetamine was missing from various envelopes, and various drug standards (including those for methamphetamine and cocaine) were missing. These three audits were the first audits of impounded drugs conducted in Lowe's 32 years at OME. In July 2001, OME directed another toxicologist to conduct an audit of all of OME's evidence drugs. This audit found that some clonazepam and oxycodone were missing. In addition to the fentanyl, low levels of these latter two drugs were found in de Villers's system.

At the trial in the case, plaintiffs introduced the testimony of several experts. One expert testified OME's hiring and supervision practices were inadequate because drugs are constantly present in the work environment. A second expert testified there were several deficiencies in the controls used by OME to prevent drug thefts by its employees. A third expert testified to the effects of methamphetamine on its users and testified that Rossum's constant access to the drug coupled with the stress of hiding her affair with Robertson nearly guaranteed she would relapse into substance abuse.

F. The Criminal Proceedings

Rossum was charged with the first degree murder of de Villers and, as a special circumstance, the information alleged she committed the murder by administering poison. The jury convicted her of the crime and found the special circumstance true. (People v. Rossum, supra, D041343.) She is currently serving a prison sentence of life without possibility of parole.

II PROCEDURAL BACKGROUND

Plaintiffs filed this wrongful death action against Rossum and County seeking damages for de Villers's death.⁵ Plaintiffs' claim against County alleged two theories of liability: (1) County was liable for de Villers's death because it had negligently hired and supervised Rossum and this negligence was a proximate cause of de Villers's death; and (2) County breached its mandatory duty to guard against the theft of drugs from OME and the breach of that duty was a proximate cause of de Villers's death. After County's pretrial challenges to plaintiffs' theories were rejected, the matter was tried to a jury, which found in favor of plaintiffs on both theories. County's motion for judgment notwithstanding the verdict was denied, and judgment was entered in favor of plaintiffs. This timely appeal by County followed.

III ISSUES ON APPEAL

A Overview

When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor's employer, the injured party ordinarily must...