Factual and Procedural Case Background

A.H. attended Tamalpais High School from 2000 to 2004, graduating in 2004. While in high school, he played on the tennis team, which was coached by Normandie Burgos, a physical education teacher and coach. Burgos had been hired by the school in 1998.

While A.H. was in middle school, he began taking private tennis lessons from Burgos and joined the school’s team in his freshman year. He viewed Burgos as a mentor and as one of the most important people in his young life other than his parents. In 2003, Burgos began sexually abusing A.H. It began by massaging A.H.’s elbow when he had tendonitis. Burgos told A.H. he needed to massage him to relieve tight muscles, which started with his torso but later progressed to A.H.’s lower body, and finally, his genital region.

A.H. was receiving one of these “massages” in Burgos’s office with the door locked. Burgos told him to wear a mask and A.H. felt him touching and stroking his penis. The athletic director attempted to get into the office while this was occurring, and Burgos pulled off the sleeping mask and unlocked the door. When the athletic director asked why the door was locked and what he was doing, Burgos told him they were doing stretching exercises for A.H.’s back, and the athletic director recommended a stretch and left.

In 2017, A.H. filed a lawsuit against Tamalpais High School, alleging negligent supervision and retention and failure to protect him from sexual abuse. The case eventually went to a jury trial. At trial, A.H. presented testimony from multiple other former students about their own incidents involving Burgos and sexual grooming and/or abuse. The principal, Chris Holleran, was the principal from 2000 to 2008.

In 2002, he received a complaint about sexual contact by Burgos with a high school wrestler who alleged that Burgos had brushed his hand across his genitals and insisted he needed to take body fat measurements by reaching his hand down the boy’s shorts to test the upper thigh area. The complaint was made by a police detective who had learned about it from the boy’s therapist during a session.

Holleran responded by discussing the incident with Burgos and telling him that body fat measurements should never be taken in that area. He wrote an incident report about it and placed it in a locked cabinet in his office but did not include a copy in Burgos’s personnel file or alert any teachers or coaching staff.

Other complaints came from a boy named A.G. who graduated in 2003. He testified that Burgos called him into his office for body fat testing, told him to remove his clothing other than his boxer shorts, and pinched his skin about one inch above his penis after telling him to pull down his waistband. Another boy, S.C. who played tennis and graduated in 2002, recalled that Burgos had called him into his office for a body fat test and told him to remove his clothing. Burgos then pinched the skin in his pubic area directly next to the boy’s penis.

J.L., who graduated in 2003, testified that Burgos told him the PE test for body fat was inaccurate and needed to be performed again. He called J.L. into his office, made him remove all of his clothing, placed a blindfold on him, and then touched his testicles and moved his penis back and forth. Finally, E.L., who graduated in 2002, testified that Burgos told him he needed a sports massage. During the massage, he touched E.L.’s buttocks and told him to relax, alarming E.L. The boy talked about what happened with some other wrestlers, who all told him their massages were the same way. E.L. told the court that this normalized the behavior, so he didn’t file a complaint.

The school district’s attorney argued that Burgos should have been included as a defendant in the case and that the jury should assign 90% of the blame to Burgos and not the school district. The district also argued the jury should only return a verdict of $250,000 and assign most of it to Burgos. A.H.’s attorney asked for $19.5 million and asked the jury to allocate 90% of the blame to the district and 10% to Burgos, arguing that A.H.’s abuse would not have occurred but for the school district’s negligence in retaining Burgos despite having received multiple complaints before A.H.’s abuse occurred.

The jury returned a verdict in favor of A.H. and against the school district. They assigned 100% of the fault to the school district and awarded A.H. $10 million in noneconomic losses, including $5 million in the past and $5 million in future noneconomic damages.

The school district appealed.

Issues: 1. Did the court err when it gave the jury instructions that it should ask whether the district was negligent and if so, whether its negligence was the substantial contributing factor to A.H.’s sexual abuse? 2. Did the court commit prejudicial error when it allowed testimony from others about their past sexual abuse by Burgos?

The school district argued on appeal that the judge’s special verdict instructions on negligence were prejudicially erroneous and that the verdict should be reversed as a result. It also argued that the court committed prejudicial error by allowing testimony from other former students about incidents of sexual abuse and harassment by Burgos while he taught at the high school.

Rules: 1. Public entities are liable for the actions of their employees when they are working within the scope and duty of employment. 2. School districts can be liable for negligent supervision when they know or should have known about an employee’s propensity or history of committing similar acts.

In California, a public entity such as a school district is vicariously liable for the wrongful actions of its employees while working in the scope and course of employment. Schools can also be liable under a theory of negligent supervision when they know or should have known about an employee’s propensity or history of committing similar acts.

