In M.P. v. City of Sacramento, (— Cal.Rptr.3d —-, Cal.App. 3 Dist., August 31, 2009), a California Court of Appeal considered whether a city could be held vicariously liable for the alleged sexual misconduct of firefighters employed by the city. The Court of Appeal concluded the city could not be held liable because the alleged misconduct fell outside the scope of the firefighters’ employment.
In 2004, a Sacramento Fire Department Captain allegedly allowed firefighters to drive a fire truck to the Porn Star Costume Ball (“Ball”) to “pick up” women. M.P. was working as a photographer at the Ball. M.P. claims that she came across a crew of firefighters and she “‘began to hang out’ with them.” M.P. states many of the firefighters were drinking and that a captain who had accompanied the firefighters to the Ball watched the firefighters drink and flirt with women.
M.P. accompanied some firefighters to the fire truck to take photographs. At some point, M.P. got into the truck with firefighters Scott Singleton (“Singleton”), who was off duty, and Tom Mitchell (“Mitchell”), who was on duty. M.P. claims that Singleton and Mitchell sexually assaulted her while she was in the truck with them.
M.P. filed a lawsuit against several defendants including the City of Sacramento (“City”) and Mitchell and Singleton. The trial court held that the City could not be held vicariously liable for the alleged sexual assault.
The general rule in California is “that an employee who commits a sex crime while on duty has not acted within the scope of employment and, thus, the employer is not vicariously liable for the harm to the victim because the crime has no causal nexus to the employee’s work.” In Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, the California Supreme Court departed from this general rule and held that a public entity who employed a police officer could be vicariously liable for rape committed by an on-duty officer against a woman he had detained. M.P. argues the rule set out in Mary M. should be applied to her case. The Court of Appeal declined to extend the Mary M. ruling to the facts alleged by M.P.
A public entity may only be held “‘vicariously liable for the torts of its employee committed within the scope of the employment.” The California Supreme Court has given three rationales for applying this principle: (1) to prevent the conduct from occurring again; (2) “to give greater assurance of compensation for the victim;” and (3) to make sure “that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.” A criminal act may fall within the scope of employment “only if the act has ‘a causal nexus to the employee’s work.’”
The Mary M. Court concluded there is a danger that a police officer will commit a sexual assault while on duty because of the “considerable authority and control inherent in the responsibilities of an officer in enforcing the law.” Although the Court of Appeal acknowledged that it is bound by the holding of Mary M., it concluded that the Mary M. holding does not dictate the extension of the legal principle of vicarious liability to cover the alleged sexual assaults by the firefighters in this case. The Court of Appeal noted that California courts have declined to apply the Mary M. holding to a case involving an ultrasound technician employed by a hospital and a case where a law enforcement officer’s sexual misconduct was directed at fellow officers.
Vicarious liability does not apply to the alleged sexual assault by the firefighters for the following reasons: (1) the firefighters had no coercive authority over M.P.; (2) the assault “was motivated for strictly personal reasons not related to their duties and performance as firefighters;” (3) the sexual acts that allegedly occurred “were not reasonably necessary to the firefighters’ comfort, convenience, health, and welfare while at work;” (4) the acts were not brought on “by a work-related dispute over the performance of their duties;” and (5) the harm to M.P. “was not a risk that may be fairly regarded as typical of or broadly incidental to the operations of a firefighter.”
Furthermore, there are no policy considerations that support a finding of vicarious liability in this case. M.P. failed to show how the imposition of vicarious liability would prevent recurrence of sexual assaults. Although the imposition of vicarious liability might give greater assurance that M.P. could recover compensation, “‘the consequential costs of ensuring compensation in this manner are unclear’ . . . and may do more harm . . . than good.” Finally, it would be inequitable to impose liability on the City because it “gained no ‘benefit from the enterprise that gave rise to the injury.’”
Accordingly, the Court of Appeal affirmed the decision of the trial court because the alleged sexual assault fell outside the firefighters’ scope of employment.
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