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C.A., a Minor v. William S. Hart Union High School District The issue is whether the school district is liable for the negligent hire of its school counselor. WERDEGAR, J. C.A., a minor, sued his public high school guidance counselor and the school district for damages arising out of sexual harassment and abuse by the counselor. . . . On review, the question presented is whether the district may be found vicariously liable for the acts of its employees—not for the acts of the counselor, which were outside the scope of her employment, but for the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor’s propensities and nevertheless hired, retained and inadequately supervised her. We conclude plaintiff’s theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one. Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district. Accordingly, we reverse the judgment of the Court of Appeal. Through a guardian ad litem, plaintiff C.A. alleged that while he was a student at Golden Valley High School in the William S. Hart Union High School District (the District) he was subjected to sexual harassment and abuse by Roselyn Hubbell, the head guidance counselor at his school. Plaintiff was born in July 1992, making him 14 to 15 years old at the time of the harassment and abuse, which is alleged to have begun in or around January 2007 and continued into September 2007. Plaintiff was assigned to Hubbell for school counseling. Representing that she wished to help him do well at school, Hubbell began to spend many hours with plaintiff both on and off the high school premises and to drive him home from school each day. Exploiting her position of authority and trust, Hubbell engaged in sexual activities with plaintiff and required that he engage in sexual activities, including sensual embraces and massages, masturbation, oral sex and intercourse. As a result of the abuse, plaintiff suffered emotional distress, anxiety, nervousness and fear. On information and belief, plaintiff alleges “[d]efendants knew that Hubbell had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct.” Defendants “knew or should have known and/or were put on notice” of Hubbell’s past sexual abuse of minors and her “propensity and disposition” to engage in such abuse; consequently, they “knew or should have known that Hubbell would commit wrongful sexual acts with minors, including Plaintiff.” Plaintiff bases this belief on “personnel and/or school records of Defendants [that] reflect numerous incidents of inappropriate sexual contact and conduct with minors by teachers, staff, coaches, counselors, advisors, mentors and others, including incidents involving Hubbell, both on and off the premises of such Defendants.” Plaintiff’s injuries were the result not only of the molestation but of the District’s “employees, administrators and/or agents” failing to “properly hire, train and supervise Hubbell and . . . prevent her from harming” plaintiff. . . . Section 815.2, in turn, provides the statutory basis for liability relied on here: “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. . . .” The District maintains its employees owed plaintiff no legal duty to protect him against abuse by another employee; the responsibility for hiring, supervising and dismissing employees belongs exclusively to the District itself, and no statute provides for the District’s direct liability in this regard. Plaintiff, in turn, argues the special relationship between public school personnel and students imposes on the District’s administrative and supervisory employees a duty of reasonable care to protect a student from foreseeable dangers, including those from other school employees. For the reasons given below, we agree with plaintiff. While school districts and their employees have never been considered insurers of the physical safety of students, California law has long imposed on school authorities a duty to ‘supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.’ . . . The District acknowledges that a special relationship making an employee potentially liable for a student’s injury at the hands of a third party “might exist where the individual employee is in direct charge of and supervising the student,” but insists that a “principal, school superintendent, or other administrator who oversees the overall functioning” of the school cannot be liable on this theory: “They have no special relationship with any particular student. Their relationship is with the entity.” We disagree. Responsibility for the safety of public school students is not borne solely by instructional personnel. School principals and other supervisory employees, to the extent 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. . . . At the same time, we emphasize that a district’s liability must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation. That an individual school employee has committed sexual misconduct with a student or students does not of itself establish, or raise any presumption, that the employing district should bear liability for the resulting injuries. We note, as well, that even when negligence by an administrator or supervisor is established, the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the student than with any other party, and that fact should be reflected in any allocation of comparative fault. Within these limits, we conclude a public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student. The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings consistent with our opinion.

Case Commentary Case Questions:

1. Are you in agreement with the court’s decisions? Why or why not?

2. Would the result have been different if this was Hubbell’s first offense? Why or why not?

3. Was the court’s decision ethical?