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XV.Supp. Supplemental Cases and Materials
  • 1 Kansas State Bank and Trust Co. v. Specialized Transport. Services Inc.

    The defendant school district contracted with the defendant transportation company to transport special needs students to and from school. The plaintiff alleged that a bus driver for the transportation company molested her daughter during the rides to and from the school. The evidence showed that the bus driver acted suspiciously during his employment, but no history of abuse. The plaintiff sued the school district for negligently retaining a bus driver who they should have known had a propensity to abuse children.

    Should courts regard an employer's retention of a problem-prone employee as sufficiently ‘causing' their employee's intentional tort?

    1
    249 Kan. 348 (1991)
    2
    819 P.2d 587
    3
    KANSAS STATE BANK AND TRUST COMPANY, Appellee,
    v.
    SPECIALIZED TRANSPORTATION SERVICES, INC., and UNIFIED SCHOOL DISTRICT No. 259, Appellants, and H. ARDON DAVIDSON, Defendant.
    4
    No. 65,083
    5

    Supreme Court of Kansas.

    6
    Opinion filed October 25, 1991.
    7

    John E. Cowles, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and was on the briefs for appellants.

    8

    Steven R. Smith, of Render, Kamas & Hammond, of Wichita, argued the cause, and Albert L. Kamas, of the same firm, was on the brief for appellee.

    9

    Michelle V. Hostetler, of Wichita, was on the brief for amicus curiae Kansas Child Abuse Prevention Council.

    10

    Donald W. Vasos, of Vasos, Kugler & Dickerson, of Kansas City, was on the brief for amicus curiae Kansas Trial Lawyers Association.

    11

    350*350 Bruce Keplinger, of Payne & Jones, Chartered, of Overland Park, was on the brief for amicus curiae Kansas Association of Defense Counsel.

    12

    Cynthia Lutz Kelly and Kerry M. Gasper, of Topeka, were on the brief for amicus curiae Kansas Association of School Boards.

    13

    The opinion of the court was delivered by

    14

    SIX, J.:

    15

    This is a tort action arising out of the alleged sexual molestation of H.R. by her school bus driver, H. Ardon Davidson. H.R. is a six-year-old girl afflicted with Down's syndrome.

    16

    The case presents issues involving: (1) the sufficiency of the evidence to prove that the school district and Davidson's employer knew or should have known that an undue risk of harm would exist because of Davidson's employment; (2) school district immunity and the discretionary function exception under K.S.A. 75-6104(e) of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.; (3) existence of a private right of action under the mandatory child abuse reporting statute, K.S.A. 1990 Supp. 38-1522; (4) apportionment of fault of negligent tortfeasors with the fault of an intentional tortfeasor; (5) the application of the KTCA K.S.A. 75-6105 $500,000 maximum liability provision; and (6) the amount of the damage verdict.

    17

    Our jurisdiction is under K.S.A. 20-3017 (transfer from the Court of Appeals to this court by motion).

    18

    The action is being prosecuted in the name of Kansas State Bank & Trust Company (Kansas State Bank), as conservator and next friend of H.R., a minor.

    19

    The Trial Court Rulings

    20

    Plaintiff filed suit against Davidson for intentional battery and against Unified School District No. 259 (U.S.D.) and Specialized Transportation Services, Inc., (S.T.S.) on theories of respondeat superior, negligent hiring, and negligent retention and supervision of Davidson.

    21

    U.S.D. cross-claimed against S.T.S. asserting, in part, that S.T.S. had agreed to indemnify U.S.D. for any claims arising out of or in connection with the U.S.D.-S.T.S. transportation contract. Judgment was entered for U.S.D. against S.T.S. on the indemnification agreement cross-claim.

    22

    U.S.D. and S.T.S. were granted summary judgment on the respondeat superior and negligent hiring claims. The trial court 351*351 held that the intentional criminal act of Davidson was outside the scope of his employment and the uncontroverted facts show that Davidson was otherwise a competent and qualified person suitable for employment as a school bus driver. Summary judgment for U.S.D. was denied as to negligent retention and supervision of Davidson (genuine issues of material fact existed). The trial court further ruled U.S.D. was not immune from liability under the Kansas Tort Claims Act (KTCA) because the actions alleged by plaintiff to be wrongful were not discretionary functions.

    23

    After the plaintiff rested its case, U.S.D. and S.T.S. moved for a directed verdict, arguing that neither U.S.D. nor S.T.S. knew or should have known that Davidson had a propensity to sexually molest children. U.S.D. again argued that it should be granted immunity under the discretionary function provision of the KTCA.

    24

    The trial court denied the motion, finding that there was sufficient evidence to send the case to the jury and that the jury should determine whether it was foreseeable that Davidson would commit a battery on one of the students he transported to and from school.

    25

    The jury returned a verdict for $1,800,000. The verdict was assessed against Davidson, the intentional tortfeasor. Fault was apportioned under K.S.A. 1990 Supp. 60-258a between U.S.D. (70%) and S.T.S. (30%). The trial court ruled that liability as between Davidson and the negligent tortfeasors would be joint and several. Judgment was entered for the plaintiff against U.S.D. for $1,260,000 and against S.T.S. for $540,000. U.S.D. prevailed on its cross-claim for indemnification against S.T.S. No appeal was taken on the cross-claim.

    26

    U.S.D. and S.T.S. appeal the judgments in favor of plaintiff. Davidson has not appealed. We affirm in part, reverse in part, and remand.

    27

    Facts

    28

    H.R.'s parents were determined to maximize her potential. H.R. attended Starkey Developmental Center (Starkey) from June 1984 until September 1985 when she was enrolled at Bryant Elementary School (Bryant). In September 1984, Starkey prepared 352*352 H.R.'s social history report. The report observed that H.R. had occasional urination accidents. The report also stated: "One problem behavior that the [parents] have with [H.R.] is her dislike of seat belts. [H.R.] can release them in a second. Mrs. [R., the mother,] puts masking tape on the release button to avoid this problem. She requests that this be done on the van." Starkey records also indicated incidents of H.R. taking her clothes off.

    29

    H.R. entered Bryant at the age of five. She was placed in the trainable mentally handicapped level one class (TMH-1). A TMH-1 class is designed for students between five and eight years old with IQ's between 45 and 60.

    30

    H.R. was transported to and from school in a nine-passenger van operated by S.T.S. S.T.S. provided this transportation for U.S.D.'s special education children under a contract with U.S.D.S.T.S. had a "very good" record in performing its transportation duties and was considered superior to its predecessor.

    31

    Davidson was H.R.'s van driver from the fall of 1985 until December 1986. Davidson began driving for S.T.S. in 1984. S.T.S. requires its drivers to attend 24 hours of training, consisting of 10 hours of first aid, 8 hours of defensive driving, 2 hours behind the wheel (to go over the routes), and 4 hours of training in dealing with special students. The manager of S.T.S. testified that Davidson complained, as did all of the S.T.S. drivers, about behavior problems of the special education students. Davidson was instructed to fill out "school bus incident reports," turn them in, and speak with the principal.

    32

    H.R.'s mother testified of an encounter she had with Davidson in November 1985. Davidson was sometimes a few minutes early or late picking H.R. up. Mrs. R. asked Davidson to park 5 or 10 feet forward so that she could see the van from her kitchen window. Davidson became angry, waved his hands, yelled, and was "out of control." He asked her to close the van door. Mrs. R. refused until he settled down. Davidson started to drive off, and Mrs. R. had to close the door as he was driving away.

    33

    Mrs. R. called Jerry Burns, the Bryant principal, to report the incident. Mrs. R. was concerned about the children because Davidson was "out of control." Burns said he would see if he could switch Davidson to another route. Burns later told Mrs. R. the switch was not feasible.

    34

    353*353 Mrs. R. testified that the day after the van door incident, Davidson insisted that H.R. sit in the front passenger seat next to him. Following the door incident, Mrs. R. noticed a change in H.R.'s behavior. H.R. became depressed, began wetting the bed, and became mean. Mrs. R. characterized this behavior as "acting out."

    35

    Mrs. R.'s babysitter was also having a problem with Davidson (horn honking, rude, and in a hurry) and asked that Mrs. R. call the school. Mrs. R. called Burns; Burns said he would handle it. Mrs. R. asked Burns if she could call the bus company. Burns said it was school policy to go through the school.

    36

    H.R.'s behavior gradually worsened in the spring of 1986. However, when H.R. attended summer school and was driven there by a different bus driver, her behavior improved. The bed wetting stopped and she was well-behaved at school.

    37

    In the fall of 1986, Davidson was again H.R.'s van driver. In October 1986, Mrs. R. attended an Individual Educational Program (IEP) meeting with H.R.'s teacher, Kim Brown. According to Mrs. R., the teacher indicated H.R. was overly affectionate and displayed inappropriate behavior such as hugging the driver. After the IEP meeting, school personnel called Mrs. R. and told her that H.R. was drinking toilet water, licking the toilet and the bathroom floors, and plugging the toilets up, which flooded the floor.

    38

    Mrs. R. knew something was wrong. She kept calling the school and telling school personnel something was wrong. She talked about H.R.'s behavior problems with Betsy Carrell, another of H.R.'s teachers. She told Carrell about the argument with Davidson and that she was afraid Davidson was verbally taking it out on H.R. According to Mrs. R., Carrell was concerned and said she would keep an eye on Davidson. Carrell commented that Davidson seemed emotionally disturbed.

    39

    Mrs. R. testified that on December 10, 1986, she was called at work by someone from the school and told to go to the babysitter's house to meet the bus because the babysitter was not there. When she arrived at the babysitter's house, the babysitter was there and claimed to have been there all along.

    40

    354*354 Mrs. R. told investigators of the Exploited and Missing Child Unit (EMCU) that school personnel had called her on that day and told her that H.R. had been uncontrollable on the bus.

    41

    At trial, Mrs. R. testified that on the night of December 10, 1986, she sat down to have a talk with H.R. to see what the problem was. H.R. was upset. Mrs. R. stated, in her interview with EMCU investigators, that she asked H.R. if H.R. was going to be able to behave on the school bus. H.R. responded that she did not like the bus driver. She said he touches her "dinky" and pokes her "bum." H.R. uses the terms "dinky" to refer to her genital area and "bum" to refer to her buttocks.

    42

    Mrs. R. was in shock. She wrote down both the questions she had asked H.R. and H.R.'s responses. H.R. removed her clothes and began pushing on her genital area to show Mrs. R. what the bus driver had done.

    43

    The next day, December 11, 1986, Mrs. R. accompanied H.R. to school, saw Burns, and requested a meeting with Burns, the teacher, the school counselor, the school psychologist, and someone from the bus company. She stated that she did not tell Burns what the meeting was about.

    44

    Paul Pritchard, the U.S.D. director of transportation, testified that Burns called him the morning of December 11, 1986, and told him that Mrs. R. had felt that there was a possibility H.R. was being sexually molested by Davidson. Pritchard contacted the manager of S.T.S. and requested that Davidson be taken off the route until the matter was investigated.

    45

    A meeting was set up for that afternoon. Mr. and Mrs. R., Burns, Pritchard, Kim Brown (H.R.'s teacher), and Barbara White, Security Supervisor for U.S.D., attended the meeting. Mrs. R. repeated what H.R. had told her. Mrs. R. testified that Burns said he knew what the meeting was going to be about. According to Mrs. R., Burns said, in hindsight, he should have thought something was wrong when Mrs. R. had complained about Davidson and when he had seen H.R. sitting on Davidson's lap. According to Mrs. R., Brown stated at the meeting that it frustrated her that Davidson insisted H.R. sit in the front seat.

    46

    Mrs. R. stated: "I never in my wildest dreams would ever have dreamt that something so horrible was going on, but I knew that there was something that this man was — that something was upsetting 355*355 my daughter about this man." Mrs. R. testified if she had known these things (H.R. sitting on Davidson's lap and Davidson insisting that H.R. sit up front), she would have been able to piece the problem together. Mrs. R. had testified earlier that she knew prior to the meeting that Davidson required H.R. to sit in the front seat.

    47

    Brown testified about H.R.'s behavioral problems. In addition to the behavior observed by Mrs. R., Brown related that H.R. pinched and hit other children and took her clothes off in the bathroom. Brown also noticed H.R. masturbating from time to time. Brown recalled that she told Mrs. R. about the masturbation in the fall of 1986 before the report of molestation. According to Mrs. R., she was not told that H.R. was masturbating until the 1987 spring I.E.P. meeting. Brown observed that other children in her class masturbated. She did wonder, concerning H.R., if something was going on. Brown knew that Mrs. R. was divorced and wondered if Mrs. R. was dating. Brown talked about H.R. with Mrs. R. They discussed the fact that there had been a recent divorce and there were changes going on in the home. Brown did not suspect abuse.

    48

    Brown was frustrated that Davidson insisted that H.R. be the last one to enter the bus because Davidson was having trouble with H.R. while he waited for all the children to be loaded. She felt that loading was his responsibility, not hers. Brown observed that H.R. never indicated a reluctance to get on the bus. Brown had no indication that Davidson might have a propensity to sexually molest one of his student passengers.

    49

    Following the December 11 afternoon meeting, Burns reported the allegations of H.R.'s sexual molestation to the Kansas Department of Social Rehabilitation Services. On December 18, 1986, the case was assigned to Detective Pamela Horn of the Wichita Police Department and her social work partner, Dan Crask, both of the EMCU. Horn and Crask investigated the incident. Their report was admitted into evidence. H.R. told Horn and Crask that Davidson had "poked" her. H.R. also told them that Davidson poked other students on H.R.'s bus.

    50

    Horn and Crask interviewed Tara and Rosie, also students on H.R.'s bus. Tara stated that the bus driver was a "good man." 356*356 The interviews were not productive. Other students and their parents, were not interviewed.

    51

    Horn testified that she checked in the Kansas towns where Davidson had lived. He had never been convicted of, arrested for, or reported as a suspect in any crime. Horn found no information that Davidson had ever been involved in any sort of sexual molestation.

    52

    A pediatrician examined H.R. on January 2, 1987. H.R. told the doctor that the bus driver had "poked" her with a finger, a knife, and a marble. The poking occurred from behind while she was on the bus driver's lap. The results of H.R.'s genital exam were consistent with a blunt, penetrating trauma. The doctor testified concerning a number of signs indicative of sexual abuse.

    53

    Davidson denied the allegations. He recalled that he had problems with H.R. from the first day. H.R. did not want to stay in her seat belt. She bothered the other children. Davidson required H.R. to sit in the front seat because he could not handle H.R. in the back of the van. Davidson admitted allowing the students, other than the "bigger kids," to sit on his lap.

    54

    Davidson denied that he had sexually molested anyone. In response, plaintiff presented two witnesses who testified Davidson had molested one of them at the age of 11 in the presence of the other, who was then 7 years old.

    55

    According to Davidson, he reported H.R.'s behavioral problems. He wrote up discipline slips (school bus incident reports) until the bus supervisor, William T. Benjamin, told him not to. Davidson stated Benjamin said that Burns did not like the slips to be written up. Davidson complained to Nelda Treadwell, manager of S.T.S., quite a bit and was told to write up slips until something was done at the school. He stated, "That's why I was writing so many." According to Treadwell, Davidson should not have stopped but should have continued to turn them in. Even though the slips Davidson wrote up were not sent out, he wrote up more than any other driver.

    56

    Davidson testified that he reported the trouble he was having with the children to Treadwell, the dispatchers, Benjamin, and to Brown throughout the three semesters. Burns would hardly talk to the S.T.S. drivers, but Davidson did talk with Burns a time or two. Each time Burns "told him off" and hollered at him, 357*357 saying that S.T.S. did not have any good drivers and that Burns was going to call Treadwell. Davidson responded,

    57
    "I says here's the radio. I got a little loud talking to him because he was just a hollering. I said here's the radio, she's there, call her, I'll talk to her on the phone. He never once ever called Treadwell to discuss the problems at all and he knew."
    58

    Nothing was done to help Davidson's problems.

