Sexual abuse and molestation lawsuits are tragically commonplace on court dockets throughout the country. While the perpetrators of abuse face significant criminal liability, it is often other individuals and entities that allegedly employed, supervised, regulated, or otherwise had a relationship with the perpetrator that find themselves entrenched in civil litigation commenced by survivors. Against this landscape, the applicable duty of care of an organization to prevent or protect against harm caused by a third-party perpetrator is a particularly significant inquiry. On April 1, 2021, the Supreme Court of California issued an opinion in Brown v. USA Taekwondo clarifying California’s two-step framework for evaluating whether an entity owes a duty to protect a plaintiff from injuries caused by a third party.1 This article will discuss the procedural history and ultimate holding of Brown, as well as the duty of care standards set forth by the highest courts in various other jurisdictions considering sexual abuse claims.
The Brown v. USA Taekwondo Lawsuit
In 2015, plaintiffs Yazmin Brown, Kendra Gatt, and Brianna Bordon commenced a lawsuit against USA Taekwondo (USAT), the United States Olympic Committee (USOC),2 and various other defendants for alleged sexual abuse by their taekwondo coach, Marc Gitelman, while they were traveling to compete at various events in California and throughout the country. The plaintiffs asserted, among other claims, that USAT and USOC were negligent in failing to enact adequate policies and procedures to protect female athletes from sexual abuse by coaches and in failing to enforce a code of ethics to prohibit any act of sexual harassment or other inappropriate touching or conduct by a coach.
USOC and USAT both demurred to the complaint, seeking to dismiss the direct negligence cause of action based upon the lack of an affirmative duty to take action to protect the plaintiffs from Gitelman’s abuse. The trial court sustained both demurrers without leave to amend and entered judgments of dismissal in favor of USOC and USAT. Although the trial court did not issue a written opinion, the minute order entry noted that “Gitelman was not an employee or agent of either of the defendants and the facts alleged do not make him one.”3
The California Court of Appeal reversed the judgment dismissing the negligence claim against USAT but affirmed as to USOC, applying a two-part analysis to determine the existence of a legal duty to protect the plaintiffs.4
Accepting the facts alleged in the operative complaint as true, the California Court of Appeal first concluded that USAT had a special relationship with Gitelman because he was required to register with USAT to coach taekwondo at USAT-sponsored competitions (and athletes could only compete in competitions with registered coaches) and further explained:
USAT was in a unique position to protect youth athletes against the risk of sexual abuse by their coaches. USAT could, and eventually did, establish codes of conduct and ethics that prohibited sexual relationships between coaches and athletes, inappropriate touching, and nonconsensual physical contact. In addition, as alleged by plaintiffs, USAT could have taken additional steps to protect youth athletes by prohibiting coaches from traveling alone to competitions with youth athletes, barring coaches from staying in hotel rooms at competitions with youth athletes, and providing guards or chaperones at hotels and dormitories at competitions to prevent improper conduct by coaches.5
The appellate court next considered whether policy considerations set forth by the California Supreme Court in Rowland v. Christian6 justified excusing USAT’s duty of care and determined that they did not.7
By contrast, the California Court of Appeal concluded that the plaintiffs failed to establish a special relationship between USOC and Gitelman, rejecting the argument that USOC’s ability to control the policies adopted by USAT (which, in turn, would impact the coaches registered with USAT) was sufficient in the absence of any authority to directly control Gitelman’s conduct or to prevent him from coaching taekwondo in competitions.8 In addition, the court found that the operative complaint did not allege any relationship between USOC and the plaintiffs other than the allegation that they were abused at events sanctioned by USOC, which it found to be insufficient to support a special relationship.9 The appellate court further noted that the fact that USOC was aware generally of coaches sexually abusing athletes in Olympic sports, including taekwondo, leading USOC to require national governing bodies to adopt safe sport policies, did not mean that USOC had the ability to control Gitelman’s conduct or was in the best position to do so.10
Finding no special relationship giving rise to a duty to protect the plaintiffs, the appellate court did not consider whether the Rowland factors applied to USOC.
Review by the Supreme Court of California
In light of conflicting approaches taken by California appellate courts over the years—some considering the special relationship inquiry and the Rowland factors as independent bases to establish a duty of care and others applying the Rowland factors as a secondary analysis only to limit or excuse a duty—the Supreme Court of California granted review to clarify the applicable framework for determining whether a defendant has a duty to protect a plaintiff from harm caused by a third party. The Supreme Court of California acknowledged that, as a general matter, the common law does not impose a duty to protect others from the conduct of third parties.
