Daily Development for Thursday, July 19, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

Although this case obviously is mostly about torts and not about real estate, it has engaging facts, is an interesting ruling, and may be of some interest to persons advising homeowners and even landlords concerning their responsibilities.

LANDOWNER LIABILITY; LIABILITY FOR CRIMINAL ATTACK; NEGLIGENT SUPERVISION. Homeowners not liable for failure to supervise teenagers visiting their home, absent actual knowledge of criminal propensity of one of the teenage guests, even when homeowners have indicated that they would supervise the teenagers and later left the home.

Romero v. Superior Court, 89 Cal. App. 4th 1068 (2001)

Jay (16) sexually assaulted Ryan (13) while both were visiting the Romero's teenage son. Ryan's mother knew Jay and consented to the visit. When Ryan's mother dropped her off, she told Mrs. Romero that she did not allow Ryan to be left anywhere without adult supervision, although she did agree that the teenagers could go to a nearby drugstore on their own. Mrs. Romero told Ryan's mother that she and her husband expected to be home during the entire visit, working in the garden. After the drugstore visit, which was uneventful, the Romeros left the teenagers at home while they went to get pizza. Jay assaulted Ryan during their absence.

The trial court granted summary judgment to the Romeros on certain issues, but permitted trial to proceed on the basis that the Romeros, by indicating that they would be home while the teenagers were in the house, assumed a "special relationship" that might arguably was breached when they left on the pizza run.

The appeals court stayed proceedings and ultimately order that a summary judgment issue on all counts in favor of the Romeros, the homeowners.

It turns out that Jay had a long history of criminal violations, including curfew violations and also some sexual assault charges at school. Jay had known the Romeros' son for two years. Mrs. Romero knew of the curfew violations, but not the rest of the story, and believed that Jay was a satisfactory companion for her children and their guests. Although Ryan's mother had known Jay for a much shorter period, she knew that he was three years older than her daughter and also believed him to be a satisfactory companion for the daughter.

The court first held that ordinarily there would be no liability for a homeowner with respect to third party criminal attacks occurring in their home because there would be no duty of care at all. Here, however, the Romeros had provided some assurance to Ryan's mother of care, although the court later waffled upon how much supervision was guaranteed. Consequently, the Romeros were in a "special relationship"

with Ryan, giving rise to a duty of care toward her.

The question here was whether there was any evidence that the Romeros did not satisfy that duty. The court cited a case in which children had been sexually assaulted by adults when the assaulter's wife, who lived in the home, was aware of the assaulter's history of sex related crime. In this case, liability was found. In another case, the Boy Scouts of America were liable for failure to detect a propensity for sexual misconduct in a scoutmaster. But in this case, the Boy Scouts had initiated a special program to evaluate these scoutmasters, which program, properly administered, arguably would have disclosed the problem before any attack could have occurred.

In another California case, a wife who was unaware of her husband's propensity for sexual misconduct had been absolved of any duty toward children whom her husband assaulted in the home, even though she had consented to the children's presence in the home. The plaintiff argued that this case was distinguishable from the facts at hand because the Romeros did assume as special relationship when they agreed to supervise. The plaintiff argued that this duty included a duty to discover facts readily ascertainable about Jay's dangerous propensities. But the appeals court here said that there was no duty of discovery. Unless the Romeros had actual knowledge of Jay's propensity to commit a sexual assault, they had no duty to protect against it.

The plaintiff went on to argue, however, that the Romeros had a general duty to protect Ryan from harm when they agreed to supervise the children, and that their departure from the home to get pizza was a breach of that duty and a proximate cause of Ryan's injuries. This issue, of course, was a closer call. But the appeals court concluded that the Romeros had not undertaken a special duty to watch over Ryan from moment to moment. Indeed, Ryan's mother had consented to an unsupervised trip by the children to the drugstore. Further, she knew that the children would at least be alone in the house while the Romeros worked in the yard. Under the circumstances, a one-hour trip for a pizza run was not a negligent breach of whatever general duty of care the Romeros had undertaken.

In reaching this conclusion, the court looked to a multipart test that California precedent had established regarding liability for alleged misfeasance such as a failure to protect against injury resulting from a third party attack. The court noted that the existence and nature of the duty in such cases is based upon a complex analysis of a number of discrete factors. Important among them is the policy concern about the consequence to the community of imposing a duty of care and the resulting potential liability for breach under the circumstances presented.

As to this latter concern, the court emphasized the impact that a finding of liability might have on the function of parents hosting young visitors in their home:

"Parents aware of such potential for being sued for negligent supervision would hesitate to invite into their home other minors, friends of their children, and even a teenager they have known for a long time, whom they have reason to trust, and who to their knowledge has exhibited no behavior that would cause a reasonably prudent person to suspect the minor poses a threat of physical harm to another minor invitee. A cloud of suspicion would hang over all youngsters invited into the home and would deter social interaction among minors in a family environment that is typically among the safest: The home. The imposition of such a duty would lead to the further result of encouraging minors who are unable to socialize with young friends in a home environment to socially interact elsewhere where adult supervision may not be as thorough and protective."

Comment: Obviously, the case is primarily about parents and their children and friends. But it is also about liability for failure to discover criminal propensity. Note that Mrs. Romero had some knowledge that Jay was not a Boy Scout at least not an Eagle Scout. The plaintiffs also alleged that Mrs. Romero, who had cared for over 22 foster children in her home over the years, was well aware of the danger of sexual assault generally among boys and girls left alone. But the court here, likely for the policy considerations set forth above, elected to hold that there is no duty to inquire or evaluate actual knowledge is the test.

There may be some crossover here for landlords and owners of business premises. Note the application of the multi factor approach, taking into account the social desirability of the defendant's conduct that allegedly lead to the duty. One factor that would not be helpful to landlords, however, is the factor dealing with the ability of the defendant to distribute the risk of injury through insurance. This factor was not at issue in the Romero's case, but you can bet that a California "consumer advocate" will ring that bell loud and often when a business owner or landlord is the defendant.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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