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Legal Report June 2012


VICARIOUS LIABILITY. The Supreme Court of California has ruled that a student who was sexually abused by his high school guidance counselor may pursue his liability claim against the school district. The court ruled that the district may be held vicariously liable if it failed to adequately supervise the counselor.

The plaintiff in the case, referred to as C.A. in the court documents, claimed that he was subjected to sexual harassment and abuse for almost a year when he was 15 years old. C.A. was referred for counseling to Roselyn Hubbell, the school’s head guidance counselor.

Hubbell began spending time with C.A. during and after school and on and off school grounds. C.A. claims he was pressured into engaging in sexual activities with Hubbell during this time and, as a result, suffered emotional distress, anxiety, and fear. C.A. filed a lawsuit against Hubbell and filed a separate motion against the school district.

In his case against the school district, C.A. claimed that the school should be held liable for negligent hiring, supervision, and retention. C.A. noted that numerous allegations against Hubbell both before she was hired by the school and while she worked for the district should have put the administrators on notice that she posed a danger to students. C.A. also alleged that the school had no system or procedure in place for investigating or overseeing employees accused of abusing students.

The trial court dismissed the case, ruling that there was no legal cause of action that would allow C.A. to sue a public entity for negligent hiring, supervision, and retention. On appeal, the state court of appeal affirmed the trial court’s decision. C.A. appealed to the state’s high court.

The supreme court overturned the lower court’s ruling and ordered that a jury consider the facts of the case. Despite the lack of statutory obligation, the school did have a duty to protect students, ruled the court. In the written opinion of the case, the court noted that “the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.”

The court said that this principle had been applied to a school’s duty to protect students from physical harm inflicted by other students and should equally be applied to harm perpetrated by teachers or staff.

The court also made it clear that this theory applies not only to teachers who have direct charge of the students but also to administrative staff. The court wrote: “Responsibility for the safety of public school students is not borne solely by instructional personnel. School principals and other supervisory employees, to the extent that their duties include overseeing the educational environment and the performance of teachers and counselors, also have the responsibility of taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.” (C.A. v. William S. Hart Union High School, Supreme Court of California, No. S188982, 2012)

IMMUNITY. A federal appeals court has ruled that a police officer who assaulted a contract security officer while both were stationed at the Pentagon is not immune from liability.

Kevin Lane, a Pentagon police officer was stationed at a security checkpoint for Pentagon employees. Nicholas Ignacio was a contract security officer stationed at the same checkpoint. The two men had a disagreement over the caliber of ammunition that would be used in a specific gun. The disagreement escalated over the course of several weeks before erupting in violence, with Lane threatening and lunging toward Ignacio. Lane was suspended for 10 days because of the incident.

Ignacio sued the United States for the assault. Attorneys representing the United States claimed sovereign immunity, a legal theory which, in part, prevents citizens from suing the government for acts undertaken by investigative or law enforcement officials. Ignacio insisted that he had the right to sue the government for Lane’s actions because, under the law, sovereign immunity does not apply in cases where a law enforcement officer commits assault or battery.

The government requested summary judgment—a hearing based on the facts of the case without a trial—claiming that sovereign immunity did apply to the case because the assault exception could be used only when the act occurred within the course of law enforcement activity. The district court agreed with the government’s argument and granted the summary judgment.

Ignacio appealed the decision, arguing that the law does not require that an assault occur in the course of law enforcement and that the lower court misinterpreted the law. The appeals court agreed, ruling that the government could face liability for Lane’s attack on Ignacio. The court remanded the case.

In explaining its decision, the appeals court noted that a law enforcement officer may face liability if he or she commits an intentional tort such as assault. “Notably absent is language requiring an officer to commit the tort in the course of an investigative or law enforcement activity, or for that matter, any language regarding the context in which an officer must commit the tort.” (Ignacio v. U.S., U.S. Court of Appeals for the Fourth Circuit, No. 10-2149, 2012)


TRESPASSING. A new law (P.L. 112-98) strengthens penalties for trespassing on certain federal properties. Current federal law prohibits unauthorized entry to any building or grounds where the President is visiting. However, there was no federal law specifically prohibiting unlawful entry to the White House and its grounds or the vice president’s residence and its grounds. To prosecute unauthorized attempts to enter these areas, law enforcement had to use a District of Columbia law, but under that statute, violators were only guilty of a minor trespassing offense.

The new federal law makes it illegal for anyone to knowingly enter or remain in the White House or grounds or the vice president’s residence or grounds without permission. The law also makes it illegal to knowingly impede or disrupt government business or official functions in either location or to obstruct or impede ingress or egress to either location.

Under the law, violators will be subject to a fine and up to one year in prison. If the violator carries a weapon or firearm or if the act results in significant bodily injury, the term of imprisonment could reach 10 years. Some civil libertarians object to what they consider overbroad language, saying that it could be used to restrict political protests.

WHISTLEBLOWERS. A bill (H.R. 2483) that would make it mandatory for employees to first report suspected wrongdoing to their employers to receive monetary awards has been approved by the House Financial Services Committee’s Subcommittee on Capital Markets and Government Sponsored Enterprises. The measure now goes to the full committee.

The legislation would also require that the Securities and Exchange Commission (SEC) notify companies of whistleblower reports and allow the companies 30 days to conduct their own internal investigation before proceeding with a government analysis.

The bill is in response to a final rule issued by the SEC on the whistleblower program created under the Dodd-Frank Act. The act provides informants with a percentage of monetary sanctions of more than $1 million obtained from their information. The new rule sets out how the program will be administered.

The rule stresses the value of internal compliance programs and encourages whistleblowers to report concerns to their companies before turning to the SEC. Those who do that will be entitled to a larger percentage of the monetary sanction; those who interfere with an internal program will see a decreased award. An employer who makes an internal report up to 120 days before making a report to the SEC will get credit for any information reported directly by the company to the SEC.

The rule notes that these actions are designed to encourage companies to strengthen their internal programs, because whistleblowers are now more likely to use them. However, the SEC rule does not require that employees report violations to their employers before filing a report with the government. Whistleblower groups oppose the proposal.

DATA SECURITY. A bill (S. 1408) that would impose data security requirements on all government agencies and companies that collect or store personally identifiable information has been approved by the Senate Judiciary Committee. The Senate has announced that it will consider the bill.

Under S. 1408, government agencies and companies would be required to notify any U.S. resident whose information had been accessed. Notifications would be required without unreasonable delay following a data breach. Notifications could be delayed or exempted if the FBI or Secret Service determined that the notification would reveal sensitive sources, impede an investigation, or jeopardize national security.

Other exemptions are provided for security breaches that result in no significant risk of identity theft, economic loss, or physical harm to the owners of the information. A business that develops a security program to protect against unauthorized breaches may also secure an exemption under the bill.

Companies that fail to meet the regulations could face fines. The bill would also allow state attorneys general to bring civil lawsuits on behalf of individuals. Any person who had knowledge of a security breach but intentionally and willfully concealed such information would face up to five years in prison.


PRIVACY. A new law introduced in Maryland (formerly S.B. 433) makes it illegal for employers to require employees or applicants to disclose their user name, password, or other means of accessing a private personal account or service as part of employment. An employer is not allowed to refuse to hire an applicant for refusal to divulge such information.

FIREARMS. A bill (S.B. 863) pending in the Michigan Senate would allow employees of licensed private investigators to carry concealed weapons in restricted areas where average citizens are not allowed to bring firearms. Licensed private investigators can already do so.

This column should not be construed as legal or legislative advice.