Doe v. Roman Catholic Archbishop of Los Angeles

Filed 10/20/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOHN HG DOE, B305810
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC679844)
v.
THE ROMAN CATHOLIC
ARCHBISHOP OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Reversed with
directions.
Law Offices of Anthony DeMarco, Anthony M. DeMarco
and Alexandria L. Heins, for Plaintiff and Appellant.
McKool Smith Hennigan, J. Michael Hennigan, Lee W.
Potts, and Elizabeth S. Lachman for Defendant and Respondent.
___________________________
INTRODUCTION
Does a church have a duty to protect children from sexual
abuse by clergy while the children are attending religious school
or participating in other church-sponsored programs? Because
the answer to that question is “yes,” we reverse the judgment
entered after the trial court, which answered that question “no,”
granted a motion for summary judgment by the Roman Catholic
Archbishop of Los Angeles, a Corporation Sole (the Archdiocese).1
1 “A corporation sole is a perpetual entity through which a
religious organization can administer and manage property
dedicated to the benefit of that organization.” (Diocese of San
Joaquin v. Gunner (2016) 246 Cal.App.4th 254, 260, fn. 1.)
“Corporations Code section 10002 provides that ‘[a] corporation
sole may be formed under this part by the bishop, chief priest,
presiding elder, or other presiding officer of any religious
denomination, society, or church, for the purpose of
administering and managing the affairs, property, and
temporalities thereof.’ Such a corporation consists only of the
relevant religious officeholder and has no other corporate
directors, members, or officers. In other respects, it has the same
powers and duties as other corporations. The general purpose of
a corporation sole is to provide a continuing entity to own
property and conduct the business affairs of a local religious
institution; each successor to the office of, e.g., bishop, upon
fulfilling certain formalities specified in Corporations Code
section 10010 succeeds to incumbency of the corporation sole.”
(Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 160,
fn. 1.)
2
FACTUAL AND PROCEDURAL BACKGROUND
A. A Priest Allegedly Sexually Abuses Doe at a Church
In the late 1980’s John HG Doe attended catechism classes
at Our Lady of the Rosary Catholic Church.2 Doe’s father
dropped him off for the classes, which were held in a room near
the sanctuary. Father John Higson was an associate pastor at
Our Lady of the Rosary, but he was not Doe’s teacher.
In August 1988, when he was 10 years old, Doe raised his
hand during class to be excused to use the restroom. Doe later
said that, while he was in a restroom stall, Higson entered the
stall and sexually molested Doe by groping Doe’s genitals and
forcing Doe to perform oral sex on him. Doe claimed Higson said
“every boy does this in order to do their First Communion.” Doe
returned to class, upset and on the verge of crying, and put his
head down on his folded arms. He did not tell his teacher what
happened, and the teacher did not ask why Doe was upset or why
he had his head down.
Doe claimed a similar incident occurred around the same
time. Doe also did not tell his teacher or anyone else at Our Lady
2 A catechism is “a series of fixed questions and answers
used for instruction,” a “method typically reserved for teaching
religious doctrine.” (Moore v. Bryant (S.D.Miss. 2016)
205 F.Supp.3d 834, 841; see Phillip E. Areeda, The Socratic
Method (1996) 109 Harv. L.Rev. 911, 911-912 [“Religious
instruction of the young has sometimes been in the form of a
prepared catechism. Students are presented with a stock of
questions and answers: ‘Who is God?’ Rather than being asked
to attempt an answer on their own, the children are provided
with one: ‘God is the maker of heaven and earth.’”].)
3
of the Rosary about that incident. In 2014 Doe told his father
that Higson sexually assaulted him.
B. The Archdiocese Becomes Aware of and Responds to
the Sexual Abuse of Minors by Priests
The Archdiocese began receiving reports in 1967 of priests
sexually abusing minors. By 1984 the Archdiocese had received
25 reports concerning priests in the Archdiocese alone. More
generally, by the mid-1980’s the Archdiocese was aware that
clergy sexual abuse of minors was a widespread concern across
the country. In 1985 an “eye-opening and disturbing” panel
discussion at the National Conference of Catholic Bishops “was a
defining moment for the Church, amounting for all practical
purposes to the first widespread recognition that child and
adolescent sexual abuse by the clergy was more than a matter of
tragic but isolated incidents.”
A report, also in 1985, titled The Problem of Sexual
Molestation by Roman Catholic Clergy: Meeting the Problem in a
Comprehensive and Responsible Manner, “had a great impact,”
according to the Archdiocese. That report “informed the Bishops
that child sexual abuse by clergy was much more prevalent than
the Church previously understood.” The report estimated the
Roman Catholic Church’s civil liability for clergy sexual abuse of
minors would be least $1 billion over the next 10 years, which it
called “a conservative cost projection” at “the rate cases [were]
developing.” The report proposed the Roman Catholic Church
form a “Crisis Control Team” and a “Policy and Planning Group”
comprised of “professionals and consultants who possess a
significant degree of experience and expertise” to address legal,
4
canonical, and clinical considerations presented by the sexual
molestation of children.
Between 1984 and 1988 the Archdiocese received an
additional 36 reports of sexual abuse by clergy in the
Archdiocese. At least one of those reports involved another priest
assigned to Our Lady of the Rosary who, in March 1988,
reportedly “‘grab[bed] little boys and hug[ged] them.’” And in
1987 a priest in the Archdiocese (but in a different parish)
pleaded guilty to sexually molesting minors. In 1987 or 1988 the
Archdiocese purchased sexual abuse insurance.
At this time the Archdiocese began developing policies and
procedures for preventing clergy sexual abuse. In 1986 then-
Archbishop Roger Mahony asked priests attending a retreat to
meet with him confidentially if any of them “had engaged in any
misconduct with minors.” And in 1989 the Archdiocese published
its Policy on Misconduct Involving a Priest. The policy instructed
priests to “avoid the kind of contact with minors that could cause
comment on the part of reasonable people,” such as “hugging,
tickling, [and] wrestling.” The policy also prohibited priests from
having minors in their rooms or staying overnight at a rectory
and advised priests on field trips or vacations with minors to
always have at least one other adult present. The policy
identified “clear violations” of these guidelines as “danger signs”
that fellow priests should “be aware of . . . in our brother priests’
activities.” The policy also identified “the danger to priests who,
without doing anything wrong, seek the company of children and
look to them for the emotional support that only normal adult
relationships provide.”
