This matter involves a tragic incident wherein Defendant’s employee took Plaintiff
a minor child, into the X-ray dark room and sexually molested him by taping his eyes shut.

On the day of the incident, Plaintiff was accompanied by his mother and younger
sister who had visited Defendants’ dental office for dental work. Both the minor child and
his younger sister were supposed to be seen at the same time. However, Defendant’s
employee only called the minor child in to be seen first. The minor’s mother attempted to
accompany the minor, but Defendant’s employee used his authoritative position and
coerced the minor’s mother to stay in the waiting room with the minor’s younger sister.
Once Defendant’s employee took the minor, none of Defendants’ employees, including the
dentist on duty, inquired from Defendant employee as to why he was taking the minor into
the X-ray dark room. Defendant’s employee walked the minor through the common office
areas to the dark room. Defendant’s employee was, therefore, allowed to use his
authoritative position to coerce the minor into the X-ray dark room and to place tape over
the minor’s eyes. Despite the tape over the minor’s eyes, the minor was able to see
underneath the tape when Defendant’s employee sexually molested the minor.

After sexually molesting the minor, Defendant’s employee took the minor to one of
the dental chairs and called the minor’s mother and little sister into the office. The minor
was upset and fearing that Defendant’s employee would also sexually molest his younger
sister was hysterically crying. The minor called out to his mother to not allow Defendant’s
employee to be alone with his younger sister. The minor then informed his mother how
Defendant’s employee had sexually molested him.

Defendants attempted to prevent the crime from being reported and refused to call
the police. Thereafter, plaintiffs employer called the police and investigation confirmed that
Defendant’s employee had sexually molested the minor. Defendant’s employee plead
guilty and is now serving a lengthy jail sentence.

Defendants should have never allowed their employee to be alone with the minor
child. Defendant’s employee had a known history of multiple felonies. Additionally,
Defendant’s employee had been allowed by Defendants to work as an x-ray technician
even though Defendant’s employee was not a licenced x-ray technician. Interestingly,
Defendants’ own policies provided that Defendants would not hire nor keep as an
employee anyone who has a criminal history of felonies and/or is not a licenced x-ray
technician. Defendants’ own policies provided that if they discovered that an employee
had a criminal history of felonies and/or the x-ray technician was not licensed, it would be
grounds for immediate termination.

LIABILITY

Plaintiffs contended that Defendants were liable for their employee’s wrongful acts
not only based on a theory of vicarious liability but directly for the negligent hiring and
supervision of their employee.

The California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital
held that an employer is vicariously liable for the torts of its employees committed within
the scope of the employment. Lisa M. v. Henry Mayo Newhall Memorial Hospital, (1995)
12 Cal. 4th 291, 296. The California Supreme Court further held that equally well
established, is the principle that an employee's willful, malicious and even criminal torts
may fall within the scope of his or her employment for purposes of respondeat superior,
even though the employer has not authorized the employee to commit crimes or intentional
torts. Id. at 297.

The court in Lisa M. v. Henry Mayo Newhall Memorial Hospital held that while the
employee need not have intended to further the employer's interests, the employer will be
liable if there is a causal nexus to the employee's work or if the act could have been
foreseen by the employer. Id. at 297, 299. The “foreseeability” test is met if, in the context
of the particular enterprise, the employee's conduct is not so “unusual or startling” that it
would seem “unfair” to factor the liability into the employer's cost of doing business. Id. at
299.

The court in Lisa M. v. Henry Mayo Newhall Memorial Hospital held that
foreseeability test is useful “because it reflects the central justification for respondeat
superior [liability]: that losses fairly attributable to an enterprise-those which foreseeably
result from the conduct of the enterprise-should be allocated to the enterprise as a cost of
doing business.” Id. at 299.

In the case at hand, it was foreseeable that because Defendants hired an employee
with a criminal history of felonies, a person who was misrepresenting that he was a
licensed x-ray technician, that minor children would be at risk for inappropriate conduct if
they allowed such an employee to bring little boys alone into a dark, windowless x-ray
room. If the conduct was foreseeable under the totality of circumstances as set forth in the
cases above, Defendant is 100% vicariously liable for the conduct of its employee.

If Defendant’s employee’s wrongful conduct falls outside the employment
relationship or scope of employment, thereby precluding respondeat superior liability, the
injured party may nevertheless be able to hold the employer directly liable on a theory of
negligent hiring and/or supervision. Liability for negligent hiring/supervision is based on the
theory that if an enterprise hires an incompetent or unfit employee with characteristics that
might pose a danger to persons the employee is expected to come into contact with in the
employment relationship (e.g., customers, other employees), the enterprise should bear
the loss caused by the employee's wrongdoing. See Hawkins v. Wilton (2006) 144 CA4th
936, 944, 51 CR3d 1, 6—“an employer cannot allow a drug-addled convicted felon to carry
and brandish loaded firearms during the course and scope of employment, particularly
where, as here, the employment necessarily consists of making contact with members of
the public.”

Liability for negligent hiring and supervision is based upon the reasoning that if an
enterprise hires individuals with characteristics which might pose a danger to customers
or other employees, the enterprise should bear the loss caused by the wrongdoing of its
incompetent or unfit employees. Mendoza, v. City of Los Angeles, (1998) 66 Cal. App. 4th
1333, 1339. In California, an employer can be held liable for negligent hiring if he knows
the employee is unfit, or has reason to believe the employee is unfit or fails to use
reasonable care to discover the employee's unfitness before hiring him. (See 53 Am.
Jur.2d. Master and Servant, §422, pp. 436-437.)

Defendant’s were negligent in the supervision of their business which directly led to
the molestation. Defendant’s employee took the minor child directly in front of the other
staff when he was not supposed to, to a place in the office he was not supposed to take
anyone. Defendant’s employee walked the minor child through the office in “broad
daylight” so to say, into the x-ray developing room. The minor child was not supposed to
be taken to have x-rays and certainly not alone with a felon in an x-ray dark room. Also,
Defendant’s employee right in front of Defendant’s other employees, prevented Plaintiff’s
mother from accompanying him which should have put the other Defendants on notice of
the suspicious conduct of their employee.

Plaintiff’s experts will testify that defendant’s had insufficient office policies and that
no employee should be permitted to take minor children alone into private rooms.

In the case at hand, Defendants were negligent in hiring and supervision of their
employee. If Defendants exercised due care in selecting an employee, they would have
discovered the fact that their employee had a criminal history of felonies and that he was
misrepresenting that he was licensed. Defendants then would have had reason to know
that their employee had character flaws that made him unsuitable and unsafe to be
allowed to take small children into a dark room with no windows.