Analysis

The Court of Appeal began with an analysis of the trial court’s special verdict jury instructions for the school district’s negligence. The judge had allowed jury instructions proposed by the plaintiff that first asked whether the jury believed the district was negligent in supervising and retaining Burgos, and if yes, whether they believed that negligence was a substantial contributing factor to the harm caused to A.H.

The court noted that a public entity is vicariously liable when its employee harms a third party through wrongful conduct while acting within the scope and course of employment. Since Burgos was employed by the school district and acting in his capacity as a P.E. teacher and tennis coach, the school, rather than Burgos, could be held vicariously liable. However, the district can’t be held liable if a teacher sexually abuses a student since the act of sexual abuse doesn’t fall within the teacher’s scope and course of employment. However, the district can be liable if the abuse occurs because of the district’s negligent failure to adequately supervise or its negligent retention of the employee when it knows or should have known about the abuse.

In applying these rules to A.H.’s case, the court found that the school district should have known about Burgos’s propensity and history to commit sexual abuse and harassment against students before abusing A.H. In terms of the jury instructions, the court noted that the school district had proposed an instruction to the court that the court based its instructions on, namely that the jury could find negligence on the part of the school district because of negligent hiring, supervision, or retention but not based on speculation. The court also gave a separate proposed jury instruction submitted by the school district that the duty of reasonable supervision was limited to what was reasonably foreseeable.

The school district argued the court erred because it failed to instruct the jury that the district could not be held vicariously liable for an employee’s sexual abuse. It further argued that it could only be liable for the actions of its supervisory employees. The Court of Appeal disagreed, finding that the trial court did instruct the jury that it couldn’t base a finding of negligence on the fact that one of the district’s employees sexually abused A.H. but rather only if the jury found the abuse occurred because of the district’s negligent supervision and/or retention of Burgos.

The court then considered the district’s argument that the trial court erred by allowing testimony from others who had suffered sexual abuse at the trial. The district argued that this testimony was prejudicial. However, the court found that the testimony was permissible because it went to show that the district should have known about Burgos’s propensity to commit similar acts and thus did not err.

Conclusion

The court affirmed the trial court and upheld the verdict. The school district was ordered to pay A.H.’s costs on appeal.

Consult a Los Angeles Personal Injury Attorney

If you were a victim of sexual abuse at school by a teacher or coach that the district failed to do anything about, talk to the experienced civil sexual abuse lawyers at the law firm of Steven M. Sweat, Personal Injury Lawyers, APC. We offer free consultations and can discuss the merits of your case and your potential legal options. Call us today at (866) 966-5240 to schedule a free case consultation.

Many people who went through California’s juvenile justice system and were housed in various juvenile detention facilities were victimized. Unfortunately, these facilities failed to protect detainees from sexual abuse in some cases. Because of some new legislation, the statute of limitations for pursuing civil sexual abuse lawsuits has been extended, allowing victims to come forward and pursue justice through civil sexual abuse lawsuits. If you were victimized while being detained in a juvenile detention center in California, you might be entitled to financial compensation for your losses under the newly amended law. The experienced and compassionate civil sexual abuse lawyers at the law firm of Steven M. Sweat, Personal Injury Lawyers, APC are dedicated to helping victims achieve justice and holding abusers and the facilities that employed them accountable for their wrongful actions.

Prevalence of Sexual Abuse in California Juvenile Detention Facilities

The sexual abuse of minors in juvenile detention facilities in California has been a well-documented problem for years. Multiple lawsuits have been filed against the perpetrators and the facilities that employed them. For example, the Los Angeles Times reported on a lawsuit filed by 20 women who were allegedly sexually abused while detained at Camp Scott in Los Angeles County. The lawsuit alleged that at least 10 officers subjected the women to sexual assaults while they were minors between 1996 and 2008. In one case, the victim was impregnated by a juvenile officer while she was a teenager.

Previous investigations by the federal government and the Los Angeles Times in 2008 and 2010 uncovered a culture in which sexual abuse was covered up by juvenile detention facilities in Los Angeles. In the 2008 federal investigation, investigators found that sexual abuse in LA detention facilities was widespread. In response, the county hired independent monitors to improve safety and avoid a lawsuit. However, when the Times conducted its investigation in 2010, it found that 11 employees of juvenile facilities in LA had previously been convicted of inappropriate conduct but continued in their jobs while many others had escaped punishment.

For years, many former detainees who were victimized while housed in juvenile detention facilities across California were unable to pursue legal remedies because of the statute of limitation for civil sexual abuse cases. However, the California Legislature passed a bill that was signed into law by the governor. This new law expands the statute of limitations for civil sexual abuse lawsuits involving abuse that occurred while people were minors.

