Brown v. USA Taekwondo ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
YAZMIN BROWN et al.,
Plaintiffs and Appellants,
v.
USA TAEKWONDO et al.,
Defendants and Respondents.
S259216
Second Appellate District, Division Seven
B280550
Los Angeles County Superior Court
BC599321
April 1, 2021
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Groban, and Jenkins concurred.
Justice Cuéllar filed a concurring opinion.
BROWN v. USA TAEKWONDO
S259216
Opinion of the Court by Kruger, J.
To state a cause of action for negligence, a plaintiff must
establish the defendant owed a legal duty of care. Generally
speaking, all persons have a duty to take reasonable care in
their activities to avoid causing injury, though particular policy
considerations may weigh in favor of limiting that duty in
certain circumstances. (Civ. Code, § 1714; Rowland v. Christian
(1968) 69 Cal.2d 108 (Rowland).) The issue before us concerns
how courts should decide whether a defendant has a legal duty
to take action to protect the plaintiff from injuries caused by a
third party. Despite a substantial body of case law addressing
the issue, the Courts of Appeal have remained uncertain about
the proper legal framework to apply. Distilling the principles
articulated in prior cases, we now clarify that whether to
recognize a duty to protect is governed by a two-step inquiry.
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. Because the Court of Appeal in this
case employed the correct framework for decision, we affirm its
judgment and remand for further proceedings.
1
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
I.
This case comes to us at the demurrer stage, so for present
purposes we assume the truth of the allegations in the
complaint. (Southern California Gas Leak Cases (2019) 7
Cal.5th 391, 395 (Gas Leak Cases).) As teenagers, plaintiffs
Yazmin Brown, Kendra Gatt, and Brianna Bordon trained in
the Olympic sport of taekwondo. They traveled to compete at
various events in California and throughout the country with
their coach, Marc Gitelman. Gitelman took advantage of these
opportunities to sexually abuse the young athletes. This went
on for years until the sponsor of these competitions, USA
Taekwondo (USAT), banned Gitelman from coaching. Gitelman
was ultimately convicted of multiple felonies for the sexual
abuse of the minor athletes he trained.
Plaintiffs (to whom we will generally refer as Brown) filed
this civil suit against Gitelman and several others, including
respondents USAT and the United States Olympic Committee
(USOC).1 USOC is a federally chartered nonprofit corporation
whose central function is to coordinate amateur sports
throughout the country for athletes hoping to one day compete
in the Olympics. (See 36 U.S.C. § 220505(c)(1).) In this role,
USOC certifies and oversees each sport’s national governing
body, the entity responsible for conducting and administering
the sport in the United States. USAT is the national governing
body for the sport of taekwondo. If an athlete wishes to compete
in taekwondo at the Olympics or in any other USAT-sponsored
competition (as Brown and the other plaintiffs did), the athlete
1
In June 2019, USOC’s name was changed to the United
States Olympic and Paralympic Committee.
2
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
must become a member of USAT and train under a USAT-
registered coach (as Gitelman was before USAT banned him).
As relevant here, Brown alleged that USOC and USAT
were negligent in failing to protect her from Gitelman’s abuse. 2
Brown emphasized that the sexual abuse of young athletes was
a known problem; Gitelman’s abuse came on the heels of a series
of similar instances of abuse of minors by their coaches dating
back to the 1980’s. In the wake of these incidents, USOC
mandated that national governing bodies adopt a Safe Sport
Program to protect athletes from such abuse. Brown alleged
that USAT failed to implement the program in a timely fashion
— a fact known to USOC, which placed USAT on probation as a
result. Brown further alleged that USAT took insufficient steps
to protect Gitelman’s victims once it was made aware of her
allegations: USAT temporarily suspended Gitelman, but
nevertheless permitted him to continue coaching at USAT
competitions for several months before ultimately placing him
on its list of banned coaches.
USOC and USAT both demurred to the complaint. As
relevant here, they argued Brown had not adequately alleged
they had an affirmative duty to take action to protect her and
the other plaintiffs from Gitelman’s abuse. The trial court
sustained both demurrers without leave to amend and entered
judgments of dismissal.
2
Brown also raised various other claims against USOC and
USAT, including claims that USOC and USAT were vicariously
liable for Gitelman’s conduct and claims for negligent hiring and
intentional infliction of emotional distress. Those claims are not
before us here.
3
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Brown appealed. The Court of Appeal reversed the
judgment dismissing USAT but affirmed as to USOC. (Brown
v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1083 (Brown).)
In determining whether Brown had adequately alleged each
defendant had a legal duty to protect plaintiffs from Gitelman’s
abuse, the court employed a two-part framework. As a general
rule, the court explained, “ ‘ “one owes no duty to control the
conduct of another, nor to warn those endangered by such
conduct.” ’ ” (Id. at p. 1091, quoting Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 619
(Regents).) An exception to this no-duty-to-protect rule exists for
cases in which the defendant has a special relationship with
either the dangerous third party or with the victim. (Brown, at
p. 1091.) But even when the so-called special relationship
exception applies, the policy considerations described in
Rowland, supra, 69 Cal.2d 108, may weigh against imposing a
duty to protect in a given case.3 (Brown, at p. 1092.) The court
thus asked, first, whether Brown had adequately alleged a
special relationship between the parties that gave rise to a legal
duty to protect, and second, whether the Rowland factors
weighed in favor of limiting or eliminating this duty.
3
These considerations include “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.” (Rowland, supra, 69 Cal.2d at
p. 113.)
4
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Applying this framework, the Court of Appeal concluded
that Brown had adequately alleged that USAT owed a duty to
protect her from Gitelman. The court first concluded Brown had
sufficiently alleged a special relationship between USAT and
Gitelman that enabled USAT to control Gitelman’s actions, as
demonstrated by the fact that USAT had registered him as a
coach, took disciplinary action against him, and ultimately
barred him from coaching. (Brown, supra, 40 Cal.App.5th at
pp. 1094–1095.) The court then went on to consider whether the
Rowland factors counseled against imposing a duty on USAT,
and determined they did not. (Id. at pp. 1095–1101.)
By contrast, the Court of Appeal concluded that USOC,
unlike USAT, had no special relationship with either the
plaintiffs or Gitelman, and thus no legal duty to protect the
plaintiffs from Gitelman’s abuse. The court explained that
Brown’s case for imposing an affirmative duty on USOC rested
largely on allegations that USOC had the ability to regulate
USAT’s conduct. The court considered this insufficient to
establish a special relationship that would enable USOC to
control Gitelman’s conduct, or that would give plaintiffs reason
to look to the USOC for protection. (Brown, supra, 40
Cal.App.5th at pp. 1101–1103.) Having concluded that Brown’s
allegations faltered at the first step of the analysis, the court
declined to consider how the Rowland factors might apply to
USOC. (Id. at p. 1103.)
The Court of Appeal’s decision added to a considerable
body of law addressing the connection between the special
relationship doctrine and the Rowland factors in cases alleging
a duty to protect the plaintiff from harms caused by third
parties. The appellate courts that have addressed the issue
have adopted various approaches. Several other Courts of
5
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Appeal have employed the same two-part framework as the
court in this case, holding that a plaintiff must satisfy both the
special relationship test and the Rowland factors before a duty
to protect the plaintiff from third party harm can be imposed on
the defendant. (See, e.g., Barenborg v. Sigma Alpha Epsilon
Fraternity (2019) 33 Cal.App.5th 70, 77 [“Thus, plaintiffs
alleging a defendant had a duty to protect them must establish:
(1) that an exception to the general no-duty-to-protect rule
applies and (2) that the Rowland factors support imposition of
the duty.”]; Doe v. United States Youth Soccer Assn., Inc. (2017)
8 Cal.App.5th 1118, 1128 [noting that if courts find a special
relationship, they go on to “balance[] the policy factors set forth
in Rowland [citation] to assist in their determination of the
existence and scope of a defendant’s duty in a particular case”].)