    59

    Benjamin testified at trial. No one asked him about the failure to follow the discipline slip procedure. Benjamin explained that it is not uncommon for the affectionate TMH children to sit on the laps of their bus drivers while waiting for the bell. He observed that TMH children also commonly sit on the laps of teachers.

    60

    Burns also testified at trial, but was not asked if he knew slips were not being turned in. Burns recalled that Davidson had difficulty with the children and submitted school bus incident reports on numerous occasions. According to Burns, the school's copies of the incident reports concerning H.R. are no longer in existence because the school's file is purged at the end of each year.

    61

    The school bus incident reports are five-copy forms. A copy of the form is distributed to the parent, principal, bus contractor, driver, and district transportation department. Mrs. R. became aware of the incident reports after "all this happened" (after H.R. had explained her experiences with the bus driver). Mrs. R. received a report from a bus driver in March of 1988. Thurman Mitchell, a former Field Supervisor of Student Transportation Services, testified at trial that if he did not receive a copy of the report or did not receive a communication from parent or principal, he would have no way of knowing that a problem existed. A problem with Davidson was not brought to Mitchell's attention. Mitchell stated that had the circumstances concerning H.R. been brought to his attention, he would have requested a conference with the driver, the parents, and the school administration to resolve it.

    62

    H.R.'s teacher in the fall of 1987 believed H.R. was one of her brightest students. The teacher observed no evidence of academic regression and stated that H.R. had one of the highest progress rates of her students.

    64
    358*358 Foreseeability of Propensity to Sexually Molest — Summary Judgment — Directed Verdict
    65

    U.S.D. and S.T.S. appeal the denial of their motions for summary judgment and directed verdict on the issue of negligent retention and supervision of Davidson. They argue that they cannot be held liable for Davidson's intentional criminal act of sexual molestation unless they knew or should have known of Davidson's particular propensity to sexually molest. They reason that no evidence was presented which would allow the jury to find that either U.S.D. or S.T.S. knew or should have known of such a propensity. The trial court erred, they contend, in denying their motions for summary judgment and for a directed verdict and in refusing to specifically instruct on their knowledge of Davidson's propensity to sexually molest.

    66

    Amicus curiae Kansas Association of School Boards (KASB) endorses the U.S.D.-S.T.S. argument. In addition, KASB asserts that if we find the evidence in this case sufficient to make sexual molestation foreseeable, school districts will be forced to incur the expense of hiring school bus monitors.

    67

    Plaintiff asserts: (1) U.S.D. and S.T.S. may be liable if any harm to H.R. was foreseeable; (2) the precise injury sustained need not be foreseeable; (3) the issue of foreseeability is a question of fact for the jury; (4) the jury was properly instructed; and (5) the verdict is supported by the evidence. The plaintiff also contends that, even if the standard of foreseeability asserted by U.S.D. and S.T.S. is the proper standard, there is evidence that the sexual abuse of H.R. was foreseeable.

    68

    A party seeking summary judgment bears a heavy burden. We have repeatedly stated the rules controlling summary judgment. A recent recitation is found in Hammig v. Ford, 246 Kan. 70, 72-73, 785 P.2d 977 (1990).

    69

    When the denial of summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).

    70

    In ruling on a motion for a directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn 359*359 from the evidence in favor of the party against whom the ruling is sought. Where the evidence is such that reasonable minds could reach different conclusions, the motion must be denied and the matter submitted to the jury. On appeal, this court applies the same standard as the trial court. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987).

    71

    U.S.D., S.T.S., and the plaintiff rely on Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan. App.2d 302, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978). In Hollinger, plaintiff was injured when an employee of the defendant hospital attempted to play a prank on her. The employee's employment records indicated that his work was unsatisfactory. The hospital knew that the employee had a tendency to talk with others rather than complete his work; that he was careless in failing to return his equipment to storage areas; and that on one occasion a visitor to the hospital had fallen in an area where the employee was buffing the floor without displaying appropriate warning signs. Hollinger sued the hospital, relying on respondeat superior and negligent hiring, supervision, and retention. The trial court sustained the hospital's motion for summary judgment as to the issue of respondeat superior. Hollinger appealed from a verdict in favor of the hospital on the negligence issue, arguing that the negligent retention instruction was improper.

    72

    The Court of Appeals, in approving the trial court's negligent retention instruction, reviewed Kansas negligent retention case law. Following its review, the Hollinger court stated:

    73
    "The gist of instruction No. 3 is that there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable." 2 Kan. App.2d at 307.
    74

    The only other Kansas case on negligent hiring or retention is Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984). In Gable, Higgins, an employee of defendant Empire Drilling Company (Empire), intentionally sabotaged one of plaintiff 360*360 Plains Resources, Inc.'s (Plains) wells. The trial court found that Empire knew, or had reason to know, of Higgins' propensities and was liable under the theory of negligent retention of Higgins. The finding was based on Higgins' failure to maintain the equipment, his attitude, his comments toward Plains' personnel, and his statements of past criminal escapades. Higgins had informed Empire of his intended sabotage. We affirmed the trial court.

    75

    In the case at bar, the trial court gave the following negligent retention instruction:

    76

    "NO. 9

    77
    "All persons entrusted with children have a special responsibility to supervise their charges.
    78
    "An employer may be negligent when it has reason to know that an employee, because of his qualities, is likely to harm others. If the dangerous quality of the employee causes harm, the employer may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.
    79
    "Such an employer is not liable merely because the employee is incompetent or careless. If liability results, it is because, under the circumstances, the employer has not taken the care which a reasonable and prudent man would take in retaining the employee for the work at hand. What precautions must be taken depend upon the situation. One can normally assume that another who offers to perform simple work is competent and is not dangerous to others.
    80
    "Liability results under this rule not because of the employer-employee relationship of the parties, but only if the employer had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by plaintiffs would have been foreseen by the employer.
    81
    "School authorities are required by law to exercise reasonable care and supervision for the safety of the children under their control.
    82
    "A school is required to act when a child, while in its charge, is threatened by a third party, and it must make reasonable efforts to avoid injury to the child.
    83
    "Teachers, school administrators, and school employees are required to report promptly any suspicion of sexual abuse to the department of social and rehabilitation services. The failure to do so is a violation of Kansas law and is negligence."
    84

    361*361 U.S.D. and S.T.S. objected to instruction No. 9. U.S.D. and S.T.S. submitted and requested the following instruction:

    85
    "If you find that plaintiff has met her burden of proof in establishing that defendant Specialized Transportation Services, Inc. was negligent, you must then decide whether such negligence was the cause of plaintiff's claimed injury. There must be some causal relationship between the claimed dangerous propensity or quality of defendant Davidson, of which his employer, Specialized Transportation Services, Inc. had or should have had knowledge, and the injuries suffered by plaintiff; Specialized Transportation Services, Inc. must, by virtue of knowledge of defendant Davidson's particular quality or propensity, have had reason to believe that an undue risk of harm existed to others as a result of the continued employment of defendant Davidson; and the harm which [is] claimed by plaintiff must be within the risk created by a known propensity in order for Specialized Transportation Services, Inc. to be liable. That is, plaintiff must prove that Specialized Transportation Services, Inc. knew or should have known that defendant Davidson had a propensity which created a risk that he would sexually molest [H.R.]."
    86

    U.S.D. and S.T.S. contend that their requested instruction was modeled after the language in Hollinger, 2 Kan. App.2d at 307.

    87

    Instruction No. 9 given by the trial court in the instant case followed instruction No. 3 in Hollinger, which was approved by the Court of Appeals. Hollinger, 2 Kan. App.2d at 305-06, 308.

    88

    We have stated the rules regarding appellate review of jury instructions in Bechard v. Concrete Mix & Construction, Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976).

    89

    The trial court in the case at bar did not rule on the issue of the scope of foreseeability until after the close of evidence when the U.S.D.-S.T.S. motion for a directed verdict was denied. At that time, the trial court ruled that there was sufficient evidence to submit the case to the jury to determine whether it was foreseeable that Davidson would commit a battery on one of the students. The trial court apparently rejected the U.S.D.-S.T.S. contention that they would only be liable if they knew or should have known of Davidson's particular propensity to sexually molest.

    90

    In closing argument, U.S.D. and S.T.S. explained their interpretation of instruction No. 9 to the jury. U.S.D. and S.T.S. argued that before they could be found liable for H.R.'s injuries they had to have foreseen that Davidson had a propensity for sexual molestation and, thus, that children were at risk.

    91

    362*362 U.S.D and S.T.S. rely on cases from other jurisdictions which they claim denied employer liability for sexual misconduct of an employee where there was no evidence that the employer knew of previous episodes of sexual misconduct St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989); Alma W. v. Oakland Unified School Dist., 123 Cal. App.3d 133, 176 Cal. Rptr. 287 (1981); Kane v. Hartford Accident & Indemnity Co., 98 Cal. App.3d 350, 159 Cal. Rptr. 446 (1979), Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984); and Bozarth v. Harper Creek Bd. of Ed., 94 Mich. App. 351, 288 N.W.2d 424 (1979). We have reviewed these cases and found that they involve procedural, statutory, or factual distinctions that diminish their precedential value.

    92

    The trial court's analysis of the foreseeability issue in the case at bar was correct. The jury was instructed on battery. Thus, if Davidson's battery of H.R. was foreseeable, the employer, S.T.S., may be liable. When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer. Therefore, instruction No. 9 as it relates to the employee-employer relationship was proper. (The last paragraph of instruction No. 9 relates to U.S.D.'s duty to report child abuse and is discussed later in this opinion.)

    93

    Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law. Robbins v. Alberto-Culver Co., 210 Kan. 147, Syl. ¶ 5, 499 P.2d 1080 (1972).

    94

    U.S.D. and S.T.S. assert that there was no information whatsoever that Davidson had mistreated any of his student passengers. 363*363 There was evidence that he was rude and temperamental to parents and teachers. U.S.D. and S.T.S. contend that the evidence is insufficient to establish foreseeability to commit a battery.

    95

    Plaintiff asserts that there was sufficient evidence to establish foreseeability. Plaintiff argues that Kim Brown, H.R.'s teacher, testified that she believed H.R.'s behavioral problems were a result of exposure to sexual conduct. Brown questioned Mrs. R. about this. Mrs. R. reported Davidson's behavior, which established that children on the bus were in a sphere of risk. Mrs. R. testified that Davidson called the children names and that he was "out of control."

    96

    According to Mrs. R., Carrell stated that she thought Davidson was "emotionally disturbed." Principal Burns told Mrs. R. that he knew what the December 11, 1986, meeting was going to be about before Mrs. R. told him. Additionally, Burns told Pritchard that there was a possibility Davidson had molested H.R. before Mrs. R. told Burns about H.R.'s allegations. It may be inferred that Burns was able to foresee the harm before Mrs. R. told him.

    97

    This is a close case. We are not requiring clairvoyance in employers; however, viewing the evidence and all inferences in favor of plaintiff, the foreseeability of the risk of harm was a jury question. The trial court did not err in denying the U.S.D.-S.T.S. motions for summary judgment and directed verdict on this issue.

    98

    The Kansas Tort Claims Act — Discretionary Function

    99

    U.S.D. asserts that it should have been granted immunity under K.S.A. 75-6104(e), the "discretionary function" exception to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA). U.S.D. argues that the day-to-day supervision and retention of Davidson as a school bus driver was based on individual judgment and the exercise of discretion unrelated to regulatory mandates of the Secretary of Transportation.

    100

    Plaintiff contends that the discretionary function exception was intended to protect "formulation of policy." Plaintiff asserts that U.S.D. established a supervisory scheme over the contracted transportation services through the school bus incident report procedure and that U.S.D. personnel circumvented this reporting 364*364 procedure. Plaintiff reasons that the failure to follow established policy was a ministerial act not entitled to immunity under the discretionary function exception to the KTCA.

    101

    Amicus curiae KASB joins in U.S.D.'s argument that supervision and retention of employees is a discretionary function entitled to immunity under K.S.A. 75-6104(e).

    102

    The KTCA is an open-ended act making governmental liability the rule and immunity the exception. Nichols v. U.S.D. No. 400, 246 Kan. 93, 94, 785 P.2d 986 (1990).

    103

    K.S.A. 75-6103(a) provides:

    104
    "Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act of omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."
    105

    In K.S.A. 75-6102(c), the term "governmental entity" is defined to include a school district. Employee does not include an independent contractor under contract with the governmental entity. K.S.A. 75-6102(d). Therefore, S.T.S. is not subject to the KTCA.

    106

    K.S.A. 75-6104 states in part:

    107
    "A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
    108

    ....

    109
    "(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved." (Emphasis added.)
    110

    The burden is on the governmental entity to establish immunity under one of the exceptions in K.S.A. 75-6104. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).

    111

    We have considered the discretionary function exception in several cases. The discretionary function exception may be the most important exception to liability in the KTCA. (Prior to the 1987 amendment to K.S.A. 75-6104[d] [Ensley 1984], which added the phrase "and regardless of the level of discretion involved" in what is now K.S.A. 75-6104[e], the discretionary function exception was designated as subsection [d]. The 1987 amendment is not applicable to the instant case.)

    112

    365*365 In Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982), we rejected the "planning level-operational level test" and held that the determining factor was the nature and the quality of the discretion exercised rather than the status of the employee. The "nature and quality" test was set out in Downs v. United States, 522 F.2d 990 (6th Cir.1975), i.e., whether the act is of "the nature and quality" which Congress intended to put beyond judicial review. 522 F.2d at 997.

    113

    In Downs, an FBI agent's negligent handling of an airplane hijacking situation caused the deaths of plaintiffs' decedents. The agent's negligence consisted of his failure to follow specific procedures governing hijacking situations set forth in an FBI handbook. Downs held that the agent's acts were not of "the nature and quality" necessary for a discretionary function. The court reasoned that the mere exercise of some judgment cannot be the test for a discretionary function because "[j]udgment is exercised in almost every human endeavor." 522 F.2d at 995. Rather, a discretionary function must involve some element of policy formulation. The relevance of the FBI handbook was that the FBI had already made the policy determination about the proper procedures in hijacking situations, and thus the agent was not making policy in responding to this particular hijacking situation.

    114

    The more a judgment involves the making of policy the more it is of a "nature and quality" to be recognized as inappropriate for judicial review. Robertson held that police officers were exercising a discretionary function when they refused to remove a drunken trespasser from the owner's property. 231 Kan. at 362.

    115

    In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), Cansler, a police officer, sued the State for injuries resulting from the escape of dangerous prisoners from the penitentiary. No notice of the escape was given to law enforcement officers in neighboring communities. We reasoned that the duties to confine and notify are imposed by law and are ministerial. Thus, the State's failure to do so was not discretionary and it was not entitled to immunity.

    116

    The wife and children of James Fudge brought a wrongful death and survival action against an intoxicated driver and a municipality in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). Fudge was killed when his van collided with the intoxicated driver's car. It was alleged that prior to the collision, city 366*366 police officers had encountered the intoxicated driver in a parking lot and negligently failed to prevent him from driving. The jury found the City 18% at fault. The City appealed, arguing in part that it was immune under the discretionary function exception of the KTCA. The police department had a standard operating procedure manual which detailed mandatory procedures for handling a variety of police situations. The police were also subject to a general order which provided that individuals who are incapacitated by alcohol and likely to inflict physical injury to themselves or others will be taken into protective custody. We held that the City had adopted a specific mandatory set of guidelines for police to use in handling intoxicated persons that left no discretion. The City was not immune under the discretionary function exception to the KTCA. 239 Kan. at 372-75.

    117

    It is clear that failure to follow mandatory guidelines is not subject to immunity under the discretionary function exception to the KTCA. Fudge, 239 Kan. at 375; Jackson, 235 Kan. at 289-90.

    118

    "Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow." Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272 (1988).

    119

    U.S.D. reasons that all the ministerial acts in K.A.R. 36-13-32, with respect to the employment of Davidson, were fulfilled. We agree. Plaintiff does not discuss K.A.R. 36-13-20 et seq.

