Are married people vicariously liable for the torts of their spouse?

(a) A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefor if the marriage did not exist.

(b) The liability of a married person for death or injury to person or property shall be satisfied as follows:

(1) If the liability of the married person is based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person.

(2) If the liability of the married person is not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the separate property of the married person and second from the community estate.

(c) This section does not apply to the extent the liability is satisfied out of proceeds of insurance for the liability, whether the proceeds are from property in the community estate or from separate property. Notwithstanding Section 920, no right of reimbursement under this section shall be exercised more than seven years after the spouse in whose favor the right arises has actual knowledge of the application of the property to the satisfaction of the debt.

(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.

The substance of plaintiffs' claim is that petitioner failed to control decedent's conduct. In general, one owes no duty to control the conduct of a third person to

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prevent him from causing physical harm to another, absent a special relationship between the defendant and either the person whose conduct needs to be controlled or the foreseeable victim of that conduct. (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Megeff v. Doland (1981) 123 Cal.App.3d 251, 257, 176 Cal.Rptr. 467; Rest.Torts 2d, § 315.)

The first category, special relationships between the defendant and the person whose conduct needs to be controlled, includes the relationships between parent and child (Rest.Torts 2d, supra, § 316), master and servant (§ 317), the possessor of land or chattels (who has a duty to control the conduct of a licensee) (§ 318), and "[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled...." (§ 319) In all of the above relationships, the ability to control the third party is essential. " '[T]he absence of such ability is fatal to a claim of legal responsibility'.... Where, as in the instant case, the natural relationship between the parties ... creates no inference of an ability to control, the actual custodial ability must [222 Cal.App.3d 1014] affirmatively appear." (Megeff v. Doland, supra, 123 Cal.App.3d at p. 261, 176 Cal.Rptr. 467; see also Rest.Torts 2d, supra, § 318, subd. (a).)

Plaintiffs assert that petitioner assumed responsibility for decedent and that he was "dependent upon petitioner's supervision and control." The First Amended Complaint is replete with facts which belie plaintiffs' claim. It is petitioner's lack of control which is apparent, and in fact the picture painted by the First Amended Complaint is of an individual whose behavior was beyond the control of anyone, including himself.

Likewise, plaintiffs cannot allege a special relationship between themselves and petitioner because in this case neither the injury nor the harm was foreseeable. "As explained by Justice Cardozo, negligence is a matter of relation between the parties, and must be founded upon the foreseeability of harm to the person in fact injured." (Brady v. Hopper (1983) 570 F.Supp. 1333, 1339, citing Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 101.) Despite decedent's bizarre behavior, his only violent threat was directed at a neighborhood cat which had killed one of his rabbits. Even if we assume, for the sake of argument, that petitioner was aware of decedent's potential for violence, plaintiffs have not alleged any facts which suggest petitioner knew or could have known that decedent would engage in the type of attack which occurred here. ³

Where, as here, a "complaint alleges injuries resulting from the criminal acts of third persons ... 'the common law, reluctant to impose liability for nonfeasance, generally does not impose a duty upon a defendant to control the conduct of another [citations], or to warn of such conduct [citations], unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct. [Citations.]' " (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 712, 230 Cal.Rptr. 823, emphasis in original.) It has been recognized that where a wife invites a child into her home she assumes a special relationship based on the child's dependence upon her.

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(Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 211, 169 Cal.Rptr. 282.)

We have been unable to find a California case dealing with the precise question of the extent of a wife's duty to her minor invitees to prevent sexual assaults perpetrated by her husband. We believe, however, that public policy requires that where a child is sexually assaulted in the defendant wife's home by her husband, the wife's duty of reasonable care to the injured child depends on whether the husband's behavior was reasonably foreseeable. Without knowledge of her husband's deviant propensities, a wife will not be able to foresee that he poses a danger and thus will not have a duty to take measures to prevent the assault. Although a wife's knowledge may be proven by circumstantial evidence, such inference must reflect the wife's actual knowledge and not merely constructive knowledge or notice. "[A]ctual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference is not based on speculation or conjecture. Only where the circumstances are such that the defendant 'must have known' and not 'should have known' will an inference of actual knowledge be permitted." (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, fn. 4, 118 Cal.Rptr. 741.)

Defendant argues that she cannot be held liable because she had no duty to control the criminal acts of another under the principles expressed in Wise v. Superior Court (1990) 222 Cal.App.3d 1008. In Wise, motorists injured by a sniper firing from the roof of his home sued the sniper's wife for, among other things, negligently failing to prevent the attack. Another division of this court affirmed the sustaining of the demurrer. The plaintiffs had alleged that defendant wife was negligent in that she permitted her husband to occupy the house, knowing that he was a "human time bomb," provided him access to the means to commit his rampage, failed to supervise him, and did nothing to protect or warn others within the zone of danger created. The appellate court held that the wife owed no duty to the plaintiffs because there was no special relationship among the parties that required the wife to control the conduct of her husband and neither the victims nor the harm was foreseeable. (Id. at 1013-1015. See also Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 727-730.)