Other Courts of Appeal, however, have held that a
plaintiff can establish a duty to protect by satisfying either the
special relationship doctrine or the Rowland factors. Under this
approach, Rowland serves as an independent source of duty.
(Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377,
401–402, 410–411 [finding duty under Rowland, but concluding
in the alternative that the plaintiff satisfied the special
relationship test]; see Adams v. City of Fremont (1998) 68
Cal.App.4th 243, 267–276, 282–288 (Adams) [noting that
Rowland factors and the special relationship test are sometimes
in conflict and finding no duty to protect under either test, while
concluding that this court has generally favored applying
Rowland’s multifactor test over the special relationship test]; cf.
University of Southern California v. Superior Court (2018) 30
Cal.App.5th 429, 451 [finding no duty under either the special
relationship test or Rowland, though recognizing that applying
Rowland “may be unnecessary”].)
6
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Still other courts have taken the view that the special
relationship test incorporates the Rowland factors — that is,
that “[r]esolution of the issue whether a special relationship
exists giving rise to a duty to protect (or warn) comprehends
consideration of the same factors underlying any duty of care
analysis” under Rowland. (Hansra v. Superior Court (1992) 7
Cal.App.4th 630, 646 (Hansra); accord, Titus v. Canyon Lake
Property Owners Assn. (2004) 118 Cal.App.4th 906, 911–912
(Titus).) Whereas the Court of Appeal in this case employed a
two-part framework to evaluate defendants’ legal duty to
protect, these courts have reduced the inquiry to a single step,
applying the Rowland factors to determine whether a special
relationship exists.
In view of the different approaches taken by the Courts of
Appeal, we 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. We conclude the
two-part framework the Court of Appeal applied in this case
accurately reflects the law as stated in this court’s precedents,
and we accordingly affirm the court’s judgment.4
II.
A.
To establish a cause of action for negligence, the plaintiff
must show that the “defendant had a duty to use due care, that
he breached that duty, and that the breach was the proximate
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.
7
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
or legal cause of the resulting injury.” (Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 292.) Recovery for
negligence depends as a threshold matter on the existence of a
legal duty of care. (Gas Leak Cases, supra, 7 Cal.5th at p. 397.)
Duty is not universal; not every defendant owes every
plaintiff a duty of care. A duty exists only if “ ‘the plaintiff’s
interests are entitled to legal protection against the defendant’s
conduct.’ ” (Dillon v. Legg (1968) 68 Cal.2d 728, 734, quoting
Prosser, Torts (3d ed. 1964) § 53, p. 332.) Whether a duty exists
is a question of law to be resolved by the court. (Bily v. Arthur
Young & Co. (1992) 3 Cal.4th 370, 397.)
The “general rule” governing duty is set forth in Civil Code
section 1714 (section 1714). (Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 771 (Cabral).) First enacted in 1872,
section 1714 provides: “Everyone 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 . . . .” (Id.,
subd. (a).) This statute establishes the default rule that each
person has a duty “to exercise, in his or her activities, reasonable
care for the safety of others.” (Cabral, at p. 768.)
Section 1714 states a broad rule, but it has limits. We
have explained that the law imposes a general duty of care on a
defendant only when it is the defendant who has “ ‘created a
risk’ ” of harm to the plaintiff, including when “ ‘the defendant
is responsible for making the plaintiff’s position worse.’ ” (Lugtu
v. California Highway Patrol (2001) 26 Cal.4th 703, 716, quoting
Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49; see Lugtu,
at p. 716 [“Under general negligence principles, . . . a person
ordinarily is obligated to exercise due care in his or her own
actions so as not to create an unreasonable risk of injury to
8
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
others . . . .” (Citing § 1714.)].) The law does not impose the
same duty on a defendant who did not contribute to the risk that
the plaintiff would suffer the harm alleged. Generally, the
“person who has not created a peril is not liable in tort merely
for failure to take affirmative action to assist or protect another”
from that peril. (Williams v. State of California (1983) 34 Cal.3d
18, 23 (Williams); accord, Weirum, at p. 49; see Rest.3d Torts,
Liability for Physical and Emotional Harm (2012) § 37
[Generally, “[a]n actor whose conduct has not created a risk of
physical or emotional harm to another has no duty of care to the
other.”].) For example, a person who stumbles upon someone
drowning generally has no legal duty to help the victim. The
same rule applies to a person who stumbles upon a mugging, for
“as a general matter, there is no duty to act to protect others
from the conduct of third parties.” (Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 235 (Delgado); see also Regents, supra, 4
Cal.5th at p. 619 [Generally, “ ‘one owes no duty to control the
conduct of another, nor to warn those endangered by such
conduct.’ ”].)5
This general rule, we have explained, “derives from the
common law’s distinction between misfeasance and
nonfeasance, and its reluctance to impose liability for the
latter.” (Tarasoff v. Regents of University of California (1976)
5
While these examples involve bystanders in the usual
sense of the term, it bears emphasis that the relevant legal
question is whether the defendant has engaged in activities that
created or increased the plaintiff’s risk of harm. A defendant
may have greater involvement in the plaintiff’s activities than a
chance spectator yet play no meaningful part in exposing the
plaintiff to harm. (Cf. conc. opn., post, at p. 7 [rejecting the idea
that USOC was a bystander in this case].)
9
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
17 Cal.3d 425, 435, fn. 5.) That distinction has deep roots in the
law. (See, e.g., Bohlen, The Moral Duty to Aid Others as a Basis
of Tort Liability (1908) 56 U.Pa. L.Rev. 217, 219 [“There is no
distinction more deeply rooted in the common law and more
fundamental than that between misfeasance and non-feasance,
between active misconduct working positive injury to others and
passive in action, a failure to take positive steps to benefit
others, or to protect them from harm not created by any
wrongful act of the defendant.”].)6 And although it may
sometimes produce outcomes that appear “[m]orally
questionable” (Tarasoff, at p. 435, fn. 5), there are several
reasons the no-duty-to-protect rule has endured. The most
commonly cited reason for the rule is rooted in “the liberal
tradition of individual freedom and autonomy” — the idea that
a person should be able to freely choose whether to come to the
aid of a stranger, without fear of incurring legal liability for the
choice. (Rest.3d Torts, supra, § 37, com. e, p. 5.) But our cases
have recognized other reasons as well, including “ ‘the
difficulties of setting any standards of unselfish service to fellow
men,’ ” and the challenge of “ ‘making any workable rule to cover
possible situations where fifty people might fail to rescue.’ ”
(Tarasoff, at p. 435, fn. 5, quoting Prosser, Torts (4th ed. 1971)
§ 56, p. 341.)
6
Although our precedents have sometimes referred to the
distinction between “misfeasance” and “nonfeasance,” we now
understand this terminology to be imprecise and prone to
misinterpretation. “The proper question is not whether an
actor’s failure to exercise reasonable care entails the commission
or omission of a specific act.” (Rest.3d Torts, supra, § 37, com. c,
p. 3.) Rather, it is “whether the actor’s entire conduct created a
risk of harm.” (Ibid.)
