Sexual Assault and the Scope of Employment for Firefighters

Which of the following seems out of place:  porn star costume party, on-duty firefighters, alcohol, and sexual assault. Unfortunately those four terms all came together in Sacramento, California on July 2, 2004. In the aftermath of this and several similar escapades, 24 firefighters were disciplined, two resigned, and a protracted civil suit was filed against two firefighters and the Sacramento Fire Department by the woman who alleged the sexual assault.

In a decision issued on August 31, 2009, the California Court of Appeals refused to hold the City of Sacramento liable for the conduct of the on-duty firefighters. The court cited the general principle that an employer should not be held liable for a sex crime committed by an employee because there is “no causal nexus to the employee’s work”. In other words, while ordinarily an employer is liable for the acts of an employee committed within the scope of his/her employment, sexual offenses are by their very nature outside of the scope of a firefighter’s employment. 

While the Court of Appeal’s ruling is in line with the law in most states, the factual determination of the “scope of employment” as applied to the Sacramento Fire Department in 2004 certainly raises some interesting questions. If you are interested, take a look at the following:

Four firefighters charged with having consensual sex while on duty in fire station

Two firefighters disciplined for having consensual sex while on duty in fire station (Sacramento Metro FD)

Firefighters use engines to pick up women and go joy-riding

These cases are not used to demean the Sacramento Fire Department, and truth be told, Fire Chief Joe Cherry was able to restore order in the ranks and credibility amidst a most challenging period in the department’s history. However, the facts leave open the question at what point can such rampant misconduct open the door to an expanded notion of what is in the scope of employment, or in the alternative, to a direct allegation of negligent supervision? 

Incidentally, negligent supervision was alleged in the case, but the court ruled that the Plaintiff “forfeited” the cause of action by failing to present an analysis of the forseeablility of the sexual assault in her brief. Say what?…… Let’s call it legal jujitsu – but the bottom line is the firefighters are on the hook for what happened, not the city.