In 1994 the Archdiocese issued its Policy on Sexual Abuse
by Priests, which expanded the Archdiocese’s efforts to prevent
5
sexual abuse of minors. The 1994 policy stated the Archdiocese
would “educate priests and people about the problem of sexual
abuse and set in place screening procedures and educational
policies on this subject for those training for the priesthood.” The
1994 policy also established procedures for investigating and
responding to allegations of sexual abuse by priests, precautions
priests should take in their relationships with minors (which
mirrored the 1989 guidelines), and screening procedures for
priests assigned to the diocese. The policy also created an
advisory board to implement the policy and recommended
procedures.
In 2002 the Archdiocese created the Safeguard the
Children program “to raise the consciousness of the community
as a whole to issues of child abuse and neglect, and to sensitize
teachers, parents, children, volunteers and all those in ministry
to conduct that may be evidence of possible abusive behavior by
any adult.” The program asked each parish to create a Safeguard
the Children committee comprised of parishioners with “relevant
expertise,” such as nurses, police officers, and parents. The
“goals” of each committee were “to inform all parish groups of
policies on reporting and preventing child abuse and neglect, to
conduct workshops attuned to local needs, to arrange speakers,
and, in general, to encourage parish groups to learn about all
aspects of child abuse and prevention.”
Also in 2002 the Archdiocese distributed to all 288 parishes
and parish schools a pamphlet titled Respecting the Boundaries:
Keeping Ministerial Relationships Healthy and Holy. The
pamphlet was designed “to help parishioners understand sexual
misconduct in the Church and teach them how to identify
possible problems and bring concerns about suspected abuse to
6
the attention of Church officials.” In 2002 the Archdiocese also
began comprehensive training programs for clergy regarding
mandatory reporting of suspicions of sexual abuse.
In 2004 the Archdiocese issued Report to the People of God:
Clergy Sexual Abuse, Archdiocese of Los Angeles, 1930-2003, a
comprehensive report that represented the Archdiocese’s “best
understanding of the history of sexual abuse in the Archdiocese
and [its] efforts to eliminate this scourge.” The report
acknowledged that steps the Archdiocese took “in the middle
1980’s” to address the problem of sexual abuse of minors by
clergy were “insufficient” and that its “learning process was still
evolving” into the late 1990’s. The report detailed the various
policies and procedures the Archdiocese had established
regarding reporting, treating offenders, and preventing abuse
and catalogued the reports of clergy sexual abuse in the diocese.
Regarding prevention measures, the report stated the
Archdiocese had updated its 2002 pamphlet for parishioners,
Working Together to Prevent Sexual Abuse: Protecting Children
and Young People, and published in the Archdiocese’s newspaper
the procedures for reporting sexual abuse.
C. Doe Sues the Archdiocese, and the Trial Court Grants
the Archdiocese’s Motion for Summary Judgment
Doe filed this action on October 16, 2017. His operative,
first amended complaint named the Archdiocese, Our Lady of the
Rosary, and Higson as defendants. Neither Our Lady of the
Rosary nor Higson is a party to this appeal.3
3 Our Lady of the Rosary filed a motion for summary
judgment, arguing it was not a separate legal entity from the
7
Doe alleged the Archdiocese had a duty to protect him
when he was entrusted to its care. Doe alleged the Archdiocese
breached its duty in a variety of ways, including by negligently
supervising and retaining Higson and by failing to properly
investigate Higson. Doe also alleged the Archdiocese’s duty to
protect him included the duty to “educate, train and warn” Doe
and other minors involved in youth programs at Our Lady of the
Rosary “regarding prevention, detection and reporting of child
abuse so as to help safeguard [Doe] and other participants from
being sexually abused by priests and other adults associated with
those programs.” And Doe alleged the Archdiocese “had a duty to
educate, train and warn parents and adult agents of [the
Archdiocese] and other employees that had regular contact with
or oversight of minors in [the Archdiocese’s] schools and youth
programs regarding prevention, detection and reporting of child
abuse so as to help safeguard [Doe] and other minors from being
sexually abused . . . .”
Doe further alleged the Archdiocese knew of the “epidemic”
of priests sexually abusing minors and had “received a multitude
of complaints that its priests had sexually abused minors”
beginning in the 1950’s. Doe alleged it was foreseeable to the
Archdiocese that children entrusted to its care would be
vulnerable to sexual abuse if the Archdiocese “did not adequately
exercise or provide the duty of care owed to children in [the
Archdiocese’s] care, including [Doe].” And Doe alleged the
Archdiocese failed to provide the required education and training,
Archdiocese. The trial court granted the motion, and Doe does
not challenge that aspect of the trial court’s order. There is no
indication in the record Higson filed a dispositive motion.
8
despite having implemented various written and unwritten
policies in the late 1980’s concerning the sexual abuse of children
by priests. Doe alleged the Archdiocese’s conduct caused Doe,
among other injuries, “great pain of mind and body.”
The Archdiocese filed a motion for summary judgment or in
the alternative for summary adjudication.4 The Archdiocese
argued it did not owe a duty of care to Doe because indisputable
evidence showed the Archdiocese did not know and had no reason
to know Higson had engaged in any prior misconduct with a
minor. The trial court granted the motion, ruling: “[T]he Court
finds [Doe] has failed to raise a triable issue of material fact with
respect to whether [the Archdiocese] had actual knowledge, or
even reason to know, that Higson committed any sexual
abuse/misconduct on [or] before the purported abuse of [Doe] in
August 1988.” The court entered judgment against Doe, and Doe
timely appealed.
DISCUSSION
Doe contends he alleged two theories of negligence, one for
negligent hiring, supervision, and retention of priests, and one for
negligent failure to educate, train, or warn minors, parents, and
Archdiocese employees. He argues that the Archdiocese failed to
meet its moving burden on the latter theory and that the court
either ignored or applied the wrong legal standard to assess that
claim. Because Doe does not contend the trial court erred in
connection with his first theory (negligent hiring, supervision,
4 The first amended complaint also alleged a cause of action
for child sexual abuse. Doe does not challenge the trial court’s
ruling granting summary adjudication on that cause of action.
9
and retention), we address only the second theory (negligent
failure to educate, train, and warn).
