Supreme Court of California, 1997.

14 Cal.4th 1066, 929 P.2d 582, 60 Cal.Rptr.2d 263.

            [Plaintiff, a 13-year-old student at the time, alleged that four school districts, former employers of Robert Gadams, placed unreservedly affirmative references in a placement file for Gadams despite knowing that prior charges or complaints of sexual misconduct and impropriety had been leveled against Gadams during the period he worked in each district; that plaintiff student’s school district (Livingston) relied on defendants’ letters in hiring Gadams as vice-principal, and that Gadams then sexually assaulted plaintiff. Although plaintiff pressed several theories, the only ones before this court are negligent misrepresentation, fraud, and negligence per se brought against the referring districts. The superior court granted demurrers on all three of these claims, but the court of appeal reversed on all three. Further facts are set forth in the course of the opinion.]

            CHIN, Associate Justice.

            In this case, we must decide under what circumstances courts may impose tort liability on employers who fail to use reasonable care in recommending former employees for employment without disclosing material information bearing on their fitness. . . .

            . . . Although policy considerations dictate that ordinarily a recommending employer should not be held accountable to third persons for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a third person.

            We also conclude, contrary to the Court of Appeal judgment in this case, that defendants’ alleged failure to report the charges of Gadams’s improper activities to the appropriate authorities pursuant to state statutory law fails to afford an alternate basis for tort liability in this case, and that the trial court properly sustained defendants’ demurrers to the count in the complaint relying on this theory of liability.

            . . .


A. Fraud and Negligent Misrepresentation

            . . .

            In finding plaintiff’s complaint stated a cause of action against defendants for fraud and negligent misrepresentation, the Court of Appeal majority relied primarily on sections 310 and 311 of the Restatement Second of Torts. Section 310 involves intentional conduct and provides that

            “[a]n actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor

(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and

(b) knows

(i) that the statement is false, or

(ii) that he has not the knowledge which he professes.” (Italics added.)

            Section 311 of the Restatement Second of Torts, involving negligent conduct, provides that:

“(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

(a) to the other, or

(b) to such third persons as the actor should reasonably expect to be put in peril by the action taken.

(2) Such negligence may consist of failure to exercise reasonable care

(a) in ascertaining the accuracy of the information, or

(b) in the manner in which it is communicated.” (Italics added.)

            Although ordinarily a duty of care analysis is unnecessary in determining liability for intentional misrepresentation or fraud [ ] here we consider liability to a third person injured as a result of the alleged fraud, an extension of ordinary tort liability based on fraud.[ ] Accordingly, in deciding whether to adopt the two Restatement provisions in the circumstances of this case, we consider whether plaintiff has sufficiently pleaded that defendants owed her a duty of care, that they breached that duty by making misrepresentations or giving false information, and that Livingston’s reasonable reliance on their statements proximately caused plaintiff’s injury.[ ] We examine each element separately.

1. Duty to Plaintiff

            Did defendants owe plaintiff a duty of care? In defendants’ view, absent some special relationship between the parties, or some specific and known threat of harm to plaintiff, defendants had no duty of care toward her, and no obligation to disclose in their letters any facts regarding the charges against Gadams. (See Rest.2d Torts, § 315 [generally no duty to warn those threatened by third person’s conduct]; [ ]; Thompson v. County of Alameda (1980) [discussed p. ___, infra] [duty to warn “readily identifiable” victim]; Tarasoff v. Regents of University of California [supra] [“special relationship” creates duty to warn or control another’s conduct]; [ ].

            Plaintiff does not argue that a special relationship existed between defendants and her or Gadams. Instead, she relies on [Garcia v. Superior Court, 789 P.2d 960 (Cal. 1990)], where we held that, under section 311 of the Restatement Second of Torts, a parole officer had a duty to exercise reasonable care in giving the victim information regarding the parolee who ultimately killed her. We noted that although the parole officer had no duty to volunteer information regarding the released criminals he supervised, “ . . . the absence of a duty to speak does not entitle one to speak falsely.”[ ] We concluded that the parole officer, “having chosen to communicate information about [the parolee] to [the victim], had a duty to use reasonable care in doing so,” and that the officer either knew or should have known that the victim’s safety might depend on the accuracy of the information imparted. [ ]

            Plaintiff acknowledges that Garcia is distinguishable, and that no California case has yet held that one who intentionally or negligently provides false information to another owes a duty of care to a third person who did not receive the information and who has no special relationship with the provider. Accordingly, the issue before us is one of first impression, and we apply the general analytical principles used to determine the existence of duty in particular cases.

