Supreme Court specifies two-step analysis to determine liability for not preventing sexual abuse

Explaining that “a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party,” the Supreme Court in Brown v. USA Taekwondo today approves of an analysis a Court of Appeal used to find that the U.S. Olympic Committee is not liable, but USA Taekwondo might be, for a coach’s sexual abuse of teenage taekwondo athletes.  (Horvitz & Levy represents USA Taekwondo in the Supreme Court.)  The high court does not decide whether the appellate court properly applied the analysis.

The court’s unanimous opinion by Justice Leondra Kruger says that, in deciding whether there is a duty to protect against harm caused by a third party, Courts of Appeal have “adopted various approaches” in determining how to use the special relationship doctrine and/or the policy factors specified in the court’s landmark Rowland v. Christian (1968) 69 Cal.2d 108 decision.  From now on, the court says:

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 to determine whether relevant policy considerations counsel limiting that duty.

Although signing the court’s opinion, Justice Mariano-Florentino Cuéllar writes an extended concurrence to explain how the court’s chosen analysis “realize[s] a fundamental substantive principle:  In California, ‘[t]ort law’ — the law of when and how individuals who have suffered harm may seek compensation for their injuries through private actions — ‘serves society’s interest in allocating risks and costs to those who can better prevent them, and it provides aggrieved parties with just compensation.’ ”

The court affirms the decision of the Second District, Division Seven, Court of Appeal.  It also disapproves five Court of Appeal opinions “to the extent they applied the Rowland factors as an alternative source of duty where defendant did not create the risk that resulted in plaintiff’s injuries.”