    120

    K.A.R. 36-13-32 relates specifically to school bus driver qualifications. Review of K.A.R. 36-13-32 indicates that Davidson was a qualified bus driver. However, the negligent hiring claim was disposed of by the trial court's ruling prior to trial and is not in issue.

    121

    The U.S.D.-S.T.S. contract addressed pupil discipline:

    122
    "Pupil Discipline. The Operator and its drivers shall maintain careful supervision over all passengers for their safety in riding, loading, or unloading from all vehicles. Drivers shall make prompt written reports to the Principal or principal's designee of the names and manner of conduct of any pupils who are undisciplined or conduct themselves in such a manner as to cause serious disturbance or otherwise create a hazard to the safety and convenience of other passengers, themselves, or the operator of the vehicle. Drivers shall not discipline pupils." (Emphasis added.)
    123

    367*367 Plaintiff asserts that U.S.D. failed to follow the school bus incident report procedure. The report form is entitled, "School Bus Incident Report to Parents." The initial language states:

    124

    "Dear Parents:

    125
    "The purpose of this report is to inform you of an incident which occurred on the bus and involved your son/daughter. This incident may have jeopardized the safety and well-being of all the pupils riding the bus. You are urged to appreciate the actions taken by the bus driver and the school personnel in their attempt to resolve the problem. You are further urged to cooperate in our efforts to help your child understand the necessity for good conduct while getting to and from school."
    126

    Plaintiff argues that U.S.D. failed to follow its bus incident reporting policy. Davidson testified that he was told not to fill out so many reports. Treadwell testified that when Davidson reported he had been told not to fill out so many reports she advised him to fill the reports out anyway. The record supports plaintiff's contention that U.S.D. failed to follow the established reporting procedure.

    127

    U.S.D. procedures called for Mitchell to receive a copy of the disciplinary slip. If he noticed five or six slips in a given period of time he might investigate. Mitchell would advise drivers not to listen to school principals or to bus supervisors if they told the driver not to fill out the slips. He testified that if a driver could not handle the student on a continuing basis, the driver was switched off the route. Mitchell would have switched a driver if the problems had been continuing for over three semesters. Mitchell would have attempted to hold a conference with the driver, the parents, and the school administration to resolve the problem.

    128

    Dr. Melhorn, the pediatrician who examined H.R., testified that H.R. told her the molestation occurred more than once. According to plaintiff's expert Dr. Milner, a psychologist, the molestation occurred over a period of nine months to a year. Helen Swan, a social worker in the area of child abuse, expressed the opinion, based on her evaluation, that the sexual abuse of H.R. continued for approximately a year.

    129

    One copy of the bus incident report was to go to the parent. H.R. finally told her mother of the molestation when her mother asked H.R. why H.R. would not behave on the bus. The jury 368*368 could have reasoned that H.R. would have told Mrs. R. sooner if U.S.D. had followed its bus incident reporting procedure by forwarding the parents' copy of Davidson's incident reports involving H.R. to her mother.

    130

    The testimony indicates that had the school bus incident reporting procedure been followed, some type of remedial action may have been taken.

    131

    The development of the bus incident reporting scheme was a discretionary act involving policy formulation. What is important is that U.S.D.'s personnel failed to follow the required reporting procedure. The policy determination to implement the reporting procedures had already been made. U.S.D.'s personnel were not making policy when they decided not to follow the required reporting procedure. Under the facts in the case at bar, it was for the jury to determine whether U.S.D. would have been alerted to the danger if the reports had been made and distributed as required.

    132

    U.S.D. cites cases from other jurisdictions which hold that hiring, supervising, and retaining school employees are discretionary functions. Doe "A" v. Special Sch. Dist. of St. Louis County, 637 F. Supp. 1138 (E.D. Mo. 1986); Rosacrans v. Kingon, 154 Mich. App. 381, 397 N.W.2d 317 (1986), lv. to appeal denied 428 Mich. 862 (1987); Willoughby v. Lehrbass, 150 Mich. App. 319, 388 N.W.2d 688 (1986); and Kimpton v. New Lisbon School Dist., 138 Wis.2d 226, 405 N.W.2d 740 (Ct. App. 1987).

    133

    Each case is distinguishable from the case at bar. None of the U.S.D.-S.T.S. authorities are controlled by legislative enactments similar to the KTCA "open ended" concept of liability. In addition, none of the cited cases involve the failure of a school district to follow established procedures.

    134

    U.S.D. relies on our recent decision in Hackler v. U.S.D. No. 500, 245 Kan. 295, 777 P.2d 839 (1989). Hackler involved a personal injury claim by a minor for injuries sustained when crossing the street from his home. The student had been let off at a school bus stop. The defendant school district advanced the KTCA discretionary function exception of K.S.A. 75-6104(e) as a defense. We affirmed the trial court's reasoning that the district had not breached any duty owing to Hackler. We did not determine the discretionary function issue.

    135

    369*369 The trial court, in the case at bar, was correct in ruling that U.S.D. is not entitled to immunity under the K.S.A. 75-6104(e) discretionary function exception to the KTCA.

    136

    The Mandatory Child Abuse Reporting Statute

    137

    The trial court gave the following instruction (the last paragraph of instruction No. 9) over U.S.D.'s objection: "Teachers, school administrators, and school employees are required to report promptly any suspicion of sexual abuse to the department of social and rehabilitation services. The failure to do so is a violation of Kansas law and is negligence."

    138

    U.S.D. challenges the propriety of giving this instruction, reasoning the instruction was contrary to: (1) the pretrial order; (2) the uncontroverted evidence that sexual abuse was not suspected; (3) the discretionary function exception to the KTCA; and (4) the reporting statute, K.S.A. 1990 Supp. 38-1522, which grants no private right of action. (Plaintiff's claim under the child abuse reporting statute is against U.S.D. only.)

    139

    Plaintiff counters with two arguments. First, plaintiff explains that there is no specific finding the jury relied on this instruction to find U.S.D. negligent. Plaintiff suggests there was ample evidence of the breach of other duties which would explain the verdict. Second, plaintiff contends K.S.A. 1990 Supp. 38-1522 creates a private civil cause of action. K.S.A. 1990 Supp. 38-1522 establishes a duty for school teachers and administrators to report all suspicions of child abuse. Plaintiff reasons the reporting duty benefits children as a specific segment of the public intended to be protected by the statute and argues the criminal penalty provided in K.S.A. 1990 Supp. 38-1522(f) is ineffective because of problems proving a willful and knowing violation. Plaintiff asserts that Brown was sufficiently suspicious of sexual abuse to question H.R.'s mother about sexual activity in the home. Thus, according to plaintiff, there was evidence of unreported suspicion. An examination of the record reflects that Brown knew Mrs. R. was divorced and wondered if Mrs. R. was dating. Brown spoke with Mrs. R. about her recent divorce and about changes going on in the home. Brown testified she did not suspect abuse.

    140

    Plaintiff does not address the U.S.D.-S.T.S. argument that the instruction was beyond the pretrial order.

    141

    370*370 Amicus curiae Kansas Child Abuse Prevention Council (KCAPC) joins in plaintiff's argument asserting that K.S.A. 1990 Supp. 38-1522 does grant a private cause of action. KCAPC contends that the statute provides protection for the benefit of a class, or individuals of a class, i.e., abused children.

    142

    K.S.A. 1990 Supp. 38-1522 provides in part:

    143
    "(a) When any of the following persons has reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided in subsection (c) or (e): ... teachers, school administrators or other employees of a school which the child is attending.... The report may be made orally and shall be followed by a written report if requested....
    144

    ....

    145
    "(f) Willful and knowing failure to make a report required by this section is a class B misdemeanor."
    146

    The omitted portions of subsection (a) describe other persons who are required to report suspected abuse. These persons may be categorized generally as licensed professionals. Subsection (b) states that any other person may report suspected abuse.

    147

    K.S.A. 38-1526 grants immunity from liability for persons who make such reports without malice.

    148

    U.S.D. first contends that the discretionary function exception of the KTCA protects school employees who exercise judgment and discretion in evaluating behaviors of children to attempt to identify a possible extrinsic source of behavior problems. For this reason, sanctions should only be imposed if the failure to report is "willful and knowing."

    149

    In the case at bar, the trial court rejected the argument, ruling that reporting suspected child abuse is a ministerial act, not a discretionary function, under the KTCA.

    150

    U.S.D. also contends that K.S.A. 1990 Supp. 38-1522 does not provide a private right of action. We agree and, consequently, need not address the discretionary function issue in the context of reporting suspected child abuse.

    151

    The relevant portion of instruction No. 9 indicated that violation of K.S.A. 1990 Supp. 38-1522 is negligence per se. However, violation of a statute alone does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature. 371*371 Statutes enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a statutory violation. Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 125, 804 P.2d 978 (1991).

    152

    Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 804, 740 P.2d 606 (1987).

    153

    Michigan's Child Protection Law, Mich. Comp. Laws § 722.621 et seq. (1979), requires persons who have reasonable cause to suspect child abuse to report to authorities. The statutes specifically provide that failure to do so may result in civil liability. Mich. Comp. Laws § 722.633 (1979). Rosacrans v. Kingon, 154 Mich. App. at 387-88.

    154

    The following cases have held that no private cause of action exists for violation of mandatory child abuse reporting statutes: Thelma D. v. Board of Educ. of City of St. Louis, 669 F. Supp. 947 (E.D. Mo. 1987) (following Doe "A" v. Special Sch. Dist. of St. Louis County, 637 F. Supp. 1138); Fischer v. Metcalf, 543 So.2d 785 (Fla. Dist. App. 1989) (en banc); and Borne v. N.W. Allen County School Corp., 532 N.E.2d 1196 (Ind. App. 1989). See Annot., 73 A.L.R.4th 782, § 11[b].

    155

    Our research has indicated only one jurisdiction which has held that a mandatory child abuse reporting statute impliedly grants a private right of action. Landeros v. Flood, 17 Cal.3d 399, 131 Cal. Rptr. 69, 551 P.2d 389 (1976). See Annot., 73 A.L.R.4th 782, § 11[a].

    156

    In Landeros, 17 Cal.3d 399, the minor plaintiff, who had been abused by her mother and her mother's common-law husband, sued a doctor for failure to report suspected child abuse. The doctor had treated the minor plaintiff in an emergency room (comminuted spiral fracture of the right tibia and fibula, bruises over entire back, superficial abrasions on other parts of the body, and nondepressed linear fracture of skull — all symptomatic of the 372*372 medical condition known as the battered child syndrome). The California Supreme Court held that a private cause of action exists for intentional violation of the reporting statute. The court stated: "If plaintiff wishes to satisfy that requirement [violation of statute], it will be necessary for her to persuade the trier of fact that defendant Flood (the treating doctor) actually observed her injuries and formed the opinion they were intentionally inflicted on her." 17 Cal.3d at 415.

    157

    U.S.D. submits that no private cause of action was intended by the legislature and that we should not create one. Legislative creation, rather than judicial creation, is a persuasive policy argument.

    158

    K.S.A. 38-1521 states:

    159
    "It is the policy of this state to provide for the protection of children who have been subject to physical, mental or emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventive and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children."
    160

    The purpose of the reporting statute is to provide for the protection of children who have been abused by encouraging the reporting of suspected child abuse and by insuring the thorough and prompt investigation of such reports. There is no express indication of legislative intent to impose any liability for failure to report. The decision to report suspected abuse should be based on something more than suspicion.

    161

    The Indiana Court of Appeals in Borne, a case involving sexual abuse of a special education elementary school girl by classmates during a school field trip, considered the reporting issue. In holding that no private cause of action existed for failure to report, the Indiana court stated:

    162
    "When the provisions of the act are considered as a whole, there is no apparent intent to authorize a civil action for failure of an individual to make the oral report that may be the means of initiating the central procedures contemplated by the act. Furthermore, such an action is not authorized at common law and its maintenance would raise substantial questions of causation since the failure would not in the direct sense be a proximate cause of the injury to the child. It would, we believe, misdirect judicial time and attention from the very real problems of children in need of services in 373*373 favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report. We concluded that was not within the legislative purpose of the act." 532 N.E.2d at 1203.
    163

    If the legislature had intended to grant a private right of action in K.S.A. 38-1522 it would have specifically done so. The statute was revised in 1983, 1985, 1986, 1987, and 1988. The legislature has not utilized the amendment opportunities to add a private cause of action. No private cause of action exists under K.S.A. 1990 Supp. 38-1522. The child abuse reporting portion of instruction No. 9 should not have been given.

    164

    Did the giving of the instruction result in prejudicial error? Under the facts of this case, we think not.

    165

    The objectionable portion of instruction No. 9 related only to U.S.D. The judgment entered against U.S.D. is to be paid by S.T.S. because U.S.D. prevailed on its cross-claim for indemnification against S.T.S. If the case were remanded for retrial any alteration in the percentages of negligence (70% U.S.D. — 30% S.T.S.) would not affect the total of 100% to be assessed between the two defendants. S.T.S., under the indemnification agreement cross-claim judgment, would be responsible for payment of the amount awarded against U.S.D. upon retrial.

    166

    Comparison of Fault

    167

    The jury returned the verdict form, which provides in part:

    168
    "1. Did H. Ardon Davidson commit a battery upon [H.R.]?
    170

    (Number of jurors in agreement 10 )

    171
    "2. If you answer Question #1, `yes,' do you find that such battery occurred at least in part due to the acts or omissions of Specialized Transportation Services, Inc., and/or Unified School District 259?
    173

    (Number of jurors in agreement 11 )

    174
    "3. If you answer question #2 `yes,' then considering the fault of Specialized Transportation Services, Inc., and Unified School District 259 at one hundred percent, what percentage of the fault is attributable to each of them?

    176
         Specialized Transportation Services, Inc. (0% to 100%)           30%       Unified School District 259 (0% to 100%)                         70%           Total                                                       100%       "(Number of jurors in agreement                                  11)"
    177

    (Emphasis added.)

    178

    374*374 Judgment was entered against Davidson for $1,800,000, the total amount of the jury verdict. Judgment was entered against S.T.S. for $540,000 (30% of the total verdict) and against U.S.D. for $1,260,000 (70% of the total verdict).

    179

    U.S.D. and S.T.S. argue the trial court erred in failing to instruct the jury to compare their fault (negligence) with Davidson's fault (intentional). U.S.D. and S.T.S. assert that the trial court's refusal to instruct as requested is inconsistent with the principle that negligent tortfeasors shall not be liable for more than their fair share of the loss. See Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). U.S.D. and S.T.S. also contend that comparison of intentional acts and negligent acts is an issue of first impression in Kansas. Amicus curiae Kansas Association of Defense Counsel (KADC) supports the U.S.D.-S.T.S. argument.

    180

    Plaintiff disagrees with the assertion that the comparative fault issue is one of first impression. Plaintiff reasons that we have refused to compare the fault of negligent tortfeasors with that of intentional tortfeasors, citing Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986), and M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 675 P.2d 864 (1984). Plaintiff's analysis is correct.

    181

    Plaintiff also asserts that allowing U.S.D. and S.T.S. to compare their fault with Davidson would allow an intentional tortfeasor to reduce his/her share of damages. Plaintiff misconstrues the U.S.D.-S.T.S. argument. U.S.D. and S.T.S. are not arguing that Davidson's fault should be reduced under comparative negligence.

    182

    Amicus curiae Kansas Trial Lawyers Association (KTLA) reasons that M. Bruenger and Gould control and should be upheld. KTLA suggests that it would be unfair to allow the intentional act of one defendant to be compared with the negligent act of a defendant whose duty it is to protect the plaintiff from the act committed by the intentional tortfeasor.

    183

    In M. Bruenger, the plaintiff's truck was stolen due to the negligence of a bailee, defendant Dodge City Truck Stop. The trial court allowed the jury to compare the negligence of the bailee with the fault of the thief. We reversed and held the trial court erred in allowing the comparison. We ruled that a bailee 375*375 is required to exercise reasonable care to prevent the theft. The harm is complete when the theft occurs. 234 Kan. at 687.