10
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
The no-duty-to-protect rule is not absolute, however; this
court has recognized a number of exceptions. (Delgado, supra,36 Cal.4th at p. 235.) Under some circumstances, a defendant
may have an affirmative duty to protect the plaintiff from harm
at the hands of a third party, even though the risk of harm is
not of the defendant’s own making. (Ibid.; see also Rest.3d
Torts, supra, § 37.) For example, if a person does choose to
“undertake[] to come to the aid of another,” she may then have
an affirmative duty to exercise reasonable care in that
undertaking. (Williams, supra, 34 Cal.3d at p. 23 [describing
the negligent undertaking doctrine]; see, e.g., Paz v. State of
California (2000) 22 Cal.4th 550, 559; Rest.3d Torts, supra,
§ 42.) We here focus, along with the parties, on another basis
for finding an affirmative duty: In a case involving harm caused
by a third party, a person may have an affirmative duty to
protect the victim of another’s harm if that person is in what the
law calls a “special relationship” with either the victim or the
person who created the harm. (See, e.g., Regents, supra, 4
Cal.5th at pp. 619–620; Delgado, at p. 235; Williams, at p. 23;
see generally Rest.3d Torts, supra, §§ 40, 41.)7
7
This is not an exhaustive list. An affirmative duty to
protect may also arise if, for example, the Legislature imposes
one by statute. (See Hoff v. Vacaville Unified School Dist. (1998)
19 Cal.4th 925, 938; Rest.3d Torts, supra, § 38.) Regardless of
whether there is a basis for recognizing an affirmative duty, the
no-duty-to-protect rule will not relieve the defendant of an
otherwise applicable duty to exercise reasonable care when, by
its own conduct, the defendant has increased the risk of harm to
the plaintiff. (See, e.g., Kesner v. Superior Court (2016) 1
Cal.5th 1132, 1163 [“Although we have held that the existence
of a relationship between the plaintiff and the defendant is one
11
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
A special relationship between the defendant and the
victim is one that “gives the victim a right to expect” protection
from the defendant, while a special relationship between the
defendant and the dangerous third party is one that “entails an
ability to control [the third party’s] conduct.” (Regents, supra, 4
Cal.5th at p. 619.) Relationships between parents and children,
colleges and students, employers and employees, common
carriers and passengers, and innkeepers and guests, are all
examples of special relationships that give rise to an affirmative
duty to protect. (Id. at pp. 619–620; see Rest.3d Torts, supra,
§§ 40–41.) The existence of such a special relationship puts the
defendant in a unique position to protect the plaintiff from
injury. The law requires the defendant to use this position
accordingly. (See, e.g., Rest.3d Torts, supra, § 40, com. h,
pp. 42–43.)
Where the defendant has neither performed an act that
increases the risk of injury to the plaintiff nor sits in a relation
to the parties that creates an affirmative duty to protect the
plaintiff from harm, however, our cases have uniformly held the
defendant owes no legal duty to the plaintiff. Our decision in
Williams, supra, 34 Cal.3d 18, is illustrative. The question there
was whether highway patrol officers who had aided an injured
motorist after an accident had a duty to investigate, secure
information, or preserve evidence for the motorist to use in later
civil litigation against the driver who caused her injury. (Id. at
p. 21.) We began our analysis by reciting the general rule that
basis for finding liability premised on the conduct of a third
party [citations], we have never held that such a relationship is
a prerequisite to finding that a defendant had a duty to prevent
injuries due to its own conduct or possessory control.”].)
12
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
one has no duty to come to the aid of another. (Id. at pp. 23–24.)
We then went on to consider whether the special relationship or
negligent undertaking exceptions to the rule applied.
Answering that question in the negative, we concluded the
officers owed no duty to assist the motorist in preserving
evidence. (Id. at pp. 27–28.) Other cases are to similar effect.
(See, e.g., Davidson v. City of Westminster (1982) 32 Cal.3d 197,
203–209 [officers had no duty to protect victim of assault
because they had not increased the risk of harm to the victim,
they had no special relationship with the assailant or the victim,
and they had not invited the plaintiff to depend on their
protection]; Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1130 [officers had no duty to protect courthouse visitors
from a third party assailant where officers had not increased the
risk of harm to the victim, had no special relationship with
either party, and had not given the victim a false sense of
security by inviting her to depend on special protection].)
B.
Brown argues for a different approach to the duty to
protect. She argues that even if the defendant lacks any special
relationship with the parties and there are no other
circumstances that would give rise to an affirmative duty to
protect, such a duty may nonetheless arise after considering the
policy factors set out in the landmark decision in Rowland,
supra, 69 Cal.2d 108. We reject the argument.
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. The specific question in Rowland concerned the
relationship between the common law duties of landowners and
13
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
the general duty of care codified in section 1714. At common
law, a landowner’s duty of care to his or her visitors varied based
on the type of visitor. While landowners owed invitees an
ordinary duty of care to maintain the premises in a safe
condition, they generally owed trespassers and licensees only a
duty to refrain from willful injury. (Rowland, supra, 69 Cal.2d
at p. 114.) We held, however, that these “rigid common law
classifications” were incompatible with California law. (Id. at
p. 118.) We explained that “the basic policy of this state set forth
by the Legislature in section 1714 . . . is that everyone is
responsible for an injury caused to another by his want of
ordinary care or skill in the management of his property.”
(Rowland, at pp. 118–119.) And while there are exceptions to
section 1714’s general rule, “in the absence of [a] statutory
provision declaring an exception . . . , no such exception should
be made unless clearly supported by public policy.” (Rowland,
at p. 112.)
In the passage of Rowland that has now become a
touchstone of our negligence jurisprudence, we summarized the
policy considerations that guide the inquiry. To depart from the
general principle that all persons owe a duty of care to avoid
injuring others, we explained, “involves the balancing of a
number of considerations”: “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.” (Rowland, supra, 69 Cal.2d at
14
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
pp. 112–113.) We reasoned that while the common law
categories of landowner duties might align with some of these
considerations in some cases, they did not align in every case. It
followed that a victim’s status as a trespasser, licensee, or
invitee cannot be determinative of a landowner’s duties. The
inquiry whether a landowner owes a duty to her invitees instead
begins with the “basic policy” that “everyone is responsible for
an injury caused to another by his want of ordinary care or skill
in the management of his property,” and then considers whether
more particular considerations of policy call for departure from
the basic rule. (Id. at pp. 118–119.)
Rowland itself referred to this multifactor test as a guide
for determining whether to recognize an “exception” to the
general duty of care under section 1714. (Rowland, supra, 69
Cal.2d at p. 113.) And in numerous cases since Rowland, we
have repeated that the Rowland factors serve to determine
whether an exception to section 1714’s general duty of
reasonable care is warranted, not to determine whether a “ ‘new
duty’ ” should be created. (Kesner v. Superior Court, supra, 1
Cal.5th at p. 1143 [“Because Civil Code section 1714 establishes
a general duty to exercise ordinary care in one’s activities, . . .
we rely on these factors not to determine ‘whether a new duty
should be created, but whether an exception to Civil Code section
1714 . . . should be created,’ ” quoting Cabral, supra, 51 Cal.4th
at p. 783]; accord, e.g., Gas Leak Cases, supra, 7 Cal.5th at
p. 398 [“[Under section 1714], we presume the defendant owed
the plaintiff a duty of care and then ask whether the
circumstances ‘justify a departure’ from that usual
presumption.”]; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6
[similar].)
15
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Although Rowland itself concerned the general duty of
care in section 1714, we have also routinely applied Rowland to
consider whether to recognize exceptions to affirmative duties to
protect or warn. For example, in our recent decision in Regents,
supra, 4 Cal.5th at page 627, we held that the special
relationship between a university and its students creates a
“duty to use reasonable care to protect their students from
foreseeable acts of violence in the classroom or during curricular
activities.” We then turned to Rowland to decide whether policy
considerations “justif[ied] excusing or limiting” that duty to
protect, and concluded the answer was no. (Regents, at p. 628;
see id. at pp. 628–634.) This is but one example of many; a long
line of cases before Regents had taken the same approach. (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 877 (William S. Hart) [finding special relationship between
school employees and students and then analyzing Rowland
factors to determine “[a]dditional limits” on the “scope of the
duty implicated in this and similar cases”]; id. at pp. 869–871,
877–879; Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213
[finding affirmative duty based on special relationship between
landlord and tenants and then analyzing Rowland factors to
determine “duty’s existence and scope”]; Delgado, supra, 36
Cal.4th at p. 244 [finding special relationship between business
proprietor and its tenants, patrons, and invitees imposed
general duty on proprietor to take “ ‘reasonable steps to secure
common areas against foreseeable criminal acts of third
parties’ ” and then analyzing Rowland factors to determine
scope of duty]; id. at pp. 235–236, 244–247; Morris v. De La
Torre (2005) 36 Cal.4th 260, 269, 271–272, 276–277 [same].)
