Athletic orgs have a duty to protect against child sex abuse

After the #MeToo movement, California strengthened the rights of survivors of sexual assault. In 2018, California's Assembly Bill 1619 lengthened the limitations period for sexual assault to 10 years. In 2019, California's AB 218 lengthened the limitations period for child sex abuse by 14 years, revived lapsed claims for three years, and imposed treble damages on institutions covering up the abuse. Schools, colleges and youth organizations whose operations have an inherent risk of sex abuse -- think Dr. Larry Nassar or Jerry Sandusky -- had vociferously opposed this legislation.

Having lost in the Legislature, those organization turned to the courts. When the California Supreme Court took up Brown v. USA Taekwondo, 276 Cal. Rptr. 3d 434 (2021), these organizations hoped for a judicial victory limiting the scope of their duty in the revived claims. USA Taekwondo involved the experience of "young women" that is "all too common: someone they knew, trusted and relied on -- their credentialed taekwondo coach -- betrayed their trust and sexually assaulted them." Three amateur athletic organizations -- USA Taekwondo, the national governing body of the Olympic sport, the United States Olympic & Paralympic Commitee, and the National Collegiate Athletic Association as amicus -- argued that California law should not impose a duty to protect participants in their athletic programs from sexual abuse.

While these athletic organizations may have hoped for a bang, they got a whimper. The California Supreme Court sidestepped the "fact-dependent issues" of whether those organizations had a legal duty, "express[ing] no view on the merits of" whether USAT or the Olympic Committee had a special relationship to the survivor of sex abuse by her coach. Instead, the Supreme Court established a two-part analysis for determining a duty to protect against harm by a coach: (1) whether a special relationship or some other set of circumstances giving rise to an affirmative to protect exists and (2) if so, whether the factors described in Rowland v. Christian, 69 Cal. 2d 108 (1968), counsel limiting that duty.

The court had overruled a set of cases reasoning from the premise that the Rowland factors are an independent source of duty. But the Brown holding did not actually impact any outcome of those cases, as no Court of Appeal ever held that Rowland imposed a duty where no special relationship existed. All the cases held there was no duty under either Rowland or special relationship, in which case the negligence claim failed the two-part Brown test, or there was a duty under Rowland and special relationship, in which case the negligence claim passed the Brown test. While Brown clarified the duty analysis, Brown's holding changed no prior outcomes of any case.

For example, in Juarez v. Boy Scouts of America, Inc., 81 Cal. App. 4th 377 (2000), the plaintiff sued Boy Scouts of America, Inc. (the national organization) and the San Francisco Bay Area Council to hold them responsible for the plaintiff's child molestation by his troop scoutmaster. The Court of Appeal applied the Rowland factors to find that the Scouts did have a legal duty to protect the abused plaintiff against a predatory scoutmaster. Yet the Juarez court alternatively concluded that the Scouts had a special relationship with the plaintiff to protect him from a predatory scoutmaster. Juarez passed the Brown test. The other cases overruled by the Brown court, though stating that Rowland factors may impose an independent legal duty, simply found no duty should exist under Rowland. Under Brown, the outcome would not change.

Fundamental principles of tort law in California remain the same. First, there is a presumption that "[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person." Civ. Code Section 1714(a). There is no "exception" to Section 1714(a)'s broad language unless such exception is "clearly supported by public policy" set forth under the Rowland factors. Brown, 276 Cal. Rptr. 3d at 444. While Rowland factors are used to limit a duty, Rowland itself was a watershed decision for substantially expanding duty. Rowland said there is a statutory presumption of a legal duty set forth in Section 1714(a) that does not depend on any motheaten distinctions at common law such as classifying the plaintiff as an invitee, licensee or trespasser.

Sometimes a defendant, like the athletic organizations in Brown and their amicus, may claim that he or she was simply a bystander, as though a mere witness to events. But few if any defendants in any lawsuit are true bystanders. Have you ever heard of a lawsuit against a pedestrian who witnessed an auto collision? What the defendants usually mean is they did not engage in activities that posed a material risk to the plaintiff. Special relationships in California are a shorthand way for determining whether a defendant engages in such activities. Consistent with Rowland, California does not follow a defined list of common-law special relationships, though such relationships, like common carriers or innkeepers, are the minimum. Instead, California analyzes the nature of the relationship at issue to determine whether there is a level of dependency and control.

In Regents of University of California v. Sup. Ct., 4 Cal. 5th 607 (2018), the Supreme Court was asked whether a college had a duty to protect the student against the criminal conduct of another student by virtue of its special relationship with its students. The plaintiff had been stabbed in chemistry class by another student whom the university had treated for schizophrenia. In finding a special relationship, the court examined the twin-factors of special relationship -- dependency and control. A special relationship exists when one party depends on another party for protection. A special relationship also exists when the defendant on whom the plaintiff depends "has superior control over the means of protection." In extending the special-relationship duty to a college and its students, the Supreme Court noted that colleges provide "food, housing, security, and a range of extracurricular activities" to its students. In turn, colleges financially benefit from the students "who pay tuition and other fees." "[S]tudents paid the bill" to adopt "enhanced safety measures" and the college marketed itself as "one of the safest campuses in the country." Students depend on the college for a "safe environment" and colleges have a superior ability to "provide that safety with respect to activities they sponsor or facilities they control."

In addition to special relationship, in Brown the California Supreme Court recognized the negligent-undertaking doctrine as another basis for imposing a duty. The plaintiff appears not to have alleged this basis of duty against the amateur sports defendants, but the plaintiff in Mayall v. USA Water Polo, Inc., 909 F.3d 1055 (9th Cir. 2018), did. That plaintiff suffered a concussion as a result of a shot in the head, but was returned to play by her coach, taking more shots that exacerbated her concussion. The 9th U.S. Circuit Court of Appeals overturned the dismissal of a complaint alleging that USA Water Polo voluntarily undertook a duty of ensuring that proper safety precautions had been taken to protect the personal welfare of athletes, but failed to exercise reasonable care in ensuring a safety environment by neglecting to adopt concussion-management or return-to-play protocols.

When national sports organizations like the Olympic Committee or NCAA issue policy guidelines that they require subsidiary organizations and their personnel to follow, including guidelines protecting against child sex abuse, they must exercise reasonable care in the development, implementation and enforcement of those policies. And while sometimes these organizations may seek to sidestep liability by "suggesting" but not requiring adoption of these guidelines, the decision of making the guidelines voluntary may be unreasonable in its undertaking. As Justice Mariano-Florentino Cuellar suggested in Brown, a court may consider the organization's ability or power to "control local chapters' activities through the licensing process."

Returning to the athletic organizations in Brown, some members of the Supreme Court expressed concern with how the Court of Appeal applied the special relationship framework to the Olympic Committee. Justice Cuellar stated the Olympic Committee is "hardly a bystander to plaintiffs' harm" because it was -- like the college in Regents -- the "organizer of the activity where the harm occurred." Public policy does not favor limiting the duty of a wealthy organization like the Olympic Committee from protecting those athletes. The Olympic Committee earns millions of dollars a year on the backs of the plaintiff athletes competing at its events through sponsorship and broadcast revenues. As a voice of public policy and the creator of the Olympic Committee, Congress has found the Olympic Committee "fundamentally failed to uphold [its] existing statutory purposes and duty to protect amateur athletes from sexual, emotional, or physical abuse." Empowering Olympic, Paralympic, and Amateur Athletes Act of 2020, Pub. L. No. 116-189 Section 1 (emphasis added).

In short, Brown should change few if any outcomes. 