    184

    In Gould, a customer of Taco Bell was injured by another patron, and Taco Bell's manager negligently delayed rendering assistance to him. The trial court denied Taco Bell's motion to join the intentional tortfeasor for fault comparison purposes. The trial court in Gould reasoned that intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it is to protect the plaintiff from the intentional acts committed by the third party. We agreed. Taco Bell attempted to distinguish M. Bruenger, asserting that M. Bruenger is limited to a bailment situation. We disagreed. Justice Herd, speaking for the court, stated:

    185
    "[W]e are not comparing apples and oranges. We look to the nature of the duty owed in each instance. A bailee owes a duty of reasonable and ordinary care to prevent the theft of bailed property. The premises owner owes a duty to use reasonable and ordinary care for the safety of invitees. The duty is the same in both cases. Accordingly, our holding in M. Bruenger is applicable to the present case and the trial court did not err in denying appellant's motion to join Karen Brown [the intentional actor] as an additional party to the action." 239 Kan. at 571.
    186

    U.S.D., S.T.S., and amicus curiae KADC rely on two law review articles. Westerbeke, Survey of Kansas Law: Torts, 33 Kan. L. Rev. 1 (1984); Westerbeke and Robinson, Survey of Kansas Tort Law, 37 Kan. L. Rev. 1005 (1989).

    187

    In 33 Kan. L. Rev. 1, Professor Westerbeke agreed with the Court of Appeals' refusal to provide a proportionate fault reduction of the intentional tortfeasors' liability in Lynn v. Taylor, 7 Kan. App.2d 369, 642 P.2d 131 (1982). However, he stated that the imposition of joint and several liability on the negligent tortfeasor is unsound. Westerbeke proposed a "hybrid" approach, stating:

    188
    "A third, and arguably preferable, choice involves a hybrid approach in which the intentional tortfeasors are jointly and severally liable for the total amount of damages, but the negligent tortfeasor is liable only for that portion of the total damages representing his proportionate fault." 33 Kan. L. Rev. at 33.
    189

    M. Bruenger and Gould have been criticized by use of the following hypothetical situation:

    190
    376*376 "Assume that a visibly intoxicated third person in the restaurant negligently stumbles into and knocks down one guest, then intentionally pushes down another guest. In each case the restaurant breached its duty in the same manner — by failing to remove the intoxicated person from the premises before he harmed a guest. The results, however, vary. The restaurant is liable for only a proportionate fault share of the damages suffered by the first guest, but is jointly and severally liable for all damages suffered by the second guest." 37 Kan. L. Rev. at 1049.
    191

    No judicial authority in support of the hybrid approach has been cited by U.S.D., S.T.S., or amicus curiae KDAC, or in the articles relied on by the parties. We acknowledge the contradiction in the "restaurant guest" example.

    192

    We have considered the "hybrid approach" but elect to follow the precedential path marked by M. Bruenger and Gould.

    193

    The asserted U.S.D.-S.T.S. act of negligence in the case at bar was the failure to prevent Davidson from committing the intentional act of battery. We note that the verdict form required linkage between the intentional act of Davidson and U.S.D.-S.T.S. before consideration of any percentage of fault attributable to U.S.D.-S.T.S. Negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.

    194

    Application of the $500,000 K.S.A. 75-6105

    195

    Maximum Liability Provision

    196

    U.S.D. and S.T.S. entered into a "Pupil Transportation Services Agreement." Under this agreement, U.S.D. required S.T.S. to obtain insurance with the following liability limits:

    197
    "A. Minimum liability coverage: Bodily injury liability in an amount not less than $500,000 for each person; in an amount not less than $1,000,000 for each occurrence; and in an amount not less than $500,000 for property damage for each student.
    198
    "B. Excess liability insurance coverage with minimum limits of $1,000,000 per occurrence."
    199

    The agreement also provided:

    200
    "The District, its employees, agents, and members of the Board of Education, shall be named as additional insureds on the Operator's aforementioned insurance policies.
    201

    ....

    202
    "The purchase of insurance by the Operator shall not constitute a waiver of exemption from liability of the District under the Kansas Tort Claims 377*377 Act, K.S.A. § 75-6101 et seq. The Operator or its Employees are not and shall not be considered agents or employees of the District. The Operator is and shall be considered an independent contractor."
    203

    The agreement also included a hold harmless indemnification clause which required S.T.S. to indemnify U.S.D. for any loss arising from operations connected with the agreement. S.T.S. purchased the required insurance naming both U.S.D. and the City of Wichita as additional insureds. No additional premium was charged for adding U.S.D., its employees, agents, and board members. The policy issued to S.T.S. by Insurance Company of North America did not limit the amount of coverage extended to U.S.D. to $500,000. No distinction as to coverage was made between S.T.S. as an insured and U.S.D. and its employees, agents, and board members as additional insureds. U.S.D. purchased its own liability policy from a different carrier with a limit of $500,000.

    204

    K.S.A. 75-6105(a) states: "Subject to the provisions of K.S.A. 75-6111 and amendments thereto, the liability for claims within the scope of this act shall not exceed $500,000 for any number of claims arising out of a single occurrence or accident."

    205

    K.S.A. 75-6111 provides in part:

    206
    "With regard to claims pursuant to the Kansas tort claims act, insurers of governmental entities may avail themselves of any defense that would be available to a governmental entity defending itself in an action within the scope of this act, except that the limitation on liability provided by subsection (a) of K.S.A. 75-6105 and amendments thereto shall not be applicable where the contract of insurance provides for coverage in excess of such limitation in which case the limitation on liability shall be fixed at the amount for which insurance coverage has been purchased...." (Emphasis added.)
    207

    At the hearing to formalize the journal entry, Insurance Company of North America (the S.T.S. carrier) and Pacific Employers Insurance Company (the U.S.D. carrier), appeared as intervenors. Counsel for the intervenors carried the U.S.D.-S.T.S. argument that the judgment against U.S.D. should be limited in the amount of $500,000. The movants (U.S.D., S.T.S., and the two insurance companies) acknowledged K.S.A. 75-6111 but argued that the statute required that U.S.D. actually purchase the insurance with public funds. In the case at bar, the movants contend U.S.D. only purchased $500,000 in coverage (the Pacific Employers policy) 378*378 while S.T.S. purchased the $2,000,000 policy (Insurance Company of North America). The movants also contend that the provision in the U.S.D.-S.T.S. agreement, which provided that purchase of insurance by S.T.S. shall not constitute a waiver of exemption from liability under the KTCA, is significant. The movants argued that the indemnity agreement was not intended to waive the liability limit.

    208

    The intervening insurance companies are not before us on appeal.

    209

    The trial court ruled there was insurance in excess of $500,000 and the limitation was waived. The journal entry on the cross-claim entered judgment for U.S.D. against S.T.S. for $1,260,000 (70% of the total judgment of $1,800,000).

    210

    U.S.D.-S.T.S. assert that the requirement in the agreement that S.T.S. purchase insurance naming U.S.D. as an additional insured was to secure U.S.D.'s general right to indemnity also granted under the agreement. U.S.D.-S.T.S. contend that under K.S.A. 75-6111(a) the $500,000 liability limit is waived only if U.S.D. purchases insurance with coverage exceeding $500,000.

    211

    U.S.D. advances the policy argument that if the action taken in the case at bar is construed as a "purchase of insurance" constituting a waiver of the K.S.A. 75-6105(a) maximum liability provision, government entities will insist that their contractors limit liability coverage to $500,000. U.S.D. reasons that public policy and citizen interests are promoted by insisting that private contactors insure themselves according to the risk without fear that the government entity will waive the liability limit.

    212

    Amicus curiae KASB joins in U.S.D.'s policy arguments. We acknowledge the U.S.D.-amicus policy concerns; however, in our view, the expressed apprehension is more imagined than real.

    213

    The U.S.D.-S.T.S. arguments are not persuasive. First, we note the language of the agreement relied on by U.S.D. and S.T.S. states that the purchase of insurance by S.T.S. shall not constitute a waiver by U.S.D. of its liability exemptions under the KTCA. The KTCA liability exemptions are set out in K.S.A. 75-6104 (see paragraphs [a] legislative function, [b] judicial function, [c] law enforcement, [e] discretionary function, and others enumerated in the statute). The K.S.A. 75-6105 $500,000 limit on liability and the reference in K.S.A. 75-6111 to a contract of 379*379 insurance in excess of the $500,000 limit do not refer to KTCA liability exemptions but to monetary limits on liability exposure. The U.S.D.-S.T.S. reliance on the language of the agreement to support their $500,000 limit argument is misplaced.

    214

    Second, U.S.D. and S.T.S. overlook the statutory language of K.S.A. 75-6111, which states, "[A] governmental entity may obtain insurance...." (Emphasis added.) In the case at bar U.S.D. obtained insurance by contractual requirement. One of the S.T.S. obligations was the purchase of insurance to cover U.S.D. as an additional insured. The U.S.D.-S.T.S. emphasis on the word "purchase" is not compelling. U.S.D. prudently sought to cover any liability exposure it might have arising from the S.T.S. transportation agreement. U.S.D. contracted for a hold harmless indemnification from S.T.S. and for insurance coverage on the S.T.S. policy as an additional insured. S.T.S. complied with the terms of the agreement. U.S.D. received what it contracted for.

    215

    The $2,000,000 limit on U.S.D. liability as an additional insured applies only to claims arising under the S.T.S. transportation agreement. The public policy apprehension voiced by U.S.D. and amicus KASB is dispelled by insuring the district for $500,000, as an additional insured, and thus, limiting the district to the K.S.A. 75-6105 $500,000 liability.

    216

    The trial court did not err in refusing to limit the judgment against U.S.D. to $500,000.

    217

    The Damage Verdict

    218

    The trial court gave the following instruction concerning damages:

    219

    "NO. 12

    220
    "If you find for [H.R.], you will then determine the amount of her recovery. You should allow the amount of money as will reasonably compensate her for her injuries and losses resulting from the occurrence in question, including any of the following shown by the evidence.
    221
    "1. Pain, suffering, disabilities and any accompanying mental anguish suffered by [H.R.] to date and those she is reasonably expected to experience in the future;
    222
    "2. The reasonably necessary increased cost of supervised living expenses, reduced to present value; and
    223
    "3. Loss of income which is reasonably certain to be lost in the future, reduced to present value.
    224
    380*380 "In arriving at the amount of your verdict, you should consider [H.R.'s] age; condition of health, before and after; and the nature, extent, and duration of the injuries. For such items as pain, suffering, disability, and mental anguish, there is no unit value and no mathematical formula the court can give you. You should award such sum as will fairly and adequately compensate her, the amount to be awarded resting within your sound discretion.
    225
    "The total amount of your verdict may not exceed $5,000,000.00, the amount of plaintiff's claim."
    226

    The jury returned a special verdict form:

    227
    "4. If the answer to either of the above is `yes', what are [H.R.'s] damages in each of the following categories?

    229
          (A) Pain and suffering                                       $200,000      (B) Pain and suffering reasonably expected to be sustained            in the future                                          $100,000      (C) Disability to date                                       $100,000      (D) Disability reasonably expected to be sustained in the            future                                                 $100,000      (E) Mental anguish to date                                   $200,000      (F) Mental anguish in the future                             $100,000      (G) Increased cost of housing in the future                  $700,000      (H) Future wage loss                                         $300,000      "(Number of jurors in agreement                                  11 )"
    230

    U.S.D. and S.T.S. assert: (1) The evidence supporting the $200,000 award for pain and suffering was insufficient; (2) there was no evidence to support an award for future pain and suffering, disability to date, future disability, mental anguish to date, and future mental anguish; and (3) the $700,000 award for increased housing costs in the future and the $300,000 future wage loss award were based on speculation.

    231

    Plaintiff asserts that a prima facie case on these damage elements was presented to the jury.

    232

    Plaintiff's counsel initially told the jury that plaintiff was not seeking damages for pain and suffering and mental distress; however, counsel later informed the jury that plaintiff did suffer these items of damages. The trial court so instructed, and the jury awarded damages on these items. Counsel's earlier remarks do not bar recovery.

    233

    In an action for personal injuries, the trial court should instruct the jury only on those items of damages upon which there is 381*381 some evidence to base an award. Bridges v. Bentley, 244 Kan. 434, 441, 769 P.2d 635 (1989).

    234

    Ordinarily, the assessment of damages in a personal injury action is exclusively the province of the jury. Germann v. Blatchford, 246 Kan. 532, 537, 792 P.2d 1059 (1990).

    235

    When a verdict is attacked on the ground that it is contrary to the evidence, this court does not reweigh the evidence. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party below, will support the verdict, we should affirm. Tice v. Ebeling, 238 Kan. 704, 708, 715 P.2d 397 (1986).

    236

    A review of the special verdict form and the record indicates that there is evidence to support the elements of damage on the special verdict form, with the exception of the category of future pain and suffering.

    237

    (A) Pain and Suffering

    238

    H.R. told Detective Pamela Horn and Social Worker Dan Crask of EMCU that she cried when Davidson "poked" her. Plaintiff's expert, Social Worker Helen Swan, testified that H.R. said she cried when Davidson "poked" her. Swan said that this was her way of saying the event was painful. Both Swan and Dr. Milner were of the opinion that the abuse occurred over an extended period of time — nine months to a year.

    239

    Although the evidence was minimal and the award generous, the record supports this element of damage.

    240

    (B) Future Pain and Suffering

    241

    There is no evidence in the record to support this element of damage. The only evidence of future suffering relates to future mental anguish, a separate element of damages.

    242

    (C) Disability to Date and (D) Future Disability

    243

    Dr. Milner testified that H.R. was progressing until kindergarten, then her improvement stopped. H.R. is now regressing intellectually. The early years for those affected by Down's syndrome are very important for development. If H.R. does not "catch up" with her prior rate of development, which does not appear likely at this point, H.R. will have to be in a structured 382*382 environment of some sort. Dr. Milner also testified that H.R. is suffering from post-traumatic stress syndrome and the symptoms are continuing to occur. Dr. Milner believed that H.R. will not recover from this trauma for a considerable length of time.

    244

    (E) Mental Anguish to Date and (F) Mental Anguish in the Future

    245

    Dr. Milner testified that H.R. talked, with a lot of anxiety, about the bus driver. H.R. spontaneously began to masturbate in front of Dr. Milner at the mention of the bus driver. Children do not normally masturbate in public unless there is anxiety about something they are talking about. Depression and anxiety were apparent in H.R. earlier, but are not so much a problem now.

    246

    According to Swan, H.R. showed a lot of embarrassment, guilt, anger, and anxiety. Swan observed that H.R. showed signs of long-term damage. Because H.R. was (1) penetrated rather than just fondled, (2) threatened and told not to tell, and (3) abused for approximately a year, Swan testified that H.R. "comes up" on the severe side of trauma. H.R. still has extensive emotional damage and still suffers from the trauma.

    247

    (G) Increased Cost of Housing in the Future

    248

    Dr. Milner's opinion was that H.R. might have been a candidate for independent living when she reached adulthood before this trauma occurred. Dr. Milner reasoned that, if H.R. does not progress and if the sexualized and aggressive behavior continues, H.R. will have to be in a restrictive environment of some sort. The worst-case scenario is a hospital setting.

    249

    Michael Strouse, Executive Director of Community Living Opportunities, Inc., which provides services to mentally retarded people, testified for plaintiff regarding the cost of supervised living. Strouse stated that the cost of a semi-independent group home would be $30-$60 per day. The cost of 24 hour supervision which may be required for a Down's syndrome individual exhibiting excessive aggressiveness and excessive masturbation, would be $150 to $225 per day.

    250

    An economist, John Morris, appeared for plaintiff. Morris calculated the present value of the increased cost of care of H.R. from age 18 to her life expectancy of age 50. He used a figure 383*383 of $100 per day as increased cost of care and estimated the present value at $1.2 million.

    251

    (H) Future Wage Loss

    252

    Dr. Milner acknowledged that H.R. would not be able to work in a sheltered workshop if she could not control her aggressive and sexualized behavior. Dr. Milner did not know whether this behavior could be controlled, but all attempts so far have not worked.