A. Applicable Law and Standard of Review
A court may grant a motion for summary judgment or
summary adjudication “only when ‘all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’”
(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1179; see Code Civ. Proc, § 437c, subd. (c); Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
618 (Regents).) “A defendant seeking summary judgment must
show that the plaintiff cannot establish at least one element of
the cause of action.” (Regents, at p. 618; accord, Mattei v.
Corporate Management Solutions, Inc. (2020) 52 Cal.App.5th 116,
122.)
Where a defendant moves for summary adjudication on a
cause of action for which the plaintiff has the burden of proof at
trial, the defendant “must present evidence that either
‘conclusively negate[s] an element of the plaintiff’s cause of
action’ or ‘show[s] that the plaintiff does not possess, and cannot
reasonably obtain,’ evidence necessary to establish at least one
element of the cause of action. [Citation.] Only after the
defendant carries that initial burden does the burden shift to the
plaintiff ‘to show that a triable issue of one or more material facts
exists as to the cause of action . . . .’” (Luebke v. Automobile Club
of Southern California (2020) 59 Cal.App.5th 694, 702-703; see
Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853-854.) “There is a triable issue of
material fact if, and only if, the evidence would allow a
10
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar, at p. 850; accord, Lares v. Los
Angeles County Metropolitan Transportation Authority (2020)
56 Cal.App.5th 318, 331-332.)
“We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.” (Mattei v. Corporate Management Solutions, Inc., supra,
52 Cal.App.5th at p. 122; see Regents, supra, 4 Cal.5th at p. 618.)
We “‘liberally constru[e] the evidence in favor of the party
opposing the motion and resolv[e] all doubts about the evidence
in favor of the opponent.’” (Ghazarian v. Magellan Health, Inc.
(2020) 53 Cal.App.5th 171, 182; see Regents, at p. 618.)
B. The Archdiocese Had a Duty To Protect Doe from
Sexual Abuse by Priests or Other Persons Under the
Archdiocese’s Control
1. The Duty To Protect
“To establish a cause of action for negligence, the plaintiff
must show that the ‘defendant had a duty to use due care, that he
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.’ [Citation.] Recovery for
negligence depends as a threshold matter on the existence of a
legal duty of care.” (Brown v. USA Taekwondo (2021) 11 Cal.5th
204, 213 (Brown); see Nally v. Grace Community Church (1988)
47 Cal.3d 278, 292.) “The existence of a duty is a question of law,
which we review de novo.” (Vasilenko v. Grace Family Church
(2017) 3 Cal.5th 1077, 1083; see Regents, supra, 4 Cal.5th at
11
p. 620 [“The determination whether a particular relationship
supports a duty of care rests on policy and is a question of law.”].)
“A duty exists only if ‘“the plaintiff’s interests are entitled
to legal protection against the defendant’s conduct.”’” (Brown,
supra, 11 Cal.5th at p. 213.) “[T]he law imposes a general duty of
care on a defendant only when it is the defendant who has
‘“created a risk”’ of harm to the plaintiff, including when ‘“the
defendant is responsible for making the plaintiff’s position
worse.”’ [Citations.] The law does not impose the same duty on a
defendant who did not contribute to the risk that the plaintiff
would suffer the harm alleged. Generally, the ‘person who has
not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another’ from that peril.”
(Brown, at p. 214; see Regents, supra, 4 Cal.5th at p. 619.) But
this “no-duty-to-protect rule” is not absolute. (Brown, at p. 215.)
“Under some circumstances, a defendant may have an
affirmative duty to protect the plaintiff from harm at the hands
of a third party, even though the risk of harm is not of the
defendant’s own making.” (Brown, at p. 215; see generally
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)
In Brown the Supreme Court established a two-step
inquiry to determine whether a defendant has a legal duty to
take action to protect a plaintiff from injuries caused by a third
party: “First, the court must determine whether there exists a
special relationship between the parties or some other set of
circumstances giving rise to an affirmative duty to protect.
Second, if so, the court must consult the factors described in
[Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland)] to
determine whether relevant policy considerations counsel
limiting that duty. (Brown, supra, 11 Cal.5th at p. 209; see
12
Regents, supra, 4 Cal.5th at p. 627 [special relationship doctrine
is an exception to the general rule that there is no duty to protect
others from the conduct of third parties].)
2. The Archdiocese Had a Special Relationship
with Doe
“A special relationship between the defendant and the
victim is one that ‘gives the victim a right to expect’ protection
from the defendant, while a special relationship between the
defendant and the dangerous third party is one that ‘entails an
ability to control [the third party’s] conduct.’” (Brown, supra,
11 Cal.5th at p. 216; see Regents, supra, 4 Cal.5th at p. 619.) The
“common features” of a special relationship include “an aspect of
dependency in which one party relies to some degree on the other
for protection” and the other party has “superior control over the
means of protection.” (Regents, at pp. 620-621; accord, Brown v.
USA Taekwondo (2019) 40 Cal.App.5th 1077, 1092, affd. (2021)
11 Cal.5th 204.) Special relationships also feature “‘defined
boundaries’” that “‘create a duty of care owed to a limited
community, not the public at large,’” and many “‘benefit the party
charged with a duty of care,’” such as in the case of retail stores
and hotels. (Brown v. USA Taekwondo, at p. 1092; see Regents,
at p. 621.)
Examples of special relationships that create an affirmative
duty to protect include “[r]elationships between parents and
children, colleges and students, employers and employees,
common carriers and passengers, and innkeepers and guests.”
(Brown, supra, 11 Cal.5th at p. 216; see Regents, supra, 4 Cal.5th
at pp. 619-620; Doe v. United States Youth Soccer Assn., Inc.
(2017) 8 Cal.App.5th 1118, 1129 (United States Youth Soccer).)
13
And “California courts have frequently recognized special
relationships between children and their adult caregivers that
give rise to a duty to prevent harms caused by the intentional or
criminal conduct of third parties.” (United States Youth Soccer,
at p. 1129.) For example, courts have found special relationships
between a sport’s governing body and minor athletes (Brown, at
p. 222), a school district (including its employees) and the
district’s students (C.A. v. William S. Hart Union High School
Dist. (2012) 53 Cal.4th 861, 869 (Hart)), a church camp and its
campers (Doe v. Superior Court (2015) 237 Cal.App.4th 239, 246),
a church and minor members engaged in church-sponsored “field
service” (Conti v. Watchtower Bible & Tract Society of New York,
Inc. (2015) 235 Cal.App.4th 1214, 1217, 1235), a police
department and teenage “explorers” participating in a
department program (Doe 1 v. City of Murrieta (2002)
102 Cal.App.4th 899, 918 (City of Murrieta), disapproved on
another ground in Brown, at p. 222, fn. 9), and a scout
organization and its scouts (Juarez v. Boy Scouts of America, Inc.