In Wise the issue was whether liability could be predicated on a failure to warn. Here, however, plaintiffs contend Milagro not only failed to warn, she made a materially false statement when she said her husband was not violent. Thus, the instant case is more factually similar to that presented in Pamela L. v. Farmer (1980) 112 Cal.App.3d 206. There, husband and wife were sued for acts of child molestation allegedly committed by the husband. The wife's demurrer was sustained by the trial court but reversed on appeal. The complaint alleged, among other things, that the wife encouraged the child victims to come on to her premises and use her swimming pool by telling their parents that it was perfectly safe when she was not there because her husband would be present. The complaint also alleged that prior to these invitations the wife had known that her husband had molested women and children in the past and that her husband intended to commit similar acts with these children unless otherwise prevented.

The wife argued the general rule that a person has no duty to control the criminal acts of a third person or to warn those endangered by such conduct absent a "special relationship." However, the court observed that this principle "is based on the concept that a person should not be liable for 'nonfeasance' in failing to act as a 'Good Samaritan.' It has no application where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person. In such cases the question of duty is governed by standards of ordinary care." (Pamela L. v. Farmer, supra, 112 CalApp.3d at p. 209.) In reversing the sustaining of the demurrer, the court relied in part on "Restatement Second of Torts section 302B which provides: 'An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.'" (Id. at pp. 209-210.) The court concluded that the wife did not merely fail to prevent harm or warn of it (as was the case in Wise), her own acts, including the statement that it was safe for the children to swim on her property, had the effect of increasing the risk of such harm occurring.

[...]

Based on the facts alleged, we conclude Milagro owed a duty of care to Boon not to misrepresent affirmatively the nature of the hazard that he had encountered.

The employees' spouses have no personal liability for the alleged wrongful acts of the former Vanier employees. See California Family Code § 1000(a).

Section 1000 states, in part:

"(a) A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefor if the marriage did not exist."

Plaintiff acknowledges that the employees' spouses are not alleged to have committed any wrongful act or to have breached any contract.

Plaintiff argues that the employees' spouses were named solely for the purpose of binding the marital community estate. See California Family Code § 1000(b).

Section 1000 further provides:

"(b) The liability of a married person for death or injury to person or property shall be satisfied as follows:

(1) If the liability of the married person is based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person.

(2) If the liability of the married person is not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the separate property of the married person and second from the community estate."

The issue of whether the Former Vanier Employees were "performing an activity for the benefit of the community" is relevant for later collection purposes. If they were acting for the community, a judgment creditor must resort first to community assets, if they were not, the judgment creditor must first resort to the judgment debtor's separate property.

It is proper to determine this issue at time of trial. Just as a trier of fact may at trial determine questions of alter ego to pierce the corporate vail, respondeat superior to hold an employer liable or agency to hold a principal liable, it would promote the interests of judicial economy to determine whether the former Vanier employees were acting on behalf of the community at the same time a trier of fact is looking at those acts to determine if they were wrongful.

Even if wife's membership interest in BKS Cambria were community property, this would not necessarily mean that her interest would be liable for Schaefers’ judgment debt to respondent. The summary of the facts in the Kansas Court of Appeals’ opinion shows that respondent's fraud action was based on Schaefers’ conduct beginning in 2011, 15 years after the spouses had separated. Family Code section 910, subdivision (a) provides, "[T]he community estate is liable for a debt incurred by either spouse before or during the marriage ...." But the community's liability "does not include [a debt incurred during] ‘the period after the date of separation ... and before a judgment of dissolution of marriage or legal separation of the parties.’ [ Fam.C. § 910(b) ] [¶] Thus, debts incurred by either spouse after separation are the debtor spouse's separate obligation , neither chargeable against nor reimbursable from the community estate. [Citations.]" (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group June 2021 update) ch. 8-D, ¶ 8:746.) "In the case of a tort, [a debt is incurred] at the time the tort occurs." (Fam. Code, § 903, subd. (b).) The fraud tort in the Kansas action occurred no earlier than 2011.

Thus, the trial court's determination that it would be inequitable not to add BKS Cambria as a judgment debtor was based in part on mistakes of law and findings unsupported by the record. The court concluded that wife is not an innocent third party who would be harmed by reverse veil piercing because her membership interest in the LLC is presumptively community property and the LLC's California tax returns manifested wife's intent to treat her 50 percent interest as community property. But the presumption of community property is inapplicable. If wife's interest in the LLC were community property, her interest would not be liable for Schaefer's debt to respondent because the debt was incurred long after the date of separation. Moreover, the court failed to consider that wife may not have been aware of the significance of the tax returns’ designation of BKS Cambria as a disregarded entity. The trial court's legal mistakes and unsupported factual findings irretrievably flaw its ruling.

(a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.

(b) "During marriage" for purposes of this section does not include the period after the date of separation, as defined in Section 70, and before a judgment of dissolution of marriage or legal separation of the parties.