    253

    Morris calculated the present value of estimated loss of earnings at $200,000 to $300,000. He based this estimate on a 40-hour work week using two levels of minimum wage, $3.35 per hour and $4.55 per hour, and on a life expectancy of age 50.

    254

    The awarded elements of damages and amounts are supported by the evidence with the exception of future pain and suffering ($100,000).

    255

    Evidence of mental suffering generally should not be considered to support an award of future pain and suffering (which should be limited to physical pain and suffering) when the verdict form also provides a category for mental anguish. See Leiker v. Gafford, 245 Kan. 325, 342, 778 P.2d 823 (1989).

    256

    It appears the trial court submitted the K.S.A. 1990 Supp. 60-249a itemized verdict form to the jury. The jury is to be instructed only on the items of damages upon which there is evidence to base an award. K.S.A. 1990 Supp. 60-249a(c). There is no evidence of future pain and suffering (special verdict form, item [B]). The verdict is reduced by $100,000. See Williams v. Withington, 88 Kan. 809, 816, 129 Pac. 1148 (1913).

    257

    We have held, in an action for unliquidated damages, that a plaintiff must either consent to a reduced verdict or receive a new trial. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 276, 553 P.2d 254 (1976). Under the facts of this case, the use of the itemized verdict form negates our traditional requirement of plaintiff's consent to a reduced verdict.

    258

    Davidson did not appeal. Plaintiff's judgment against Davidson is not affected by the instant appeal.

    259

    We remand to the trial court to enter judgments:

    260

    (1) For plaintiff against S.T.S. and U.S.D. in the amount of $1,700,000.

    261
    384*384 (A) For plaintiff against S.T.S. in the amount of $510,000.
    262
    (B) For plaintiff against U.S.D. in the amount of $1,190,000.
    263

    (2) For U.S.D. against S.T.S. on the U.S.D. cross-claim in the amount of $1,190,000.

    264

    Affirmed in part, reversed in part, and remanded.

    265

    HOLMES, C.J., not participating.

    266

    LOCKETT, J., concurring and dissenting:

    267

    I respectfully dissent from the majority's determination that K.S.A. 1990 Supp. 38-1522 does not provide a private right of action.

    268

    I must again dissent from the majority's departure from our prior decisions and the common law by determining the legislature did not intend to grant a private right of action when enacting K.S.A. 1990 Supp. 38-1522. See Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985), for prior dissent. The majority bases its decision in part on Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 740 P.2d 606 (1987), and the fact that the legislature did not expressly authorize a private right of action when that statute was enacted or revised in 1983, 1986, 1987, and 1988.

    269

    First, the majority misapplies Greenlee to the facts of this case. In Greenlee, a former county highway employee brought an action against the board of county commissioners for wrongful termination. Greenlee claimed he was terminated because the commissioners' reckless or intentional violation of the cash basis law resulted in loss of his job. In Greenlee, we noted the test of whether a person injured by the alleged violation of the cash basis law may recover from a wrongdoer in a private action in tort is whether the legislature intended to afford such a right when enacting the cash basis law. We observed that the purpose of the cash basis law is to prevent a deficit in the funds at the end of the fiscal year. We determined that the legislative purpose of the cash basis law was to protect the public from government overspending and was not intended to provide government employees with job security.

    270

    Here, there is no doubt that the legislature, by enacting 38-1522, intended to protect children. The rationale of Greenlee, therefore, does not apply.

    271

    385*385 The majority's determination that the legislature did not intend to authorize a private right of action when K.S.A. 1990 Supp. 38-1522 was enacted or revised in 1983, 1986, 1987, and 1988 is flawed. It reasons that, if the legislature intended a private right of action when enacting a statute that creates a duty, the legislature would have so stated. This reasoning departs from our prior common-law rule regarding a breach of a statutory duty.

    272

    It has long been the law of Kansas that negligence exists where there is a breach of a duty and there is a causal connection between the breach of the duty and the injury received. Rush, Adm'x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 135, 12 Pac. 582 (1887). The first requisite in establishing negligence is to show the existence of the duty which it is alleged has not been performed. A duty may be general and owing to everybody, or it may be particular and owing to a single person only by reason of that person's peculiar position. In order to justify a recovery, it is not sufficient to show that the defendant has neglected some duty or obligation existing at common law or imposed by statute, but that the defendant has neglected a duty or obligation which it owes to the party who claims damages for the neglect. Express Co. v. Everest, 72 Kan. 517, 522-23, 83 Pac. 817 (1906).

    273

    In Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 320 P.2d 1061 (1958), the plaintiff claimed that the railroad's train failed to sound its whistle at the crossing as required by law. The Kendrick court discussed the distinction between negligence and negligence per se. The court observed that "negligence per se" usually consists of the violation of a specific requirement of law or ordinance. It noted that the distinction between "negligence" and "negligence per se" is the means and method of ascertainment, in that negligence must be found by the jury from the evidence, while negligence per se results from violation of the specific requirement of law or ordinance, and the only fact for determination by the jury is the commission or omission of the specific act inhibited or required. The court recognized that we follow the rule that while a breach of duty imposed by law or ordinance is negligence per se, liability in damages cannot be predicated on a violation of law or ordinance unless the breach is the proximate cause of the injury or damages or substantially 386*386 contributes to them. Kendrick at 260. See Clark v. Mo. Pac. Rly. Co., 35 Kan. 350, 11 Pac. 134 (1886).

    274

    We have long recognized a duty may be general and owing to everybody, or it may be particular and owing to an individual by reason of that person's position. The majority of our tort law is premised on uniform traffic laws or other statutes that restrict or require certain conduct or acts. In Gabel v. Hanby, 165 Kan. 116, 193 P.2d 239 (1948), we held that the operator of a vehicle upon a public highway may assume that others driving the highway will observe the law. We noted that mere violations of the statutes regulating traffic on the highways, such as excessive speed, insufficient signals, and other matters of similar nature, are not sufficient to make a driver of an automobile liable for negligence in an action for damages growing out of a collision, unless it appears that such violations contributed to the accident and were the legal cause of the injuries sustained.

    275

    Certain of the uniform traffic laws have been amended, others repealed, and new traffic laws enacted during every legislature since the uniform laws were first enacted. We still recognize that negligence exists where there is a breach of a traffic law and a causal connection between the breach of the duty and the injury received, even though the legislature has always prescribed the penalty but has never expressly incorporated a private right of action into the law.

    276

    It is important to note that when the legislature has intended not to grant a private right of action when enacting a statute to protect the public, it has specifically stated its intent. For example, when the legislature enacted the child passenger safety statutes, K.S.A. 8-1343 et seq., in 1981 it required children of certain ages to be placed in safety restraining systems. K.S.A. 8-1344. In 1984, the legislature made it unlawful for any driver to violate K.S.A. 8-1344 and provided a fine of $10 for each violation. L. 1984, ch. 38, § 2. The legislature amended K.S.A. 8-1345 in 1989 to state that evidence of failure to secure a child in a child passenger safety restraining system under the provisions of K.S.A. 8-1344 shall not be admissible in any action for the purpose of determining any aspect of comparative negligence or mitigation of damages. L. 1989, ch. 40, § 2.

    277

    387*387 In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), when determining whether comparative negligence applied, this court noted there was a private right of action for personal injuries where liability was premised upon violation of a statute prohibiting sale of explosives to minors. The plaintiff's cause of action was predicated upon K.S.A. 21-4209, which prohibited anyone from knowingly selling, giving, or otherwise transferring any explosive or detonation substance to a person under 18 years of age. The Arredondo court recognized that a breach of duty, negligence per se, results from a finding that the statute was violated. It observed that liability follows a breach of a statutory duty if the violation is the proximate cause of the injury. The court recognized in the usual negligence per se case plaintiff's contributory negligence had been a defense. It noted that courts have found legislative intent to remove contributory negligence as a defense when the statute violated is one of two exceptional types: (1) the statute expressly removes the defense, as in the Federal Employers' Liability Act; and (2) such intent is found in the statute's character, its social purpose, and the background of the social problem and hazard to which it is directed, such as the child labor laws. The court concluded that comparative negligence applied when determining the percentage of fault of the parties. Justice Herd dissented, stating the statute operated to protect a class of persons traditionally protected under the law, namely, minors, even from their own inexperience, lack of judgment, and tendency toward negligence, and comparative negligence should not apply. 227 Kan. at 850.

    278

    The rationale of the Arredondo court that a breach of K.S.A. 21-4209 provided a private right of action should be applied to K.S.A. 1990 Supp. 38-1522. The purpose of each statute is to protect children. Each statute provides a criminal penalty. When enacting K.S.A. 1990 Supp. 38-1522, our legislature intended to authorize a private right of action, or it would have stated otherwise.

  • 2 Scott v. County of Los Angeles

    The plaintiff was a four-year-old child whose parents were both incarcerated. The plaintiff was put under the care of her grandmother, under the supervision of county workers. County workers failed to perform their mandatory supervisory duties and did not thoroughly investigate several reports on the grandmother's abuse of the plaintiff. The grandmother's abuse peaked in one episode, where she forcefully immersed the plaintiff's legs in scalding hot water for 30 seconds. The plaintiff suffered burn damage from the skin to the bone, nearly fatal infections of the legs, and permanent disfigurement and disability. The jury returned a verdict assigning 1% of the liability for the injuries to plaintiff's grandmother, and 99% of the liability to the county and its employee.

    How should courts apportion liability between entities that enable the plaintiff's harm through negligence (in this case, the county) and individuals that intentionally cause the harm (in this case, the grandmother)?

    1
    27 Cal.App.4th 125 (1994)
    2
    32 Cal. Rptr.2d 643
    3
    JIMMEE SCOTT, a Minor, etc., Plaintiff and Respondent,
    v.
    COUNTY OF LOS ANGELES et al., Defendants and Appellants.
    4
    Docket No. B067514.
    5

    Court of Appeals of California, Second District, Division Three.

    6
    July 29, 1994.
    7

    133*133 COUNSEL

    8

    Manatt, Phelps & Phillips, Robert E. Hinerfeld and Ronald B. Turovsky for Defendants and Appellants.

    9

    Voorhies & Kramer, Gutierrez & Gutierrez and Jean Ballantine for Plaintiff and Respondent.

    10

    OPINION

    11

    CROSKEY, J.

    12

    The County of Los Angeles (the County) and Zsa Zsa Maxwell, a children's services worker (CSW) in the County's department of children's services (DCS), appeal from the judgment of the superior court after a jury verdict. The jury awarded the seven-year-old plaintiff, Jimmee Scott, $1,191,692 in economic damages and $1,040,000 in general noneconomic damages, for a total of $2,231,692, for serious injuries she suffered as a result of the defendants' negligence in supervising her foster care. Jimmee had been placed in the home of her grandmother, Dorothy Bullock, under DCS supervision.[1]

    13

    The central issues raised by the appeal concern (1) the impact of requirements imposed upon local governments by regulations in the state Department of Social Services (DSS) Manual of Policies and Procedures (DSS Manual), (2) the extent to which shortfalls in local governments' budgets may or may not excuse performance of mandatory duties imposed by such regulations, and (3) the manner of apportioning fault where one or more 134*134 defendants are sued for negligence, and the defendants' negligence consisted of failing to protect the plaintiff from the intentional acts of another defendant or a third party.

    14

    The DSS regulations at issue establish requirements for the supervision by county social service agencies of children placed in foster care under the agencies' supervision. In particular, when the events giving rise to this case took place, regulation 30-342 required monthly visits to be made to the home where each child is placed, subject to specific exceptions which are set forth in the regulation.[2]

    15

    Regulation 30-342, its successor regulation 31-320, and other regulations applicable to this case are regulations duly promulgated by the DSS pursuant to section 16501 of the Welfare and Institutions Code and impose mandatory duties upon local agencies.[3] We therefore hold that public entities are liable under section 815.6 of the Government Code for injuries to children in foster 135*135 care which occur as a result of any violation of those duties;[4] such public entities and their employees are not immune under Government Code sections 815.2 and 820.2 for violations of those duties.[5] We also hold that functions performed by a county welfare agency pursuant to Welfare and Institutions Code section 16500 and following are separate and distinct from those quasi-prosecutorial functions in connection with proceedings under Welfare and Institutions Code section 300, which are commonly delegated to county welfare departments pursuant to Welfare and Institutions Code section 272.[6] Thus, a county and its employees are not immune under Government Code sections 815.2 and 821.6 for negligence in the performance of such functions.[7] Nor do shortfalls in government budgets excuse the performance of mandatory duties imposed by the regulations.

    16

    136*136 On the issue of apportionment of damages between one or more negligent defendants and a nonparty intentional tortfeasor, we hold that: (1) the jury's apportionment of damages was not supported by substantial evidence, and (2) the jury should have been instructed, pursuant to Weidenfeller v. Star & Garter (1991) 1 Cal. App.4th 1 [2 Cal. Rptr.2d 14], that a defendant may be found liable for noneconomic damages only in proportion to the total fault of all persons whose acts were a legal cause of the plaintiff's injuries, whether or not all such persons have appeared in the action, and whether their acts were intentional or negligent.

    17

    The jury found that Maxwell negligently failed to comply with regulation 30-342, and as a proximate result of Maxwell's negligence, for which the County is liable, Jimmee remained in an abusive and dangerous home where she ultimately was severely injured. The jury apportioned 1 percent of the fault to Bullock, and 99 percent to Maxwell and the County. Although we reject the defendants' claims of immunity, we do find the jury was not properly instructed on the apportionment of fault and that the court misapplied the collateral source rule. We therefore reverse the judgment and remand the matter for a redetermination of those issues.

    19
    FACTUAL AND PROCEDURAL BACKGROUND
    20

    Plaintiff Jimmee Scott was just under four years of age on June 28, 1988, the day on which her grandmother, Dorothy Bullock, immersed her legs in scalding water, inflicting deep burns that will leave Jimmee disabled and disfigured for life, and for which Bullock has been imprisoned for child abuse and corporal injury to a child.

    21

    Jimmee was in Bullock's care by order of the juvenile court and under the supervision of the DCS after she was abandoned by her mother, Latitia Bullock, approximately a year and a half before the date of her injuries.

    22

    On February 23, 1987, Jimmee's aunt, Debra Bullock, telephoned DCS, because Latitia had left Jimmee and Jimmee's five-year-old sister, Rickitia Canady, with her. Debra did not know where Latitia had gone, and she could not care for the children herself. The children's fathers, Jim Scott and Tyrone Canady respectively, were incarcerated, as was Latitia. The girls' case was placed into the County's "Emergency Response" program, "triaged," and assigned to CSW Donald Walker, one of the original defendants in this action, for response within three days.[8]

    23

    The next day, February 24, 1987, the County received a call from Bullock, saying Rickitia and Jimmee were now with her. On February 25, within the 137*137 assigned three-day response time, Walker met with Bullock and the girls in Bullock's home. Given the choice of whether to have Jimmee and Rickitia declared dependent children of the juvenile court, Bullock said she wished the court to take jurisdiction of the girls.

    24

    Subsequently, Walker located the girls' mother, Latitia, in jail. Latitia expressed concern about the children's placement with Bullock, stating Bullock was only interested in obtaining money for the minors. Still, she agreed the children could be placed with Bullock until she was released from jail.

    25

    On March 2, 1987, a hearing was held on the issue of whether Jimmee and Rickitia should be detained or released to Bullock or another relative. At the conclusion of the hearing, the case was transferred from the Emergency Response Program to Family Reunification. At a further hearing on March 9, the court signed a detention release order placing the children with Bullock under DCS supervision.

    26

    Walker, who continued to supervise Jimmee's placement, visited Jimmee and Rickitia on a monthly basis on March 26, April 28, May 20, and June 10, 1987. For two weeks, beginning May 26, Walker was on vacation. During his absence, Jimmee's aunt, Carla Heywood, telephoned DCS and advised a supervisor that she believed Bullock was using excessive discipline with the children, including leaving Jimmee on the toilet for three hours at a time and refusing to give her breakfast until 4 in the afternoon. This call was registered in the children's case log, and Heywood was assured that the matter would be investigated. Also recorded in the log was a complaint from Latitia that Bullock was mistreating the children.