(2000) 81 Cal.App.4th 377, 411 (Juarez), disapproved on another
ground in Brown, at p. 222, fn. 9). In cases involving minors,
courts generally have recognized a special relationship where
adults and organizations “acted as ‘quasi-parents’ by assuming
responsibility for the safety of [minors] whose parents were not
present.” (United States Youth Soccer, at p. 1130; see Hart, at
pp. 869-870 [the “comprehensive control” that schools exercise
over students is “‘analogous in many ways to the relationship
between parents and their children’”].)
“The existence of such a special relationship puts the
defendant in a unique position to protect the plaintiff from injury.
The law requires the defendant to use this position accordingly.”
14
(Brown, supra, 11 Cal.5th at p. 216; see id. at pp. 220-221 [special
relationship “extends a right of recovery to individuals in
relationships involving dependence or control, and who by virtue
of those relationships have reason to expect the defendant’s
protection”]; Regents, supra, 4 Cal.5th at p. 621 [“‘a typical
setting for the recognition of a special relationship is where “the
plaintiff is particularly vulnerable and dependent upon the
defendant who, correspondingly, has some control over the
plaintiff’s welfare”’”].) Where there is a special relationship
between the defendant and a minor, the obligation to provide
protection and assistance may include a duty to protect the minor
from third party abuse. (Brown, at p. 220; Hart, supra,
53 Cal.4th at p. 870.)
The circumstances in this case satisfy the “common
features” of a special relationship. While in catechism classes,
Doe and his parents relied on the Archdiocese for Doe’s
protection, and the Archdiocese had “superior control over the
means of protection.” (Regents, supra, 4 Cal.5th at pp. 620-621;
see id. at p. 625 [colleges have a special relationship with
students because of their “superior control over the environment
and the ability to protect students,” while “[s]tudents are
comparatively vulnerable and dependent on their colleges for a
safe environment”]; Hart, supra, 53 Cal.4th at p. 869 [school
district’s duty to protect its students arose in part from its
comprehensive control over the students]; see also J.H. v. Los
Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 142-143
[“‘parents may legitimately expect adequate supervision’” in
schools].) Like schools, athletics organizations, junior
recreational leagues, and youth programs, the Archdiocese,
through its teachers and priests, assumed responsibility for the
15
safety of students in its catechism classes. (See United States
Youth Soccer, supra, 8 Cal.App.5th at p. 1130; see also Doe v.
Superior Court, supra, 237 Cal.App.4th at p. 247 [church summer
camp “stood in loco parentis while minor was at the camp”].)
Of course, as is the case with those entities and
organizations, the Archdiocese does not have a special
relationship with “the world at large” (Regents, supra, 4 Cal.5th
at p. 626) or even with all of its parishioners (see Roman Catholic
Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1567 [no
special relationship between a church and its minor parishioners
unless the church had “actual custody or control” of the child,
such as where the child attended a church school]). Thus, the
special relationship between the Archdiocese and students
participating in its youth programs is appropriately “bounded” by
the students’ enrollment in those programs. (Regents, at p. 625.)
The Archdiocese argues it did not have a special
relationship with Doe because, although he was a parishioner, he
was not enrolled in Our Lady of the Rosary’s parish school, and
the catechism classes he attended “did not take place on the
grounds of the Parish school.” The Archdiocese made none of
these arguments in its motion for summary judgment; instead,
for purposes of the motion, the Archdiocese “assumed” there was
a special relationship.5 The Archdiocese therefore forfeited these
arguments on appeal. (See McKenna v. Beesley (2021)
67 Cal.App.5th 552, 584, fn. 48 [on review of summary judgment,
the reviewing court has “no occasion to consider” arguments the
5 The trial court acknowledged that the existence of a special
relationship was relevant to determining the scope of the
Archdiocese’s liability, but the court did not reach that issue.
16
defendant did not make in his motion for summary judgment];
Jackpot Harvesting Co., Inc. v. Superior Court (2018)
26 Cal.App.5th 125, 155 [“arguments not raised in summary
judgment proceedings” are forfeited].)
Even if not forfeited, the Archdiocese’s arguments are
meritless. As discussed, Doe was more than just a parishioner;
he was enrolled in catechism classes at Our Lady of the Rosary.
That Doe was not also enrolled as a student in the Our Lady of
the Rosary’s parish school did not preclude the Archdiocese from
having a special relationship with Doe because of his enrollment
in catechism classes, nor did the fact that the alleged assaults did
not occur at the parish school. Doe presented evidence, and the
Archdiocese did not dispute, the alleged assaults occurred on
church property while Doe was in the custody and care of Our
Lady of the Rosary.
Thus, the Archdiocese had good reason for conceding, at
least for purposes of its motion for summary judgment, it had a
special relationship with Doe. And because there was such a
relationship, the Archdiocese had a duty to take reasonable
measures to protect Doe while he attended classes at Our Lady of
the Rosary. (See Regents, supra, 4 Cal.5th at p. 619 [“a duty to
warn or protect may be found if the defendant has a special
relationship with the potential victim that gives the victim a
right to expect protection”]; Hart, supra, 53 Cal.4th at p. 877
[“the special relationship [school administrators and supervisors]
had with plaintiff, a student under their supervision, . . . entailed
the duty to take reasonable measures to protect plaintiff from
injuries at the hands of others in the school environment”];
United States Youth Soccer, supra, 8 Cal.App.5th at p. 1129
[“special relationships between children and their adult
17
caregivers . . . give rise to a duty to prevent harms caused by the
intentional or criminal conduct of third parties”]; Conti v.
Watchtower Bible & Tract Society of New York, Inc., supra,
235 Cal.App.4th at pp. 1234-1235 [control by a church and its
congregation over a church-sponsored activity required them to
take reasonable steps to prevent harm to a minor].)