Since that time, numerous lawsuits have been filed against the Department of Juvenile Justice, the perpetrators of abuse, and numerous California counties. Hundreds of victims have filed lawsuits, alleging a rampant pattern of abuse in juvenile detention facilities and camps over decades. These lawsuits seek to hold the operators of these facilities accountable for failing to investigate sexual abuse complaints, failing to appropriately respond to reports of sexual misconduct, and failing to protect minor detainees.

New Law Expands the Statute of Limitations

Under Cal. Code Civ. Proc. 340.1, childhood sexual abuse victims must file claims within 22 years of reaching the age of majority or within five years of when they learned or reasonably should have discovered that their psychological injuries were caused by childhood sexual assault. In 2022, the Legislature passed AB 2959, which clarifies this law.

Since claims against juvenile detention facilities are claims against the state, the Government Claims Act would typically apply. This act requires victims to file an administrative notice within six months of when the claim accrued, which would prevent many people from filing civil sexual assault claims against the state for abuse they suffered in juvenile detention facilities. However, AB 2959 clarifies the sexual abuse statute of limitations and specifically excludes claimants from the requirement of filing an administrative notice before filing a lawsuit.

This means that victims of childhood sexual assault in juvenile detention facilities can file claims if they are younger than 40. For people who are 40 or older who could only have reasonably discovered that their sexual abuse precipitated their psychological injuries later, they can still file lawsuits within five years of that date as long as they also file certificates of merit from their treating mental health professionals.

Claims Against Juvenile Detention Facilities for Childhood Sexual Abuse

If you were the victim of sexual abuse while detained in any of California’s juvenile detention facilities and are under age 40, you might have grounds to file a civil sexual abuse lawsuit. This includes the following facilities:

• Camp Joseph Scott in Santa Clarita
• Los Padrinos Juvenile Hall in Downey
• Camp Ellison Onizuka
• Camp McNair
• Camp Scobee
• Camp Jarvis
• Camp Resnik at the Challenger Memorial Youth Center in Lancaster
• Camp David Gonzales in Calabasas
• Camp Karl Holton in Sylmar
• Camp William Mendenhall in Lake Hughes
• Camp Fred Miller in Malibu
• Camp John Munz in Lake Hughes
• Camp Kenyon Scudder in Santa Clarita
• Barley Flats Camp in La Canada
• Camp Louis Routh in Tujunga
• Camp Clinton B. Afflerbaugh
• Camp Vernon Kilpatrick
• Camp Joseph Paige
• Camp Glenn Rockey
• Dorothy Kirby Center
• Barry J. Nidorf Juvenile Hall
• Central Juvenile Hall

Understanding the Childhood Sexual Abuse Statute of Limitations

As previously mentioned, the statute of limitations for childhood sexual abuse lawsuits is 22 years after victims reach age 18. This is in recognition of the fact that it can take victims years to understand their abuse and the injuries they have suffered. The Child Victims Act was passed in 2019 to extend the statute of limitations, and AB 2959 was passed in 2022 to clarify that victims do not have to file administrative notices before filing lawsuits against the state.

Victims 40 and under can file lawsuits if they were sexually abused in detention facilities as minors. Those who are older than 40 can only file claims if they have discovered psychological harm resulting from childhood sexual abuse in the past five years as long as they can file a certificate of merit.

people who were 18 or older and abused in detention facilities will likely be subject to the state’s statute of limitations for adult victims. In that situation, the statute of limitations for adult sexual abuse survivors is 10 years from the date when the abuse occurred or within three years of discovering psychological injuries that resulted from the abuse.

However, adult survivors of sexual abuse in juvenile detention facilities might be able to file claims under the 2022 California Sexual Abuse and Cover-Up Accountability Act. This law opened a window to file claims for people who suffered sexual abuse as adults long ago. Those who suffered abuse at any time that was covered up can file a claim before Dec. 31, 2023. Those who suffered sexual abuse as adults in 2009 or later have a filing window open until Dec. 31, 2026.

Even if you are unsure which statute of limitations might apply in your case or think that your claim might be beyond the limitations period, it’s a good idea to schedule a free consultation with the civil sexual abuse lawyers at the law firm of Steven M. Sweat, Personal Injury Lawyers, APC. We can review what happened to you and help you understand whether your claim has legal merits and how the statute of limitations might apply to your case.

Proving a Civil Sexual Abuse Claim

To prevail, you will need to present evidence proving that you were sexually abused by an employee of a juvenile detention facility at which you were housed. Your attorney will investigate your claim and gather evidence to meet the burden of proof. In addition to the perpetrator, the juvenile facility that employed the abuser might also be vicariously liable for their abuse as their employer and directly liable under a theory of negligent hiring, supervision, or retention.

