Sexual Assault And Molestation Claims Against Public Entities: Legal Updates, Liability Exposure, and Defense Strategies
At the 2022 PARMA Annual Conference, Anthony DeMaria from DeMaria Law Firm provided an update on liability exposures and defense strategies for California public entities facing claims relating to sexual assault and molestation (SAM) claims.
There are several ways that a negligence claim can be pursued against a public entity relating to SAM claims.
Were candidates properly screened? Employers are legally obligated to conduct background checks on school employees, including fingerprinting and checking references. While social media checks are not required, they are advisable. Employers need to be consistent. One area of concern is schools utilizing a number of volunteers in positions. While these volunteers usually undergo a background check, references are not usually checked.
Were potential SAM concerns after hiring where the employer failed to take action? Continuing to monitor employees social media is not reasonable. If you retain an employee after a potential SAM concern and there is another incident, there was prior notice.
Did you fail to monitor, supervise and address concerns? The significant threshold to overcome in proving a SAM negligence claim is prior notice. If an employer had prior notice of a potential issue, this creates liability exposures. Usually that falls under the category of negligent supervision. With proper supervision, an employer should be aware of a potential SAM issue.
Did you provide appropriate training to all employees on reporting inappropriate content? Government mandated anti-harassment training programs are available, and employees should also be trained to spot potential SAM warning signs. There are several public entity roles where an employer is required by law to report suspected SAM claims to law enforcement. Failure to can result in liability to an employer and also potential criminal charges. Employers should not try to investigate it on their own, but instead report it to authorities and let them investigate it.
Expansion of Exposures
In 2019, California passed AB 218 which expanded the statute of limitations on SAM cases, revived SAM cases where the statute had already run, and added treble damages as a remedy for plaintiffs. Plaintiffs now have 22 years after they turn 18 to bring a claim for childhood sexual assault. Victims who claim repressed memories have five years from the date of discovery of an assault to file a claim. The California Supreme Court is currently reviewing whether the treble damages against a public entity violate prior state law against punitive damages being imposed on a public entity.
Unruh Civil Rights Act
Under the Unruh Civil Rights Act, private business establishments can be responsible for violating a person’s civil rights, exposing the defendant to pay the plaintiff’s attorney fees. Currently, the California Supreme Court is hearing litigation on whether this also applies to public entities.
SAM Claims Asserting Violation of Federal Title IX or Title VII
SAM cases related to Title IX and VII violations are very rare due to the defenses available to defendants. These claims are typically removed from Federal court as the plaintiffs tend to prefer to keep these cases in state court.
What Constitutes Notice?
Based on court cases, giving gifts to a student does not in itself constitute notice of a SAM issue. Neither do lewd comments by an employee or the person being seen as a rule breaker. However, when there are multiple non-sexual red flags it should create concern. Notice tends to focus on knowledge of inappropriate sexual behavior.
Defense of SAM Claims
If the entity separates itself from the perpetrator, the acts of the perpetrator were not within the course and scope of their employment. That means there is no automatic liability to the entity. The burden is on the plaintiff to show the entity committed negligence relating to their claim.
Lack of notice is a major defense in most cases. If there was no prior notice of the predatory conduct, the employer cannot be held liable. Many of these cases get thrown out on a Motion for Summary Judgement.
Activities committed off the job and premises can also usually be defended as the employer has no control over such actions.
Apportionment is also a strong defense as the statutes allow for damages to be apportioned based on respective fault. The perpetrator themselves are usually at fault in the majority of the apportionment.
If the claim does end up in litigation, the defense needs to show sympathy for the victim. They should also accept responsibility for whatever facts clearly show they should accept responsibility. It is important to avoid blaming the victim.