Of course, no general rule would be complete without its exceptions. Relevant here, a defendant may have an affirmative duty to protect a plaintiff from another party’s harm if the defendant has a “special relationship” with either the victim or the person who created the harm.11 The court explained that a special relationship between the defendant and the injured party is one that “gives the victim a right to expect” protection, whereas a special relationship between the defendant and the dangerous third party is one that “entails an ability to control [the third party’s] conduct.”12 Common examples of special relationships that give rise to an affirmative duty to protect include parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests.
The plaintiffs argued that even if the defendant lacks any special relationship with the relevant parties, a duty may nonetheless arise after considering the policy factors set forth in Rowland. In particular, the Rowland factors balance a number of considerations, including:
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.13
The Supreme Court of California rejected the plaintiffs’ argument, concluding that the multifactor test set forth in Rowland “was not designed as a freestanding means of establishing duty, but instead as a means for deciding whether to limit a duty derived from other sources.”14 While acknowledging the gravity of the injuries of the plaintiffs, and the broader problem of sexual abuse of minors in youth sports and activities, the court declined the plaintiffs’ invitation to permit a “case-by-case policy judgment under Rowland” as to whether a defendant may be held liable for failing to protect the victim of harm caused by another in the absence of a special relationship or other circumstances giving rise to an affirmative duty to take action.15
Accordingly, the Supreme Court of California concluded that the California Court of Appeal had properly conducted a two-step analysis—first, whether USAT and USOC, respectively, had a special relationship with the plaintiffs or perpetrator to support an affirmative duty to protect and, if so, whether the Rowland factors excused or limited that duty. To the extent that the appellate court concluded that USAT did have a special relationship with the plaintiffs, it was appropriate to consider the Rowland factors to determine whether they excused the duty of care. By contrast, upon concluding that USOC did not have a special relationship, the court properly ended its analysis and did not consider any potential limitations of a duty under the Rowland factors. The court expressly disapproved of prior decisions of the California Court of Appeal to the extent that they applied the Rowland factors as an alternative source of a duty where the defendant did not create the risk that resulted in the plaintiff’s injuries.16
As a practical matter, it is important to note that the Supreme Court of California did not consider or rule upon the merits of the California Court of Appeal’s conclusion as to the existence (or lack) of a special relationship with USAT or USOC.17 It simply confirmed the appropriate framework to analyze a defendant’s duty of care as a matter of law and affirmed the appellate court’s judgment on that basis. On remand, the plaintiffs may pursue their claims against USAT and the other remaining defendants, but not USOC; and USAT will have the ability to contest liability on the merits and complete factual record.
Review of Law from Other Jurisdictions
The special relationship exception to the general lack of a duty to protect against third-party harm is not unique to California. To the contrary, it is a long-standing principle acknowledged under the Restatement of Torts as well as the common law of the highest courts of states throughout the country. The most recent Restatement provides that an “actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship,” and it identifies a nonexhaustive list of relationships giving rise to such a duty.18 The Restatement further counsels that an “actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.”19 These fundamental principles underlie the common-law duty of care standard articulated by courts in many states; however, there is some variability as to the extent that additional factors may be considered in terms of whether to warrant the imposition of a duty or an exception to one.
Virginia. In 2019, the Supreme Court of Virginia considered a church’s affirmative duty to protect a minor parishioner from sexual abuse by its deacon and youth leader. In A.H. v. Church of God in Christ, Inc., the minor plaintiff alleged that the local church and the national church organization were negligent in hiring, retaining, and supervising the perpetrator and in failing to warn against and prevent sexual abuse despite being aware of prior sexual assault allegations against the deacon.20 At the circuit court level, the court granted the church defendants’ demurrers and dismissed the plaintiff’s claims.
