Filed 4/13/22; Modified and Certified for Publication 5/4/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
JANE DOE,
Plaintiff and Appellant, C093099
v. (Super. Ct. No. 192696)
ANDERSON UNION HIGH SCHOOL DISTRICT
et al.,
Defendants and Respondents.
Daniel Schafer, a teacher at a high school in the Anderson Union High School
District (District), had a sexual relationship with one of his students, plaintiff Jane Doe,
which included sexual activities in his classroom. Doe sued the District, principal Carol
Germano, and superintendent Tim Azevedo for negligent hiring and negligent
supervision. We refer to the defendants collectively as the District, except when being
more specific is necessary to the discussion. The trial court granted the District’s motion
for summary judgment and entered judgment in favor of the District, finding that there
was no evidence the District knew or should have known that Schafer posed a risk of
harm to students.
Doe now contends the trial court erred by granting summary judgment because the
District had a duty to supervise and monitor Schafer and Doe and whether the District
breached its duty to Doe is a question of fact for the jury.
1
We conclude the District did not know that Schafer would have sex with Doe, and
it had no information that would support a conclusion that it should have known. On this
record, the District did not have a duty to review alarm data and video recordings in order
to constantly monitor all teachers, students, and campus visitors, nor did it have such a
duty specifically with regard to Schafer and Doe. Accordingly, we need not address the
claim of breach of duty.
We will affirm the judgment.
BACKGROUND
When Doe was 17 years old and a student at a high school in the District, she
engaged in sexual activity with Daniel Schafer, a teacher at the high school, over a period
of about three months. Doe told her best friend, and in September 2018, the District
learned of the sexual relationship from the mother of Doe’s best friend. The District
immediately investigated, obtained Schafer’s resignation, and notified Doe’s parents and
law enforcement.
Schafer had been a teacher in the District since 2012, and the District vetted him
through education and law enforcement agencies and trained him on sexual harassment
and child abuse. His relationship with Doe began with hand-holding and texting in
Schafer’s classroom. Eventually, Doe began visiting Schafer’s classroom in the evening.
On the first day of summer break, Doe again visited Schafer in his classroom, and they
engaged in sexual activities. Through the summer, they engaged in additional sexual
activities in the classroom and at Schafer’s home. Schafer pleaded guilty to crimes
associated with this sexual relationship.
When the District hired Schafer in 2012, there were no facts, reports, or rumors
that Schafer had engaged in any improper relationship. The revelation of his relationship
with Doe was a surprise to the District.
A janitor once saw Doe alone with Schafer in his classroom after school but did
not see any inappropriate conduct. The janitor told the school receptionist what she had
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seen, but because she did not think anything was wrong at the time, she did not tell
principal Germano until after the District learned of the relationship and obtained
Schafer’s resignation.
The District maintained outside security cameras at the high school, including a
camera that recorded video of the doors to Schafer’s classroom. Footage from the
cameras was saved for only 14 days before automatic erasure. The District’s policy was
to review the footage only if the District learned of an incident that may have been caught
on video. The District also maintained an alarm system that covered the main building
and Schafer’s classroom. Each employee, including Schafer, had a code to deactivate the
alarm. However, the District had not requested data from the alarm company on when
alarms were deactivated or by whom.
Teachers had unrestricted access to the high school campus, but prior to the report
of the relationship between Schafer and Doe, there had been no issues with teacher
access. Principal Germano was the only administrator supervising the daily activities of
the teachers at the high school. She was aware that teachers were on campus after hours,
but she did not review video footage or alarm logs because such access had not been a
problem.
In opposition to the District’s motion for summary judgment, Doe submitted the
declaration of David Jackson, a retired principal and school administrator. He made it a
practice to obtain and review alarm logs. If he found that a teacher was spending too
much time on campus late at night, Jackson would interview the teacher and, possibly,
review the video footage. This review was inexpensive and cost-effective. In his
opinion, principal Germano “was not simply negligent in performing her duty to monitor
teachers for the protection of her students, she completely abandoned that task.” Also in
Jackson’s opinion, “budgetary issues are never a concern when dealing with the safety of
students.”