The cases recognize that even when two parties may be in a
special relationship, the unforeseeability of the kind of harm
16
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
suffered by the plaintiff or other policy factors may counsel
against establishing an affirmative duty for one party to protect
the other.
Notwithstanding this considerable body of case law,
Brown points to our decision in Nally v. Grace Community
Church, supra, 47 Cal.3d 278 as evidence that we have
sometimes treated Rowland as an independent source of duty,
and not merely as a guide to whether to create an exception to a
duty otherwise established. In that case, parents of a suicide
victim sued the victim’s nontherapist church counselors for
failure to protect the victim from suicide. (Nally, at p. 292.) We
held the nontherapist counselors had no duty to protect,
consistent with the traditional rule that “one is ordinarily not
liable for the actions of another and is under no duty to protect
another from harm, in the absence of a special relationship of
custody or control.” (Id. at p. 293.) We next held there was no
such special relationship involved in the case. (Id. at p. 296.)
But we then considered the Rowland factors, in belt-and-
suspenders fashion, to “explain further why we should not
impose a duty to prevent suicide on defendants and other
nontherapist counselors.” (Ibid.)
As Brown notes, some Courts of Appeal have understood
Nally to mean that the Rowland factors and the special
relationship test are both sources of duty. (See, e.g., Adams,
supra, 68 Cal.App.4th at p. 267.) This understanding is
mistaken. Nally never squarely addressed the proper role of
Rowland in its analysis, nor did it purport to qualify or limit the
considerable body of case law explaining that Rowland is a guide
to determining when to create exceptions from duties otherwise
established. And as Brown acknowledged at oral argument,
neither Nally nor any other decision of this court has done what
17
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Brown now asks us to do: rely solely on the Rowland factors to
create a duty to take action to protect the plaintiff from third
party harm.8
8
Although Brown has not raised the point in her briefing,
we acknowledge that certain language in other cases could be
read as suggesting such an approach. For example, in Palma v.
U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, we said of
a suit seeking to impose liability for leaving a commercial truck
unsecured in a high-crime area, where it was stolen and later
used to cause injury: “[O]rdinarily in the absence of a special
relationship there is no duty to control the conduct of a third
person so as to prevent him from harming another, but where
special circumstances exist in which there is ‘a greater
potentiality of foreseeable risk or more serious injury, or [which]
require a lesser burden of preventative action,’ the risk is
deemed unreasonable and imposes a duty to third persons.” (Id.
at pp. 184–185, quoting Hergenrether v. East (1964) 61 Cal.2d
440, 444.) But as the broader context of Palma and other related
cases makes clear, the focus of the duty inquiry in these cases is
not on the defendant’s duty to protect the victim from the
conduct of a third party, but instead on the defendant’s general
duty under section 1714 to exercise due care in his or her own
conduct. While a car owner ordinarily cannot be held liable
simply for allowing her car to be stolen and used for harm
(Cabral, supra, 51 Cal.4th at p. 779), in some cases, like Palma,
the defendant’s decision to leave a vehicle unguarded does
increase the risks the vehicle will be harmfully misused. (See
Rest.3d Torts, supra, § 19, reporters’ note, com. c, p. 222 [citing
vehicle-theft cases to illustrate the proposition that “[i]f the
third party’s misconduct is among the risks making the
defendant’s conduct negligent, then ordinarily plaintiff’s harm
will be within the defendant’s scope of liability” (id., com. c,
p. 216)].) Such cases “can be contrasted to cases in which the
defendant merely takes no action to protect the plaintiff against
the possibility of third-party misconduct” — which is Brown’s
theory of liability in asserting the existence of a special
relationship. (Rest.3d Torts, supra, § 19, com. e, p. 218; see also
18
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
Precedent aside, Brown argues we should now take that
step in order to establish what she terms a “more flexible and
holistic approach to duty,” particularly in cases involving minor
victims of sexual abuse. This approach would allow courts to
make 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, even if the defendant were in
no special position to control the wrongdoer or to offer protection
to the victim, and there were no other circumstances giving rise
to an affirmative duty to take action.
Without denying the gravity of the injuries these plaintiffs
suffered, nor the broader problem of sexual abuse of minors in
organized youth sports and other activities, we decline Brown’s
invitation to take that step. The requirement of an affirmative
duty to protect itself embodies a policy judgment of considerable
standing: 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. (See pp. 9–10, ante.) 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.
id., illus. 1–3, pp. 218–219 [discussing circumstances where
foreseeable risk makes a defendant’s conduct negligent].)
19
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
(See Regents, supra, 4 Cal.5th at p. 621 [“ ‘[A] typical setting for
the recognition of a special relationship is where “the plaintiff is
particularly vulnerable and dependent upon the defendant who,
correspondingly, has some control over the plaintiff’s
welfare.” ’ ”].)
Where such a special relationship exists between the
defendant and a minor, the obligation to provide such protection
and assistance may include a duty to protect the minor from
third party abuse. (See, e.g., William S. Hart, supra, 53 Cal.4th
at pp. 869–872, 879 [imposing such a duty]; Pamela L. v. Farmer
(1980) 112 Cal.App.3d 206, 211 [same].) And there may be other
circumstances that give rise to a comparable affirmative duty to
protect. (Kesner v. Superior Court, supra, 1 Cal.5th at p. 1163.)
But where no such circumstances exist, the Rowland factors do
not serve as an alternative basis for imposing duties to protect.
The purpose of the Rowland factors is to determine whether the
relevant circumstances warrant limiting a duty already
established, not to recognize legal duties in new contexts. (See
Rowland, supra, 69 Cal.2d at p. 113; see also, e.g., Regents,
supra, 4 Cal.5th at p. 628; cf. Rest.3d Torts, supra, § 40, com. b,
p. 40 [“Even though an affirmative duty might exist pursuant to
this Section, a court may decide, based on special problems of
principle or policy, that no duty or a duty other than reasonable
care exists.”].)
The question remains whether Rowland has any role to
play at all in cases concerning affirmative duties to protect. As
noted, some courts have suggested the answer is no; that the
special relationship test essentially encompasses the policy
considerations set out in Rowland and renders it unnecessary to
give separate consideration to the Rowland factors in
determining whether to recognize a legal duty to protect.
20
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
(Compare Hansra, supra, 7 Cal.App.4th at p. 646 [considering
both tests together as one] and Titus, supra, 118 Cal.App.4th at
pp. 911–912 [same] with Adams, supra, 68 Cal.App.4th at
pp. 267–276, 282–288 [recognizing differences between them].)
The suggestion is incorrect. While the Rowland factors do
overlap to some degree with the considerations that determine
the existence of a special relationship, application of one test
does not obviate the need for the other. This is because the two
tests operate differently. A court considers whether the parties
have a special relationship by considering the particular facts
and circumstances of their association with one another. The
Rowland factors, by contrast, consider, “at a relatively broad
level of factual generality,” whether policy considerations justify
limiting any resulting duty of protection. (Cabral, supra, 51
Cal.4th at p. 772; see Regents, supra, 4 Cal.5th at p. 629 [“In
considering [the Rowland factors], we determine ‘not whether
they support an exception to the general duty of reasonable care
on the facts of the particular case before us, but whether carving
out an entire category of cases from that general duty rule is
justified by clear considerations of policy.’ ”].)