On appeal, the Supreme Court of Virginia acknowledged that a defendant generally has no duty to warn or protect against the criminal acts of third parties unless there are “rare circumstances” at issue. Such circumstances may exist where a defendant expressly assumes a duty to protect another from criminal harm or where a special relationship exists.21 Relevant here, Virginia law will impose a duty to protect when there is a special relationship “(1) between the defendant and the third person which imposes a duty upon the defendant to control the third person’s conduct, or (2) between the defendant and the plaintiff which gives a right to protection to the plaintiff.”22 The duty is not absolute and exists only when the defendant “could have foreseen the need ‘to take affirmative action to protect [the plaintiff] from harm.’”23 Virginia law recognizes that there is a special relationship between a “vulnerable individual in a custodial relationship and his or her custodian,” which “imposes a duty of reasonable care upon the custodian to protect the vulnerable individual in his custody.”24
According to the complaint, the church defendants (1) actively recruited members for the drill team during church services, (2) held out the perpetrator as a person appropriate to coach a drill team and work within the youth department and as a deacon, (3) took custody of the plaintiff and subjected her to an association with a person likely to harm her, (4) knew or should have known that the plaintiff visited the perpetrator’s house in conjunction with drill team activities, and (5) had direct control and supervision over the drill team and youth department.25
Considering the facts before it, the Supreme Court of Virginia held that the allegations of the complaint sufficiently stated a claim for negligence based upon a special relationship duty of the church defendants to protect the plaintiff from sexual abuse by their alleged employee and agent while she was in their custody. Accordingly, the negligence claim against the church defendants was permitted to proceed (the Supreme Court of Virginia did not rule on the merits of liability).26
New Hampshire. In Berry v. Watchtower Bible & Tract Society of New York, Inc., the Supreme Court of New Hampshire also applied a special relationship test in analyzing a negligence claim against a religious organization for alleged sexual abuse of minor parishioners by their father.27 The complaint alleged that the plaintiffs’ mother informed elders of the Wilton Congregation of Jehovah’s Witnesses (Congregation) of the abuse and that they failed to report such abuse to law enforcement officials or otherwise intervene. The plaintiffs sued the Congregation and its parent organization, asserting counts of negligence and claiming that the defendants had to duty to protect them from third-party harm.28
The trial court concluded that the defendants owed a common-law duty to protect the plaintiffs from abuse, applying a balancing test and concluding that there would be “little burden” to the defendants in reporting the abuse and that “the social importance of protecting the plaintiffs from sexual abuse outweighed the importance of immunizing the defendants from extended liability.”29
The Supreme Court of New Hampshire disagreed, holding that the defendants had no duty to protect the plaintiffs from third-party sexual abuse.30 The court explained that there are three limited exceptions to the common-law rule that a person has no duty to protect from the unanticipated criminal acts of third parties: “(1) where there is a special relationship between the parties; (2) where special circumstances exist including situations where the defendant’s acts create an ‘especial temptation and opportunity’ for the criminal misconduct; or (3) where the duty is voluntarily assumed.”31 The court rejected the plaintiffs’ contention that the first two exceptions applied.
First, the court found no facts supporting a special relationship between the plaintiffs and the defendants and “decline[d] to hold that the fact of church membership or adherence to church doctrine by the plaintiffs’ parents creates a special relationship.”32 The court distinguished its prior decision in Marquay v. Eno,33 where it held that a school owed students a duty of care based, in part, on the compulsory nature of school attendance, the expectation of parents and students that they can rely on a safe school environment, and the overall importance of education to society. The court concluded that the considerations at play in Marquay were not applicable here because church attendance is not compulsory, and there were no allegations that the abuse took place on the Congregation’s property or during Congregation-related activities or that the plaintiffs were under the custody or control of the defendants at any time.34
Second, the court disagreed with the plaintiffs’ argument that special circumstances existed because the defendants’ conduct created an “especial temptation and opportunity” for the father’s criminal acts. The court reasoned that the defendants did not create any opportunity for the father to abuse the plaintiffs, and it was not alleged that the abuse took place on the defendants’ property or during sponsored activities or that the elders provided the plaintiffs’ mother with anything other than spiritual guidance and advice.35 The court also stated that the special circumstances exception “should never be triggered by the mere failure of a citizen to report actual or suspected criminal conduct to law enforcement authorities or by a citizen’s improper advice concerning an appropriate response to complaints of criminal activity.”36 It explained that the general rule imposing no duty to prevent criminal acts would be “swallowed up and civil liability unreasonably extended.”37
Maine. Considering similar factors in Bryan R. v. Watchtower Bible & Tract Society of New York, Inc., the Supreme Judicial Court of Maine declined to recognize a special or fiduciary relationship between an abused youth church member and the church, noting that the “creation of an amorphous common law duty on the part of a church or other voluntary organization requiring it to protect its members from each other would give rise to ‘both unlimited liability and liability out of all proportion to culpability.’”38