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In response to the motion for summary judgment, Doe conceded she did not have
evidence to support the negligent hiring cause of action, so the trial court focused on the
negligent supervision cause of action, noting that to prove negligent supervision, Doe had
to show not only that Schafer posed a risk of harm, but also that the risk was foreseeable,
i.e., that the District knew or should have known of the risk that Schafer posed. The trial
court granted the motion for summary judgment and entered judgment against Doe.
STANDARD OF REVIEW
“ ‘A trial court properly grants summary judgment when there are no triable issues
of material fact and the moving party is entitled to judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” ’ ” (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1085
(Delgadillo).)
The party moving for summary judgment bears the burden of persuasion that there
is no triable issue of material fact and that the moving party is entitled to judgment as a
matter of law. (Delgadillo, supra, 20 Cal.App.5th at p. 1085.) We review de novo the
trial court’s judgment following the granting of a motion for summary judgment. (Ibid.)
DISCUSSION
Doe contends summary judgment was improperly granted because the District had
a duty to supervise and monitor Schafer and Doe, and the adequacy of such supervision is
a question of fact for the jury.
A
“Negligence law holds one liable for failing to use reasonable care to avoid harm
to others only in those cases where one has a duty to use reasonable care. To determine
liability, it is necessary to distinguish between the separate questions of whether a duty
exists and whether a duty that exists has been breached by the failure to use the care that
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a reasonable person would have used under the circumstances. Whether a defendant has
a duty to use reasonable care to avoid harm to the plaintiff is decided as a matter of law
by the court. If the court finds that a duty exists, the next question is whether the
defendant used reasonable care. It is generally the jury, as trier of fact, that decides
whether the defendant used the care that a reasonable person would use under the
circumstances to avoid harm to the plaintiff.” (Ky. Fried Chicken of Cal. v. Superior
Court (1997) 14 Cal.4th 814, 831-832.)
“[A] school district and its employees have a special relationship with the district’s
pupils, a relationship arising from the mandatory character of school attendance and the
comprehensive control over students exercised by school personnel, ‘analogous in many
ways to the relationship between parents and their children.’ [Citations.] Because of this
special relationship, imposing obligations beyond what each person generally owes
others under Civil Code section 1714, the duty of care owed by school personnel includes
the duty to use reasonable measures to protect students from foreseeable injury at the
hands of third parties acting negligently or intentionally. This principle has been applied
in cases of employees’ alleged negligence resulting in injury to a student by another
student [citations], injury to a student by a nonstudent [citation] and—on facts
remarkably close to the present case—injuries to a student resulting from a teacher’s
sexual assault (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848,
1851, 1855).” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
869-870, fn. omitted (C.A.).)
“Responsibility for the safety of public school students is not borne solely by
instructional personnel. School principals and other supervisory employees, to the extent
their duties include overseeing the educational environment and the performance of
teachers and counselors, also have the responsibility of taking reasonable measures to
guard pupils against harassment and abuse from foreseeable sources, including any
5
teachers or counselors they know or have reason to know are prone to such abuse.
[Citations.]” (C.A., supra, 53 Cal.4th at p. 871.)
In C.A., a high school guidance counselor engaged in sexual activities with a
student. (C.A., supra, 53 Cal.4th at p. 866.) The student sued the school district, alleging
the school district knew or should have known the guidance counselor had engaged in
unlawful sexual activities with minors in the past. (Ibid.) The California Supreme Court
noted that the school district could be liable for the administrators’ hiring and retaining
the guidance counselor and failing to properly supervise her. (Id. at pp. 875.) However,
the duty to students relating to hiring, retaining, and supervising a school employee has
limits. As the court explained, “a district’s liability must be based on evidence of
negligent hiring, supervision or retention, not on assumptions or speculation. That an
individual school employee has committed sexual misconduct with a student or students
does not of itself establish, or raise any presumption, that the employing district should
bear liability for the resulting injuries.” (Id. at p. 878, original italics.)