Our opinion in Castaneda v. Olsher, supra, 41 Cal.4th
1205 is illustrative of the difference between the two inquiries.
In that case, the plaintiff was injured as a bystander to a gang-
related shooting at the mobilehome park where he lived. He
sued his landlord for negligence. (Id. at pp. 1211–1212.)
Although the parties were in a special relationship, we
concluded that the landlord did not have a duty to “withhold
rental units from those they believe to be gang members” in
order to protect his other tenants. (Id. at p. 1216.) We reasoned
that requiring as much would, as a general proposition, result
in “arbitrary discrimination on the basis of race, ethnicity,
21
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
family composition, dress and appearance, or reputation” — all
in service of a tenant screening process that was unlikely to
effectively prevent injuries like those the plaintiff had suffered.
(Ibid.) Thus, despite the existence of a special relationship,
imposing such a duty on landlords would not be “fair or
workable,” nor would it be “consistent with our state’s public
policy as a whole.” (Ibid.)
In other cases, a court might conclude that duty should not
be imposed because, for example, the type of harm the plaintiff
suffered was unforeseeable, or because there was no moral
blameworthiness associated with the defendant’s conduct,
notwithstanding the defendant’s special relationship to the
plaintiff. Put differently, even when a special relationship gives
rise to an affirmative duty to protect, a court must still consider
whether the policy considerations set out in Rowland warrant a
departure from that duty in the relevant category of cases.
III.
Brown alleged that USAT and USOC acted negligently by
failing to take steps to protect her from her coach’s abuse. To
evaluate her claim, the Court of Appeal first asked whether a
duty existed based on a special relationship. Concluding that
USOC had no such relationship with Brown, the court ended its
analysis with respect to that defendant. This approach was
sound. And after concluding that USAT did have a special
relationship with plaintiffs, the court went on to apply Rowland
to determine whether to limit that potential duty — deciding the
22
BROWN v. USA TAEKWONDO
Opinion of the Court by Kruger, J.
answer to that question was no. This, too, was the correct
approach.9
The Court of Appeal’s judgment does not mark the end of
the case. It affirms the trial court’s decision to dismiss one of
several named defendants, USOC, for failure to adequately
allege a special relationship giving rise to an affirmative duty to
protect. Having concluded the Court of Appeal did not err by
declining to apply the Rowland factors as an alternative source
of duty, we now affirm the court’s judgment. On remand, Brown
may continue to pursue her suit against USAT and the other
remaining defendants.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
9
We disapprove the following decisions 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: University of Southern California v.
Superior Court, supra, 30 Cal.App.5th 429; Juarez v. Boy Scouts
of America, Inc., supra, 81 Cal.App.4th 377; Adams v. City of
Fremont, supra, 68 Cal.App.4th 243; Titus v. Canyon Lake
Property Owners Assn., supra, 118 Cal.App.4th 906; Doe 1 v.
City of Murrieta (2002) 102 Cal.App.4th 899.
23
BROWN v. USA TAEKWONDO
S259216
Concurring Opinion by Justice Cuéllar
The young women who are plaintiffs in this case achieved,
in taekwondo, uncommon excellence. What these young women
nonetheless experienced in the process is all too common:
someone they knew, trusted and relied on — their credentialed
taekwondo coach — betrayed their trust and sexually assaulted
them. The majority opinion specifies how a court must consider
certain presumptions and exceptions when resolving whether
such plaintiffs have any right to recover from entities at whose
events and facilities the wrongs occurred — in this case, the
United States Olympic Committee (USOC). I write separately
to explain how those presumptions and exceptions realize 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.” (Southern California Gas Leak
Cases (2019) 7 Cal.5th 391, 394 (SoCal Gas).)
The majority specifically holds that when a plaintiff
argues defendant owes a duty based on a “special relationship,”
the policy analysis we first discussed in Rowland v. Christian is
only relevant to decide whether to limit that duty. (See maj.
opn., ante, at pp. 15–19; Rowland v. Christian (1968) 69 Cal.2d
108, 112–113, 119 (Rowland).) As the majority opinion explains,
that procedure — first decide whether policy considerations
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
support a duty based on a “special relationship” and then
consider whether public policy “clearly require[s] an exception”
(Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 628 (Regents)) — reflects our precedents and
provides a consistent way for courts to answer the threshold
duty question.
I write separately to clarify how that procedure fits with
and furthers our principles and priorities in tort law. First, we
generally start by presuming everyone has a duty of reasonable
care “ ‘in the management of his or her property or person’ ”; we
limit it based on policy considerations like those in Rowland
only in “a particular category of cases” and only if “ ‘ “clearly
supported by public policy.” ’ ” (Kesner v. Superior Court (2016)
1 Cal.5th 1132, 1143, italics added (Kesner).) Second, in some
cases, a defendant may argue that he or she was nothing more
than a disengaged bystander — someone society recognizes as
categorically outside the scope of any responsibility, having no
material role in creating the risk of plaintiff’s harm and so no
duty of reasonable care. Such cases of a named defendant whom
society considers a true bystander are presumably rare. But the
distinction between the putative bystander and the risk creator
can be as subtle in principle as it is challenging to apply in many
cases. So, we have developed a doctrinal mechanism to sidestep
the distinction and make arguable edge cases more tractable:
we allow a plaintiff to establish defendant owed a duty of
reasonable care in virtue of a “special relationship” regardless of
whether defendant contributed to the risk of plaintiff’s harm. As
a matter of tradition, “recognizing” or “identifying” a “special
relationship” is the label for weighing up those policy
considerations our legal system treats as most relevant in such
arguably ambiguous contexts. As the majority explains, once a
2
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
court recognizes a duty based on a “special relationship,” it
should also confirm that public policy doesn’t clearly support
limiting the duty in a clearly defined category of cases. Third,
ensuring that the duty inquiry remains focused at a relatively
high level of generality on public policy preserves the proper
balance between the court and the jury. And so, fourth, the
procedure we reaffirm today — presuming a general duty of
reasonable care or “recognizing” a “special relationship” before
deciding whether public policy clearly supports limiting that
duty in a category of cases — flexibly serves society’s interest in
providing just compensation to aggrieved parties and allocating
risks and costs to those who can better prevent them.
I.
A.
At the core of California tort law is a rule born of common
law judgments and reaffirmed in statute: “Everyone is
responsible, not only for the result of his or her willful acts, but
also 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, § 1714, subd. (a).)1 This is the
Legislature’s “conclusory expression[]” that, as “legal duties are
not discoverable facts of nature,” generally speaking, “liability
should be imposed for damage done.” (Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425, 434 (Tarasoff).)
For “injur[ies] occasioned” to others, this principle cuts — other
things being equal — in favor of widespread liability. (§ 1714,
subd. (a).)
1
All further statutory references are to the Civil Code.
3
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
Of course, other things aren’t always equal. In Rowland,
we recognized that the simple statutory presumption of a duty
of reasonable care, rather than rigid common law categories,
should generally guide our analysis of whether a defendant
could be responsible at all. (See Rowland, supra, 69 Cal.2d 108,
118 [common law rules for landowner liability “obscure rather
than illuminate the proper considerations which should govern
determination of the question of duty”].) So, Rowland rejected
a common law system that placed great weight on subtle,
perhaps vanishing doctrinal distinctions without obvious
practical or moral significance. (See id. at p. 119 [“we are
satisfied that continued adherence to the common law
distinctions can only lead to injustice or, if we are to avoid
injustice, further fictions with resulting complexity and
confusion”].) It replaced that system with a focus on the
relevant consequences. (See id. at pp. 112–113, 117–119.) As
we’d conveyed earlier that year, duty is just “ ‘an expression of
the sum total of those considerations of policy which lead the
law to say that the particular plaintiff is entitled to protection.’ ”
(Dillon v. Legg (1968) 68 Cal.2d 728, 734.) That focus is how
courts should determine when other things aren’t equal:
presume a general duty of reasonable care, as described in
section 1714, and create an exception only if “clearly supported
by public policy.”2 (Rowland, at p. 112.)