    27

    Walker made an unannounced visit to Bullock's home on June 10, at which time he inquired about Bullock's discipline of the children. Bullock denied she used undue punishment. Nevertheless, Walker referred Bullock and the children to Dr. Clara Johnson for counseling and memorialized the referral in the case log.

    28

    After June 10, 1987, Jimmee's case was transferred to Maxwell. Maxwell testified at trial that she did not review the file and did not become aware of Heywood's allegations of excessive discipline.

    29

    138*138 Dr. Johnson, to whom Walker referred Bullock and the children for counselling, was never made aware by DCS of the reason for the referral. Instead, Dr. Johnson was told by Bullock that the girls were referred for counselling because Jimmee was "acting out sexually" and needed to be evaluated for signs of sexual molestation. After interviewing the girls, Johnson found no indication of sexual abuse, and having no basis for investigating any other problems, determined the children were in a stable placement and in no danger. She so advised Maxwell on approximately August 18, 1987.

    30

    Maxwell's case log did not indicate any visits with Jimmee and Rickitia in Bullock's home before December 24, 1987, although she prepared a report for a judicial review of the children's status on November 24, 1987. Thereafter, Maxwell's entries in the log indicate face-to-face visits on January 13, February 22 and April 10. However, a handwriting expert testified that those entries appeared to have been made after June of 1988. Maxwell herself admitted she made the entries "possibly [in] June" of 1988.

    31

    Maxwell testified she did not visit Jimmee monthly, as required by the regulation 30-342 of the DSS Manual, because she had determined the placement was stable and did not require such intense supervision. However, under regulation 30-342, she was not authorized to make this determination without written authorization from her supervisor. No written authorization for a reduced schedule of face-to-face contacts appears in the service log.

    32

    In May of 1988, DCS received telephone calls from Carla Heywood expressing concern about Bullock's treatment of the children. In that same month DCS also received a call on a child abuse hotline from a neighbor, Louber Cole, who reported seeing Jimmee with two black eyes. Maxwell did not visit the children to investigate these calls, but instead merely telephoned Bullock, who assured her the children were in good condition and all was well. Maxwell did not mention the allegations of abuse by Heywood and Cole in her report to the juvenile court, filed May 24, 1988. After the hearing in which that report was received, Jimmee and Rickitia were placed in long-term foster care in Bullock's custody.

    33

    A month later, on June 25, 1988, Bullock immersed Jimmee's legs in scalding water and held her in that position for approximately 30 seconds as estimated by Jimmee's treating physician, causing burns which went through the skin, the fat under the skin, and the muscle, causing damage to the bone. Bullock did not take Jimmee for treatment until three days later, on June 28, 1988, by which time Jimmee was near death from severe infections caused by her burns.

    34

    139*139 In a criminal action, Bullock was convicted of two counts of child abuse and one count of inflicting corporal injury upon a child. In this action, in addition to receiving general instructions on negligence, legal cause and damages, the jury was instructed on the County's mandatory duties under Welfare and Institutions Code section 16501 and DSS regulation 30-342, including the duty to have monthly face-to-face contact with each child in foster care and monthly contact with each foster care provider. So instructed, and based upon all of the above evidence, the jury found the County and Maxwell, but not Dr. Johnson, liable for negligently failing to protect Jimmee from the severe abuse and injuries she received at the hands of Bullock. In a special verdict, the jury found that 1 percent of the negligence which was a legal cause of Jimmee's injuries was attributable to Bullock, 75 percent was attributable to the County, and 24 percent was attributable to Maxwell. This timely appeal followed.

    36
    CONTENTIONS ON APPEAL
    37

    The defendants contend that: (1) the County and Maxwell are immune from liability for Jimmee's injuries under Government Code sections 815.2, subdivision (b), 820.2, and 821.6; (2) the court improperly took judicial notice that state DSS regulations impose mandatory duties upon the County; (3) the court erroneously precluded defendants from presenting evidence of severe budgetary constraints which prevented the County from employing sufficient caseworkers, thereby preventing the defendants from proving they exercised "reasonable diligence," within the meaning of Government Code section 815.6 to discharge mandatory duties to Jimmee; (4) the jury's apportionment of fault was not supported by substantial evidence; (5) the jury was misled by the special verdict as to the proper manner of apportioning fault; (6) the court erroneously excluded evidence of collateral source payments of Jimmee's medical expenses; and (7) the rate of postjudgment interest assessable against the County and Maxwell is 7 percent.

    39
    DISCUSSIONS

    41
    1. The County Is Liable to Jimmee Under Government Code Section 815.6, and the Defendants Are Not Immune From Liability Under Section 815.2, 820.2 or 821.6.
    42

    (1a) Government Code section 815.6 provides that if a public entity has a mandatory duty imposed by an enactment that is designed to prevent a particular kind of injury, the entity is liable for an injury of that kind that is proximately caused by its failure to discharge the duty, unless the entity establishes that it exercised reasonable diligence to discharge the duty. (See 140*140 fn. 4, ante.) Jimmee contends that (1) DCS had a mandatory duty imposed by DSS regulation 30-342 to have face-to-face contact with Jimmee, her sister and Bullock at Bullock's home on a monthly basis; (2) the regulation was designed to prevent injury to children in foster care; (3) DCS failed to discharge its duty under the regulation; and, as a result, (4) DCS allowed Jimmee to remain in an abusive and dangerous situation in Bullock's home, where Jimmee ultimately suffered disabling and disfiguring injuries.

    43

    DCS and Maxwell contend they are immune from liability under Government Code sections 815.2, 820.2, and 821.6. Section 815.2 immunizes a public entity from liability arising from the acts of its employee where the employee is immune from liability; section 820.2 immunizes a public employee from liability for acts or omissions resulting from the exercise of the discretion vested in the public employee; and section 821.6 immunizes a public employee from liability for the institution or prosecution of judicial or administrative proceedings within the scope of his or her employment. (See fns. 5 and 7, ante.) We discuss each of these statutory provisions.

    45
    a. Government Code Section 815.2.
    46

    (2), (1b) Under Government Code section 815.2, subdivision (a), the County is liable for acts and omissions of its employees under the doctrine of respondeat superior to the same extent as a private employer. Under subdivision (b), the County is immune from liability if, and only if, Maxwell is immune. The sole bases under which it is claimed Maxwell is immune are the immunities for discretionary acts of government officials (Gov. Code, § 820.2) and prosecutorial immunity (Gov. Code, § 821.6). As the following discussion demonstrates, neither claim of immunity has any merit.

    48
    b. Government Code Section 820.2.
    49

    Section 820.2 of the Government Code provides that a public employee is not liable for an injury which results from the employee's act or omission in the performance of a discretionary function. (§ 820.2; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 748 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]; Ronald S. v. County of San Diego (1993) 16 Cal. App.4th 887, 896 [20 Cal. Rptr.2d 418]; Alicia T. v. County of Los Angeles (1990) 222 Cal. App.3d 869, 882-883 [271 Cal. Rptr. 513].) However, the statute protects only acts and omissions occurring in "the exercise of the discretion vested in" the employee. (§ 820.2; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261 [74 Cal. Rptr. 389, 449 P.2d 453]; Wallace v. City of Los Angeles (1993) 12 Cal. App.4th 1385, 1403-1404 [16 Cal. Rptr.2d 113].)

    50

    In the landmark case construing this phrase, Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal. Rptr. 240, 447 P.2d 352], the Supreme Court 141*141 held that the mere existence of discretionary choice in the act to be performed does not bring the act within the reach of Government Code section 820.2, as virtually all acts a governmental employee is called upon to perform involve some degree of choice. (69 Cal.2d at pp. 788-790.) Rather, the high court held, immunity should attach only to those decisions which involve "basic policy" choices which constitute an exercise of discretion by a coordinate branch of government and therefore should "`remain beyond the range of judicial inquiry.'" (Id. at p. 793, quoting 3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484.)

    51

    The court thereafter noted, in McCorkle v. City of Los Angeles, supra, 70 Cal.2d 252, that claims of immunity by public employees had "frequently required judicial determination of the category into which the particular act falls: i.e., whether it was ministerial because it amounted `only to obedience to orders, or the performance of a duty in which the officer is left no choice of his own,' or discretionary because it required `personal deliberation, decision and judgment.' [Citation]." (70 Cal.2d at pp. 260-261.)

    52

    Actions which have been found to be within the discretion of a public employee, and therefore immune under section 820.2, have included the decision to initiate dependency proceedings in behalf of a minor (Alicia T. v. County of Los Angeles, supra, 222 Cal. App.3d at pp. 882-883).[9] Actions which have been found "ministerial" and thus not immune have included negligence, essentially of the same kind as is alleged here, in the supervision of a minor in foster care. (Elton v. County of Orange (1970) 3 Cal. App.3d 1053, 1057 [84 Cal. Rptr. 27].)[10] (3) Actions that are manifestly ministerial, because they amount only to obedience to orders which leave the officer no choice, plainly include actions governed by specific statutory or regulatory directives. Such actions have been found nondiscretionary, and thus not immunized, because they entail the fulfillment of enacted requirements. (Ramos v. County of Madera (1971) 4 Cal.3d 685, 694 [94 Cal. Rptr. 421, 142*142 484 P.2d 93]; Wheeler v. County of San Bernardino (1978) 76 Cal. App.3d 841, 849 [143 Cal. Rptr. 295]).[11]

    53

    (1c) In this case, regulation 30-342 required a social worker to "monitor the ... physical and emotional condition" of a child in foster care and "take necessary action to safeguard the child's growth and development while in placement." Specifically, the regulation required a social worker, in the monitoring and safeguarding of a child, to have monthly face-to-face contact with the child and the foster parent, except in specified circumstances. Under regulation 30-342 and its successor regulation 31-320, such regular periodic contacts are required unless the placement has been determined to be stable, the child is placed with a relative, or there exist other facts, inapplicable here, and written second level supervisory approval for less frequent visits has been obtained. (For the text of this regulation, see fn. 2, ante.) The regulation 30-342 requirements, including the requirement of monthly face-to-face contact, plainly constituted mandatory requirements which left Maxwell no choice on the issue of the frequency of visits to Jimmee.

    54

    Although Jimmee was placed with a relative, Maxwell had no reliable basis for her conclusion that the placement was stable. Further, there was no evidence that a supervising social worker had given written approval for a reduced schedule of visits. Thus, her failure to visit Jimmee on a monthly basis was not an omission resulting from an exercise of discretion vested in Maxwell under the regulation; consequently, it was not an immune activity under Government Code section 820.2.

    55

    We concluded in Alicia T. v. County of Los Angeles, supra, 222 Cal. App.3d 869, that a social worker's decision to institute dependency proceedings must be discretionary because of the urgent necessity of "the continuing exercise of ... discretion in favor of the protection of minor children." (222 Cal. App.3d at p. 883.) The same consideration compels us to determine in this case that individual county social workers do not have discretion regarding compliance with regulations requiring monthly home visits to children in foster care. The standards set by DSS Manual regulation 30-342 establish minimum schedules for home visits. If those standards are deemed discretionary, the effect can only be to decrease, not increase, the protection afforded to children. Maxwell had no discretion to visit Jimmee less frequently than monthly.

    57
    143*143 c. Government Code Section 821.6.
    58

    (4) We also reject the contention that Maxwell's challenged acts and omissions were immune under Government Code section 821.6. Social workers indeed have immunity under that section for their conduct in the initiation and prosecution of proceedings under sections 300 through 396 of the Welfare and Institutions Code. (Ronald S. v. County of San Diego, supra, 16 Cal. App.4th 887, 899; Alicia T. v. County of Los Angeles, supra, 222 Cal. App.3d at p. 883; Jenkins v. County of Orange (1989) 212 Cal. App.3d 278, 283 [260 Cal. Rptr. 645].) However, the negligence with which the defendants are charged in this case did not occur in the performance of their prosecutorial, or quasi-prosecutorial functions.[12]

    59

    The responsibilities of public welfare agencies respecting children are set forth in two separate divisions of the Welfare and Institutions Code. Division 2 of the code, in particular chapter 2 of part 1 of that division (The Juvenile Court Law, § 200 et seq.), provides for court jurisdiction over minors who are abused or neglected by their parents or guardians (Welf. & Inst. Code, § 300 et seq.), habitually disobedient or truant minors (Welf. & Inst. § 601 et seq.), and minors who commit crimes (Welf. & Inst. Code, § 602 et seq.). Section 272 in that chapter authorizes a county board of supervisors to delegate to the county welfare department all or part of the duties of the probation officer concerning abused or neglected children who are made dependents of the juvenile court. Only those functions performed by child welfare workers under section 272 may reasonably be included among the prosecutorial and quasi-prosecutorial functions which are entitled to immunity under Government Code section 821.6.

    60

    The actual delivery of public social services, such as foster care, to abused, neglected or exploited children is governed by division 9 of the Welfare and Institutions Code, respecting public social services, in particular part 4 of that division, respecting services for the care of children. (§ 10001, subd. (c); § 16501.) The delivery of such services is a county function, which is subject to the regulations of the State Department of Social Services and of the State Department of Health Services respecting all services for which state and federal funds are provided. (Welf. & Inst. Code, § 10800.)[13]

    61

    The acts and omissions complained of in this case occurred in the delivery of "public social services" as defined in Welfare and Institutions Code 144*144 section 10051 and governed by division 9, sections 10000 through 18989.3, of that code. In particular, they occurred in the delivery of "child welfare services," as defined in Welfare and Institutions Code section 16501 and governed by part 4, sections 16000 through 16583, of division 9. These functions are separate and distinct from those quasi-prosecutorial functions which are entitled to Government Code section 821.6 immunity.

    62

    (5) Where there is negligence, as there manifestly was in this case, liability for resulting harm is the rule, and immunity is the exception. (Ramos v. County of Madera, supra, 4 Cal.3d at p. 692; Johnson v. State of California, supra, 69 Cal.2d at p. 798; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 219 [11 Cal. Rptr. 89, 359 P.2d 457].) Accordingly, particular immunities have been strictly construed to apply only to the functions which the statute or common law rule creating each immunity was intended to protect; immunities have not been applied to other activities, whether or not the person claiming immunity sometimes, or even ordinarily, fulfills the protected functions. (See, e.g., Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-720 [117 Cal. Rptr. 241, 527 P.2d 865]; James W. v. Superior Court (1993) 17 Cal. App.4th 246, 255-257 [21 Cal. Rptr.2d 169].)

    63

    This limitation upon immunities is manifestly just. An immunity is, after all, a license to harm. Thus, it should not extend beyond those functions which are so necessary to the public good that the public benefit from the free exercise of discretion in such functions plainly outweighs the private harm that may flow from misfeasance.

    64

    (6) CSW's must be entitled to prosecutorial immunity for instituting and processing proceedings under Welfare and Institutions Code section 300, because the urgent need for the protection provided by such proceedings outweighs the harm which may flow from an erroneous decision to initiate them. (Alicia T. v. County of Los Angeles, supra, 222 Cal. App.3d at p. 883.) The same balance of interests does not affect the separate and distinct functions of supervising the foster care of children who are the subject of dependency proceedings. Thus, there is no policy reason for extending prosecutorial immunity to these nonprosecutorial functions and there is no immunity.

    66
    2. The Court Properly Took Judicial Notice of Regulations in the DSS Manual.
    67

    (7) The County next contends the court improperly took judicial notice of DSS regulation 30-342, portions of which were read to the jury in special instruction 7. We disagree.

    68

    145*145 Section 451 of the Evidence Code requires judicial notice to be taken of matters made a subject of judicial notice by Government Code section 11343.6. That statute requires judicial notice to be taken of the contents of regulations that are adopted by state agencies and filed with the Secretary of State.