Since a civil sexual abuse claim is a civil action, it is separate from any criminal case that might have been filed against the abuser. Instead, your claim will focus on holding the facility and the state liable for your losses. You can still pursue a claim even if the perpetrator was never criminally prosecuted.

Damages

Civil sexual abuse claims against detention facilities allow victims to hold those responsible accountable for their actions and achieve justice. Filing a lawsuit might also allow you to recover financial compensation for the losses you have suffered because of your abuse, including both economic and non-economic losses.

The following are examples of the types of damages that might be available:

• Past and future medical expenses to treat your injuries
• Past and future psychological counseling and therapy expenses
• Past and future income losses
• Physical pain and suffering
• Psychological trauma
• Other losses

Contact a Civil Sexual Abuse Attorney

If you were sexually victimized while housed in a California juvenile detention facility, you might be entitled to recover compensation for the harm you have suffered. Contact the attorneys at the law firm of Steven M. Sweat, Personal Injury Lawyers, APC. We offer free, confidential consultations and can help you understand your rights. Call us at 866.966.5240 today.

The widespread problem of clergy sexual abuse of children within the Catholic church has been well-documented and broadly reported in the news media over the last couple of decades. People who are the victims of sexual assault can pursue compensation through civil sexual assault lawsuits. The California Court of Appeal recently considered a case in which the trial court found that the Archdiocese did not have a duty to protect a minor during the late 1980s because of its lack of knowledge about a priest’s past misconduct in Doe v. Roman Catholic Archbishop of Los Angeles, Cal. Ct. App. Case No. B305810.[1]

Factual and procedural background

John HG Doe attended classes at the Our Lady of the Rosary Catholic Church during the late 1980s. The classes were held in a room located off of the sanctuary. When Doe was 10 in 1988, he asked to go to the bathroom. While he was in a bathroom stall, Father John Higson, an associate pastor who was not Doe’s teacher, entered the stall, groped Doe’s genitals, and forced Doe to perform oral sex on Higson. According to Doe, Higson told him that all of the boys did that as a part of their first communion. When Doe returned to class, he was upset. However, his teacher did not ask him why he was upset, and he did not tell the teacher what had happened to him.

According to Doe, a second incident occurred around the same time. He again did not tell his teacher or anyone else at the church. He didn’t tell his father that he had been sexually assaulted until 2014.

The Archdiocese first began receiving reports of sexual abuse by priests in 1967. It had received 25 reports by 1984 about sexual abuse by priests within the Archdiocese and was aware that sexual abuse by priests was a widespread problem within the Catholic church by 1985. A 1985 report informed the Archdiocese that clergy abuse of children was a prevalent issue, and the report noted that the expected liability for the Catholic church was at least $1 billion over the next 10 years.

From 1984 to 1988, the Archdiocese received another 32 reports of sexual abuse by priests within the Archdiocese, including a report of a different priest at Our Lady of the Rosary grabbing young boys and forcibly hugging them. A priest at a different parish within the Archdiocese was convicted in 1987 of sexually molesting children. The Archdiocese purchased sex abuse insurance in 1987 or 1988 and began developing sexual abuse procedures meant to prevent clergy abuse from occurring. Under the policy, priests were instructed to avoid doing anything that could be perceived as questionable conduct, including tackling, hugging, or wrestling children and not to have them stay overnight in their rooms in the rectory and to always have a minimum of one adult parent present on trips with children.

A policy change was made in 1994 to expand the efforts of the Archdiocese to educate priests and parents about sexual abuse.[2] The updated policy also established a system for investigating allegations of clergy sexual abuse and screening processes for priests assigned to serve within the Archdiocese.

In 2002, the “Safeguard the Children” program was created by the Archdiocese. This program was designed to educate the community, including children, parents, and clergy, about the signs of potential abuse. It also distributed a pamphlet about boundaries to each of the 288 parishes within the Archdiocese and instituted training for clergy and a mandatory reporting system for sexual abuse.

Doe filed a lawsuit against the Archdiocese on Oct. 16, 2017, alleging that the church had a duty to protect him from sexual abuse during the period he was entrusted to its care. Doe also argued that the Archdiocese failed to provide its duty of care to protect him from abuse and to educate parents and children about the dangers of clergy sexual abuse of children.

The Archdiocese filed a motion for summary judgment, arguing that it did not have a duty of care to protect Doe because the church did not know that Higson had previously engaged in misconduct with children. The trial court granted the motion for summary judgment, finding that there was no issue of triable material fact because Doe could not show that the Archdiocese knew or should have known about Higson’s propensity for sexually abusing children during the late 1980s. Doe filed an appeal.