2
Rowland identified a list of such considerations that would
often be relevant. (Rowland, supra, 69 Cal.2d at pp. 112–113.)
We have recognized, though, that the “inquiry hinges not on
mere rote application of the[] separate so-called Rowland
factors, but instead on a comprehensive look at the ‘ “sum total” ’
of the policy considerations at play in the context before us.”
(SoCal Gas, supra, 7 Cal.5th 391, 399.)
4
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
When we decide on such exceptions, we endeavor to take
account of reasonable inferences about social burdens and
benefits — or “policy considerations.” We do so in relatively
general terms to ensure that public policy as it applies to a
certain broad class of situations with sufficiently common
features, rather than the bespoke details of any particular
case, supports a clearly defined departure from the general
principle that “a person is liable for injuries caused by his failure
to exercise reasonable care in the circumstances.” (Rowland,
supra, 69 Cal.2d at p. 112; see also T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 165 (Novartis);
Kesner, supra, 1 Cal.5th 1132, 1143–1144; Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 772 (Cabral); Rest.3d Torts,
Liability for Physical and Emotional Harm (2012) § 7, com. a
(Rest.3d) [“when liability depends on factors applicable to
categories of actors or patterns of conduct, the appropriate rubric
is duty” (italics added)].)
Against this backdrop, a court-imposed limitation on a
duty of care is appropriate “only when a court can promulgate
relatively clear, categorical, bright-line rules of law applicable
to a general class of cases.” (Rest.3d, supra, § 7, com. a; see also
Kesner, supra, 1 Cal.5th 1132, 1143 [“The conclusion that a
defendant did not have a duty constitutes a determination by
the court that public policy concerns outweigh, for a particular
category of cases, the broad principle enacted by the Legislature
. . . ” (italics added)].) And likewise under Rowland and our
subsequent decisions, the relevant policy considerations
primarily relate to the social cost (or benefit) of recognizing a
duty in a category of cases, whether society would be worse off
for having a particular class of defendants potentially liable.
(See Novartis, supra, 4 Cal.5th at p. 168 [we limit duty “ ‘where
5
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
the social utility of the activity concerned is so great, and
avoidance of the injuries so burdensome to society, as to
outweigh the compensatory and cost-internalization values of
negligence liability’ ” (italics added)]; see also, e.g., Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1092, 1096;
Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1216–1218
(Castaneda).)
In deciding whether to limit the general duty, our cases,
starting with Rowland, have repeatedly emphasized
defendants’ reasonable ability to anticipate a particular kind of
harm. A court might limit the duty of some category of
defendants who have no way to anticipate or avoid a category of
harm, ensuring responsibility falls on those who can. (See, e.g.,
Novartis, supra, 4 Cal.5th 145, 166–167; see also Tarasoff,
supra, 17 Cal.3d at pp. 434–435.) As a matter of public policy,
we seek to shift losses to those most able to spread the loss or
prevent the kind of harm in question — doing so reduces the
number of injuries and the costs of reducing the number of
injuries. (See, e.g., Kesner, supra, 1 Cal.5th at p. 1153.) And of
course, such considerations may cut in the other direction and
simply support the usual duty of reasonable care in a certain
category of cases. (See, e.g., Peterson v. San Francisco
Community College Dist. (1984) 36 Cal.3d 799, 807–809
(Peterson); Palma v. U.S. Industrial Fasteners, Inc. (1984) 36
Cal.3d 171, 184–185 (Palma).)
B.
Sometimes defendants may assert that they were mere
bystanders to the risk of plaintiff’s harm — that the risk had
nothing to do with defendants’ “activities” and so defendants
had no duty to exercise “reasonable care for the safety of others.”
6
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
(Cabral, supra, 51 Cal.4th at p. 768.) Arguments that sound in
this key are particularly relevant in this case.
In some cases, defendant may, of course, just be wrong.
Whether someone is a “bystander” to a particular risk is
shorthand for whether we as a society are willing to say, based
on reasonable inferences about the benefits and burdens of
potential liability, that a particular defendant should bear no
responsibility for the risk. Though the question isn’t before us
in this case, it bears emphasis, given the all-too-common fact
pattern, that USOC is hardly a bystander to plaintiffs’ harm.
USOC is the organizer of the activity where the harm occurred.
Between the organizer of an activity where someone is wronged
and a mere bystander there is generally a world of difference:
one at least sets the stage for what ends up becoming a tragedy;
the other at most stumbles into the theater in the last act, when
the story has unfolded and its casualties are known. The person
who sets the stage owes the players a general duty to exercise
reasonable care. (See Lugtu v. Cal. Highway Patrol (2001) 26
Cal.4th 703, 716 [“one’s general duty to exercise due care
includes the duty not to place another person in a situation in
which the other person is exposed to an unreasonable risk of
harm through the reasonably foreseeable conduct (including the
reasonably foreseeable negligent conduct) of a third person”].)
The organizer, by bringing people together, may “creat[e] the
risk” even if less directly than a criminal or intentional
tortfeasor. (Rest.3d, supra, § 40, com. c.; cf. Williams v. State of
California (1983) 34 Cal.3d 18, 23.) Considering the benefits
and burdens of imposing some responsibility on that person, a
court may decide that an organizer — even one lacking either
awareness of a material risk or full control of every
administrative nuance — is no bystander at all.
7
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
But in difficult cases, plaintiffs may argue that defendants
owed them a duty of care in virtue of a “special relationship.”
(See maj. opn., ante, at pp. 11–12.) In deciding whether
defendant made plaintiff worse off, courts need not envision a
world where defendant never existed. Instead they can conclude
that: “[r]egardless of whether the actor played any role in the
creation of the risk, a special relationship with others imposes a
duty of reasonable care.” 3 (Rest.3d, supra, § 40, com. c, italics
added; see also Regents, supra, 4 Cal.5th at pp. 619–620;
Tarasoff, supra, 17 Cal.3d at p. 435.)
“Special relationship” is merely a label for those policy
considerations that our shared experience has taught us to treat
as especially relevant in such contexts. As the Restatement
explains, “The term ‘special relationship’ has no independent
significance. . . . Whether a relationship is deemed special is a
conclusion based on reasons of principle or policy.” (Rest.3d,
supra, § 40, com. h.) Among reasons of principle or policy, our
precedents place special emphasis on two reasons in particular:
defendant’s ability to control the environment, to predict and
prevent the risk, and plaintiff’s reasonable dependency. A
college or university may be well suited to foresee and control
risks to students in the campus environment, and students
3
Courts may have sometimes suggested that a “special
relationship” is relevant when defendant is engaged in
“nonfeasance.” (See maj. opn., ante, at pp. 9–10 & fn. 6.) But
our reference today to the confused and confusing
“misfeasance”/“nonfeasance” distinction is just an
acknowledgement of a now outmoded oddity. (See, e.g., Kesner,
supra, 1 Cal.5th at p. 1163; see also Sommer v. Federal Signal
Corp. (1992) 583 N.Y.S.2d 957, 961–962; Rest.3d, supra, § 37,
com. c.; Abraham & Kendrick, There’s No Such Thing as
Affirmative Duty (2019) 104 Iowa L.Rev. 1649, 1682–1685.)
