Kristin Rossum

A decision throwing out a $1.5 million jury award in the “American Beauty” murder case has exposed a rift in the California courts over whether a government agency can be directly liable for negligent hiring and supervision of its employees.

Kristin Rossum, a former employee of the San Diego County Medical Examiner's Office, was convicted in 2002 of poisoning her husband with a drug she had stolen from her workplace. Red rose petals were found strewn around the body of Gregory de Villers, evoking a scene from the Oscar-winning film “American Beauty.”

In a wrongful-death suit, de Villers's family alleged the negligence of the county's managers in hiring and supervising Rossum was a proximate cause of the murder. A jury in March 2006 found Rossum 75 percent responsible, leaving the county to pay 25 percent ($1.5 million) of the $6 million award of compensatory damages.

The 4th District Court of Appeal last week reversed the award against the county in an opinion that found the plaintiffs could not maintain their negligence claim because it was “not grounded in the breach of a statutorily imposed duty,” as required by California Government Code Section 815.

“[T]here is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices,” the court said.

The plaintiffs had cited a 2nd District precedent which said a school district could be sued for negligently hiring and supervising a teacher who molested a junior high-school student if administrators

knew or should have known of [the teacher's] prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision. Virginia G. v. ABC Unified School Dist., 15 Cal.App.4th 1848 (1993).

According to the de Villers family, the county should have known of Rossum's history of methamphetamine abuse and taken precautions to prevent her from using meth impounded by the medical examiner.

But Justice Alex C. McDonald, writing for the 4th District, said Virginia G. erroneously relied on a California Supreme Court case and "should not be perpetuated." John R. v. Oakland Unified School Dist., 48 Cal.3d 438 (1989), held that the plaintiffs could pursue claims against a school district “premised on its own direct negligence in hiring and supervising” a teacher.

“[T]he language [in John R.] is both dicta and is contained in an opinion that did not command a majority of the court,” McDonald stressed. Only two of the seven justices signed the lead opinion, with three justices concurring “only 'in the majority's holding' of no vicarious liability.”

The concurring justices' silence on direct negligence, however, is too slim a reed for McDonald to conclude they did not support the majority on that issue. And the lead opinion goes well beyond dicta by saying, “we must now decide whether plaintiffs should ... have the opportunity to pursue” their direct negligence claims.

With the split at the intermediate appeals court level on this important issue, the Supreme Court should accept de Villers v. County of San Diego for review.

By Matthew Heller
10/26/07