Washington. The Supreme Court of Washington reached a different result in C.J.C. v. Corp. of the Catholic Bishop of Yakima.39 Relying upon the New Hampshire Supreme Court’s decision in Marquay, the court applied a special relationship test to determine whether the church had a duty to protect minor bible school students from off-premises sexual abuse by a deacon who served in various roles involving children. The court concluded that the church had a duty to protect the plaintiffs from harm based on the special relationship between the church and the deacon, the special relationship between the church and the plaintiffs, and the church’s alleged knowledge of prior sexual misconduct by the deacon.40
The court explained that where a “special relationship exists, a principal is not free to ignore the risk caused by its agents, place such agents into association with vulnerable persons it would otherwise be required to protect, and then escape liability simply because the harm was accomplished off premises or after-hours.”41 The court also noted that its focus was not on where or when the harm occurred but on whether the church or its officials “negligently caused the harm by placing its agent into association with the plaintiffs when the risk was, or should have been, known.”42 The Supreme Court of Washington considered public policy factors in reaching its decision on the duty of care, explaining that its “decision not to foreclose the imposition of duty as a matter of law under these facts is supported by the strong public policy in favor of protecting children against acts of sexual abuse.”43
Minnesota. On less typical facts, the Supreme Court of Minnesota analyzed the duty of care issue in Doe 169 v. Brandon.44 The plaintiff was sexually abused by a church volunteer who previously was terminated from his position as a minister at another parish due to allegations of inappropriate relationships with male youths.45 Despite his history, the Minnesota District Council of the Assemblies of God (District Council) renewed the perpetrator’s ministerial credentials annually. The plaintiff asserted various negligence claims against the District Council (among other defendants).
The district court granted summary judgment to the District Council, concluding that it owed no duty of care to the plaintiff.46 The court of appeals reversed, finding that there was sufficient evidence for a jury to conclude that the District Council’s conduct created a foreseeable risk of injury to a foreseeable plaintiff, even in the absence of a special relationship.
Upon granting review, the Supreme Court of Minnesota acknowledged that Minnesota follows the general common-law rule that a person does not owe a duty of care to aid, protect, or warn a person with respect to harm caused by a third party’s conduct.47 Under Domagala v. Rolland,48 however, a duty of care to protect others can arise in two instances: (1) when there is a special relationship between a plaintiff and a defendant and the harm to the plaintiff is foreseeable, and (2) when the defendant’s own conduct creates a foreseeable risk of injury to a foreseeable plaintiff. The plaintiff acknowledged that he had no special relationship with the District Council but argued that the District Council had a duty to protect him under the second prong of the Domagala analysis.
To determine whether the risk to the plaintiff is foreseeable, the court looks at “whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.”49 The court held that the District Council did not create a foreseeable risk to the plaintiff and, therefore, had no duty to protect him from sexual abuse.50 In reaching this conclusion, the court reasoned that the District Council did not employ or supervise the volunteer, did not control the youth-ministry volunteer program, and was not responsible for vetting or training the volunteers. The court also noted that, in the credential renewal process, the District Council was not responsible for determining the fitness of an applicant.
Thus, applying the Domagala framework, the Supreme Court of Minnesota concluded that there was no special relationship between the District Council and the plaintiff and that the District Council did not create a foreseeable risk of injury to the plaintiff so it had no duty to the plaintiff. The court emphasized, however, that a duty to protect others from harm “depends heavily on the facts and circumstances of each case” and that its decision was “limited to the record before [it].”51
Public Policy Considerations
Despite the existence of certain commonly accepted negligence principles, practitioners on both sides of the “v.” in sexual abuse cases should be cognizant that courts have been careful to tailor their rulings on the duty of care issue to the specific facts presented. And while certain courts, like the Supreme Court of California in Brown, have declined to inject public policy factors into the threshold inquiry of whether a duty of care exists, others have noted the strong public interest in protecting children from sexual abuse as a factor supporting the existence of a duty.
The public policy implications presented by the duty of care were highlighted in amici curiae submissions made in support of both the plaintiffs and the defendants in Brown.
On the plaintiffs’ side, the National Crime Victim Bar Association; the law firm of Manly, Stewart & Finaldi; and the Consumer Attorneys of California emphasized the importance of protecting the rights of victims of childhood sexual abuse. These amici asserted that the determination of a duty of care is rooted in public policy and should favor a presumption that youth organizations owe a duty to protect participants from foreseeable sexual abuse. To that end, they advocated for a more flexible and fluid approach that evaluates a variety of factors and policy considerations in determining a duty of care, not a one-size-fits-all approach.