Issue: Does a church have a duty of care to protect children from sexual abuse while they are attending religion classes or are participating in church-sponsored activities even when the church does not know of a particular priest’s potential for sexual abuse?

The Court of Appeal considered whether a church or diocese has a duty to protect children when they attend religion classes or other religious activities when it does not know about a person’s past misconduct or propensity for abuse. The trial court found that a duty does not exist when the church did not or reasonably could not have known about a priest’s propensity for sexually abusing children.

Rule: A plaintiff must show that the defendant had a duty of care to protect children in its care before a finding of negligence.

Doe alleged two causes of action, including negligent hiring, supervision, and retention of Higson by the Archdiocese and negligent failure to warn, train, or educate children, parents, and church employees. However, he only argued that the court erred in regards to the negligent failure to warn, train, or educate, so that is the only cause of action the Court of Appeal addressed.

Analysis

The court began by considering whether the Archdiocese had a duty to protect children entrusted to its care.[3] The duty exists in situations in which the plaintiff is entitled to protection from the conduct of the defendant. A general duty of care only applies when the defendant has created a risk of harm to the plaintiff. However, a defendant may be found to have a duty to protect a plaintiff from harm by a third party in some cases in which the defendant did not affirmatively create the risk of harm.

The Supreme Court of California established a two-step test to determine whether a defendant had a duty to protect a plaintiff from harm caused by a third party. The court must first determine whether or not a special relationship existed between the plaintiff and defendant and then review the factors under Rowland v. Christian, 69 Cal. 2d 108 (1968).[4]

In reviewing the first step, the California Court of Appeal found that the Archdiocese did have a special relationship with Doe. The court noted that special relationships and a duty to protect children from harm by third parties have been found between children and adult caretakers in multiple cases. The court noted that while Doe was attending catechism classes, both Doe and his parents relied on the Archdiocese to protect him from harm.

The court then considered whether the Rowland factors justified limited the Archdiocese’s duty to protect Doe. It considered whether the type of harm suffered by Doe was reasonably foreseeable. It found that the trial court erred by considering whether the injuries to Doe caused by Higson particular were foreseeable instead of considering the foreseeability of the type of harm caused to Doe. It noted that the Archdiocese had received numerous reports of clergy sexual abuse dating back to the late 1960s but did not take steps to protect Doe or other minors from the risk of sexual abuse by priests.

Conclusion

The Court of Appeal reversed the trial court’s decision and ordered it to vacate the motion for summary judgment. The case was returned to the trial court for further proceedings, and Doe was awarded his costs on the appeal.

Talk to an Experienced Sexual Assault Attorney

If you have been the victim of sexual abuse by a priest or another person in a position of authority, you might be entitled to pursue compensation through a sexual assault civil lawsuit. Contact the Steven M. Sweat, Personal Injury Lawyers, APC at 866.966.5240 to schedule a confidential, free consultation.

Sources

[1] https://law.justia.com/cases/california/court-of-appeal/2021/b305810.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2021-10-22-personal-injury-e764a31168&utm_content=text-case-title-5

[2] https://www.victimslawyer.com/sexual-assault-and-abuse.html

[3] https://www.victimslawyer.com/sexual-assault-and-battery-claims-in-california.html

[4] https://scholar.google.com/scholar_case?case=13675261667224866941&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Ride-share apps have transformed how people in California and elsewhere hail rides. Instead of calling and scheduling a taxicab, people simply have to download an app to be connected to any number of nearby Lyft or Uber drivers who are near to them. When these apps emerged on the scene in 2010, they quickly became popular. While the companies ostensibly conduct background checks of their drivers, however, many riders have reported that they were sexually assaulted by ride-share drivers. Recently, 14 people filed a lawsuit against Lyft in San Francisco, alleging that they were raped by their drivers.

Lyft lawsuit alleges rapes by drivers

The 14 plaintiffs in the lawsuit all allege that they were raped or sexually assaulted by their Lyft drivers. One plaintiff stated that she was raped in Oct. 2018. Her driver drove her around for five hours with the doors locked before forcibly raping her on a beach. Another states that she was sexually assaulted in Dec. 2018. She reported the assault to Lyft, and Lyft said it would investigate. However, she never received an update from the company and does not know the status of the driver’s employment with the company.

The attorneys for the plaintiffs say that they found evidence of 100 rapes and sexual assaults by Lyft drivers in California over 18 months. Through the lawsuit, the plaintiffs are seeking several changes. They want Lyft to install cameras in their driver’s cars. The plaintiff who was raped on the beach said a camera would have shown the driver snatching her phone away and climbing into the back seat. Other changes that the plaintiffs are asking to be implemented include mandated reporting by Lyft of sexual assault complaints that it receives. The plaintiffs allege that Lyft covered up many sexual assault complaints and never reported them to law enforcement for criminal investigations.