3. The Rowland Factors Do Not Justify Excusing
or Limiting the Archdiocese’s Duty To Protect
Doe
a. The Rowland Factors
“Even if an organization has a special relationship with the
tortfeasor or plaintiff, ‘[t]he court may depart from the general
rule of duty . . . if other policy considerations clearly require an
exception.’” (Brown v. USA Taekwondo, supra, 40 Cal.App.5th at
p. 1095; accord, Regents, supra, 4 Cal.5th at p. 628.) The factors
set forth in Rowland “may, on balance, justify excusing or
limiting a defendant’s duty of care.” (Regents, at p. 628; see
Brown v. USA Taekwondo, at p. 1095.)
The Rowland factors are “‘the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant’s conduct
and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, 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 the availability, cost, and prevalence of
insurance for the risk involved.’” (Regents, supra, 4 Cal.5th at
p. 628, quoting Rowland, supra, 69 Cal.2d at p. 113; see Brown,
18
supra, 11 Cal.5th at p. 217.) “The Rowland factors fall into two
categories. The first group involves foreseeability and the related
concepts of certainty and the connection between plaintiff and
defendant. The second embraces the public policy concerns of
moral blame, preventing future harm, burden, and insurance
availability.” (Regents, at p. 629; see Brown v. USA Taekwondo,
supra, 40 Cal.App.5th at p. 1096.) “‘The most important factor to
consider in determining whether to create an exception to the
general duty to exercise ordinary care . . . is whether the injury in
question was foreseeable.’” (Regents, at p. 629, quoting Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1145 (Kesner).)
“In considering [the Rowland factors], we determine ‘not
whether they support an exception to the general duty of
reasonable care on the facts of the particular case before us, but
whether carving out an entire category of cases from that general
duty rule is justified by clear considerations of policy.’” (Regents,
supra, 4 Cal.5th at p. 629; see Brown, supra, 11 Cal.5th at
p. 221.) Thus, while a court considers “whether the parties have
a special relationship by considering the particular facts and
circumstances of their association with one another,” a court
considers the Rowland factors “‘at a relatively broad level of
factual generality.’” (Brown, at p. 221.)
b. The Rowland Factors Do Not Support an
Exception from the Duty To Protect Doe
The trial court granted summary adjudication on Doe’s
cause of action for negligence because the court ruled Doe failed
to create a triable issue of fact on the first Rowland factor,
foreseeability. The trial court, however, applied the wrong
19
standard for foreseeability and did not consider the other
Rowland factors.
The Archdiocese did not argue in the trial court, and does
not argue on appeal, that any of the Rowland factors other than
foreseeability supports an exception to the duty of care. Neither
party addresses whether the Archdiocese, as the party moving for
summary judgment, had the burden to show the Rowland factors
weighed in favor of an exception or whether Doe, as the plaintiff,
had the burden to show they did not.6 As with all defendants
moving for summary judgment, the burden should be on the
Archdiocese to show the Rowland factors support an exception to
the duty of care. (See, e.g., Morris v. De La Torre (2005)
36 Cal.4th 260, 277 [defendant failed to justify an exception to
the duty of care on summary judgment because the facts relevant
to the Rowland factor concerning the burden to the defendant
were disputed].) And the Archdiocese did not meet this burden
because it did not address all of the Rowland factors.
Nevertheless, because the Supreme Court has not definitively
ruled on this issue (see, e.g., Vasilenko v. Grace Family Church,
6 The plaintiff generally has the burden to plead and prove at
trial that the defendant had a duty of care, including, where
applicable, that the Rowland factors do not justify a categorical
exception. (See Brown, supra, 11 Cal.5th at pp. 212-213
[approving the “two-part framework” in which “a plaintiff must
satisfy both the special relationship test and the Rowland factors
before a duty to protect the plaintiff from third party harm can be
imposed on the defendant”]; see also Smith v. Freund (2011)
192 Cal.App.4th 466, 474 [a plaintiff who alleges a defendant had
a duty to control another person based on a special relationship
has the burden to show the Rowland factors do not create an
exception to that duty].)
20
supra, 3 Cal.5th at pp. 1087-1089 [holding on summary judgment
that the Rowland factors supported an exception to the duty of
care, after repeatedly rejecting the plaintiff’s policy arguments
and without referring to counterarguments from the defendant];
Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1150 [finding no duty on summary judgment where the
plaintiff did not produce sufficient evidence of foreseeability];
Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 474
[concluding on summary judgment that the burden to the
defendant weighed in favor of an exception to the duty of care in
part because the plaintiff offered no counterargument]),7 we will
address the Rowland factors and conclude they do not support an
exception to the duty of care.
i. Foreseeability Factors
Foreseeability. As discussed, the trial court ruled the
Archdiocese was entitled to summary judgment because Doe did
not create a triable issue of fact regarding whether the
Archdiocese had actual or constructive knowledge Higson had
sexually abused minors before he abused Doe. The court erred in
using this standard.
“In examining foreseeability, ‘the court’s task . . . “is not to
decide whether a particular plaintiff’s injury was reasonably
7 In still other cases, including Regents, the Supreme Court
discussed the Rowland factors without addressing the burden of
proof on summary judgment. (See, e.g., Regents, supra, 4 Cal.5th
at pp. 628-634; O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 365;
Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774-784;
Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at pp. 245-247.)
21
foreseeable in light of a particular defendant’s conduct, but
rather to evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in the
kind of harm experienced that liability may appropriately be
imposed.”’” (Regents, supra, 4 Cal.5th at p. 629, quoting Cabral
v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772; accord, Brown
v. USA Taekwondo, supra, 40 Cal.App.5th at p. 1096.) For
example, in Regents the plaintiff sued the University of
California for negligence after a student with known mental
health issues stabbed the plaintiff in a chemistry lab. (Regents,
at p. 613.) The Supreme Court held colleges have a duty to take
reasonable steps to protect students from violence in the
classroom because “violence against students in the classroom or
during curricular activities, while rare, is a foreseeable
occurrence.” (Id. at p. 629.) The Supreme Court observed that a
well-known instance of campus violence at a college in Virginia
had prompted colleges across the country “to reexamine their
campus security policies” and that attacks by and against college
students were “happening more frequently.” (Ibid.) The
Supreme Court also observed that colleges across the country,
including universities in California, had “created threat
assessment protocols and multidisciplinary teams to identify and
prevent campus violence.” (Id. at pp. 629-630.)
