Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VC050793, Raul Anthony Sahagun, Judge.
Law Office of Victor Jacobovitz and Victor Jacobovitz; Law Offices of Henry Yekikian and Henry Yekikian for Plaintiff and Appellant.
Gibeaut, Mahan & Briscoe, Gary R. Gibeaut and John W. Allen for Defendants and Respondents.
ASHMANN-GERST, J.
Kenneth W. Childs (Childs) appeals the summary judgment entered in favor of Rio Hondo College (Rio Hondo) and Robert Termath (Termath) on Childs’s complaint for negligence. The question presented is whether a police academy and its instructors owe a duty to train and supervise a cadet so he does not damage his career by sexually harassing another cadet during a class exercise. Applying the factors in Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821 (Patterson), we conclude that the law imposes no such duty.
We affirm the judgment.
FACTS
Rio Hondo operates a police academy. It provides cadets with a manual that contains a sexual harassment policy against unwelcome conduct of a sexual nature. As one of many examples of forbidden conduct, the policy specifically lists “[i]nappropriate or offensive touching.”
Termath is a senior tactical officer employed by Rio Hondo as an instructor at its policy academy. On July 26, 2007, Termath was instructing cadets in a class entitled “Introduction to Arrest Control Tactics.” Childs was in the class. The topic of the day was high-risk stops. During a role-playing exercise, Childs played the role of an officer and Cadet Campos, a female, played the role of a suspect. Termath was about 50 feet away and observed that during the course of the purported high-risk stop, Childs displayed a high level of stress and anger when giving commands and taking Cadet Campos into custody. During the kneeling search, Childs searched the waistband of the suspect and checked her front pockets. He moved his hand down close to her groin area. Afterwards, he ran his hands beneath her breasts. Due to his position in front of Cadet Campos, Termath was unable to observe Child’s search of Cadet Campos’s backside.
After Childs completed the search, Termath asked if Childs was stressed out or pissed off. He said he was both because Cadet Campos was being uncooperative. Termath explained that Cadet Campos was a suspect and therefore playing her role. He went on to explain that Childs’s commands were incorrect and that he was using an improper technique. Termath reminded Childs and the rest of the class of the proper technique for a male to search a female, noting that male officers shall stay away from the breast and groin areas.
The next day, Termath was advised by a colleague that Cadet Campos was concerned that she had been inappropriately touched by Childs during the high-risk stop exercise. Termath spoke to Cadet Campos, who repeated her concerns. She also reported that after the exercise Childs made certain comments and gestures of a sexual nature that she found humiliating. Termath asked Cadet Campos to submit a memo detailing the incident.
Cadet Campos submitted a memo that stated, in part: “When searching my front side[, ] [Childs] lifted my shirt and did not stop until he came in contact with my breasts. When conducting the search of the rear pockets, as I was still kneeled[, ] [Childs] grabbed my right buttocks and ran the side of his hand in-between my left and right buttocks. When conducting the search of my left front pocket, [Childs] ran the side of his hand across my vaginal area.” Six other cadets submitted memos. They stated, inter alia, that Childs touched Cadet Campos’s inappropriately and subsequently made a lewd remark and gesture.
Daniel Rubalcava (Rubalcava), Rio Hondo’s dean of student support services, recommended that Childs be suspended for violating the student code of conduct. Rubalcava’s letter to Childs set forth charges and facts supporting them. The alleged facts were these: “[Y]ou were involved in a high-risk scenario along with Cadet Campos. You played the role of the police officer; Cadet Campos played the role of the suspect. During the scenario you performed a search of Cadet Campos. While searching Cadet Campos, she alleges that you inappropriately touched her vaginal area, buttocks and breasts. In the classroom following the scenario, you were observed” making a lewd gesture and heard making a lewd comment.
The matter proceeded to a three-day hearing before Rio Hondo’s discipline hearing committee. Childs, Termath and others testified. The committee found Childs “guilty of inappropriately running his hand along Cadet Campos’s groin area, as well as running the side of his hand between her left and right buttocks, during a kneeling search that was part of a high risk scenario.” As a result, it recommended that Childs be suspended for one year.
