The California Supreme Court should depublish this opinion. If not do more.
I don't say that lightly. I'm generally not a fan of the regime (e.g., under Chief Justice Lucas) in which the California Supreme Court depublishes tons of cases from the Court of Appeal instead of granting review. I'm happy that the graph of the recent depublication rate looks something like this:
Moreover, I'm not going to quibble about the result reached here by the Court of Appeal. There were definitely some seriously problematic rulings in this lawsuit, which involved the molestation of a 14-year old student by her eighth-grade math teacher. The trial court allowed introduction of evidence about her sexual history with other people; that could definitely be a problem. The trial court also seemed to think it helpful to instruct the jury that a 14-year old could validly "consent" to intercourse with her teacher; that could definitely be a problem as well.
So as far as the result goes, I'm on board for granting the plaintiff a new trial. Despite the fact that the jury found that the Los Angeles Unified School District wasn't liable at all, maybe that finding was influenced by some rulings that aren't kosher. So is everyone on the panel.
But the bulk of the opinion is devoted to why a particular (modified) jury instruction, CACI 426, was improperly given in this case, and why a new trial is principally required on that ground. And that's a holding that I believe is both (1) wrong, and (2) pernicious. Both in this case as well as many others.
This is a "negligent hiring" (or retention) case. It's not enough that Los Angeles Unified employed someone who molested a kid. Plaintiff's got to prove that L.A. Unified knew or should have known that this guy was someone who might well molest someone.
The standard instruction in these types of cases is CACI 426. Which says:
“[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and
that [name of employer defendant] is responsible for that harm because [name of
employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee].
To establish this claim, [name of plaintiff] must prove all of the following:
1) That [name of employee] was [unfit/ [or] incompetent] to perform the work for
which [he/she] was hired;
2) That [name of employer defendant] knew or should have known that [name of
employee] was [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence]
created a particular risk to others;
3) That [name of employee]’s [unfitness/ [or] incompetence] harmed [name of
4) That [name of employer defendant]’s negligence in [hiring/ supervising/ [or]
retaining] [name of employee] was a substantial factor in causing [name of plaintiff]'s
That's indeed the basic rule. We've got to modify this instruction somewhat, since saying that the teacher here was "unfit [or] incompetent" doesn't really express what we mean (much less clearly). What we're trying to get at is that L.A. Unified is only liable if they knew or should have known that the guy was someone who's going to molest one of his students.
Now, there's a reason this case goes to trial, rather than resolved on summary judgment (or with a settlement). The teacher here allegedly does some stuff that might well put L.A. Unified on notice that there's a problem here. He's popular with female students. Very popular. He hugs 'em. A lot. His classroom conversations sometimes reflect personal stuff. Very personal stuff. And he sets up his classroom furniture so there's a nice little hidden alcove.
Mind you, what I've just said could potentially apply equally to lots of teachers I know. Lots. But in an eighth grade teacher, maybe this should put L.A. Unified on notice to at least check the dude out, if not have a stern conversation with him about the nature of professionalism when dealing with 14-year olds.
That's why we have a jury. Up to them to decide just how "weird" this stuff is and what red flags (if any) it should have raised.
But we have to tell this to the jury in non-legalese. In words they'll understand. And using terms like "unfitness" or "incompetence" for the job just don't cut it.
So the trial court modifies CACI 426 so it says that L.A. Unified is liable if it knew or should have known, based on these facts, that the teacher here (instead of being "unfit" or "incompetent") had a "dangerous propensity to sexually abuse minors."
That seems right to me.
But the Court of Appeal says it's not. Indeed, that it's reversible error. On the ground that requiring proof that someone has a "dangerous propensity to sexually abuse minors" would require plaintiffs to prove that the dude had already molested someone else. And that, instead, the jury should have been instructed that L.A. Unified was liable if they knew or should have known that the teacher "had the potential for sexually abusing minors" (emphasis in original).
I disagree with all of that. Strongly.
For one thing, I think that "dangerous propensity" is precisely what we're trying to get at. We want to impose liability when you know (or should know) that a guy's acting sufficiently strangely in a way that suggests that he may well be the kind of guy who'll touch minors. "Dangerous propensity" is, to me, a great way to express that idea. Legal enough to satisfy the Court of Appeal (as opposed to, say, "sufficiently strangely") yet common sense enough to actually assist jurors in making a decision.
For an other thing, I strongly disagree that "dangerous propensity" to do X means -- or even is commonly understood to mean -- that someone's already done X. The Court of Appeal cites an online dictionary that says that “If you have a propensity for
something, then it’s something that comes naturally to you or something you just do a
lot.” (emphasis in original). Let's be willing for a moment to entirely ignore the wisdom of judiciary relying on definitions from vocabulary.com -- and, for the record, color me skeptical on the authoritative nature of this particular source. The simple fact is that to have a "propensity" to do something does not mean that you, in fact, have already done it a lot. It just means that you have an inclination to do it. Whether this is your first or fiftieth time.
Yes, I admit, if you do, in fact, do something a lot, that may well be pretty good evidence that you do in fact have a propensity for it. That's why the definition the Court of Appeal cites has an or in it. To have a propensity for X is to say that "it's something that comes naturally to you or something you just do a lot." See the "or"?