            In this state, the general rule is that all persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct. . . .

a. Foreseeability and causality

            Applying these factors here, we first examine whether plaintiff’s injuries were a foreseeable result of defendants’ representations regarding Gadams’s qualifications and character, coupled with their failure to disclose to the Fresno Pacific College placement office information regarding charges or complaints of Gadams’s sexual misconduct. Could defendants reasonably have foreseen that the representations and omissions in their reference letters would result in physical injury to someone? Although the chain of causation leading from defendants’ statements and omissions to Gadams’s alleged assault on plaintiff is somewhat attenuated, we think the assault was reasonably foreseeable. Based on the facts alleged in the complaint, defendants could foresee that Livingston’s officers would read and rely on defendants’ letters in deciding to hire Gadams. Likewise, defendants could foresee that, had they not unqualifiedly recommended Gadams, Livingston would not have hired him. And, finally, defendants could foresee that Gadams, after being hired by Livingston, might molest or injure a Livingston student such as plaintiff. We must assume, for purposes of demurrer, that plaintiff was indeed injured in the manner she alleges, and that a causal connection exists between defendants’ conduct and the injury suffered. As plaintiff’s complaint alleges, her injury was a “direct and proximate result” of defendants’ fraud and misrepresentations.

b. Moral blame

            Whether defendants were guilty of any moral blame would depend on the proof adduced at trial, although it is certainly arguable that their unreserved recommendations of Gadams, together with their failure to disclose facts reasonably necessary to avoid or minimize the risk of further child molestations or abuse, could be characterized as morally blameworthy.

c. Availability of insurance or alternative courses of conduct

            Next, we may assume that standard business liability insurance is available to cover instances of negligent misrepresentation or nondisclosure as alleged in count three of the complaint, but is not available for the fraud or intentional misconduct alleged in count four. [ ] Perhaps more significantly, defendants had alternative courses of conduct to avoid tort liability, namely, (1) writing a “full disclosure” letter revealing all relevant facts regarding Gadams’s background, or (2) writing a “no comment” letter omitting any affirmative representations regarding Gadams’s qualifications, or merely verifying basic employment dates and details. The parties cite no case or Restatement provision suggesting that a former employer has an affirmative duty of disclosure that would preclude such a no comment letter. As we have previously indicated, liability may not be imposed for mere nondisclosure or other failure to act, at least in the absence of some special relationship not alleged here. [ ]

d. Public policy considerations

            As for public policy, the law certainly recognizes a policy of preventing future harm of the kind alleged here. One of society’s highest priorities is to protect children from sexual or physical abuse. [ ]; Pen.Code, § 11166 [duty to report suspected child abuse].

            Defendants urge that competing social or economic policies may disfavor the imposition of liability for misrepresentation or nondisclosure in employment references. They observe that a rule imposing liability in these situations could greatly inhibit the preparation and distribution of reference letters, to the general detriment of employers and employees alike.

            We have recently stated that “[w]hen deciding whether to expand a tort duty of care, courts must consider the potential social and economic consequences. [Citations.]” [ ] Defendants argue that a rule imposing tort liability on writers of recommendation letters could have one very predictable consequence: employers would seldom write such letters, even in praise of exceptionally qualified employees.

            In defendants’ view, rather than prepare a recommendation letter stating all “material” facts, positive and negative, an employer would be better advised to decline to write a reference letter or, at most, merely to confirm the former employee’s position, salary, and dates of employment. According to defendants, apart from the former employer’s difficulty in deciding how much “negative” information to divulge, an employer who disclosed more than minimal employment data would risk a defamation, breach of privacy, or wrongful interference suit from a rejected job seeker. (See, e.g., Jensen v. Hewlett‑Packard Co. [18 Cal.Rptr.2d 83 (App. 1993)][libel action may be based on false accusations in employee evaluation form of criminal conduct, dishonesty, incompetence, or reprehensible personal characteristics or behavior]; [ ]).

            . . .

