A Louisiana court ruled that a school could be sued on the basis of negligent supervision, but not negligent hiring, for a janitor's sexual molestation of an 8-year-old student. An 8-year-old girl (the "victim") arrived at school at 7:15 a.m. one day. Although school did not begin until 8 a.m., the victim participated in the breakfast program, which began 30 minutes before the start of school. According to the victim's account of the events that morning, when she walked up to the school she was approached by the school janitor, who informed her that one of her teachers wanted to see her and proceeded to walk her upstairs to a classroom. Once in the classroom the janitor molested her and warned her not to tell anyone what had happened. Two days later, the victim informed her family, which led to the janitor's arrest and prosecution for child abuse. The victim's mother thereafter sued the school for negligent supervision, vicarious liability, and negligent hiring. A trial court dismissed the lawsuit, and the mother appealed.
The appeals court noted that the school was unlocked and students were allowed into the cafeteria prior to the start of the breakfast program. There was a supervising teacher and cafeteria worker on site for the breakfast program from 7 a.m. until the start of the school day. The school had a security plan in place that included the presence of a security guard to help ensure the safety of the children. However, the school's principal testified that she could not recall the exact time the security plan called for the security guard to report to duty, making it impossible for her to determine if the security plan was properly implemented on the day the victim was molested.
The school claimed that the victim was dropped off before the official start of the breakfast program, and therefore it had no duty to supervise or protect her from the conduct of its employees. The court disagreed:
The Court concluded that an employer's risk of liability for an employee's acts "increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks."
[The principal's] testimony established that the victim was dropped off at approximately the same time every morning. Each time the victim was dropped [the principal] observed that the school was always open and there was staff present. A reasonable person would conclude that once the students are allowed to enter the school building, they are under the school's care and the duty to supervise is assumed.
In general, an employer is vicariously liable for the acts of its employees committed within the scope of their employment. The school insisted that it was not vicariously liable for the janitor's acts since they were not committed within the course and scope of his work. The court concluded that the vicarious liability claim against the school could proceed. It concluded:
In considering whether the tortious act was reasonably incidental to the performance of [the janitor's] duties, we must look at the facts and circumstances specific to this case. [The school principal] testified that the janitor possessed keys to the premises and was allowed free access to the school grounds and buildings. His status as janitor also permitted him access to the young children attending the school. Given his prominent presence on the school's campus and the fact that he was an adult, it is natural that an eight-year-old child would view him as an authority figure, which explains why the victim did not question his directive.
The court noted that "the scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks." In this case, "it is clear that it was the janitor's position and duties as a school employee that allowed him unrestricted access to the victim and the empty classroom where she was taken."
negligent hiring and retention
The court rejected the victim's claim that the school was negligent in hiring the janitor. It noted that as a condition of employment the school performed a background check on the janitor and found that he did not have a record of criminal activity.
The victim claimed that the school was aware that the janitor had molested another student in the past, and therefore was negligent in hiring or retaining him. But the court dismissed this claim on the ground that the victim presented no corroborating evidence that school officials were aware of any prior incident.
What This Means For Churches:
This case is instructive for two reasons. First, it demonstrates that schools, and churches, may be liable for injuries to minors that occur on their premises even before any scheduled activity. As the court noted, "a reasonable person would conclude that once the students are allowed to enter the school building, they are under the school's care and the duty to supervise is assumed."
Second, the court concluded that an employer's risk of liability for an employee's acts "increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks." The janitor in this case had keys to the school building, and had unrestricted access to the entire premises. As a result, the court concluded that the school was vicariously liable for his acts. Booth v. Orleans Parish School Board, 49 So.3d 919 (La. App. 2011).
This Recent Development first appeared in Church Law and Tax Report, March/April 2012.