Doe presented considerable evidence the Archdiocese was
well aware in the late 1980’s that numerous priests had been
accused of sexually abusing minors in the Archdiocese and
around the country. Between 1967 and 1988, the Archdiocese
received 49 reports of sexual abuse by clergy in its parishes and
parish schools. One of those reports involved another priest
assigned to Our Lady of the Rosary, and in 1987 a priest in the
22
Archdiocese pleaded guilty to sexually abusing minors. The
Archdiocese’s various reports and publications also acknowledged
widespread clergy sexual abuse before August 1988, when Higson
allegedly molested Doe.
Based on this evidence, it was reasonably foreseeable that
minors attending catechism classes in 1988 might be sexually
molested by a priest, even though the Archdiocese did not have
knowledge of prior sexual misconduct by Higson specifically. (See
Brown v. USA Taekwondo, supra, 40 Cal.App.5th at
pp. 1097-1098 [governing body for the sport of taekwondo could
reasonably foresee that youth athletes attending competitions
with their coaches might be sexually molested by them, even
though the governing body had no knowledge of prior sexual
misconduct by a specific coach, where the plaintiff alleged the
governing body “‘regularly received complaints from athletes or
their parents regarding improper sexual conduct by coaches’” and
was “‘aware that female taekwondo athletes . . . were frequently
victims of sexual molestation by their coaches’”]; United States
Youth Soccer, supra, 8 Cal.App.5th at pp. 1132, 1135 [youth
soccer associations could reasonably foresee minors might be
sexually abused by their coaches where the associations “were
aware that sexual predators were drawn to their organization in
order to exploit children and that there had been prior incidents
of sexual abuse of children in their programs”]; Juarez, supra,
81 Cal.App.4th at p. 404 [“it should be reasonably foreseeable to
the Scouts that a child participating in scouting might fall prey to
a sexual predator, with no documented history of such
proclivities, who is serving as an adult volunteer in the child’s
scouting troop”].)
23
The Archdiocese cites Doe v. Los Angeles County Dept. of
Children & Family Services (2019) 37 Cal.App.5th 675 for the
proposition that, “‘[i]n addition to the special relationship . . .,
there must also be evidence showing facts from which the trier of
fact could reasonably infer that the [defendant] had prior actual
knowledge, and thus must have known, of the offender’s
assaultive propensities.’” (Id. at p. 682.) Doe v. Los Angeles
County Dept. of Children & Family Services in turn cited Romero
v. Superior Court (2001) 89 Cal.App.4th 1068, 1084 for that
proposition. Romero, however, was decided before the Supreme
Court’s more recent decisions making clear that, when
determining whether the defendant has a duty, such case-specific
questions are not the right ones to ask. As the Supreme Court
explained in Regents, “case-specific foreseeability questions are
relevant in determining the applicable standard of care or breach
in a particular case. They do not, however, inform our threshold
determination that a duty exists.” (Regents, supra, 4 Cal.5th at
p. 630; see id. at p. 629 [“the duty analysis [under Rowland] is
categorical, not case specific”]; see also Brown, supra, 11 Cal.5th
at p. 221 [the Rowland factors consider whether to justify a
categorical exception to the duty to protect]; Kesner, supra,
1 Cal.5th at pp. 1143-1144 [“[b]ecause a judicial decision on the
issue of duty entails line drawing based on policy considerations,”
we ask not whether the Rowland factors “‘support an exception to
the general duty of reasonable care on the facts of the particular
case before us, but whether carving out an entire category of
cases from that general duty rule is justified by clear
considerations of policy’”]; Cabral v. Ralphs Grocery Co., supra,
51 Cal.4th at p. 772 [same].) The Supreme Court decisions issued
since Romero are controlling on the issue of foreseeability.
24
The Archdiocese also argues Doe must show “heightened
foreseeability” requiring “actual knowledge” of prior third party
criminal conduct to justify imposing a duty to protect him from
the criminal acts of a third party, like those of Higson. California
courts apply the concept of heightened foreseeability to address
“the narrow question” of when a proprietor’s “special-
relationship-based duty” to protect its patrons or invitees
includes a duty to provide security guards or take similar
burdensome measures. (Delgado v. Trax Bar & Grill, supra,36 Cal.4th at p. 236; see Castaneda v. Olsher (2007) 41 Cal.4th
1205, 1222; Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 109.)
The heightened foreseeability standard does not apply in the
circumstances here.8
8 The heightened foreseeability standard is somewhat
related to the Rowland factor that considers the burden that
recognizing a tort duty would impose on the defendant and the
community. In Delgado v. Trax Bar & Grill, supra, 36 Cal.4th
224 the Supreme Court stated that, “as a general matter,
imposition of a high burden requires heightened foreseeability,
but a minimal burden may be imposed upon a showing of a lesser
degree of foreseeability.” (Id. at p. 243; see United States Youth
Soccer, supra, 8 Cal.App.5th at p. 1131.) The Supreme Court,
however, did not incorporate the heightened foreseeability
standard into its consideration of the Rowland factors in Brown,
Regents, or Hart, all of which considered the scope of the duty to
protect persons from a third party’s criminal conduct. As
discussed, case-specific foreseeability considerations may affect
the reasonableness of measures a plaintiff alleges a defendant
must take to satisfy its duty of care. (See Regents, supra,
4 Cal.5th at pp. 630, 633.)
25
Certainty. “The second factor, ‘the degree of certainty that
the plaintiff suffered injury’ [citation], may come into play when
the plaintiff’s claim involves intangible harm, such as emotional
distress.” (Regents, supra, 4 Cal.5th at p. 630.) Doe alleged he
suffered harm to his “mind and body, shock, emotional distress,
physical manifestations of emotional distress,” and other
emotional harm. Courts have recognized that “‘[t]he significant
emotional trauma caused by childhood sexual abuse . . . is well
documented.’” (Brown v. USA Taekwondo, supra, 40 Cal.App.5th
at p. 1098; see City of Murrieta, supra, 102 Cal.App.4th at p. 916;
Juarez, supra, 81 Cal.App.4th at p. 405.) The Archdiocese’s 1994
Policy on Sexual Abuse by Priests and 2004 report also
acknowledged that victims of sexual abuse may experience
“devastating consequences,” including spiritual and psychological
harm.