8
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
reasonably expect such protection and are especially vulnerable
without it. (See, e.g., Regents, supra, 4 Cal.5th at p. 625; see
also Peterson, supra, 36 Cal.3d 799, 807–809, 813–814.) Or a
proprietor should be aware of a danger of assault; customers are
at the mercy of the proprietor; and so the proprietor has a duty
of reasonable care to reduce such risks. (See, e.g., Morris v. De
La Torre (2005) 36 Cal.4th 260, 270; Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 241–242.) In some cases, we have also
emphasized the burden on defendant of avoiding certain risks.
(See Castaneda, supra, 41 Cal.4th at p. 1213.) This focus on
foreseeability and defendant’s burden tracks defendant’s
particular ability to reduce risk; the focus on reasonable
dependence tracks the value society places on reducing that
risk.
As the majority explains, there is a second step when
considering a duty based on a “special relationship” — whether
public policy supports limiting the duty. (Maj. opn., ante, at pp.
20, 22.) As when we consider the general duty of reasonable
care, the analysis of public policy rationales occurs at a
relatively high level of generality. (See id. at p. 21.) But
identifying a “special relationship” already means that certain
policy reasons — especially defendant’s ability to reduce the risk
in question and blameworthiness for failing to do so — favor
requiring reasonable care. Those reasons are not likely to justify
excusing from liability a category of defendants that includes
the particular defendant. The “special relationship” analysis
determines that any such category, whatever its precise
parameters, would exclude at least the particular defendant.
Instead, primarily the undesirable consequences, the social cost,
of holding a category of defendants liable for a category of risk
would support limiting defendant’s duty if anything would.
9
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
(See, e.g., Castaneda, supra, 41 Cal.4th at p. 1216 [no duty
because requiring landlords to screen tenants for gang
affiliations would lead to discrimination].)
C.
While many of our previous decisions focus on duty, they
readily convey that analyzing duty is just one part of the
negligence inquiry. A duty’s existence does not determine
whether defendant is liable and to what extent. (See Regents,
supra, 4 Cal.5th at p. 634.) Most liability questions are case-
specific and so not amenable to analysis in terms of duty — they
do not allow a categorical determination whether defendant had
to exercise reasonable care at all. (See Cabral, supra, 51 Cal.4th
at pp. 772–774.)
Unlike duty, the remaining liability questions — breach
as well as factual and legal causation — are usually questions
for the jury. What counts as reasonable care in a specific case,
for instance, is characteristically a question of breach. (See
Cabral, supra, 51 Cal.4th at p. 773.) As a policy matter, we tend
to leave questions of breach to the jury as the institutional actor
best situated to express, in a particular case, society’s judgment
of whether the particular cost of avoiding a particular injury
outweighs the particular cost of the injury. (See, e.g., Dobbs et
al., The Law of Torts (2d ed. 2020) §§ 21, 161; cf. Calabresi,
Concerning Cause and the Law of Torts: An Essay for Harry
Kalven Jr. (1975) 43 U. Chi. L.Rev. 69, 75–76.) As we and other
courts have long recognized, that judgment is the heart of what
courts ask in assessing negligence. (See, e.g., United States v.
Carroll Towing Co. (2d Cir. 1947) 159 F.2d 169, 173; Crane v.
Smith (1944) 23 Cal.2d 288, 298 [“ ‘Where an act is one which a
reasonable man would recognize as involving a risk of harm to
10
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
another, the risk is unreasonable and the act is negligent if the
risk is of such magnitude as to outweigh what the law regards
as the utility of the act or of the particular manner in which it
is done’ ”].)
II.
A.
We granted review for one purpose: to clarify what steps
a court should take when deciding whether a duty based on a
“special relationship” exists. To provide that clarification, the
majority restates the two-step process we endorsed in Rowland
and have regularly followed since — start from a general duty
of reasonable care based on section 1714 or a “special
relationship” and then decide whether public policy requires
limiting it in a clearly defined category of cases. (See maj. opn.,
ante, at pp. 13–17; see also, e.g., Kesner, supra, 1 Cal.5th at pp.
1143–1144.) Through that process, California tort law
structures a court’s threshold decision about how potential
liability affects society’s interests even as it also embodies and
preserves a degree of flexibility. Maintaining the balance
between structure and flexibility, guided by important,
longstanding values — allocating risks and costs to those who
can avoid them, and ensuring just compensation — is critical to
making tort law both relevant and useful.
The following scenario shows how. A plaintiff alleges that
a youth organization did not exercise reasonable care leading to
a program leader molesting him. (See Juarez v. Boy Scouts of
America, Inc. (2000) 81 Cal.App.4th 377, 385–386 (Juarez).)
The defendant organization makes six arguments that it should
not have a duty of reasonable care. First, it argues that it was
merely a bystander. Second, it argues that organizations like it
11
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
are not generally well-situated to predict and prevent
molestation. (See id. at pp. 408–409.) Third, it is specifically
not well-situated to predict and prevent molestation. (See ibid.)
Fourth, requiring organizations like it to prevent molestation
would divert funds from youth programs and charitable
enterprises thus harming society. (See id. at p. 409.) Fifth, it
had procedures in place to prevent molestation. (See id. at pp.
405–406.) And sixth, the likelihood of abuse was low, so
plaintiff’s molestation was not foreseeable. (See id. at pp. 403–
404.)
Of course, the court may reject defendant’s “bystander”
argument out of hand. If it does, the court should start with
defendant’s general duty of reasonable care. And then the court
considers whether large organizations’ purported inability to
prevent molestation and the risk of charities diverting funds
“ ‘clearly support[]’ ” limiting or eliminating the duty in an
“entire category of cases.” (Cabral, supra, 51 Cal.4th at pp. 771,
772.) To assess those arguments, the court will need to
determine whether “large organizations” or “charities” form a
clearly defined category. But those arguments are the right
kind of reason, at the right level of generality, to consider as a
basis for limiting a duty. And so it is a question for the court
whether, in light of any and all other policy considerations, those
reasons are sufficiently substantial to support limiting a duty
for charitable organizations, if that category can be clearly
defined.
On the other hand, the court could worry that defendant
may be no more than a bystander. Perhaps the organization has
an educational mission but primarily licenses its name to local
chapters. Nonetheless, the court may decide defendant is in fact
well-situated to prevent molestation, notwithstanding
12
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
defendant’s argument to the contrary. For example, the court
might reason that children in the local chapters are especially
vulnerable because they are children, and the organization can
control local chapters’ activities through the licensing process.
So, defendant should exercise reasonable care to limit the risk
of molestation regardless of whether it “created that risk.” In
drawing that inference, the court “recognizes” defendant has a
“special relationship” with plaintiff. The court then proceeds to
a second step: deciding whether public policy “clearly supports”
limiting the duty of reasonable care in a category of cases. At
this step in the analysis, large organizations’ purported inability
to avoid molestation can have little relevance — whatever may
be true of other large organizations, the court has already
rejected the argument as to this organization. But it remains
for the court, in light of all other relevant public policy
considerations, to decide whether concerns about charitable
organizations diverting funds “clearly require an exception.”
(Regents, supra, 4 Cal.5th at p. 628.)
In both these versions of the scenario, the court trains
attention on reasons of public policy when deciding whether to
limit a duty. It does so by considering possible consequences at
a high level of generality and with an eye to the loss to society
from imposing liability. A court can more effectively focus at the
appropriate level of generality if it considers policy reasons to
limit a duty after presuming a duty or recognizing the duty of a
specific defendant based on a “special relationship.” (See maj.
opn., ante, at pp. 21–22.) And the requirement that such reasons
clearly support limiting a duty of reasonable care ensures that
courts act for good reason and not based on idle speculation.
