Trial Court Abused Discretion In Categorically Excluding All Evidence Of Inappropriate Conduct Not Involving Teacher’s Physical Contact With Students

Category: Private Education Matters
Date: Jun 30, 2019 04:19 PM

D.Z. was a high school student in the Los Angeles Unified School District.  She alleged that when she was a student, teacher James Shelburne sexually abused her at school.  Specifically, D.Z. alleged that Shelburne touched her body multiple times over a few months, hugged her so tightly she could feel his genitals, offered her a ride home and reached under her clothes to touch her bare buttocks.  After these incidents, D.Z. reported Shelburne to the principal who told D.Z. that Shelburne was a good teacher and that it was probably just D.Z.  After similar incidents with Shelburne continued to occur, D.Z. made a second report to the principal.

In the year leading up to the incidents involving D.Z., the principal received numerous complaints from students and teachers of Shelburne’s inappropriate conduct towards students.  On one occasion, a group of female students and a female teacher met with the principal regarding their complaints that Shelburne made inappropriate, sexually-charged comments, massaged students on their shoulders or lower backs, and touched students during class in ways that made the students feel uncomfortable.  Another female student had also informed the principal on two or three occasions that Shelburne had touched her in a manner that made her feel uncomfortable.  However, the principal did not report or investigate any of the complaints.

D.Z. sued the District alleging negligent supervision and that the District knew or should have known of the danger posed by Shelburne, and the District’s failure to respond appropriately resulted in harm to her.

Prior to trial, the District filed a motion to exclude evidence of Shelburne’s alleged bad acts toward anyone other than D.Z. and of Shelburne’s alleged bad acts unrelated to D.Z.’s negligence claim.  In particular, the District sought to exclude evidence of (1) comments by Shelburne to students that the District claimed were “non-sexual” but otherwise inappropriate, (2) Shelburne’s offers to give multiple female students a ride home, (3) questions from Shelburne to female students about their boyfriends and sexual experiences, (4) photographs Shelburne took of students he kept on his computer and posted on his personal Facebook page, as well as Facebook friend requests Shelburne sent to female students, and (5) Shelburne’s favoritism toward female students.  At a hearing on the motion, the court ruled that only evidence related to other instances of physical touching was admissible and excluded other evidence of Shelburne’s conduct.

During a two-week trial, multiple teachers testified they witnessed Shelburne touch female students, staring at their breasts, and make sexual comments.  Despite being required by statute to report incidents of child abuse, the teachers did not file a mandated report but said they reported it to the principal.  Office staff denied seeing Shelburne engage in inappropriate behavior.  One principal stated he never saw Shelburne touching a student’s private parts and never received any such complaint between 1995 and 2007.  Another principal confirmed the group of female students complained about Shelburne, but she did not remember if she discussed the issue with Shelburne or documented it in his personnel file.  This principal stated she filed a District incident report after receiving D.Z.’s complaint, and the police investigated.  Shelburne denied all alleged conduct.

A jury returned a verdict in favor of the District and found Shelburne did not pose a risk of sexually abusing students.  D.Z. appealed.

On appeal, D.Z. argued the trial court erred by excluding all evidence of prior inappropriate conduct by Shelburne that did not involve physical touching of students.  D.Z. argued this evidence was relevant and therefore admissible.

To support her negligent supervision claim, D.Z. was required to prove both that Shelburne posed a risk of harm to students and that the risk of harm was reasonably foreseeable (i.e., the District knew or should have known of the risk).  Evidence tending to prove either of these elements was relevant to her claim.

The Court of Appeal found the trial court’s decision regarding the exclusion of evidence was arbitrary because it excluded all evidence of conduct other than touching even though that evidence was relevant to D.Z.’s negligent supervision claim.  The Court of Appeal found no authority to support the premise that only evidence related to touching was relevant to whether the risk of harm was reasonably foreseeable.

The District tried to argue the erroneous exclusion of evidence was harmless.  However, the Court of Appeal concluded the erroneous exclusion of evidence prejudiced D.Z.’s claim.  Shelburne’s comments and inappropriate questions to students about boyfriends and sexual experiences were crucial to D.Z.’s argument that the District knew or should have known of the risk that Shelburne would commit sexual abuse of a student.  Moreover, the exclusion of non-touching evidence affected D.Z.’s ability to offer otherwise admissible evidence of prior complaints.  Therefore, it was reasonably probable that the admission of this evidence would have led to a result more favorable to D.Z.

Ultimately, the Court of Appeal reversed the trial court’s decision and ordered a new trial.

D.Z. v Los Angeles Unified School District (2019) 35 Cal.App.5th 210.


As the Court of Appeal in D.Z. v Los Angeles Unified School District noted schools owe students under their supervision a duty to protect them from reasonably foreseeable harm.  Accordingly, if a school receives a complaint that a school employee has engaged in inappropriate conduct with a student, the school must investigate the matter and take appropriate remediate action to protect the involved student from future harm and other students from experiencing similar harm.  This includes following all mandated reporter duties, which requires that mandated reporters report to CPS or law enforcement.  It is not enough to report only to the school when a mandated report is required to be filed.

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