The plaintiffs also want Lyft to install safety features on its app that would alert the company when its drivers are behaving suspiciously. Finally, the plaintiffs want Lyft to have to use fingerprint background checks of its drivers and point to the example of Orlando Lazo, who is known as the ride-share rapist. Lazo reportedly used a false name when he applied as a driver and subsequently raped four passengers. If he had been forced to submit to a fingerprint background check, he would not have passed it and would never have been allowed to drive for the app.

Legal claims against Lyft: Vicarious liability

The legal claims against Lyft could include vicarious liability claims and negligent hiring, supervision, and retention claims. Under a legal liability doctrine known as respondeat superior, employers are generally liable for the negligent or wrongful acts of their employees when the employees are acting within the scope and course of their jobs. For this type of legal claim, plaintiffs do not have to show that the employer engaged in any improper or negligent acts. The employer’s actions are not relevant as a defense against vicarious liability. However, the plaintiff must be able to prove that the driver was working within the scope and course of his or her employment, which is where Lyft’s typical defense arguments come into play.

Lyft commonly argues that its drivers are independent contractors, meaning that there is no employer-employee relationship. If Lyft is successful with this argument, it may be able to avoid vicarious liability. Lyft also often argues that its drivers cannot be acting in the course and scope of their employment since there is no employment relationship.

There has not been a clear definition of what an independent contractor is. In Dynamex Operations West Inc. v. Superior Court, 4 Cal. 5th 903 (2018), the California Supreme Court established a stringent three-part test for determining whether a worker is an independent contractor or should instead be classified as an employee for wage determinations. In that context, the Supreme Court adopted the ABC test. Under this test, there is a presumption in favor of finding that the workers are employed. The defendants can overcome this presumption by demonstrating the three following factors:

• The worker operates independently and outside of the company’s control and direction in the performance of his or her job in both contract and in fact;
• The work performed by the worker falls outside the normal course of the company’s business; and
• The worker is normally engaged in an independent occupation or trade of the same nature as the type of work that he or she performs.

Lyft has tried to get around these factors by arguing that it is simply a platform or broker through which drivers and passengers can arrange rides. With this argument, it argues that it is a technology company, meaning that driving is not a normal course of its business. This argument has had mixed results.

Recently, the California Legislature passed Assembly Bill 5, which has been sent to Gov. Newsom for his signature or veto. This bill would extend the narrow holding in Dynamex beyond simple wage determinations and is aimed at ride-share companies like Lyft and Uber. If this bill is signed into law, it could ostensibly force Lyft, Uber, and other ride-share companies that operate in California to classify all of their drivers as employees. The companies state that they will continue to classify their drivers as independent contractors despite the law, setting the stage for future litigation.

Legal claims against Lyft: Negligent hiring, retention, and supervision

In contrast to respondeat superior and vicarious liability, claims of negligent hiring, retention, and supervision argue that the employer’s negligent acts or omissions that cause or contribute to the negligent or wrongful acts of their employees can provide grounds for the employers to be sued directly. For these types of claims, the plaintiffs must show that the defendant knew or should have known that the driver was unfit, unqualified, or dangerous, and foreseeable harm or injury could result.

In the context of the lawsuit against Lyft, the plaintiffs are arguing that the bare-bones background checks of the drivers are not enough to determine that they are qualified and fit to drive. As in the case of the ride-share rapist, the implementation of a fingerprint background check would have shown that the driver was dangerous and unfit to drive for the ride-share app. In these types of claims, plaintiffs’ lawyers use the past acts of the employee to demonstrate that he or she was unfit, dangerous, or unqualified against the employer. When Lyft fails to conduct fingerprint background checks of its drivers, it could be found to have negligently hired those who have criminal pasts.

Foreseeability of the sexual assault or rape will also likely be a point of contention. The company may argue that it was not reasonably foreseeable that an individual driver would commit a sexual assault or rape. This type of determination is fact-specific. However, if a particular worker has engaged in a similar act in the past, the harm caused by the recent act will generally be determined to be reasonably foreseeable.

In this case, the plaintiffs’ lawyers state that they have identified 100 sexual assaults and rapes in an 18-month period that were reported to Lyft and that Lyft reportedly failed to report to the police. This type of evidence can also be used to show that sexual assaults and rapes by the drivers are reasonably foreseeable because of the sheer frequency of their occurrences.