Connection with defendant’s conduct. “The third factor is
‘the closeness of the connection between the defendant’s conduct
and the injury suffered.’ [Citation.] ‘Generally speaking, where
the injury suffered is connected only distantly and indirectly to
the defendant’s negligent act, the risk of that type of injury from
the category of negligent conduct at issue is likely to be deemed
unforeseeable. Conversely, a closely connected type of injury is
likely to be deemed foreseeable.’” (Regents, supra, 4 Cal.5th at
pp. 630-631; see Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th
at p. 779.) Doe claimed the Archdiocese failed to prevent Higson
from sexually abusing him by failing to educate, train, or warn
potential victims, their parents, and their teachers. Although
Higson’s conduct was the immediate cause of Doe’s injury, “the
existence of an intervening act does not necessarily attenuate a
26
defendant’s negligence. Rather, ‘the touchstone of the analysis is
the foreseeability of that intervening conduct.’” (Regents, at
p. 631; see Kesner, supra, 1 Cal.5th at p. 1148.)
The connection here was similar to the connection in Brown
v. USA Taekwondo, where the governing body for taekwondo
knew some coaches had sexually abused their athletes, but did
not have reason to suspect the coach who molested the plaintiffs.
(See Brown v. USA Taekwondo, supra, 40 Cal.App.5th at p. 1099
[governing body’s “failure to . . . prevent taekwondo coaches from
sexually abusing female athletes is closely connected to the injury
plaintiffs suffered because action by [the governing body] could
have reduced the risk of plaintiffs being abused by limiting
inappropriate contact between coaches and youth athletes”].)
Similarly, the failure to implement policies to prevent the sexual
abuse of minors—including policies to train, educate, and warn
students, parents, and teachers—increased the likelihood priests
would abuse children attending afterschool classes. (See United
States Youth Soccer, supra, 8 Cal.App.5th at pp. 1136-1137
[soccer league’s failure to conduct a criminal background check of
prospective coaches made it more likely the league would hire the
coach who molested the plaintiff]; City of Murrieta, supra,
102 Cal.App.4th at pp. 914, 916 [police department’s failure to
restrict contact between the plaintiffs and officers by, for
example, prohibiting “one-on-one ride-alongs late at night,”
contributed to the likelihood that officers and the plaintiffs would
become sexually involved]; Juarez, supra, 81 Cal.App.4th at
p. 406 [Boy Scouts’ failure to educate scouts, their parents, and
adult volunteers to protect scouts from sexual abuse created “a
sufficient causal link between the acts or omissions of the Scouts
and the harm [the plaintiff] suffered”].)
27
ii. Policy Factors
Even if the foreseeability factors under Rowland do not
support an exception to the duty of care, we must also consider
whether public policy considerations do. (Regents, supra,
4 Cal.5th at p. 631; see Vasilenko v. Grace Family Church, supra,3 Cal.5th at p. 1086 [the existence of a duty also depends on
policy considerations for and against imposing liability].) “‘A
duty of care will not be held to exist even as to foreseeable
injuries . . . where the social utility of the activity concerned is so
great, and avoidance of the injuries so burdensome to society, as
to outweigh the compensatory and cost-internalization values of
negligence liability.’” (Regents, at p. 631; accord, Vasilenko, at
pp. 1086-1087.)
Moral blame. The Supreme Court has assigned moral
blame, and relied in part on that blame in finding a duty to
protect, in “instances where the plaintiffs are particularly
powerless or unsophisticated compared to the defendants or
where the defendants exercised greater control over the risks at
issue.’” (Regents, supra, 4 Cal.5th at p. 631; see Kesner, supra,
1 Cal.5th at p. 1151.) For example, the Supreme Court in
Regents acknowledged that “adult students can no longer be
considered particularly powerless or unsophisticated,” but still
assigned some moral blame to the university for an adult
student’s injury because, “compared to students, colleges will
typically have access to more information about potential threats
and a superior ability to control the environment and prevent
harm.” (Regents, at pp. 631-632.) Minors enrolled in religious
school classes or other extracurricular activities are less powerful
28
and less sophisticated than young adult college students, and the
Roman Catholic Church undoubtedly had access to information
unavailable to students and parents that could have enabled
them to take measures to prevent the abuse.
But courts have hesitated to assign moral blame in cases
where the defendant did not know or have reason to know that a
particular teacher or coach would sexually abuse the plaintiff.
(See, e.g., Hart, supra, 53 Cal.4th at p. 878 [“Unless the
individual alleged to be negligent in a hiring or retention decision
knew or should have known of the dangerous propensities of the
employee who injured the plaintiff, there is little or no moral
blame attached to the person’s action or inaction.”]; United States
Youth Soccer, supra, 8 Cal.App.5th at p. 1137 [no moral blame
attributed to a soccer league for failing to conduct criminal
background checks on prospective coaches where there was no
evidence the league knew a particular coach would sexually
abuse the plaintiff]; City of Murrieta, supra, 102 Cal.App.4th at
pp. 914, 916 [court assigned some moral blameworthiness to a
police department that failed to “interven[e] when there was an
apparent risk of sexual exploitation” despite knowing an officer
was violating department rules for interactions with minors].)
And in Regents the university knew or had reason to know the
student attacker had previously committed violent acts.
(Regents, supra, 4 Cal.5th at pp. 613-616.) In light of the
significant disparity in knowledge, sophistication, and control
between the Archdiocese and minor students, however, we
attribute some moral blame to the Archdiocese because it took
only minimal action to prevent sexual abuse by priests, even after
receiving dozens of reports of abuse in the Archdiocese before
Higson abused Doe. (See Brown v. USA Taekwondo, supra,
29
40 Cal.App.5th at p. 1100 [attributing “‘[s]ome measure of moral
blame’ to [the governing body for taekwondo] because it failed to
take action to prevent sexual abuse by coaches,” even after it
became aware coaches were sexually abusing minor athletes],
italics omitted.)
The policy of preventing future harm. “‘The overall policy of
preventing future harm is ordinarily served, in tort law, by
imposing the costs of negligent conduct upon those responsible.