By contrast, defendant’s other arguments — about specific
measures it has already taken or its ability to predict that a
13
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
specific harm would arise — bear simply on the details of the
present case, and not on duty. (See Cabral, supra, 51 Cal.4th at
p. 773.) The argument about having done enough concerns
whether defendant in fact took reasonable care, a question of
breach usually for the jury. (Id. at p. 772.) And the argument
about specific foreseeability would be relevant to whether
plaintiff had established proximate cause, also usually a
question for the jury. (Id. at pp. 772–773.)
Here too, the two-step process we endorse today serves an
important function: it helps courts guard against
inappropriately taking questions from the jury. At the stage of
deciding whether to limit a duty, courts should not look to
features of the specific case but to considerations of public policy,
clearly defined. By first presuming a duty or recognizing a duty
based on a “special relationship” and then deciding whether
public policy clearly requires limiting that duty, courts focus at
the right level of generality at the right time. And that focus
serves as a check on courts wading into fact-specific questions of
breach or causation. (Cabral, supra, 51 Cal.4th at pp. 772–773.)
In addition to these clarifying functions, the procedure we
approve today remains flexible. We don’t disapprove our prior
precedents that quickly or silently presume or recognize a duty
before focusing primarily or entirely on whether policy
considerations support it. (See maj. opn., ante, at pp. 18–19, fn.
8 [discussing Palma, supra, 36 Cal.3d at pp. 184–185].) And
while we disapprove several Court of Appeal cases, we don’t
disapprove them to the extent they presume a general duty of
reasonable care and find the policy considerations in Rowland
support holding defendants to that duty. (See, e.g., Juarez,
supra, 81 Cal.App.4th 377, 401–410.)
14
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
This flexibility is rooted in tort law’s decidedly limber
structure: a duty of reasonable care based on a “special
relationship” may be functionally indistinguishable from the
general duty of reasonable care. As the Restatement
acknowledges, some special-relationship-type duties “overlap
with the general duty of reasonable care”; they are “a specialized
application” of that general duty. (Rest.3d, supra, § 40, com. h.)
In cases where “the actor’s conduct might have played a role in
creating the risk to the injured party” there is a general “duty of
reasonable care” even without any sort of “special relationship.”
(Id., § 40, com. c, italics added.) What we must discern is if
society has defensible reasons to restrict liability in certain
situations; otherwise, a person’s duty is to exercise reasonable
care. Whether there’s a “special relationship” is a question that
structures, without ever supplanting, the ultimate inquiry —
guiding deliberation just enough to avoid turning every duty
question into a fact-specific monologue about the defendant’s
role in creating the risk. (See, e.g., Tarasoff, supra, 17 Cal.3d at
pp. 434–435; Rest.3d, supra, § 40, com. h.)
B.
Properly understood, the special relationship question
plays a limited but important role under our law. If plaintiffs
don’t want to wade into whether defendants “created the risk”
of the harm plaintiffs experienced, they can argue that
defendant owed a duty of reasonable care, based on a “special
relationship.” To do so, plaintiffs have to show why specific
policy factors under the “special relationship” rubric supported
such a duty. We don’t address whether plaintiffs in this case did
in fact make such a showing. And we don’t address the
possibility, because it was not presented to us, that USOC had
a general duty to exercise reasonable care in the management
15
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
of its property or person. (See § 1714, subd. (a).) It
presumptively would if it were not a “bystander,” and we
certainly don’t decide public policy clearly supports exempting a
category of organizations including USOC from that general
duty. (See generally House Energy & Commerce Committee,
Nassar and Beyond: A Review of the Olympic Community’s
Efforts to Protect Athletes from Sexual Abuse (Dec. 20, 2018).)
While we don’t address those claims today, we reaffirm
that courts should assess such claims with the ultimate aim of
deciding whether requiring reasonable care serves the goals tort
law embodies: to achieve appropriate deterrence and
compensate victims. (See SoCal Gas, supra, 7 Cal.5th 391, 394;
see also Rest.3d, supra, § 40, com. h.)
III.
Tort law relies heavily on the concept of duty to render
tractable a reality where lives are at risk in the very world that
sustains them, and people are bound by intricate and far-
reaching ties of responsibility and norms of reciprocity. But
“ ‘ “duty” is not sacrosanct in itself’ ”; it is a means to an end,
“ ‘only an expression of the sum total of those considerations of
policy which lead the law to say that the particular plaintiff is
entitled to protection.’ ” (Dillon v. Legg, supra, 68 Cal.2d at p.
734.) The majority opinion today sensibly clarifies the
procedure for recognizing a duty where plaintiff attempts, by
arguing for a “special relationship,” to cut through the knot of
whether defendant did or didn’t create a risk. Specifically, it
holds that the Rowland factors as such just feature in deciding
whether to limit a duty. In so doing, it reaffirms that under
California law everyone presumptively owes a duty of
reasonable care in the management of his or her property or
16
BROWN v. USA TAEKWONDO
Cuéllar, J., concurring
person to avoid injuring others. And it doesn’t suggest that a
corporate person’s duty of reasonable care in the management
of its person or property extends any less than to the limits of
foreseeable harm without substantial, concrete policy reasons to
the contrary.
The two-step procedure we endorse is grounded in long-
established principles, emphasizing not only the importance of
offering civil recourse and compensation to those harmed but
also the value of allocating responsibility for losses to minimize
future harm. We start from the premise that a duty of
reasonable care ordinarily exists, whether arising generally or
based on a “special relationship.” We then consider whether
public policy requires limiting that duty in a clearly defined
category of cases, assessed at the right level of
generality. Implicit in this arrangement is the latitude for
courts to minimize harms through the proper allocation of
losses, and to compensate victims for their uncommon injuries
— including in cases where the facts are not only tragic, but
tragically all-too-common. Which is why I concur.
CUÉLLAR, J.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Brown v. USA Taekwondo
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 40 Cal.App.5th 1077Rehearing Granted
__________________________________________________________________________________
Opinion No. S259216
Date Filed: April 1, 2021
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Michael P. Vicencia
__________________________________________________________________________________
Counsel:
Estey & Bomberger, Stephen J. Estey; Corsiglia McMahon & Allard, B. Robert Allard; Turek Law,
Kenneth C. Turek; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.
Arbogast Law, David M. Arbogast; Siminou Appeals, Benjamin I. Siminou; Herzog, Yuhas, Ehrlich &
Ardell, Ian I. Herzog; The Bronson Firm and Steven M. Bronson for Consumer Attorneys of California as
Amicus Curiae on behalf of Plaintiffs and Appellants.
Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for National Crime Victim Bar Association
and Manly, Stewart & Finaldi as Amici Curiae on behalf of Plaintiffs and Appellants.
Kjar, McKenna, Stockalper, Patrick E. Stockalper, Matthew A. Schiller and Mina M. Morkos; Horvitz &
Levy, Mitchell C. Tilner, Steven S. Fleischman and Yen-Shyang Tseng for Defendant and Respondent
USA Taekwondo.
Clyde & Co. US, Douglas J. Collodel, Margaret M. Holm, M. Christopher Hall; Covington & Burling, Beth
Brinkmann, Mitch A. Kamin and Carolyn J. Kubota for Defendant and Respondent United States Olympic
Committee.
Munger, Tolles & Olson, Donald B. Verrilli, Jr., Hailyn J. Chen and John B. Major for National Collegiate
Athletic Association as Amicus Curiae on behalf of Defendant and Respondent United States Olympic
Committee.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jon R. Williams
Williams Iagmin LLP
666 State Street
San Diego, CA 92101
(619) 238-0370
Yen-Shyang Tseng
Horvitz & Levy LLP
3601 W. Olive Ave., 8th Floor
Burbank, CA 91505-4681
(818) 995-0800
Beth S. Brinkmann
Covington & Burling LLP
1 CityCenter, 850 10th St. NW
Washington, DC 20001
(202) 662-5312