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District Found Liable for Teacher’s Sexual Misconduct Where Principal Did Not Thoroughly Investigate Student Complaints

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jan 29, 2025

While A.H. was still in middle school, he began taking private tennis lessons from Normandie Burgos, a full-time P.E. teacher and tennis coach at Tamalpais High School. A.H. considered Burgos a mentor. A.H. later attended Tamalpais High School and joined the tennis team as a freshman. In 2003, Burgos began sexually abusing A.H while he was a student at the high school.

One year prior, in 2002, the school had investigated a student complaint of sexual abuse against Burgos. A police detective notified the high school principal, Chris Holleran, that a student’s therapist had made a report that Burgos had sexually abused the student. The student, a wrestler, told Holleran that Burgos had touched his genitals during a body fat measurement test, while they were alone in Burgos’s office. Holleran told the court that Burgos acknowledged taking the student’s body fat measurements and admitted that it was possible he had brushed against the student’s genitals while measuring his thighs. When Holleran investigated the incident, he did not speak to any students about their experiences with Burgos. He also did not speak with any employees in the P.E. department about rules or policies regarding body fat testing.

In December 2002, Holleran wrote an “Incident Report/Letter of Warning” to Burgos, describing Burgos’s conduct as “careless, highly inappropriate, and unjustifiable.” Holleran wrote that Burgos’s conduct caused the student emotional distress and resulted in a hostile learning environment. Holleran directed Burgos “not to engage in similar activities under any circumstances” and “never to take body fat measurements of students in the thigh area.” Holleran also wrote that he would work with the P.E. department to create written protocol for all body fat measurements in the future.

Holleran did not place the warning letter in Burgos’s personnel file because he believed the complaint represented an isolated incident and because he felt he did not have evidence that Burgos had intended to touch the student inappropriately. Holleran did not tell the athletic director or any other P.E. teachers about the compliant. He did not tell his two assistant principals about the complaint and did not instruct them to supervise Burgos more carefully. Holleran claimed that he did not create a written protocol for body fat measurement tests because BMI measurements were becoming more common and body fat testing would soon be irrelevant. The only other measure Holleran took to prevent Burgos from abusing students was to increase his presence in the coaches’ office area by stopping by unannounced more frequently.

In 2020, A.H. filed a lawsuit against the Tamalpais Union High School District for negligent supervision in failing to protect him from Burgos. A.H. argued that District employees failed to properly investigate the 2002 student complaint or properly supervise Burgos following that complaint. A.H. argued the District’s response empowered Burgos, which lead to him sexually abusing A.H.

At trial, A.H. presented evidence that Burgos had sexually abused at least five other students between 1999 and 2001. Multiple students testified that they had discussed Burgos’s behavior with their classmates, and other students told them they had had similar experiences.

A.H. also produced evidence that another student submitted a complaint about Burgos in 2005. The complaining student and another student wrote statements about Burgos giving them invasive body fat tests. The complaining student reported that three of his friends had had similar experiences with Burgos. Other than the complaining student, Holleran did not speak to any other students about Burgos in 2005. In April 2005, the District issued Burgos a “Notice of Unprofessional Conduct and Improvement Plan,” directing him to refrain from taking body fat measurements or providing physical therapy or assisting with stretching. Holleran did not notify any teachers about the 2005 complaint and took no additional action to supervise Burgos more closely.

A.H. asked for $19.3 million with a 90 percent allocation of fault to the District and 10 percent allocation to Burgos. The District conceded that Burgos sexually abused A.H. but argued that the District’s negligence was not a substantial factor in causing harm to A.H. The District asked that a 75 to 90 percent allocation of fault be attributed to Burgos. The jury found the District negligent and awarded A.H. $10 million in damages. The jury found that the District’s negligence was a substantial factor in causing harm to A.H., and assigned 100 percent responsibility to the District and 0 percent to Burgos.

The District appealed. The District argued that the trial court improperly instructed the jury. The District also argued that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s abuse of other students.

The District argued that the trial court improperly instructed the jury because it failed to instruct (1) that the District could not be held vicariously liable for Burgos’s conduct of sexually abusing A.H. because such conduct is not within the scope of employment and (2) that the District could only be held liable for the conduct of its supervisory employees. The court of appeal found that the District failed to show that the jury instructions were erroneous. The court of appeal noted that the jury instructions stated that the District could be liable for a student’s harm only if one or more of its employees were negligent in supervising or retaining the teacher and that negligence was a substantial factor in causing the student’s harm. The court of appeal found that this instruction adequately conveyed the law.

The District also argued that the instructional error must have been prejudicial because the jury reached a “legally impossible” verdict by assigning 100 percent responsibility for A.H.’s harm to the District and 0 percent to Burgos. The court of appeal noted that the District did not separately claim insufficiency of the evidence as to the jury’s apportionment finding, so it had failed to raise the issue on appeal. Therefore, court of appeal declined to consider whether the jury’s apportionment of fault was supported by sufficient evidence.

The court of appeal also found that the trial court did not err in allowing A.H. to present evidence of Burgos’s inappropriate conduct that occurred before Burgos abused A.H. and after A.H. graduated. The evidence showed that Burgos’s misconduct was pervasive and well known among students. This evidence was relevant to show what District supervisory employees should have known about Burgos and would have discovered had Holleran properly supervised Burgos and conducted an adequate investigation following the 2002 complaint. Evidence of the 2005 complaint, which occurred after A.H. graduated, was relevant because it showed the District did not reasonably supervise Burgos following the 2002 complaint. It also rebutted Holleran’s claim that he did not create a written protocol for measuring body fat because the test was being phased out and replaced by BMI measurement. The court of appeal concluded that the trial court did not abuse its discretion in admitting this evidence.

The court of appeal affirmed the trial court’s judgment.

A.H. v. Tamalpais Union High School Dist. (2024) 105 Cal.App.5th 340

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