22 Jul 2020

California: Serious and Willful Misconduct for Failure to Warn Teacher About Student

School District found liable for serious and willful misconduct when it knowingly failed to warn teacher of a student’s propensity for violence.

Proving that an employee’s injury was caused by the serious and willful misconduct of the employer is no easy task. The bar is set very high. Not only must the employer’s conduct be more than simple negligence or even gross negligence (Mercer-Fraser Co. v. Indus. Acc. Com. (1953) 40 Cal. 2d 102, 119-120 [ 18 Cal. Comp. Cases 3]), it also must be of a quasi-criminal nature; i.e., intentionally doing something either with knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its possible consequences. (Id. at p. 117.) But employers should take note: a finding of serious and willful misconduct is likely when the employer has a statutory duty to take action but knowingly fails to do so and the employee is injured as a consequence. An example is the recent panel decision, Sauceda v. Fresno Unified School District, 2020 Cal. Wrk. Comp. P.D. LEXIS 137.

Sauceda is only a panel decision, and a split decision at that. It has not been designated a significant panel decision or an en banc decision, so it is not binding precedent. That being said, the majority’s opinion is thoughtful, persuasive, and illustrative of conduct that can result in a finding of serious and willful misconduct. It is particularly relevant to school districts and teachers subject to the provisions of the Education Code.

Sauceda, a long-time teacher, was injured when he was physically attacked by a student in his special needs class. Sauceda’s workers’ compensation claim was resolved by Stipulations with Request for Award. Sauceda timely petitioned for increased benefits under Labor Code section 4553, contending that his industrial injury was caused by defendant’s serious and willful misconduct. Specifically, Sauceda claimed that defendant was aware that the student assailant had a prior history of attacking two different teachers on separate occasions at a previous school, and was also aware that the student assailant had threatened to hurt or kill Sauceda, but the employer took no action and refused Sauceda’s request to move the student to a different classroom.

Trial testimony corroborated Sauceda’s allegations. The student assailant’s school records confirmed his violent tendencies and the prior assaults on teachers. Sauceda’s manager informed the employer of the history contained in the records. The student assailant became fixated on Sauceda and threatened physical violence against Sauceda. As a result, Sauceda requested that the employer place the student assailant in a different class. A meeting to discuss the request was held with Sauceda, his supervisor, his manager, and the school psychologist, but no action was taken. Sauceda was told by the principal and other members of school administration that there was nothing that could be done. The classroom in which Sauceda was assaulted did not have a radio or telephone for use in case of an emergency.

Sauceda’s manager testified that she had no authority to transfer the student assailant and could do nothing to resolve the situation. She was aware of the student assailant’s records, past conduct and threats against Sauceda, but didn’t believe that Sauceda would be injured. Sauceda’s supervisor testified that all classrooms were supposed to have radios or telephones.

Sauceda also presented expert testimony regarding provisions of the Education Code applicable to his employer. Section 49079 requires a school district to inform a teacher if any of that teacher’s students have engaged in or are reasonably expected to engage is such acts as causing, attempting to cause, or threatening to cause physical injury to another person. A knowing failure to inform the teacher about such a student is a misdemeanor offense.

The WCJ found that the employer’s failure to warn Sauceda about the student assailant’s documented violent tendencies thereby putting Sauceda in a position of danger in the classroom constituted serious and willful misconduct.

On reconsideration, the panel majority affirmed the WCJ’s finding. The opinion, which begins with a review of the wording in section 4553 and the seminal cases that have interpreted their meaning, agrees with the WCJ that the employer engaged in serious and willful misconduct by failing to warn Sauceda of the student assailant’s propensity for violence. The majority finds the clear language of the Education Code to be significant and unambiguous. Section 49079 of that code places an affirmative duty upon school districts to warn their teacher employees when they become aware that a student has engaged in or is likely to engage in violent acts, and a knowing failure to provide such warning constitutes a misdemeanor offense. Thus, the majority reasons, the employer’s failure to provide the warning makes it liable to Sauceda under section 4553 and the rationale in Johns Manville Sales Corp. Private Carriage v. Workers’ Comp. Appeals Bd. (1979) 96 Cal. App. 3d 923, 933 [44 Cal. Comp Cases 878] because: (1) the employer knew of the dangerous condition (the threatening student assailant and his past conduct as set forth in the student assailant’s records); (2) knew the probable consequence of failing to remove the student from the classroom or take other appropriate action would involve serious injury to Sauceda; and (3) deliberately failed to take corrective action.

It should be noted that the brief dissent does not take issue with the majority’s legal analysis. Rather, the dissenting Commissioner believes that the student assailant’s fundamental rights to privacy and to be provided with educational services should be balanced against the school district’s duty to inform Sauceda of that student’s violent propensities, as required by the Education Code.

Not every claim of serious and willful misconduct will be as clear cut as this case. Certainly, the school district’s statutory duty to inform Sauceda will not be replicated in every other employment relationship. But where the employer is faced with an affirmative duty as set forth in Education Code section 49079 or in various safety orders, that employer will need to be scrupulous in compliance or face the prospect of a serious and willful charge if it fails to take action.

Panel decisions are not binding precedent. Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.