On the defendants’ side, the National Collegiate Athletic Association (NCAA) warned of the ramifications of holding voluntary associations liable for the misconduct of their member entities and personnel of those member entities. In particular, the NCAA asserted that imposing a duty based upon whether an organization issued guidelines regulating its member entities would place such organizations in an untenable position: either issue guidance to their members and trigger the potential for significant liability in the event of a violation of such guidance, or opt to withhold any such guidance to members as a means of avoiding the risk of liability. Noting that the issuance of guidance and best practices by organizations should be encouraged, the NCAA cited cases from various jurisdictions refusing to impose tort liability based upon the organization’s issuance of guidance, which would serve as a disincentive for organizations to do so.
Ultimately, the Supreme Court of California declined the request for a “more flexible and holistic approach to duty,” finding that such an approach would be a step too far.52 The court explained the virtue of its more traditional approach:
A defendant cannot be held liable in negligence for harms it did not cause unless there are special circumstances—such as a special relationship to the parties—that give the defendant a special obligation to offer protection or assistance. This rule reflects a long-standing balance between several competing interests. It avoids difficult questions about how to measure the legal liability of the stranger who fails to take affirmative steps to prevent foreseeable harm, instead leaving the stranger to make his or her own choices about what assistance to offer. At the same time, it 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.53
With wide-scale sexual abuse litigation pending throughout the country (and more and more states extending the statutes of limitations for civil claims), one can expect that the duty of care issue will be tested under a variety of circumstances and that requests for consideration of public policy factors will be made. The gravity of sexual abuse claims undoubtedly is acknowledged by judges confronted with the decision of whether to allow a negligence claim against an organization to pass the pleading stage. To date, however, many courts (including the Supreme Court of California in Brown) have adhered to traditional tort principles that divorce public policy factors from the threshold inquiry regarding the existence of a duty of care. Continued litigation of sexual abuse claims is likely to generate additional case law on these issues and should be monitored for further developments.
1. 276 Cal. Rptr. 3d 434 (2021).
2. In 2019, USOC’s name changed to the United States Olympic & Paralympic Committee.
3. See Brown v. USA Taekwondo, 40 Cal. App. 5th 1077, 1089 (2019).
4. Id. at 1083. The California Court of Appeal also affirmed the dismissal of the negligent hiring and retention, intentional infliction of emotional distress, and negligent infliction of emotional distress claims against USAT and USOC.
5. Id. at 1083, 1095.
6. 69 Cal. 2d 108 (1968).
7. Brown, 40 Cal. App. 5th at 1096–1101.
8. Id. at 1103.
11. Brown v. USA Taekwondo, 276 Cal. Rptr. 3d 434, 442 (2021).
12. Id. at 443 (alteration in original).
13. Id. at 444 (quoting Rowland v. Christian, 69 Cal. 2d 108, 112–13 (1968)).
14. Id. at 443–44.
15. Id. at 446.
16. Id. at 448.
17. Id. at 440 n.4 (“We express no view on the merits of the Court of Appeal’s application of the special relationship test to either USAT or USOC. These fact-dependent issues fall outside the scope of the only question presented for our review.”).
18. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 40 (Am. L. Inst. 2012).
19. Id. § 41.
20. 297 Va. 604 (2019).
21. Id. at 619.
22. Id. (quoting Brown v. Jacobs, 289 Va. 209, 215 (2015)).
23. Id. at 620.
24. Id. at 622.
25. Id. at 625–26.
26. Id. at 626.
27. 152 N.H. 407 (2005).
28. Id. at 408.
29. Id. at 412. Although the trial court found a duty to protect, it ultimately dismissed the claims against the defendants on a different basis.
30. Id. at 416.
31. Id. at 412.
32. Id. at 413.
33. 139 N.H. 708 (1995).
34. Berry, 152 N.H. at 413.
35. Id. at 414.
38. 738 A.2d 839, 847 (Me. 1999).
39. 985 P.2d 262 (Wash. 1999).
40. Id. at 276.
41. Id. at 275.
43. Id. at 276.
44. 845 N.W.2d 174 (Minn. 2014).
45. Id. at 175.
46. Id. at 177.
48. 805 N.W.2d 14 (Minn. 2011).
49. Doe 169, 845 N.W.2d at 178.
50. Id. at 179.
52. Brown v. USA Taekwondo, 276 Cal. Rptr. 3d 434, 446 (2021).
53. Id. at 447 (citation omitted).