            In response, plaintiff asserts it is unlikely that employers will decline to write reference letters for fear of tort liability, at least in situations involving no foreseeable risks of physical injury to someone. Plaintiff observes that an employer would be protected from a defamation suit by the statutory qualified privilege for nonmalicious communications regarding a job applicant’s qualifications. [ ] This provision was amended in 1994 to provide that the qualified privilege available for communications to and by “interested” persons “applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, the prospective employer.” (Civ.Code, § 47, subd. (c).) As plaintiff suggests, the existence of this privilege may encourage more open disclosure of relevant information regarding former employees. [ ] (See also [Jensen v. Hewlett Packard Co., supra] [acknowledging public policy disfavoring libel suits based on comments in employee evaluation forms].)

            . . .

            In light of these factors and policy considerations, we hold, consistent with Restatement Second of Torts sections 310 and 311, that the writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons. In the absence, however, of resulting physical injury, or some special relationship between the parties, the writer of a letter of recommendation should have no duty of care extending to third persons for misrepresentations made concerning former employees. In those cases, the policy favoring free and open communication with prospective employers should prevail.

            Having concluded that defendants owed plaintiff a duty not to misrepresent Gadams’s qualifications or character in their letters of recommendation, we next must determine whether defendants’ letters indeed contained “misrepresentations” or “false information” within the meaning of Restatement Second of Torts sections 310 or 311. If defendants made no misrepresentations, then as a matter of law they could not be found liable under those provisions.

2. Misleading Misrepresentation or Mere Nondisclosure?

            The Court of Appeal majority determined that plaintiff adequately alleged defendants committed actual misrepresentation rather than mere nondisclosure, because their letters of recommendation amounted to “misleading half‑truths,” containing incomplete information regarding Gadams’s character and reliability. According to the Court of Appeal, defendants’ unqualified recommendation of Gadams, coupled with their failure to disclose that Gadams had been in “sexual situations” with female students and had made “sexual overtures” to them, or that defendants knew complaints regarding Gadams’s conduct had resulted in his resignation, amounted to affirmative misrepresentations.

            Defendants join the Court of Appeal dissent in asserting that their letters of recommendation contained no misrepresentations that would invoke either Restatement Second of Torts section 310 or 311. As defendants observe, their letters neither discussed nor denied prior complaints of sexual misconduct or impropriety against Gadams.

            Like the Court of Appeal majority, we view this case as a “misleading half‑truths” situation in which defendants, having undertaken to provide some information regarding Gadams’s teaching credentials and character, were obliged to disclose all other facts which “materially qualify” the limited facts disclosed. [ ]; Civ.Code, § 1710, subd. 3 [deceit is the suppression of a material fact by one who gives misleading information of other facts]; [ ].

            As the Court of Appeal observed, defendants’ letters offered general and unreserved praise for Gadams’s character and personality (e.g., “dependable [and] reliable,” “pleasant personality,” “high standards,” “relates well to the students”). According to the Court of Appeal, having volunteered this information, defendants were obliged to complete the picture by disclosing material facts regarding charges and complaints of Gadams’s sexual improprieties.

            Defendants suggest that a letter noting only a candidate’s favorable qualities cannot reasonably be deemed misleading as to any unfavorable ones, and the recipient of such a letter cannot reasonably rely on any implication that the candidate lacks unfavorable qualities. [ ] As one commentator observes, “... half of the truth may obviously amount to a lie, if it is understood to be the whole.” [ ] (Prosser & Keeton, The Law of Torts (5th ed. 1984) [§106], italics added.) According to defendants, no reasonable person would assume a letter of recommendation purports to state the whole truth about a candidate’s background and character.

            In defendants’ view, we should characterize letters of recommendation stating only the favorable aspects of an applicant’s background or character as a permissible variety of “half‑truth,” which misleads no one, and which, for that reason alone, should not form the basis for liability on a theory of negligent misrepresentation or fraud. (See [ ] [failure of church officers to disclose pastor’s history of pedophilia not actionable in absence of affirmative representation denying that history, because “[t]he tort of negligent misrepresentation requires a ‘positive assertion’ and does not apply to implied misrepresentations”]; [ ] [county officers’ failure to notify former district attorney of threats posed by vindictive probationer not actionable despite implied representation to warn]; [ ] [auto club tourbook endorsing motel’s accommodations contained no “positive assertion concerning neighborhood safety,” precluding negligent misrepresentation suit]; [ ] [failure to disclose sexual misconduct charges against former employee/teacher not actionable because “[t]he mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring”]; [ ]; cf.[ ] [liability of employment agency based on positive misrepresentation that job seeker’s innocent explanation for his rape conviction “had been verified by military officials”].)

