Respondeat Superior – Sexual Assault

Posted in Personal Injury on December 22, 2015

Z.V. v. County of Riverside (Fourth District, June 17, 2015) 238 Cal.App.4th 889, 189 Cal.Rptr.3d 570, 15 Cal. Daily Op. Serv. 7831, 2015 Daily Journal D.A.R. 8237

A 15-year-old who was sexually assaulted by a county social worker while in foster care brought an action against the worker and the County of Riverside. The plaintiff alleged that the social worker, who had volunteered to transport him to a new foster home, returned several hours after his shift had ended, and under the pretext of building “rapport,” took him to a liquor store and then to his apartment where the attack took place.

The defendant county moved for summary judgment, contending that it could not be held liable under the doctrine of respondeat superior, in that the assault did not occur within the course and scope of the social worker’s employment.  The court of appeal affirmed, distinguishing the facts of the case from Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202: 

As we explain below, there is considerable doubt that Mary M. has any applicability beyond the narrow context of an arrest performed by a uniformed, armed police officer in the normal course of that officer’s duties. …

However, even if Mary M. might apply to cases beyond the “unique” position of police officers … the undisputed facts take this case out of its reach. Birdsong was not Z.V.’s assigned social worker, he merely volunteered to transport Z.V. to a new foster home at the end of the workday. The sexual assault took place after 8:30 at night, several hours after Birdsong’s shift would have normally finished, and after he had already completed the task of delivering Z.V. to the new home without incident. …

While Mary M. survived calls to overturn it outright, we are unaware of any Supreme Court case that has ever applied it beyond the “unique”—Mary M. seems joined at the hip with that word—context of police officer abuse of power in the course of performing official duties within the ordinary scope of that officer’s normal duty. …

However, let us assume, for sake of argument, that Mary M. is not strictly confined to police contexts, and that it could possibly even apply to social workers. Could it then apply here to make the question of whether Birdsong’s sexual assault on Z.V. occurred in the course and scope of his employment at least a triable issue of fact? We think not. In the case before us, the timing and circumstances of Birdsong’s sexual assault on Z.V. show clear firebreaks separating his sexual assault from the one in Mary M. Birdsong had no authorized duties to perform vis-à -vis Z.V. when the assault took place. Appellant has offered only Birdsong’s imagination to establish he had some sort of professional reason to call up Z.V. and visit him. No facts show Birdsong was ever requested by anyone in the department to do anything for Z.V. beyond simply driving him to his new placement. …

Moreover, when the attack occurred, Birdsong’s normal shift had been over for several hours. By contrast, the sexual assault in Mary M. took place in the course of the police sergeant’s normal shift, while performing the very sort of duty he was authorized by his employer to regularly perform—arresting drunk drivers late at night. Put another way, unlike Birdsong, the sergeant in Mary M. didn’t assign himself the duty of arresting the plaintiff, or do it in his off hours.