Get help from an experienced sexual assault attorney in Los Angeles

Rape and sexual assault claims against Lyft, Uber, and other ride-share companies may involve multiple legal claims. These companies typically try to argue that the drivers were not their employees and that their background checks are sufficient to avoid claims of negligent hiring and retention. An experienced attorney understands the types of arguments that are frequently raised and how to combat them. Contact an attorney at Steven M. Sweat Personal Injury Lawyers to schedule a consultation by calling us at (310) 592-0445.

In California, many liability insurance policies contain exclusions for injuries that result from intentional acts. This means that it can be difficult for injured victims to recover compensation when they are injured by the intentional actions of insured parties. In Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Company Inc., Case No. S236765, the California Supreme Court recently addressed a case in which the employee of a construction company committed a sexual assault on a 13-year-old girl while he was working on a construction site at a school. The insurance company tried to assert that the exclusion for coverage applied because the act of the employee was intentional, and the company filed a lawsuit against the insurance company.

Factual background

The Ledesma & Meyer Construction Company secured a contract from the San Bernadino Unified School District to complete a construction project at a middle school. The company hired a man named Darrell Hecht to serve as an assistant superintendent and assigned him to manage the construction project at the middle school. While Hecht was on site at the school, he sexually molested a 13-year-old girl. The girl’s family filed a lawsuit against the Ledesma & Meyer Construction Company alleging that the company negligently hired, supervised and retained Hecht.

The company asked its insurance company, Liberty Surplus Insurance Corp., to indemnify and defend it in the lawsuit. The insurance company refused, pointing to an exclusion in the company’s general commercial liability policy for coverage in the event of intentional acts instead of accidents. The company filed a lawsuit against the insurance company. The District Court granted the insurance company’s motion for summary judgment, and the construction company appealed to the U.S. Court of Appeals for the 9th Circuit. The 9th Circuit asked the California Supreme Court for its opinion on whether the exclusion applied.

Issue: When an injured third party files a lawsuit against a company for negligent hiring, supervision, and retention for an intentional act, will it be considered to be a coverable occurrence under a general liability policy?

Liberty Surplus argued that since Hecht’s sexual assault was an intentional act, it did not have to indemnify or defend Ledesma & Meyer in the third party lawsuit that was filed against the company by the young girl. The insurance company argued that its general liability policy only provided coverage for accidents that might occur. Since the intentional conduct of the employee was not an accident, the company reasoned that it did not have to provide coverage. The construction company argued that the District Court had misapplied California law when it granted the insurance company’s motion for summary judgment since the intentional conduct of the sexual assault was not made by the insured party. Instead, the company was sued for its negligent hiring, supervision, and retention of Hecht, which Ledesma & Meyer argued fell under the definition of accident as defined by California case law.

Rule: In some cases, an intentional act by an employee of an insured can be considered to be accidents that are coverable by insurance policies without exclusion

The Supreme Court of California first examined settled law in the state on what an accident includes. Under Delgado v. Interinsurance Exchange etc., 47 Cal. 4th 304 (2009) and Black’s Law Dictionary, the court first noted that the term accident in liability policies is broader than and includes negligence. The court then noted that the insured party only needs to be able to show that there is the potential that its negligence may fall under the policy’s coverage for the coverage to apply.

Analysis

In this case, the Supreme Court noted that the third party lawsuit alleged negligent hiring, supervision, and retention by the company and did not seek to impose liability on the employee. The court then analyzed the facts of the case under the standard established in Minkler v. Safeco Insurance Corp., 561 F.3d 1033 (2009). In that case, a boy was molested by his Little League coach at the coach’s mother’s home. The boy and his family filed a lawsuit against the coach and the coach’s mother. The lawsuit against the mother alleged that she negligently supervised her son and failed to do anything to prevent the molestation from occurring. Her homeowner’s insurance company argued that the coverage should not apply because the coach’s conduct was intentional. The court found that in the lawsuit against the mother, her behavior was negligent, which was coverable under her liability policy.

The court applied this standard to its analysis of Ledesma and found that the company’s negligence in hiring, supervising and retaining Hecht was coverable under the insurance policy and that the insurance company should indemnify and defend the company against the girl’s lawsuit. This is important because it is often difficult to obtain compensation for acts that could be considered to be intentional and outside the course and scope of employment such as sexual assault or abuse.

Conclusion

The California Supreme Court’s ruling means that victims of sexual assaults that are committed by workers might be able to recover compensation from the companies’ general liability insurance policies. If you have been the victim of a sexual assault by a worker, it is important for you to talk to an experienced personal injury attorney. A lawyer may be able to uncover more potential sources of recovery beyond the perpetrator, including his or her employer. Contact Steven M. Sweat, Personal Injury Lawyers, APC today to schedule your free consultation.