            But plaintiff argues convincingly that, under the facts pleaded in this case, defendants indeed made “positive assertion[s]” regarding Gadams’s character, assertions deceptively incomplete because defendants knowingly concealed material facts regarding Gadams’s sexual misconduct with students. Thus, defendant Mendota, through its officer Rossette, allegedly extolled Gadams’s “genuine concern” for and “outstanding rapport” with students, knowing that Gadams had engaged in inappropriate physical contact with them. Rossette declared in the letter that he “wouldn’t hesitate to recommend Mr. Gadams for any position!”

            Defendant Golden Plains, through its officer Cole, stated it would recommend Gadams for “any administrative position,” despite its knowledge of Gadams’s prior inappropriate conduct while an employee of Golden Plains, conduct that had allegedly led to Gadams’s “resigning under pressure from Golden Plains due to sexual misconduct charges. . . .”

            Finally, defendant Muroc, through its officers Rice and Malcolm, allegedly recommended Gadams “for an assistant principalship or equivalent position without reservation,” describing Gadams as “an upbeat, enthusiastic administrator who relates well to the students,” despite its knowledge of disciplinary actions taken against him regarding sexual harassment allegations made during his employment with Muroc, allegations that induced Muroc to force Gadams to resign.

            We conclude that these letters, essentially recommending Gadams for any position without reservation or qualification, constituted affirmative representations that strongly implied Gadams was fit to interact appropriately and safely with female students. These representations were false and misleading in light of defendants’ alleged knowledge of charges of Gadams’s repeated sexual improprieties. We also conclude that plaintiff’s complaint adequately alleged misleading half‑truths that could invoke an exception to the general rule excluding liability for mere nondisclosure or other failure to act. [ ]

3. Reliance

            [The court concluded that the allegations of Livingston’s reliance were sufficient under both § 310 and § 311.     The court also concluded that sufficient causal connection was alleged between the misrepresentation and the harm.

            The majority rejected the claim of negligence per se based on violation of the statute requiring the reporting of child physical abuse. The reporting language required a “child care custodian” to report in various situations. The majority concluded that plaintiff was not a member of the class for whose protection that statute was enacted because the defendant school districts were never the custodians of plaintiff.]

[The court affirmed on negligent misrepresentation and fraud, but reversed as to negligence per se]


            GEORGE, C.J., MOSK and BROWN, JJ., concur.

            [Justices Kennard, Baxter and Werdegar dissented on the negligence per se issue. They would have accepted “at face value the Legislature’s simple, unqualified statement that the Reporting Act is meant ‘to protect children from abuse,’ and [the court] should construe the intended protected class broadly to include all children who foreseeably could be protected from abuse by compliance with its provisions.”]

Notes and Questions

1.      How does this case differ from Tarasoff?


            2.  In an omitted part, the majority quoted the widely-cited footnote 6 in Ballard v. Uribe, 715 P.2d 624, 628 (Cal.1986):

Rowland enumerates a number of considerations . . . that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate: “the major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Italics added.) The foreseeability of a particular kind of harm plays a very significant role in this calculus [citation], but a court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

            In another part of that same footnote, the Ballard court noted that the jury considers “likelihood or foreseeability of injury in determining whether, in fact, the particular defendant’s conduct was negligent in the first place.” How does Ballard suggest distinguishing between the “foreseeability” that goes into duty and the “probability” that is used in the negligence calculus? How would the distinction work in Randi W.? In Tarasoff?

            3. In Garcia, a woman was worried about a violent man with whom she had been living (but who had since moved out). He was on parole from a prior offense and defendant was his parole officer. In response to the woman’s expression of concern, the officer told her, “I don’t think you have anything to worry about. He’s not going to come looking for you.” Also, the officer assured her of her safety by emphasizing to her that “[the man] had told him that he was still in love with plaintiff, and repeatedly asking if she really wanted to end the relationship.” The man killed her. Why does Garcia not control this case?

4. Assume that in their letters the districts had hidden the fact that Gadams was habitually unable to process important papers before the deadlines. Assume that Gadams failed to process documents for the Livingston district in time for its superintendent to get a raise that would have been automatic if the filing had been timely. Does the principal case suggest the analysis for that situation? Cases involving economic loss are discussed in greater detail in Chapter IV.