    69

    Welfare and Institutions Code section 16501 requires the DSS to establish regulations for the supervision of the care received by children in foster care. The regulations formerly found in division 30 of the DSS Manual, including regulation 30-342, were regulations established by the DSS pursuant to section 16501. Those regulations, as are their successor regulations in division 31, were duly adopted pursuant to the Administrative Procedures Act (Gov. Code, § 11340 et seq.) and filed with the Secretary of State. (See Cal. Code Regs., tit. 22, div. 2, pt. 1, "Department of Social Services — Manuals of Policies and Procedures.") The regulations thus have the force of law and are matters subject to mandatory judicial notice. (Evid. Code, § 451; Gov. Code, § 11343.6; People v. Haugh (1963) 216 Cal. App.2d 603, 606 [31 Cal. Rptr. 74] [construing Gov. Code, former § 11383, which provided the same as § 11343.6 in relevant part].)

    70

    Jimmee's expert, Albert A. Colon, a former chief of family and children's services for the state DSS, testified in a hearing under Evidence Code section 402 that the version of regulation 30-342 which Jimmee submitted to be read to the jury was duly adopted and filed in 1985 and was in effect in 1987 and 1988. Colon's testimony provided a sufficient basis for judicial notice of the regulation. (People v. Haugh, supra, 216 Cal. App.2d at p. 606.)

    72
    3. The Court Did Not Improperly Exclude Evidence of Reasonable Efforts by the County to Discharge Its Mandatory Duties.
    73

    (8a) The County next contends it was erroneously precluded from presenting evidence of its extreme budgetary limitations, which it contends prevented its employees from fully and literally complying with regulatory requirements. Under Government Code section 815.6, a government agency is liable for failure to fulfill mandatory duties if resulting injuries are of a kind which the enactment imposing the duty was designed to prevent. However, there is no such liability if the public entity establishes it exercised reasonable diligence to discharge the duty. (See fn. 4, ante.) The County contends it could have established that it exercised "reasonable diligence" to fulfill its duties to Jimmee if the court had allowed it to show its diligence in supervising Jimmee's placement was reasonable, given existing budgetary constraints.

    74

    The County's contention lacks merit for two reasons. First, the record does not support the County's claim that it was precluded from presenting 146*146 evidence of its financial constraints.[14] The defendants have not demonstrated that any specific evidence of financial constraints, or their effect on DCS, was ever excluded.

    75

    Secondly, and more importantly, even assuming arguendo that specific evidence of financial constraints had been offered and excluded, such exclusion would have been proper, as the evidence would have been irrelevant. Financial limitations of governments have never been, and cannot be, deemed an excuse for a public employee's failure to comply with mandatory duties imposed by law. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 217 [211 Cal. Rptr. 398, 695 P.2d 695]; Mooney v. Pickett (1971) 4 Cal.3d 669, 680 [94 Cal. Rptr. 279, 483 P.2d 1231]; Wallace v. City of Los Angeles, supra, 12 Cal. App.4th at p. 1402.)

    76

    (9) It is indeed true that Welfare and Institutions Code section 10001, subdivision (a), makes the provision of public social services subject to "the limits of public resources." However, sound public policy precludes delegating to individual public employees the determination of the manner in which limited resources are to be utilized, particularly where specific statutes or regulations state specific requirements. (Ramos v. County of Madera, supra, 4 Cal.3d 685, 693.)

    77

    (8b) Policies for the supervision of children in foster care are established at the state level by the state DSS. (Welf. & Inst. Code, § 16501.) The DSS Manual, including regulation 30-342, establishes requirements for the frequency of home visits to such children. Local governments and their employees have the merely ministerial duty of carrying out these requirements. If the requirements cannot be fulfilled with funding available to a local agency, the agency must address its concerns to those with the authority to set policy, not to the courts by way of excusing violations of mandatory requirements.[15]

    79
    147*147 4. Apportionment of Fault.
    80

    (10a) Defendants next contend that, if they are not immune from liability for Jimmee's injuries, they are at least not liable to the extent stated in the jury's verdict, which sets the County's liability at 75 percent, Maxwell's at 24 percent, and that of the apparently judgment-proof Bullock at only 1 percent. The defendants contend the jury's apportionment of fault was the result of passion and prejudice and was not supported by the evidence. The defendants also contend the jurors were confused by the special verdict form as to the manner in which fault should be apportioned among the County, Maxwell and Bullock, and therefore were unable to make a proper apportionment. We believe both contentions have merit.

    82
    a. Sufficiency of the Evidence.
    83

    (11) We review a jury's apportionment of fault under the substantial evidence standard and will disturb the finding only if unsupported by the evidence. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal. Rptr. 568, 496 P.2d 480]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal. App.3d 1467, 1484 [255 Cal. Rptr. 755]; Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal. App.3d 681, 687 [152 Cal. Rptr. 172].) (10b) While the evidence was plainly sufficient to support the jury's finding that the defendants' negligence was a substantial contributing cause of Jimmee's injury, we fully agree with the defendants' contention that an allocation of only 1 percent of the fault to Bullock was improper as a matter of law.

    84

    Division One of this court has recently reached a similar result in Pamela B. v. Hayden[*] (Cal. App.). In that case, the plaintiff was assaulted and raped in the garage of her apartment building. A jury found the landlord's failure to provide adequate security in the garage was a legal cause of the plaintiff's injury, awarded the plaintiff $1.2 million in damages, and attributed 95 percent of the fault for her injury to the landlord, while attributing only 4 percent to the rapist and 1 percent to his aider and abettor. Announcing the result in that case, Justice Vogel pronounced the apportionment of fault "blatantly unfair, inequitable and unsupported...." (25 Cal. App.4th at p. 805.) The result here is similarly unsupported and unsupportable.

    85

    148*148 We would agree that the defendants here are more culpable than the landlord in Pamela B. and it would not be unreasonable to find their share of responsibility for Jimmee's damages greater than that which might ultimately be imposed on Pamela B.'s landlord. That landlord, after all, was guilty at worst of a passive omission (25 Cal. App.4th at pp. 801-803), while the defendants here, acting with the authority and power of the state, delivered Jimmee into Bullock's hands, kept her there by force of law, and yet ignored other laws which were intended for Jimmee's protection and which required them to act.

    86

    In addition, the landlord in Pamela B. had only the general duty imposed upon a possessor of land to exercise ordinary care in the management of his property. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 118-119 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) By contrast, Maxwell's primary duty, when acting within the scope of her employment, was the protection of children in foster care.[16] She thus had a duty to the plaintiff that was greater than the general duty of ordinary care. (Cf. Rosh v. Cave Imaging Systems, Inc., supra, 26 Cal. App.4th at p. 1238.)

    87

    The relatively active role of the defendants in causing Jimmee's harm, together with their heightened duty to prevent it, is a circumstance which suggests these defendants may reasonably be found more culpable than an ordinary citizen who fails to protect another from criminal acts, and hence may reasonably be assigned a greater proportion of the blame for Jimmee's harm. Still, the evidence cannot be stretched to support an apportionment of 99 percent of the fault to the negligent defendants and only 1 percent to the person who filled a tub with scalding water, lifted Jimmee into it and held her there until her flesh was burned to the bone. No reasonable jury could conclude Bullock's fault was as trifling as the jury's allocation would suggest.

    89
    b. Instructional Error.
    90

    (12) It was reasonably likely that the language in the special verdict form misled the jury as to the proper manner of apportioning fault. The special verdict form posed four questions: (1) whether any of the defendants 149*149 in the action was negligent; (2) if any defendant was negligent, whether such negligence was a legal cause of Jimmee's injuries; (3) the amount of Jimmee's economic, noneconomic and total damages; (4) the percent of negligence of each defendant and of Bullock.[17]

    91

    Apparently confused by the last question, the jury asked the court for clarification about "the addition of Dorothy Bullock as `other person' in Question 4 item (d) ... in general and as it pertains to negligence as a legal cause." When the jury's query was read, the defendants asked that Bullock's name be added to questions 1 and 2. However, the court declined to do so.

    92

    We cannot fault the court for so ruling, as such addition would have done little to clarify how fault was to be apportioned in question 4. It is the language of question 4 itself that was misleading as to the proper manner of assessing proportional liability in a case where one or more defendants are negligent and another defendant, or an unnamed third party, intentionally caused the plaintiff's injuries.

    93

    Section 1431.2 of the Civil Code provides that in an action for personal injury based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several, not joint, and each defendant shall be liable "only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault. ..." (Italics added.) Shortly after modifying the common law principle of equitable indemnity in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal. Rptr. 182, 578 P.2d 899] to include principles of comparative fault (20 Cal.3d at p. 598), the Supreme Court held that such principles apply between a negligent defendant and one whose liability derives from principles of strict liability. (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328 [146 Cal. Rptr. 550, 579 P.2d 441].) The Nest-Kart court concluded that "... juries are fully competent to apply comparative fault principles between negligent and strictly liable defendants." (Id. at p. 331.)

    94

    A recent appellate court decision, Weidenfeller v. Star & Garter, supra, 1 Cal. App.4th 1, applied the reasoning of Nest-Kart, supra, to a case in which the jury had apportioned liability between a negligent defendant and a third 150*150 party who intentionally assaulted the plaintiff. The Weidenfeller court held that an action in which one tortfeasor acted negligently and another acted intentionally is "an action based upon principles of comparative fault," and therefore Civil Code section 1431.2 applies to such an action. (1 Cal. App.4th at pp. 6-7.)[18]

    95

    The total liability in Weidenfeller was divided between the negligent and intentional actors, even though only the former was named as a defendant. Such a division of liability between sued and unsued persons has since been ratified by the Supreme Court. In DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 [7 Cal. Rptr.2d 238, 828 P.2d 140], the high court construed section 1431.2 to mean a defendant is liable only for a proportionate share of noneconomic damages as compared with all fault, and not merely as compared with the fault of the defendants present in the lawsuit. (2 Cal.4th at pp. 603-604.)

    96

    Here, the jury was correctly instructed to apportion liability for Jimmee's injuries among Maxwell, the County and Bullock, even though Bullock did not appear. (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at pp. 603-604; Weidenfeller v. Star & Garter, supra, 1 Cal. App.4th at pp. 4-5.) However, the special verdict form asked the jury only to determine the percentage of negligence by each named person, which was a legal cause of Jimmee's injuries. Inasmuch as Bullock's act in burning Jimmee was entirely and obviously intentional, and only her subsequent failure to seek immediate medical treatment could conceivably be considered merely negligent, the jurors might reasonably have found only 1 percent of the negligence which caused the tragic chain of events was Bullock's, even if they believed her share of the fault, within the meaning of Civil Code section 1431.2, was greater.

    97

    The special verdict in this case substantially followed the language of the standard special verdict in BAJI No. 16.00, designed for use in actions for negligence.[19] However, under principles established in DaFonte v. Upright, Inc., supra, 2 Cal.4th 593, Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d 151*151 322 and Weidenfeller v. Star & Garter, supra, 1 Cal. App.4th 1, a more appropriate form of special verdict would be one which follows the language of the standard special verdict in BAJI No. 16.12.[20]

    98

    The use note following BAJI No. 16.12 indicates it is designed only for use in cases involving defective products liability with comparative fault and claims of comparative implied indemnity. Such use follows the rule of Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d 322. However, we are in accord with the court in Weidenfeller v. Star & Garter, supra, 1 Cal. App.4th 1, and believe that precisely the same principles apply in cases involving liability based upon commission of an intentional tort with comparative fault and claims of comparative implied indemnity. (13) It follows that in all cases in which a negligent actor and one or more others jointly caused the plaintiff's injury, the jury should be instructed that, assuming 100 percent represents the total causes of the plaintiff's injury, liability must be apportioned to each actor who caused the harm in direct proportion to such actor's respective fault, whether each acted intentionally or negligently or was strictly liable (Safeway Stores, Inc v. Nest-Kart, supra, 21 Cal.3d at p. 328; Weidenfeller v. Star & Garter, supra, 1 Cal. App.4th at pp. 7-8), and whether or not each actor is a defendant in the lawsuit (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 602). Obviously, only theories of liability actually supported by the evidence should be mentioned in the instruction.

    100
    c. Prejudice of the Misleading Verdict Form.
    101

    (14a) In our view, the confusing language used in the verdict form, which obviously is in the nature of a jury instruction, was prejudicial to the 152*152 County. (15) "`Article VI, section 13 of the California Constitution provides that error in instructing the jury shall be grounds for reversal only when the reviewing court, "after an examination of the entire cause, including the evidence," concludes that the error "has resulted in a miscarriage of justice." The test of reversible error has been stated in terms of the likelihood that the improper instruction misled the jury. [Citation.]' [Citations.] Thus, if a review of the entire record demonstrates that the improper instruction was so likely to have misled the jury as to become a factor in the verdict, it is prejudicial and a ground for reversal. [Citation.] `To put it another way, "[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court `should not speculate upon the basis of the verdict'" [Citations.]' [¶] `The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all of the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.' [Citations.]" (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App.4th 306, 335 [5 Cal. Rptr.2d 594].)

    102

    (16) Among the factors which are considered in assessing the prejudice of an erroneous or misleading jury instruction are (1) the degree of conflict in the evidence on critical issues, (2) whether the jury requested a rereading or clarification of the erroneous instruction, (3) the effect of other instructions in remedying the error and (4) the closeness of the jury's verdict. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876 [148 Cal. Rptr. 355, 582 P.2d 946]; Osborn v. Mission Ready Mix (1990) 224 Cal. App.3d 104, 123-124 [273 Cal. Rptr. 457].)

    103

    (14b) Here, as we have observed, evidence respecting the apportionment of fault was not merely in conflict. It strongly supported a much larger apportionment to Bullock than appeared in the verdict.

    104

    As we have also observed, the jury requested clarification of question 4, respecting the addition of Bullock "in general," and also "... as it pertains to negligence as a legal cause." The import of the second part of the query is not clear. However, it is reasonably likely the question arose because the evidence showed that Bullock acted intentionally and only the defendants acted negligently, but the special verdict only asked the jury to determine the proportion of negligence that was attributable to each actor.

    105

    The jurors' confusion was not remedied either by the court's supplemental instruction in response to their query or by other instructions. In response to 153*153 the jury's query, the court restated the instruction, using the word "fault," rather than "negligence," in explaining what was to be apportioned among the named persons.[21] However, the court did not explain that fault is a broader concept than negligence, and the jury might reasonably have understood the court to be using the terms as if they were equivalent.

    106

    The court also directed the jury to review the other instructions previously given which related to their concerns. However, the other instructions relating to the issue of fault all referred to negligence, and only negligence, as a legal cause of damage. Thus, reference to those instructions could only have further misled the jury.

    107

    Finally, the jury's verdict was close on the issue affected by the erroneous instruction. On the question of whether each defendant was negligent, the jury voted 11 to 1 that the County and Maxwell were negligent. However, on the issues of causation and apportionment of liability, the vote was only nine to three in favor of the verdict as returned.

    108

    In sum, the evidence established that Bullock acted intentionally, and the defendants acted negligently. Under this state of the evidence, the special verdict, which only asked the jury to determine the proportion of negligence attributable to each actor, allowed a greater apportionment of fault to the defendants than might reasonably have been found by a properly instructed jury. The judgment thus must be reversed and remanded for a new trial on the apportionment of damages.

    110
    154*154 5. Application of the Collateral Source Rule.
    111

    (17a) The defendants also contend they should have been allowed to present evidence that Jimmee's medical expenses have been paid by entities that are not wholly independent of the County and that other such expenses have been, and will continue to be, paid by a private charity. The entities which the County contends have either paid Jimmee's medical expenses or provided medical care free of charge are county foster care insurance, AFDC, Medi-Cal, and the Shriner's Hospital.