Sources

https://law.justia.com/cases/california/supreme-court/2018/s236765.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2018-06-05-supreme-court-of-california-27d17da271&utm_content=text-case-title-1 https://scocal.stanford.edu/opinion/delgado-v-interinsurance-exchange-etc-32985 https://www.leagle.com/decision/infco20090408092

Can an employee in California sue their employer if they are sexually assaulted in the workplace and the employer had some prior notice that the assault could occur? The California Fair Employment and Housing Act (“FEHA”) provides protections to workers from discrimination, including sexual harassment. The law allows workers to sue their employers when they suffer discrimination or sexual harassment while they are working. In M.F. v. Pacific Pearl Hotel Management LLC, Cal. App. 4th, No. D070150, the court ruled that workers are able to sue their employers under the FEHA when they have been sexually harassed or assaulted by nonemployees at their jobs.

Issue: Can an employee can sue her employer for nonemployee sexual harassment under the FEHA?

M.F. was employed as a housekeeper at the Pacific, which is a five-building hotel property owned by Pacific Pearl Hotel Management LLC. The hotel’s engineering manager saw a trespasser on the hotel property one morning who was not a guest of the hotel. The trespasser was intoxicated and was carrying a beer, but the engineering manager did not tell him to leave or report his presence to the housekeeping staff. Later, the trespasser approached one of the housekeepers while she was cleaning a room and tried to give her money in exchange for sexual favors. A maintenance worker who was working nearby overheard and helped the housekeeper to make the trespasser leave the room. The trespasser then went to another hotel room where a housekeeper was cleaning and tried to get into the room. He again offered money for sexual favors. The housekeeper was able to close the door on the man and reported the incident to her manager.

That housekeeping manager used a walkie-talkie to notify the other housekeeping managers about the trespasser. That manager checked on the safety of the housekeepers in one building but not in the one in which M.F. was working. M.F.’s supervisor checked the rooms on one floor but not on the floor in which M.F. was working. The trespasser forced his way into the room that M.F. was working and told her to close the blinds. She refused, and he punched her in the face, knocking her unconscious. When she regained consciousness, he was raping her. The man continued to rape and abuse her for two hours. During that time, no one came to check on her whereabouts. M.F. suffered serious injuries from which she hasn’t recovered. She filed a lawsuit under the FEHA against Pacific, alleging nonemployee sexual harassment and failing to prevent the harassment from occurring. The defendant filed a demurrer, which the superior court granted. The superior court dismissed M.F.’s complaint, and she filed an appeal.

Rule: While the workers’ compensation exclusivity doctrine prevents employees from suing their employers when they are injured at work in most cases, it does not preclude lawsuits when the employers violate the FEHA

Under the FEHA, employers may be liable to employees for sexual harassment by nonemployees if the employers knew or should have known about the conduct and failed to take corrective action immediately. The workers’ compensation exclusivity doctrine states that workers must file for workers’ compensation benefits when they are injured at work, including in situations in which their injuries resulted from inadequate security. However, additional facts may overcome the exclusivity rule. Claims under the FEHA do not fall under it and may be brought by employees against their employers.

Note: for more information on legal claims by employees for sexual assault in the workplace, go to our related page here:

Los Angeles Personal Injury Attorney | Los Angeles Workplace Sexual Assault Attorney

Analysis

In M.F.’s case, she showed that the trespasser had been seen by the engineering manager and had harassed several housekeepers before she was assaulted. Her supervisor failed to check on her safety or to try to find out where she was despite knowing that the trespasser had sexually harassed other housekeepers. Pacific argued that she failed to state a claim under the FEHA because it did not have notice of the trespasser’s conduct before he or she entered the property and that it took corrective action immediately upon learning of his conduct towards the other housekeepers. The court found that Pacific had sufficient notice of the trespasser’s conduct from his earlier actions and the reports that were made by the other housekeepers. The court determined that whether or not the hotel’s corrective actions were sufficient would be a question of fact and thus should be considered by a jury. The court found that her complaint stated sufficient facts to state a cause of action under the FEHA for nonemployee sexual harassment and Pacific’s failure to stop the conduct from occurring.

Conclusion

The court ruled in favor of M.F. and remanded the case to the superior court to commence proceedings that were consistent with its ruling. It also ordered that Pacific pay M.F.’s appeals costs.

Workers who are sexually harassed or assaulted at work may be able to sue their employers without having to file for workers’ compensation benefits for their injuries. If the employers knew about the conduct or should have known about it but failed to take corrective action, the injured workers may have valid claims against their employer under the FEHA. For more information about FEHA claims for sexual harassment go to the following related page on our site: https://www.victimslawyer.com/sexual-harassment/