The parties both represent that Childs was suspended. We accept the parties’ representations. We note, however, that they did not provide the trial court with evidence that a decisionmaking body or person actually implemented the recommendation of the discipline hearing committee.
Childs filed a complaint against Rio Hondo and Termath for negligent training and supervision. Rio Hondo and Termath moved for summary judgment. The trial court granted the motion.
This timely appeal followed.
STANDARD OF REVIEW
Summary judgment is reviewed de novo. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) When conducting our review we must “apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Id. at p. 261.)
DISCUSSION
The trial court granted summary judgment based on the lack of causation. But in our view, causation is not determinative. We asked the parties to submit letter briefs on the issue of duty. They did so.
A duty is created when a lawmaker or court determines that policy considerations require that a particular group of people be protected. (Patterson, supra, 155 Cal.App.4th at p. 828.) The classic list of policy considerations includes (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Ibid.; Rowland v. Christian (1968) 69 Cal.2d 108, 113.)
In the realm of education, case law recognizes that “public school authorities have a duty to exercise reasonable care for the physical safety of students under their supervision. [Citation.]” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 821.) In Patterson, for example, the court held that a community college had a duty to supervise an enrollee in its heavy duty truck driving program so he would not injure himself while loading bleachers onto a flatbed truck during a school sponsored activity. (Patterson, supra, 155 Cal.App.4th at pp. 824–826.) We are aware of no law, however, imposing a duty on educators to supervise a student in order to prevent nonphysical injuries such as those suffered by Childs. Thus, for Childs to prevail, we would have to conclude that a person in his position is deserving of the legal protection of tort law.
As we discuss, policy is against Childs.
He did not allege a history of male cadets at the police academy being suspended for improperly touching female cadets during role playing exercises. As a result, it was not foreseeable that Rio Hondo’s and Termath’s training and supervision would lead to Childs’s one-year suspension. In his letter brief, Childs does not offer any argument or evidence to the contrary. The lack of foreseeable harm is a strong factor in favor of Rio Hondo and Termath.
Harm to Childs caused by the suspension is certain. While this factor falls on Childs’s side of the analysis, it is not enough by itself to tip the scales and justify the creation of a new duty of care.
With respect to his harm, Childs suggests that it is closely connected to Rio Hondo’s and Termath’s failure to provide proper training. Childs cited no evidence in his letter brief. Our review of the record establishes that Termath declared that the cadets “are advised that it is unacceptable to search the breast area and groin area of a female.” We therefore easily conclude that Rio Hondo’s training did not prompt Childs’s misconduct. And because Childs was instructed not to touch females in the groin area, Rio Hondo and Termath bear no moral blame for what Childs did. Without these two factors on his side, Childs faces an uphill battle when arguing that he is owed a duty of care.
Childs testified in his deposition that unspecified people told him that there is no difference between men and women and that the groin area should be searched, and that “[t]hey never went into how far one goes up in between the legs.” Because Childs did not identify these unspecified people or claim that they work for Rio Hondo, Childs’s testimony sheds no light on Rio Hondo’s training.
Though there is a policy of preventing future harm, there are many reasons why it would be inappropriate for us to create a duty designed to protect cadets from being suspended due to sexual harassment. The harm suffered by Childs was not physical. And though it was detrimental to him, it was not necessarily detrimental to society. Cadets must be given as much chance to fail as succeed so that they can be properly evaluated. When they fail because they demonstrate poor judgment, society is protected from graduates who may not be ready to serve in the community. In addition, courts are not experts in running police academies and are in no position to determine how they should instruct cadets. Finally, cadets do not need the protection of tort law because they are already protected by internal procedures. Here, Childs had the protection of a three-day disciplinary hearing.
Our analysis of the next factor is similar to the last. Imposing a duty on police academies would impact their educational curriculums and could easily make role playing too risky. If police academies have to coddle and supervise cadets to ensure that they do not get suspended, they will most likely lose much of the information necessary to separate the good cadets from the bad cadets. Society would end up with police officers who should not be on the streets.
The parties offered no evidence regarding insurance.
On balance, these policy considerations dictate that Rio Hondo and Termath did not owe Childs a duty of care.
All other issues are moot.
DISPOSITION
Summary judgment is affirmed. Rio Hondo and Termath are entitled to recover their costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.