            Assume that Gadams’s laxity about deadlines resulted in his failure to file school transcripts before the deadline—as a result of which five students were rejected by colleges to which it was clear they would otherwise have been admitted. Although the students can show no economic harm they are greatly distressed by this turn of events. Does the principal case suggest the analysis for this situation? Cases involving emotional distress are discussed in greater detail in Chapter IV.

            5. In Boon v. Rivera, 96 Cal.Rptr. 2d 276 (App. 2000), a police officer alleged that when he responded to a 911 call, the defendant wife assured him that her husband, whose behavior had provoked the 911 call, was “not dangerous.” The husband shot the officer, who then sued the wife, claiming that if he had been told the truth he would have taken the time to don a bullet-proof vest. The court acknowledged that if the wife had said nothing or had told the truth there would be no case. But her false statement exposed her to liability. Is this situation covered by Randi W.?

            Boon cited Pamela L. v. Farmer, 169 Cal.Rptr. 282 (App. 1980), in which plaintiffs alleged that defendant wife frequently left her house knowing that her husband, who had a record as a sexual offender, planned to molest the minor plaintiffs when they visited to use the swimming pool; and that the wife also knew that these acts would occur unless she warned the children, their parents or the police.  “Furthermore, according to plaintiffs, the wife invited the children into the premises,” and told the parents that it was safe to permit their children to be there during her absence. The allegations of invitation and reassurance were held sufficient to create a special relationship with the children and to sustain an action against the wife.  What if the only allegation had been that defendant knew that when she left home her husband would use the opportunity to molest minors?

            Compare Eric J. v. Betty M., 90 Cal.Rptr.2d 549 (App. 1999). T was a twice-convicted child molester who was living at home with his family. He struck up a relationship with a woman who had a young son and invited her to live at the family home. There he molested the boy. When the mother learned of the situation, she sued the family members for not warning her or the boy about the danger. The court held that no duty existed here: the members did not know that T still behaved that way—indeed they hoped that he had changed.  The court distinguished Pamela L, because of the misrepresentations in that case. The Eric J. court did note that the predator’s mother, who owned the family home, had been held liable for leaving the house at times when she knew that only T and the boy remained inside. She did not appeal the judgment. This obligation of a land occupier to those on the premises is explored in more detail later in this chapter. See also Gritzner v. Michael R., 611 N.W.2d 906 (Wis. 2000), in which a child molested a young playmate. The court imposed a duty of control on the live-in boyfriend of the child’s mother when he was left in charge of the child and also held that the allegations might support a duty to warn any playmates’ parents based on defendant’s knowledge of the danger.

            6. In several recent cases parents who have adopted children have sued the agencies involved for failing to reveal negative information about the child before the adoption. In Jackson v. State, 956 P.2d 35 (Mont. 1998), the state did not tell the plaintiffs known information, including the results of “psychological evaluations performed on [the adoptee’s] biological parents.” The court noted that several courts had based a duty on the adopting agencies’ “voluntary dissemination of health information concerning the child to potential adopting parents.” What is the harm involved in this type of case? Is it feasible for an adoption agency to say nothing whatsoever about the child’s health?

            7. Several courts have attempted to list duty factors as the California court did in Rowland, quoted in the main case. In Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110 (N.J. 1993), the court analyzed a duty question by reviewing New Jersey cases and then concluding that

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.[ ] That inquiry involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.[ ] The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.

How does this list compare with the California approach?  Compare the Connecticut approach in Jawarski v. Kiernan, 696 A.2d 332 (Conn. 1997). After discussing foreseeability, the court continued:

      A simple conclusion that the harm to plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally “foreseeable,” yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for we recognize that “duty” is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.

In Illinois the courts use four elements: “(1) the foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing the burden upon the defendant.” Largosa v. Ford Motor Co., 708 N.E.2d 1219 (Ill.App. 1999). How does this list differ from the factors used by the other states? How does it differ from Judge Hand’s approach to the breach of duty issue that was discussed at p. ___ supra? Is the Illinois formulation consistent with Ballard, supra?

            8. The insurance question alluded to by the court is discussed in detail in Chapter X.

            9. Is the court correct to minimize concern about the willingness of employers to write recommendation letters for former employees? Possible remedies available to a former employee who thinks that a former employer has written an unhelpful recommendation letter are explored in Chapters XIII, XIV and XV. The general subject of intentional misrepresentation is considered in Chapter XV.