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By: Candice Jackson and Robert A. Cutbirth
April is Sexual Assault Awareness Month. On the first day of this important month, the California Supreme Court issued Brown v. USA Taekwondo. Arising from allegations of sexual assault by members of the United States’ women’s taekwondo team against their coach and the sport’s governing bodies, the decision redefines the process Courts must undertake in determining whether a defendant owed a duty of care to protect a plaintiff from physical or emotional harm allegedly caused by a third party.
In a unanimous decision, the California Supreme Court confirmed that upon a demurrer (motion to dismiss) or later motion, the judge must apply a two-step analysis to determine whether a defendant can be held liable in negligence for physical or emotional harm caused by a third party (non-employee): (1) did plaintiff factually allege a “special relationship” or other circumstances imposing on the defendant an affirmative legal duty to protect plaintiff from the harm alleged, and, if so (2) do the Rowland v. Christian public policy factors limit or negate that duty. Confirming that the Rowland factors do not create legal duties, they only limit or negate otherwise established duties of care, the Supreme Court confirmed that if a plaintiff cannot factually plead the existence of a special duty to protectively act, the defendant is entitled have the case dismissed by the judge without further consideration.
In the context of physical or emotional harm to students and minors, this is the second recent decision by the California Supreme Court. In Regents of Univ. of Calif. v. Superior Court, the Court held in 2018 that the University had a special relationship with its students, creating a duty to protect them from harm during classroom/curricular activities, because the University controlled the physical location of the classes and the requirement of attendance. In Brown, the Court specifically approved of its Regents decision, yet reached the opposite result as to the United States Olympic Committee (“USOC”), upholding its dismissal because plaintiffs could not allege that the USOC had sufficient control over the events, coach, or physical locations where the assaults allegedly occurred in order to create a legal duty of protection, even though the Court agreed that there is a “problem of sexual abuse of minors in organized youth sports and other activities.” As to defendant USA Taekwondo (“USAT”), the governing body which sanctioned events, picked locations, and could discipline and/or manage access by coaches and others, the Court held the facts pled in the complaint could support a protective duty of care allowing the case to proceed past the pleadings stage, even if the perpetrator was not an employee of USAT, requiring USAT to further defend itself in the trial court.
The California Supreme Court’s decision is not limited to claims by students, athletes, or minors, but the Brown decision is of primary importance to public and private schools, colleges, and universities, churches and religious organizations, community recreation leagues, and public and private community support organizations, whose events, facilities, or programs often involve access/potential access to vulnerable individuals by third parties intending to use such access to engage in wrongful conduct. While Brown provides and clarifies important defense arguments, your facility use or operational agreements, your grant or operational funds (particularly important for educational providers receiving federal funds, where care must be taken to comply with anti-harassment and response obligations imposed by the 2020 updated U.S. Department of Education regulations, as well as anticipated updates to those standards discussed here), and other statutory obligations (dealing with health or psychiatric care, for instance) must still be considered in determining your exposure and your risk management/risk avoidance plans.
FMG’s practice groups utilize an interdisciplinary approach across substantive areas of law such as tort, commercial litigation, and employment as well as industry-specific practice teams in areas such as education, health care, and non-profit organizations, to help clients ameliorate legal risks and defend against claims. If we can provide assistance in these areas, or if you desire additional information on this topic, please contact Candice Jackson or Robert A. Cutbirth.