In the case of R.S. v. Orange County Social Services Agency, decided on September 20^th by the California Court of Appeal, the plaintiff was placed in foster care at the licensed foster home of Howard and Ann Graubner in 1970 when he was eight years old. He remained there for seven years and was sexually abused by Howard throughout his stay. When California extended its statute of limitations on the time limits for filing lawsuits based on childhood sexual abuse, R.S. sued both the Orange County Social Services Agency and the County of Orange in 2021 for negligence in failing to protect him from Howard’s criminal conduct. The trial court said the County was immune from suit. The appellate court reversed the trial court in its decision on September 20.

When under the Graubners’ care, nine-year-old R.S. told his County social worker Barbara Voss that he felt “weird” and “yucky” when he showered with Howard. But Voss chose not to remove the child, and the County failed to investigate or take any corrective action.

California Government Code sections 815.2 and 820.2 together approach the issue of sovereign immunity against a government agency for an employee’s negligence as well as against the employee personally. According to section 815.2, “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 admission,” but “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Meanwhile, section 820.2 holds that the public employee “is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him.”

In other words, neither the agency nor its employees are liable for injuries that were the result of the employee’s exercise of discretion in performing their job.

In reversing the trial court’s grant of summary judgment to the County by Orange County Superior Court Judge David J. Hesseltine, a unanimous three-justice panel from Division Three of California’s Fourth District Court of Appeal found that Hesseltine was incorrect because the County “failed to show that its employees actually exercised any discretion by making a considered decision to leave R.S. in the Graubner’s care” after R.S. reported his feelings to the County social worker.

The reversal was made by a unanimous three-justice panel from Division Three of California’s Fourth District of Appeal. The unpublished opinion was authored by Justice Martha K. Gooding with concurrences by Acting Presiding Judge Joanne Motoike and Justice Thomas A. Delaney.

The appellate court found Judge Hasseltine “applied the wrong analysis” when he ruled that the County did not have a duty to protect R.S. against Howard Graubner. This decision should have been governed by a two-step inquiry from (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209. Brown requires an analysis that finds a “special relationship” between R.S. and the County social worker that required a “duty to protect” and included “relevant public policy considerations.”

Justice Gooding’s opinion found that a “special relationship unquestionably exists,” and it also found that Hesseltine failed to “properly analyze and apply the factors” mandated by Rowland v. Christian (1968) 69 Cal.2d 108. These factors include: foreseeability of harm to the plaintiff; the degree of injury suffered by the plaintiff; the connection between the defendant’s conduct and the injury suffered; the moral blame that resulted from the defendant’s conduct; and the “availability of insurance.”

Gooding at first discussed only foreseeability because it was the sole factor used by Hesseltine when he granted summary judgment. She wrote that the trial judge’s conclusion that R.S.’s statement about showering “was not sufficient to establish the County had ‘actual knowledge that would make the conduct by R.S.’s foster father foreseeable.’” Gooding said this was incorrect because Hesseltine was supposed 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.” The court concluded that it was and that the County had a duty to investigate.

Even though they were not considered by Hesseltine, Gooding also looked at the other Rowland factors. First, the court found that sexual abuse is certain to cause harm. Second, there was definitely a connection between the County’s negligence and the harm that R.S. suffered. Third, there was moral blame because R.S. was powerless compared to the defendants. Fourth, the County had a duty to serve the policy of preventing future harm. Similarly, on the factor of burden, she wrote that the “burden of recognizing a tort duty” lies with the County and the community. Finally, the last Rowland factor about insurance was not discussed because nothing related to insurance was in the record.

Gooding’s opinion explained why the County was not entitled to immunity. She wrote, “Where there is negligence . . . liability for resulting harm is the rule, and immunity is the exception.” The court’s opinion was guided by Johnson v. State of California (1968) 69 Cal.2d 782), in which the California Supreme Court said that there is a “line between the immune ‘discretionary’ decision and the unprotected ministerial” ones that are not. This analysis also required that plaintiff show Voss “actually reached a considered decision knowingly and deliberately encountering the risks that give rise to plaintiff’s complaint.”

Applying the Johnson factors, the appellate opinion concluded that Voss’ decision to leave R.S. under the care of the Graubner’s was discretionary. However, the Court of Appeal also had to consider whether the County “actually exercised the discretion vested in them by making a considered decision” about R.S’s placement. Gooding concluded it did not. The County was unable to prove the contrary because records about R.S. no longer exist. But this lack of evidence did not shift the burden to R.S. although Gooding recognized the difficulty to produce evidence in cases that include events that took place 50 years ago, as R.S.’s case did.

Gooding concluded that “it is undisputed that R.S. was sexually abused by the foster father. The County offered no evidence, written or otherwise, about what the social worker did or did not do in response to R.S.’s complaint. This is enough to defeat summary judgment on the issue of breach.”

R.S., now 64, will finally get his day in court.