The discussion of school district liability in C.A. does not recognize a distinction
between a school district’s duty in hiring as opposed to supervision. Doe nevertheless
maintains there is such a distinction. She claims the duty in hiring considers whether the
school district knew or should have known that the teacher posed a risk of harm to
students, whereas the duty of supervision does not. We disagree. Even if the legal
analysis in a hiring case might be different than the analysis in a supervision case, both
require a reasonably foreseeable risk of harm to support a duty. (Thompson v.
Sacramento City Unified Sch. Dist. (2003) 107 Cal.App.4th 1352, 1372 (Thompson).)
In Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, a student died
during lunch recess in an area under the supervision of a school’s physical education
department. At a time when no teachers were present in the area, two students, including
the decedent, engaged in a game of slap-boxing, during which the decedent fell to the
ground, hit his head, and ultimately died. (Id. at pp. 745-746.) The decedent’s parents
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sued the school district, alleging negligence in failing to provide adequate supervision.
(Id. at p. 744.) After the trial court entered a directed verdict for the school district, the
California Supreme Court reversed, concluding there was sufficient evidence to support a
verdict based on negligent supervision. (Id. at pp. 744-745, 750-751.) But the basis for
the duty was the foreseeability of harm during recess and lunch periods. “Supervision
during recess and lunch periods is required, in part, so that discipline may be maintained
and student conduct regulated. Such regulation is necessary precisely because of the
commonly known tendency of students to engage in aggressive and impulsive behavior
which exposes them and their peers to the risk of serious physical harm.” (Id. at p. 748.)
The District’s duty of supervision was limited to the risks of harm that were
reasonably foreseeable, i.e., that were known to the District or that reasonably should
have been known to the District. (Thompson, supra, 107 Cal.App.4th at p. 1372.) School
districts are not the insurers of the physical safety of students (id. at p. 1372), and
“[s]tudents are not at risk merely because they are at school. [Citation.] A contrary
conclusion would unreasonably ‘require virtual round-the-clock supervision or prison-
tight security for school premises . . . .’ [Citation.]” (Leger v. Stockton Unified School
Dist. (1988) 202 Cal.App.3d 1448, 1459 (Leger).)
B
Although she does not cite authority for the proposition, Doe argues sexual abuse
between school employees and students is foreseeable.
“Foreseeability supports a duty only to the extent it is reasonable, because rarely is
anything completely unforeseeable. (Sturgeon [v. Curnutt (1994)] 29 Cal.App.4th [301,]
307 [(Sturgeon)] [‘On a clear day, you can foresee forever.’]; Weirum v. RKO General,
Inc. (1975) 15 Cal.3d 40, 47 [‘virtually every act involves some conceivable danger’].)
Courts use a subjective reasonableness standard in determining whether the degree of
foreseeability is high enough to impose a duty on the defendant to act on it. (Sturgeon, at
p. 307.)” (Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1253.)
7
The California Supreme Court has rejected the proposition that sexual misconduct
is foreseeable any time a minor and an adult are alone together in a room. (John R. v.
Oakland Unified School Dist. (1989) 48 Cal.3d 438, 450, fn. 9.) Here, the District did
not know that Schafer would have sex with Doe, and it had no information that would
support a conclusion that it should have known. On this record, the District did not have
a duty to review alarm data and video recordings to constantly monitor all teachers,
students, and campus visitors, nor did it have such a duty specifically with regard to
Schafer and Doe. To impose such a duty on this record would be unreasonable. (Leger,
supra, 202 Cal.App.3d at p. 1459.)
Because the facts of this case do not establish the duty required to succeed on a
negligent supervision cause of action, Doe’s contentions lack merit, and we need not
address the claim of breach of duty.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
HOCH, J.