    112

    Evidence of any payments that were made from insurance purchased by the County to cover its foster care program should have been admitted. (18), (17b) Under the collateral source rule, one who suffers injury through the wrongful act of another is not precluded from proceeding against the wrongdoer for compensation, nor is the amount of compensation reduced, by receipt by the victim of payments from a source independent of the wrongdoer (Anheuser-Busch, Inc. v. Starley (1946) 28 Cal.2d 347, 349 [170 P.2d 448, 166 A.L.R. 198]), and the defendant in such an action cannot introduce evidence of any such payments (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6-13 [84 Cal. Rptr. 173, 465 P.2d 61, 77 A.L.R.3d 398]). However, the rule does not apply if the victim has been reimbursed before trial by a cash payment from the defendant personally or from the defendant's insurance carrier. (Blake v. E. Thompson Petroleum Repair Co. (1985) 170 Cal. App.3d 823, 832 [216 Cal. Rptr. 568]; Turner v. Mannon (1965) 236 Cal. App.2d 134, 140 [45 Cal. Rptr. 831]; Dodds v. Bucknum (1963) 214 Cal. App.2d 206, 212-213 [29 Cal. Rptr. 393].) The County was thus entitled to offset any recovery by Jimmee with payments made to her by insurance carried by the County and was entitled to introduce evidence of such payments.

    113

    The trial court properly excluded from evidence payments by AFDC and Medi-Cal and medical services provided by the Shriner's Hospital. Under Government Code section 985, in a lawsuit against a public entity for personal injury, the entity may not introduce evidence of payments to the plaintiff from Medi-Cal, AFDC, private medical programs and similar sources. (Gov. Code, § 985, subds. (a), (b), (f).) However, after the return of a verdict which includes damages for which such payments have been made or are obligated to be made, the entity may bring a noticed motion to have the judgment reduced by the amounts paid before trial. (Gov. Code, § 985, subd. (b).) Such motion must be noticed within the time allowed by section 659 of the Code of Civil Procedure. (Ibid.)

    114

    Upon the filing of a timely and proper motion by a public entity, a trial court must, on such terms as may be just, order reimbursement from the 155*155 judgment to the provider of any payments made by Medi-Cal, AFDC and other nonfederal publicly funded sources of benefits with statutory lien rights. (Gov. Code, § 985, subd. (f)(1).) If the plaintiff has received payments from private medical programs or similar sources, the court may, after considering the totality of the circumstances, and upon such terms as may be just, determine what portion of those payments shall be reimbursed to the provider, used to reduce the verdict, or accrue to the benefit of the plaintiff. (Gov. Code, § 985, subd. (f)(2).)

    115

    Upon retrial of this matter, the County shall be entitled to introduce evidence of payments made to Jimmee by insurance maintained by the County. The County may also make a posttrial motion for reduction of the judgment as provided in Government Code section 985.

    117
    6. The Rate of Interest to Be Applied to the Entire Judgment Is 7 Percent.
    118

    (19) Finally, the defendants would appear to be correct in contending that the rate of interest applicable to all defendants' share of the judgment is 7 percent. As the plaintiff has expressly conceded, Government Code section 970.1, subdivision (b), limits the rate of interest on the County's share of the judgment to 7 percent. (San Francisco Unified School Dist. v. San Francisco Classroom Teachers Assn. (1990) 222 Cal. App.3d 146, 151-152 [272 Cal. Rptr. 38].) The intent of the Legislature in enacting section 970.1, subdivision (b), was to provide that execution and other remedies under the Code of Civil Procedure for enforcement of money judgments do not apply to enforcement of money judgments against local public entities. (222 Cal. App.3d at p. 151.) It would be inconsistent with that intent to allow interest at more than 7 percent on judgments against parties entitled to be indemnified by a local public entity. Under Government Code section 825, Maxwell is entitled to be indemnified by the County for her share of the judgment. To prevent the County from being liable for interest on a judgment in excess of that allowed by section 970.1, subdivision (b), interest on Maxwell's share of the judgment should also be limited to 7 percent.

    120
    DISPOSITION
    121

    The judgment is reversed with respect to (1) the apportionment of damages among the County, Maxwell and Bullock and (2) the amount of damages to the extent that they would be impacted by evidence of payments made from insurance maintained by the County. The case is remanded for a redetermination of those issues. The judgment is otherwise affirmed. Upon 156*156 remand, the court will conduct further proceedings in accordance with the views expressed herein. The parties shall bear their own costs on appeal.

    122

    Klein, P.J., and Kitching, J., concurred.

    123

    A petition for a rehearing was denied August 25, 1994, and appellants' petition for review by the Supreme Court was denied October 20, 1994.

    125

    [1] Jimmee's complaint originally named as defendants the County, Maxwell, Bullock, Donald Walker, the CSW who supervised Jimmee's placements before her case was transferred to Maxwell, and Doe defendants. The complaint was later amended to name Clara L. Johnson, Ph.D. and her clinic, the Family Counselling Center of Inglewood. Bullock did not appear in the action, and her default was entered. Walker was dismissed from the action on the third day of trial. When we use the collective term "defendants," we refer only to the County and Maxwell.

    127

    [2] These regulations were originally set out in division 30 of the DSS Manual. They have since been renumbered to division 31. At all times relevant to this case, regulation 30-342 provided in pertinent part as follows: ".1 The social worker, ... shall be present at the time of placement unless the child is placed out of state.

    128

    ".2 The social worker shall monitor the child's physical and emotional condition, and shall take necessary action to safeguard the child's growth and development while in placement.

    129

    ".3 For each child in placement the social worker shall:

    130

    ".31 Have face-to-face contact at least monthly.

    131

    ".311 The social worker shall be permitted to have less frequent face-to-face contact, up to a minimum of once each quarter, only if all of the following criteria are met:

    132

    "(a) The child has no severe physical or emotional problems caused or aggravated by the placement.

    133

    "(b) The placement is stable.

    134

    "(c) The case record documents the existence of at least one of the following circumstances:

    135

    "(1) The child is placed with a relative ...

    136

    "(d) Written second-level supervisory approval has been obtained....

    137

    ".6 For the foster care provider(s), the social worker shall:

    138

    ".61 Have contact at least monthly...." (California-SDSS-Manual-SS, Manual Letter No. 85-74, effective Dec. 1, 1985; California-SDSS-Manual-SS, Manual Letter No. SS-88-03, effective May 28, 1988.)

    139

    Current regulation number 31-320 substantially includes the above provisions. (California-DSS-Manual-CWS, Manual Letter No. CWS-93-01, issued July 1, 1993.)

    141

    [3] In 1987, Welfare and Institutions Code section 16501 provided in pertinent part as follows: "As used in this chapter, `child welfare services' means public social services which are directed toward the accomplishment of the following purposes: (a) protecting and promoting the welfare of all children, including handicapped, homeless, dependent, or neglected children; (b) preventing or remedying, or assisting in the solution of problems which may result in, the neglect, abuse, exploitation, or delinquency of children; (c) preventing the unnecessary separation of children from their families by identifying family problems, assisting families in resolving their problems, and preventing breakup of the family where the prevention of child removal is desirable and possible; (d) restoring to their families children who have been removed, by the provision of services to the child and the families; (e) identifying children to be placed in suitable adoptive homes, in cases where restoration to the biological family is not possible or appropriate; and (f) assuring adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption. Child welfare services may include, but are not limited to: case management, counseling, emergency shelter care, emergency in-home caretakers, temporary in-home caretakers, out-of-home respite care, teaching and demonstrating homemakers, parenting training, and transportation.

    142

    "The county shall provide child welfare services as needed pursuant to an approved service plan and in accordance with regulations promulgated by the department...." (Stats. 1982, ch. 978, § 35, p. 3547.)

    143

    The version of section 16501 in effect in 1988 substantially included the above provisions (Stats. 1987, ch. 1353 § 4, pp. 4899-4900, operative Feb. 1, 1988), as does the current version.

    145

    [4] Government Code section 815.6 provides as follows: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Italics added.)

    147

    [5] Government Code section 815.2 provides as follows:

    148

    "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

    149

    "(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

    150

    Government Code section 820.2 provides as follows: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

    152

    [6] Welfare and Institutions Code section 300 provides that children found to be abused, neglected, abandoned or otherwise in need of the care and protection which should be, but is not, being provided by their parents, may be made dependent children of the juvenile court under specified conditions. Welfare and Institutions Code section 272 provides that a county board of supervisors may delegate to a county welfare department all or part of the duties assigned to the probation officer under section 300 and sections which follow.

    154

    [7] Government Code section 821.6 provides as follows: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."

    156

    [8] In 1987, regulations 30-130 and 30-132 of the DSS Manual required a county welfare agency to respond (1) immediately, (2) within three days, or (3) within ten days to any requests or referrals for service which alleged that a child was endangered by abuse, neglect or exploitation. Immediate response was required if a law enforcement agency requested emergency response, or if any request or referral indicated the child was in imminent danger of physical pain, injury, disability, severe emotional harm or death. Response within ten days was required to requests or referrals alleging "general neglect," and response within three days was required for requests or referrals falling between those two extremes in level of urgency. (California-DSS-Manual-SS, Manual Letter No. 85-74, eff. Dec. 1, 1985, Regs. 30-130, 3-132.)

    158

    [9] Other examples include (1) the decision to release a juvenile offender to the custody of his mother and the determination of the degree of supervision to exercise over the custodian (Thompson v. County of Alameda, supra, 27 Cal.3d at p. 749), and (2) the selection of an adoptive placement for a minor (Ronald S. v. County of San Diego, supra, 16 Cal. App.4th at pp. 896-897).

    160

    [10] Other cases have condemned the (1) failure to warn a potential foster parent of dangerous propensities of a minor placed in her care (Johnson v. State of California, supra, 69 Cal.2d at p. 797), (2) negligent procedures in the investigation of an automobile accident (McCorkle v. City of Los Angeles, supra, 70 Cal.2d at p. 261) and (3) failure of a police officer to warn a prosecution witness of potential danger from the defendant's associates (Wallace v. City of Los Angeles, supra, 12 Cal. App.4th at pp. 1403-1404; Carpenter v. City of Los Angeles (1991) 230 Cal. App.3d 923, 935 [281 Cal. Rptr. 500]).

    162

    [11] Examples of such actions are the determination of whether an applicant for Aid to Families with Dependent Children (AFDC) meets applicable eligibility standards (Ramos v. County of Madera, supra, 4 Cal.3d at p. 694) and the recording of a survey by a county surveyor (Wheeler v. County of San Bernardino, supra, 76 Cal. App.3d at p. 849).

    164

    [12] We held in Alicia T., supra, that section 821.6 immunizes social workers from liability for their conduct in the performance of quasi-prosecutorial functions relating to proceedings under Welfare and Institutions Code section 300. (222 Cal. App.3d at p. 883.) We do not retreat from that holding. However, the same immunity does not extend to other functions of social workers.

    166

    [13] State grants-in-aid are provided to counties under Welfare and Institutions Code section 10001 for the purpose of supporting, maintaining and protecting abused and neglected children, as well as other persons in need of such assistance, "within the limits of public resources." (Welf. & Inst. Code, § 10001.)

    168

    [14] At the hearing on Jimmee's motion in limine to exclude evidence of budgetary constraints, the court ruled that: (1) Maxwell and other individual county employees would be allowed to testify as to what each was able to accomplish in the time and with the resources available to him or her during the time when Jimmee was placed with Bullock; and (2) however, before any party would be allowed to adduce testimony that, as a general matter, failures by DCS to fulfill its mandatory duties were owing to financial constraints, such party would be required to approach the bench and make an offer of proof as to the relevancy of such testimony.

    170

    [15] Moreover, any impartial review of the record demonstrates beyond doubt that this case is about the negligence of the County and its employees, not a shortfall in County resources. In this regard, we cannot help observing that Maxwell's belief that Jimmee's placement was "stable," and therefore visits were not needed, should have been exploded by the receipt of a child abuse hotline call, reporting that a child in Bullock's care had two black eyes. Regulation 30-132 would seem to have required a personal response to such a call within three days, or ten at the longest. Maxwell testified that she believed the report was made by Latitia and was fabricated. However, the presence or absence of black eyes could readily have been verified and certainly should have been. It is both preposterous and unacceptable to suggest that Maxwell's failure to check on the abuse allegation through a personal visit was caused by the County's budget problems.

    172

    [*] Reporter's Note: Review granted September 15, 1994 (S041035). Review dismissed February 23, 1995, and cause remanded to Court of Appeal, Second Appellate District, Division One.

    174

    [16] In this respect, the circumstances of this case resemble those in another recent case, Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal. App.4th 1225 [32 Cal. Rptr.2d 136]. In Rosh, the Court of Appeal declined to disturb a jury's apportionment of 25 percent of the liability for the plaintiff's injury to an assailant who deliberately shot him and 75 percent to his employer's private security company, which failed to protect him. The court's holding was based in part upon the circumstance that the security company was in the business of providing protection from criminal activity at the plaintiff's workplace. (26 Cal. App.4th at p. 1238.)

    176

    [17] Question 4 on the special verdict form posed the following query: "Assuming that 100% represents the total negligence which was the legal cause of the plaintiff's damages, what percentage of this 100% is due to the negligence of the following:

    178
    Answer:      To Defendant       County of Los Angeles      ____             Defendant          Zsa Zsa Maxwell            ____             Defendant          Clara Johnson, Ph.D.       ____             Other person       Dorothy Bullock            ____"
    180

    [18] Weidenfeller was followed by an opinion of the Ninth Circuit in Martin v. United States (9th Cir.1993) 984 F.2d 1033. While on an outing with other children in a government operated day-care center, Jennifer Martin was abducted, owing to serious negligence by the center's director, and was raped. She sued and recovered economic and noneconomic damages, which the district court refused to apportion between the government and the kidnapper, who apparently never was caught. (984 F.2d 1034-1035.) The United States appealed, arguing Civil Code section 1431.2 limited its share of the noneconomic damages. (984 F.2d at pp. 1034-1035.) The court agreed, citing Weidenfeller, and reversed for an apportionment of damages. (Id. at pp. 1038-1040.)

    182

    [19] BAJI No. 16.00 reads in pertinent part as follows:

    183

    "Question No. 6: Assuming that 100% of the total negligence which was the cause of the plaintiff's [injury] [damage], what percentage of this 100% is due to the contributory negligence of the plaintiff and what percentage of this 100% is due to the negligence of the defendant[s] [and all other persons]?

    185
      "Answer:     To plaintiff ______________________   ____ %               "[To plaintiff ____________________   ____ %]               "To defendant _____________________   ____ %               "[To defendant ____________________   ____ %]               "[Other person ____________________   ____ %]                                (identify)                                "TOTAL               ____ % ..."
    186

    Language in the standard special verdict form which refers to the contributory negligence of the plaintiff was obviously unsupported by the evidence in this case and was deleted.

    188

    [20] BAJI No. 16.12 provides: "Assuming that 100% represents the total causes of the plaintiff's [injury] [damage], what percentage of this 100% is attributable to the comparative fault of the plaintiff and what percentage of this 100% is attributable to the defendant[s] [and all other persons]?" (Italics added.)

    190

    [21] When the jury submitted a question about the special verdict form the trial judge summoned the jurors and the following exchange took place:

    191

    "THE COURT: You sent a note to the Court through the court liaison and I will read it for the record here. [¶] It says, `Could you please address the addition of Dorothy Bullock as "other person" in Question 4, item D ____, in general, and as it pertains to negligence as a legal cause?' [¶] Now, I am reluctant to get into any kind of rambling discourse of the law. As you can see, the instructions that you have received are rather specific and they are specific because we want to have as correct a statement of the law as possible. [¶] Let me answer your question this way and then ask you if that doesn't answer your question. After you go back into the jury room you can be a little bit more specific in your question. [¶] Then we can focus a little more specifically on the answer. [¶] Question No. 4, the special verdict form, requires the jury to apportion fault among the parties and any other person whose fault has been contributed as a legal cause to the plaintiff's injuries. [¶] You are assessing or apportioning that fault between the parties who are listed there and you assess a percentage of fault to each person or entity listed anywhere from 0 percent, if you don't feel they are at fault at all, to 100 percent if you feel they are totally at fault. But the answer has to end up as 100 percent. [¶] I would also encourage you to reread those instructions or parts — you have them in the jury room — that deal with your concerns. [¶] You may have somebody just read them out loud so everybody can hear what it is rather than just one person reading them."

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