The policy question is whether that consideration is outweighed,
for a category of negligent conduct, by laws or mores indicating
approval of the conduct or by the undesirable consequences of
allowing potential liability.’” (Regents, supra, 4 Cal.5th at p. 632;
see Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at
pp. 781-782.) Here, as in other cases involving the protection of
children from sexual predators, the societal goal of safeguarding
youth from sexual abuse weighs strongly in favor of imposing a
duty to implement policies and procedures to protect minors
attending church-sponsored classes or other programs without
their parents or guardians. (Brown v. USA Taekwondo, supra,
40 Cal.App.5th at p. 1100; see Randi W. v. Muroc Joint Unified
School Dist. (1997) 14 Cal.4th 1066, 1078-1079 [“One of society’s
highest priorities is to protect children from sexual or physical
abuse.”]; United States Youth Soccer, supra, 8 Cal.App.5th at
p. 1137 [“our society recognizes that the protection of children
from sexual abuse is a paramount goal”]; City of Murrieta, supra,
102 Cal.App.4th at p. 916 [for a law enforcement agency,
“preventing future harm to minors is certainly appropriate”];
Juarez, supra, 81 Cal.App.4th at p. 407 [“The interests of the
state in protecting the health, emotional welfare and well-
30
rounded growth of its young citizens, together with its undeniable
interest in safeguarding the future of society as a whole, weigh
strongly in favor of imposing a duty . . . .”].) In this case, as in
those, “recognizing a duty serves the policy of preventing future
harm.” (Regents, at p. 632.)
Burden. We also consider the burden that recognizing a
tort duty would impose on the defendant and the community.
(Regents, supra, 4 Cal.5th at p. 633.) Doe argues the burden is
minimal because the Archdiocese “has already adopted policies
designed to protect against child molestation by its priests.” In
general, however, “our duty analysis looks to the time when the
duty was assertedly owed.” (Kesner, supra, 1 Cal.5th at p. 1150.)
Almost all of the policies Doe cites, like the Safeguard the
Children program, were not adopted until after (and some not
until long after) Doe was molested. In City of Murrieta and
Juarez the courts found imposing a duty to prevent sexual abuse
of minors minimally burdensome, at least in part because the
defendants in those cases already had developed policies to
prevent such abuse. (See City of Murrieta, supra,
102 Cal.App.4th at pp. 914-915; Juarez, supra, 81 Cal.App.4th at
pp. 407-408; see also Regents, at p. 633 [“Because the record
reflects that colleges have already focused considerable attention
on identifying and responding to potential threats, and have
funding sources available for these efforts, it does not appear that
recognizing a legal duty to protect students from foreseeable
threats would pose an unmanageable burden.”].) In those cases,
the defendants’ alleged negligence arose from their failure to
effectively communicate and implement existing policies.
31
In Brown v. USA Taekwondo, supra, 40 Cal.App.5th 1077,
however, we concluded that “incentivizing” the governing body for
taekwondo “to adopt policies that adequately protect youth
athletes and to ensure the policies are followed would not impose
a substantial burden,” in part because, by the time the plaintiffs
filed their complaint, the governing body had enacted policies
that prohibited sexual relations between coaches and athletes.
(Id. at pp. 1083, 1085, 1101.) At the time of the assaults in that
case, the governing body was generally aware of the risk of
sexual abuse by coaches and had acquired insurance to cover that
risk. (Id. at pp. 1084-1085.) Similarly, although the Archdiocese
had not adopted and implemented programs like Safeguard the
Children when Higson allegedly molested Doe, the Roman
Catholic Church was well aware of the problem of clergy sexual
abuse, had purchased liability insurance, had begun to formulate
policies to prevent child sexual abuse, and had the means to
disseminate those policies to its parishes. (See Regents, supra,
4 Cal.5th at p. 633 [“recognizing a legal duty to protect students
from foreseeable threats would [not] pose an unmanageable
burden” where the defendant had already contributed significant
resources and attention to campus violence prevention]; Juarez,
supra, 81 Cal.App.4th at p. 408 [organization that had “people
and systems . . . already in place to see that vital information
needed to combat child sexual abuse is communicated at every
level” of the organization would not be burdened by implementing
policies and procedures to reduce child sexual abuse].)
Moreover, the court in Juarez found significant the role the
Boy Scouts played in the lives of families participating in its
program: “[M]illions of American parents partner with the
Scouts collectively for the development of their children’s core
32
values. . . . [¶] [¶] With the privilege of being able to contribute
directly to the moral and spiritual development of millions of
American youths comes some legal responsibility.” (Juarez,
supra, 81 Cal.App.4th at pp. 408-409.) The same is true here.
Given that families throughout the Archdiocese turn to the
Roman Catholic Church for religious and moral teaching and
guidance, imposing some burden on the Archdiocese to establish
and implement reasonable policies for the prevention of clergy
sexual abuse, including by training, educating, and warning
students, parents, and teachers (which Safeguard the Children
and other programs now do) is not too onerous a burden to
impose.
Insurance. The final Rowland factor is the availability of
insurance for the risk involved. (Regents, supra, 4 Cal.5th at
p. 633; Brown v. USA Taekwondo, supra, 40 Cal.App.5th at
p. 1101.) The record shows the Archdiocese obtained insurance to
cover sexual abuse by priests in 1987 or 1988, but Doe points to
no evidence regarding the availability and cost of insurance
today. Although the Archdiocese did not present evidence it is no
longer able to obtain such insurance, this factor does not weigh
for or against imposing the duty to protect. (See United States
Youth Soccer, supra, 8 Cal.App.5th at pp. 1137-1138.)
***
Neither the foreseeability factors nor the policy factors
under Rowland support an exception to imposing a duty on the
Archdiocese to act with reasonable care to prevent the sexual
abuse of minors in its custody by priests or other adults over
33
whom the Archdiocese exercises some control. Whether the
measures the Archdiocese took in the 1980’s satisfied or breached
its duty to act with reasonable care with respect to Doe is not an
issue in this appeal. (See Regents, supra, 4 Cal.5th at p. 634 [“We
emphasize that a duty of care is not the equivalent of liability.”].)
The reasonableness of the Archdiocese’s response to the potential
threat of clergy sexual abuse to minors in the care of the
Archdiocese is a question of breach. (Id. at p. 633; see Vasilenko
v. Grace Family Church, supra, 3 Cal.5th at p. 1084 [“[b]reach,
injury, and causation must be demonstrated on the basis of facts
adduced at trial, and a jury’s determination of each must take
into account the particular context in which any act or injury
occurred”].)
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order granting the Archdiocese’s motion for summary
judgment and to enter a new order denying the motion. Doe is to
recover his costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
34