When I say someone has a "propensity" for something, that just means that they're the kind of person who might well be into that sort of thing. When I say that a jittery guy who's wandering around a shopping mall in camouflage clothing mumbling incoherently about space aliens and Obama being out to get him, and who's carrying a machine gun, is a guy who has a "propensity" for committing mass murder, I definitely do not mean that he's already killed twenty people. I'm saying that he's the type of guy who may well commit mass murder in the future. And, parenthetically, that anyone who sees the guy doing all this stuff either knows or should have knows that this is true.
If anyone came up to me and said: "Professor Martin, I disagree with you: This guy definitionally doesn't have the propensity to commit mass murder since there's no proof that he's actually killed anyone yet," I'd respond that, with respect, they don't know what the word "propensity" means.
Yet that's precisely what the Court of Appeal holds.
To tell a jury, as the trial court did here, that L.A. Unified is liable if they knew or should have known that one of its teachers had a "dangerous propensity" to molest kids based on what they saw from him does not, in fact, hold L.A. Unified liable only if the teacher had previously molested someone. I can say that someone has a "propensity" to commit suicide even if they've never done it before. Ditto for someone with a "propensity" to molest students.
The Court of Appeal's contrary holding is, with respect, simply wrong.
But it gets worse.
The Court of Appeal holds that instead of "dangerous propensity," the jury should have been told that L.A. Unified was liable if it knew or should have known that the teacher "had the potential for sexually abusing minors" (emphasis in original).
That's definitely wrong.
Of course the teacher had the potential for sexually abusing minors. Anyone with arms and/or legs has the potential to sexually abuse minors. They can sexually abuse minors. They indeed have that potential. But that doesn't make their employer liable. Because all teachers have that "potential".
If that doesn't make intuitive sense to you, I'll use the Court of Appeal's own authoritative source, vocabulary.com. Which says that "[i]f you can describe something as possible but not yet actual, choose the adjective 'potential.'" Or, to the same effect, "[i]t describes something or someone that has the power to become something." A teacher has the power to become a child molester -- i.e., the 'potential' -- by mere fact that he's a teacher. To say that L.A Unified is liable if it knew or should have known that one of its teachers "had the power" to molest students is to say that it's always liable.
And that's not, in fact, the law. Nor what CACI 426 is trying to get at.
So, normally, given all this, I'd say that this was a great -- and important -- case that's deserving of review by the California Supreme Court.
With one problem.
The Court of Appeal here granted a new trial. On multiple grounds (e.g., instructional error, various evidentiary errors, etc.). I've got a huge beef with one of those bases for reversal. But the others are much more pedestrian, and (perhaps even more importantly) much more likely to be right.
So the California Supreme Court may well not want to grant review on all these issues. And may well not want to grant review on one of them either, since the result will remain the same (i.e., a new trial) even if one of the multiple bases for the Court of Appeal's holding was wrong. As the Court often says, it reviews judgments, not reasons. And the judgment here may well be right, even if one of the reasons for this judgment is horribly wrong.
Plus there's a practical problem. Who's going to move for review? L.A. Unified is the one aggrieved by the erroneous holding. But unless they think they can get review granted on all of the bases of the Court of Appeal's ruling (a definite longshot), from a new trial perspective, it doesn't help to merely get review of one of them.
Yet, at the same time, the public policy consequences here are serious. The Court of Appeal has invalidated a perfectly good CACI. Worse, its articulation of the correct jury instruction is (in my view) way off the mark, and makes for virtually limitless liability. Those instructions will be used not only in this case (on remand), but in thousands of others.
That's a problem. A serious one.
In the best of all possible worlds, the Court of Appeal would grant rehearing and reverse its opinion on the CACI issue. Of course, that's not likely to happen. The panel made a decision -- unanimous (albeit with a waiver objection by one of the members) as to the merits -- and it's unlikely to change its mind just because some law professor somewhere thinks it's wrong. So practically, the chances of this resolution are nil.
The second best world would be for the Court of Appeal to delete the first part of its opinion and rest its judgment on the alternative bases for reversal. Since the CACI issue is unnecessary to the result, this is possible. But such a resolution by the panel is practically unlikely as well. Not only because their minds are (probably) made up, but also because there's going to be a retrial, at which they will want a proper jury instruction. Since they think the one given in the first trial in wrong, they'll want to give guidance. Both in this case and others.
As a result, the panel's not likely to solve the problem.
Which leaves the California Supreme Court.
As I said, in a normal situation, I'd think this case would more than justify review. But I understand (for the reasons previously expressed) that the Court may not want to do that here.
But at a minimum, I'd want the California Supreme Court to depublish the Court of Appeal's (unnecessary and erroneous) holding as to the CACI instruction. Such a result admittedly won't help L.A. Unified in this case, since there's going to be a retrial, and unless there's review, depublication would still mean that the Court of Appeal's ruling would be law of the case, which means that (in my view) L.A. Unified gets an unjust and inequitable jury instruction on remand.
But at least that's better than leaving the opinion published and having this be the result in all future molestation cases. Which is what's going to happen unless the Court depublishes this one. Since trial courts will otherwise read the Court of Appeal's opinion and modify the CACI accordingly in light of that ruling. To the serious detriment of defendants and (in my view) to the equitable rule of law.
I agree with the vast majority of opinions I read. (And the overwhelming majority of those are thus not worth any comment on my end.) I disagree with some opinions, and try not to be shy about my honest take on those.
A very, very few opinions fall into the category of those as to which I both strongly disagree and find them exceptionally important.
This is one of them.