8
Filed 5/4/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
JANE DOE,
Plaintiff and Appellant, C093099
v. (Super. Ct. No. 192696)
ANDERSON UNION HIGH SCHOOL DISTRICT ORDER MODIFYING
et al., OPINION AND GRANTING
REQUESTS FOR
Defendants and Respondents. PUBLICATION
[NO CHANGE IN
JUDGMENT]
APPEAL from a judgment of the Superior Court of Shasta County, Stephen H.
Baker, Judge. Affirmed.
Reiner, Slaughter, Mainzer & Frankel, Russell Reiner, and Rick Lundblade,
Swanson Law Office and Mark D. Norcross for Plaintiff and Appellant.
Morgan & Kelley and John P. Kelley, for Defendants and Respondents.
1
THE COURT:
It is ordered that the opinion filed in this case on April 13, 2022, be modified
as follows:
On page 1, first full paragraph, last sentence, remove the word “that” so that the
sentence now reads:
The trial court granted the District’s motion for summary judgment and entered
judgment in favor of the District, finding there was no evidence the District knew or
should have known that Schafer posed a risk of harm to students.
On page 2, first full paragraph, remove the first sentence beginning with “We conclude”
and replace with the following:
We conclude the District did not know Schafer would have sex with Doe, and it
had no information to support a conclusion that it should have known.
On page 6, first full paragraph, eighth sentence, remove “As the court explained” and
replace with “(Id. at pp. 877-878.) And ultimately,” so that the new sentences now read:
(Id. at pp. 877-878.) And ultimately, “a district’s liability must be based on
evidence of negligent hiring, supervision or retention, not on assumptions or speculation.
That an individual school employee has committed sexual misconduct with a student or
students does not of itself establish, or raise any presumption, that the employing district
should bear liability for the resulting injuries.” (Id. at p. 878, original italics.)
On page 6, second full paragraph, remove the first sentence beginning with “The
discussion” and the second sentence beginning with “Doe nevertheless” and replace with
the following:
Doe nevertheless urges a distinction between a school district’s duty in hiring as
opposed to supervision.
2
On page 6, second full paragraph, remove the last sentence beginning with “(Thompson v.
Sacramento” and replace with the following:
(Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at p. 1855.) If the
court concludes the injury was not reasonably foreseeable, there is no duty. (Sturgeon v.
Curnutt (1994) 29 Cal.App.4th 301, 306 (Sturgeon).)
On page 7, remove the first full paragraph beginning with “The District’s duty” and replace
with the following:
The District’s duty of supervision was limited to the risks of harm that were
reasonably foreseeable, i.e., that were known to the District or that reasonably should
have been known to the District. (Virginia G. v. ABC Unified School Dist., supra, 15
Cal.App.4th at p. 1855.) School districts are not the insurers of the physical safety of
students (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th
1352, 1371), and “[s]tudents are not at risk merely because they are at school. [Citation.]
A contrary conclusion would unreasonably ‘require virtual round-the-clock supervision
or prison-tight security for school premises . . . .’ [Citation.]” (Leger v. Stockton Unified
School Dist. (1988) 202 Cal.App.3d 1448, 1459 (Leger).)
On page 7, Discussion part B, remove the second full paragraph beginning with
“ ‘Foreseeability supports” and replace with the following:
“Foreseeability supports a duty only to the extent it is reasonable, because rarely is
anything completely unforeseeable. (Sturgeon, supra, 29 Cal.App.4th at p. 307 [‘On a
clear day, you can foresee forever.’]; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40,
47 [‘virtually every act involves some conceivable danger’].) Courts use a subjective
reasonableness standard in determining whether the degree of foreseeability is high
enough to impose a duty on the defendant to act on it. (Sturgeon, supra, at p. 307.)”
(Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1253.)
3
On page 8, first full paragraph, remove the third sentence beginning with “Here, the
District” and replace with the following:
Here, the District did not know Schafer would have sex with Doe, and it had no
information to support a conclusion that it should have known.
This modification does not change the judgment.
The opinion in the above-entitled matter filed on April 13, 2022, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
FOR THE COURT:
/S/
MAURO, Acting P. J.
/S/
DUARTE, J.
/S/ ,
HOCH, J.
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