Special Relationship — Duty to Disclose

Posted in Duty to Disclose on November 5, 2015

Doe v. Superior Court (Sixth District, May 29, 2015) — Cal.Rptr.3d —-, 2015 WL 3429130

 The parents of an 8-year-old girl who was molested by a summer camp supervisor, filed an action against the church which ran the camp.  The parents asserted a number of causes of action on behalf of their daughter, as well as their own causes of action for intentional and negligent concealment. The parents alleged that the defendant had a duty to disclose to them the fact that the employee had previously been terminated for inappropriate conduct with other children, and that after he had been rehired he was fired again when employees suspected him of having engaged in inappropriate conduct with their daughter.

The trial court sustained the defendant’s demurrer to the parents’ intentional and negligent concealment causes of action without leave to amend, reasoning that while the defendant camp may have had a special relationship with children who attended the camp sufficient to create a duty to prevent harm to them, “a duty to prevent harm is not the same as a duty to disclose.”  However, the court of appeal issued a peremptory writ of mandate directing the trial court to vacate the order, and to issue a new order overruling the demurrer, holding that the camp’s duty to exercise reasonable care to prevent harm to the minor and her parents encompassed a duty to disclose a credible report of harm suspected to have already occurred:

Camp has special relationships not only with “the person whose conduct needs to be controlled” (Woodhouse) but also “the foreseeable victim[s] of that conduct” (minor and parents). …As to Woodhouse, the employer-employee relationship imposes a duty to exercise reasonable care to control the actions of the employee….

Camp knew Woodhouse had an inappropriate interest in young girls from his previous employment with Camp. Despite this knowledge, Camp rehired Woodhouse in 2006 to supervise children at its summer camp. He was observed by Camp employees in 2006 and 2007 being inappropriately affectionate with young girls, including minor.

Contrary to the trial court’s reasoning, a duty to prevent harm and a duty to disclose are not discrete but are rather both part of the general duty to act reasonably. By virtue of Camp’s special relationships, Camp had a duty to exercise reasonable care to supervise its employee Woodhouse and a duty to exercise reasonable care to prevent harm to minor. Camp’s knowledge of Woodhouse’s behavior toward young girls heightened its obligation to supervise his interactions with children. Once Camp learned about the pool incident involving minor, which was verified by two percipient witnesses (the lifeguards), its duty to exercise reasonable care to prevent further harm to minor included an obligation to disclose the suspected molestation to parents….

And wholly aside from Camp’s relationship with minor and parents, Camp’s special relationship with its employee Woodhouse created a duty to exercise reasonable care in controlling his behavior, including disclosure of the suspected molestation when control of Woodhouse’s behavior was unsuccessful.

A hypothetical illustrates the point. Instead of suspected molestation, imagine Camp received credible information that minor had been exposed to a disease which might not immediately show symptoms, or that minor had suffered a physical injury that was not readily apparent. In those situations, a reasonable day care provider standing in loco parentis would be expected to disclose information to parents so that they could seek immediate diagnosis and treatment. A contrary result is untenable.