Amendment of Child Abuse and Neglect Reporting Act Did Not Extend or Create Liability for Future Children Who May Be Abused By A Suspected Abuser Who Was Not Reported By Former School District Who Employed Him

In P.S. v. San Bernardino City Unified School District, (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., June 5, 2009), a California Court of Appeal considered whether students who were molested by a substitute teacher could state a claim of negligence against a school district who formerly employed the abuser for its alleged failure to fulfill its duty to report the teacher pursuant to the Child Abuse and Neglect Reporting Act (“Reporting Act”).

Previous California case law held that a school district only had a duty under the Reporting Act to the children in its care and the Court of Appeal concluded that amendments to the Reporting Act did not change the nature of this duty. Accordingly, the court held the trial court properly dismissed the students’ negligence claims against the school district.

Facts

Four first grade students (“Students”) at Central School District (“Central”) were molested by their substitute teacher, Eric Norman Olsen. Each student filed a lawsuit against Olsen and Central alleging negligence, negligence per se, and negligent infliction of emotional distress. The students also named as defendants the Chino Valley Unified School District (“Chino”), the San Bernardino City Unified School District (“SBCUSD”), the Ontario-Montclair School District (”Ontario”), the San Bernardino County Department of Children’s Services, and the San Bernardino County Superintendent of Schools (“Superintendent”) on the ground that these named entities failed to fulfill their mandatory duty under the Reporting Act to report suspected child abuse that occurred when Olsen had worked for their school districts.

Students alleged that in 2004, Olsen was a substitute teacher at a school in Chino “when he made unlawful contact with a five-year old girl.” Chino banned Olson from teaching in the district and reported Olsen to Superintendent. Students further alleged Olsen had unlawful contact with another student in April 2005 while he was working for the SBCUSD. SBCUSD also banned Olsen from teaching in its district. Students also alleged Olsen had engaged in inappropriate and improper conduct with a student while employed by Ontario. Students asserted these school districts failed to report Olsen’s conduct to the proper authorities as required by the Reporting Act. Students argued SBCUSD’s employees were mandatory reporters under the Reporting Act, and they failed to comply with their statutory duty to report Olsen’s conduct. Students claimed these failures to report resulted in other school districts not being alerted as to Olsen’s conduct, allowing Olsen to continue to teach and perpetrate unlawful acts on children, including Students.

The trial court dismissed Students’ causes of actions against SBCUSD for negligence, negligence per se, and negligent infliction of emotional distress. Students appealed, but only contested the rulings as to their negligence and negligence per se cause of action.

Decision

The Court of Appeal found that the trial court properly dismissed Students’ claims for negligence and negligence per se against SBCUSD. The court found that nothing in the 2000 amendment to the Reporting Act “indicates legislative intent whatsoever to extend a duty or to create liability to all future children who might be harmed by a suspected abuser.” Students were not SBCUSD students at the time Olsen’s alleged actions against Students took place and SBCUSD also had not hired and was not supervising Olsen at the time of the alleged actions.

In Randi W. v. Muroc Joint Unified School District (1997) 14 Cal.4th 1066, a minor child sued her own school district and other school districts who had formerly employed the vice principal who molested her. The other school districts had written letters of recommendation for the vice principal and had failed to disclose his history of sexual wrongdoing. As to the issue of whether there had been a breach of the statutory duty under the Reporting Act, the California Supreme Court found that the student “was not a member of the class for whose protection the Reporting Act was enacted.”

The previous school districts for whom the vice principal had worked “were never ‘custodians of [the student bringing the lawsuit] and, accordingly, owed her no obligations under the act.” The Randi W. Court reasoned the Reporting Act requires reporting by a “child care custodian,” a classification of persons that includes the school district, “‘who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse’ (which includes sexual abuse.)” The Court construed the Reporting Act as protecting children who are in the custodial care of a person charged with reporting abuse under the act “and not all children who may at some future time be abused by the same offender.” The student in Randi W. was never in the custodial care of the other school districts.

Prior to 2000, the Reporting Act included several sections that defined the categories of persons who are required to report suspected child abuse. One such category was a “child care custodian,” which included “teachers, instructional aides, and other school personnel, youth recreation center personnel, daycare workers, and other persons who had regular contact with children in such settings.” Other sections included categories for “health practitioners,” “child protective agenc[ies],” “film and photograph processors,” “licensing agencies,” “child visitation monitor[s],” “firefighters, animal control officers and humane society officers,” and “clergy members.” Under former Penal Code section 11166, a person within any of these categories “who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected abuse to a child protective agency immediately or as soon as practically possible.”

In 2000, the California Legislature enacted a bill to amend the Reporting Act with the purpose of reorganizing and recasting “the list of specified persons who are required to report . . . and designate those persons as mandated reporters.” The amendment deleted the separate sections for the categories of persons and instead amended Penal Code section 1165.7 to contain a list of “mandated reporters.” This list in section 11165.7 includes all persons formerly provided for in the separate sections of the Reporting Act. Under amended Penal Code 11166, a mandated reporter is required to make a report of child abuse “whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” A mandated reporter must make such report “immediately or as soon as is practicably possible by telephone and the mandated reporter shall prepare and send, fax or electronically transmit a written follow-up report within 36 hours . . . .”

The Students assert that in deleting the “child care custodian” language in the Reporting Act, the Legislature evidenced intent to undermine the Supreme Court’s holding in Randi W. They claim that the alteration of the language from “child care custodian” to “mandated reporter” was “intended to abrogate the limitation to those within the mandated reporter’s ‘custodial care.’”

The Court of Appeal disagreed with Students’ argument. “The Legislature itself described what it was doing as ‘reorganizing and recasting’ existing provisions.” The categories of professionals required to report are “substantially similar, if not identical, to the categories that have existed prior to the 2000 amendment.” The changes to the Reporting Act appear to have been in form, not substance.

Furthermore, under both versions of the Reporting Act, “reporters are only required to report conduct within their knowledge or observation in their professional capacity or within the scope of their employment.” This means that a person is required “to report what the person was in a position to observe, or to reasonably suspect arising from contact with the child, which resulted from professional contact or observations made within the scope of the reporter’s employment.” The child intended to be protected by the Reporting Act “is the child about whom the reporting party is in a position to observe or to know anything regarding known or suspected abuse.” The court opined that the holding in Randi W. “was not intended to extend an open-ended liability to all future children who might conceivably be harmed, even years later, for failure to report suspected injury to one child within the knowledge and observation of the reporter.”

The Court of Appeal concluded, “Nothing in the 2000 amendment altered the nature or timing of the duty to report; the duty was still premised on the reporting party’s observation of and access to the very child as to whom abuse could be reasonably suspected, and within the professional capacity of the reporting party.” The court held the 2000 amendment did not indicate intent by the Legislature “to extend a duty or to create liability to all future children who might be harmed by a suspected abuser.”