Monday, June 08, 2009

Court says schools have no duty of care when first-grader molested by substitute teacher

P.S. v. San Bernardino City Unified Sch. Dist.
California Fourth Appellate

In a negligence action brought by first-grade student victims of molestation by a substitute teacher, trial court action sustaining defendant's demurrer as to all causes of action against it is affirmed where: 1) defendant did not have a duty of care toward the plaintiff, as plaintiffs were not in the class of persons protected by the Child Abuse and Neglect Reporting Act; and 2) the amendment to the Act did not extend a duty or to create liability to all future children who might be harmed by a suspected abuser.

This case is part of a steady flow of cases that protect school districts from responsibility for just about everything; in this case, the molestation of a first grader by a substitute teacher.

The molestation, of course, was not an intentional act by the school, but the court also protects schools from responsibility for intentional wrongdoing, such as the Coach James "Ted" Carter case. Carter was fired because he reported another coach for recommending that a student take a substance that caused the student's kidney to fail. See Daniel Shinoff cases.

Who on earth would support such a policy? Public entity lawyers!

Daniel Shinoff's partner and former city attorney candidate Leslie Devaney, for one. She is past president of San Diego CALA (Californians Against Lawsuit Abuse), which works to change public opinion so that jurors won't demand that public entities pay their victims. Of course, CALA thinks its fine to give lots of tax money to the the lawyers who help public entities avoid responsibility for harming citizens.

Ms. Devaney used to give radio talks to convince the public that public entities shouldn't have to pay people they harm.

At least she's not a hypocrite, right? She truly believes public entities should not pay people whom they've harmed?

I'm afraid not. It seems that Ms. Devaney has taken on a nice little side line in addition to her public entity work. Lately she's been using her legal skills to force cities and hospitals to pay through the nose for such things as:

(1) The City of Chula Vista's firing of developer's wife Laurie Madigan for taking extended sick leave BECAUSE SHE WAS AFRAID SHE MIGHT GET SICK. Why was Madigan afraid she might get sick? BECAUSE SHE WAS BEING INVESTIGATED!

(2) Tri-City Healthcare's placing CEO Art Gonzalez on administrative leave while a forensic audit was conducted. Ms. Devaney thought he should have one more million-dollar bonus before he went away.

But if you are an ordinary employee or student who has been illegally damaged, I'm not sure she'd take your case. But she might. You could always ask.

So who's responsible when your kid is at school? They're on their own, basically.

I think CALA can declare victory in this case. Is there a celebration going on at Leslie Devaney's law firm, Stutz Artiano Shinoff & Holtz?


Anonymous said...

I'm having a battle right now over a child injured at school. The schools seem to believe they have no duty to render medical assistance or aid. Do you know of any authority to the contrary?

-- JFW

Maura Larkins said...

Just because a school might not have a "duty of care" does not mean that they can get away with negligence. It sounds like the same thing, doesn't it? But legally speaking, it's not.