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Thorn v. City of Glendale9/6/1994
ble in each of these particulars. There our Supreme Court imposed respondeat superior liability for rape by an on-duty police officer, emphasizing that a police officer is entrusted with "extraordinary power and authority over its citizenry." (Id. at p. 216.) The court contrasted that authority with the role of a school ground custodian accused of rape in Alma W. v. Oakland Unified School Dist. (1981) 123 Cal. App. 3d 133, 176 Cal. Rptr. 287: "The danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law. Those responsibilities do not at all resemble the duties of a school custodian, as involved in Alma W., supra." (Mary M. v. City of Los Angeles, supra, 54 Cal 3d at p. 218.)
Mary M. distinguished but did not overrule John R. v. Oakland Unified School Dist., supra, 48 Cal. 3d 438, which applied "the historical and perhaps still prevailing point of view" that an employer could not be held vicariously liable for the criminal act of an employee committed in furtherance of the employee's personal purpose. (Id. at p. 448 [teacher's sexual molestation of student].) In so doing, the majority opinion of our Supreme Court appears to have established a special rule for the independent wrongful acts of police officers based upon their unique position of both trust and power in our society. We decline to extend that holding to one not equally endowed with authority, particularly where the victims of an employee's aberrant behavior can, and virtually always do, guard themselves against the economic loss incurred.
Thorn also urges on appeal that Glendale is liable for negligent supervision of its fire marshal. Glendale takes the position that negligent supervision was waived below, and that in any event there is no statutory authority for an action based upon negligent supervision under the facts of the present case and that Glendale is immune from such liability.
We note first that Glendale raised the issues of statutory authority for negligent supervision and immunity in its points and authorities in support of its demurrer. Appellants did not address those issues, but urged only that Orr's alleged arsonist activities fell within the scope of his employment as fire marshal and that therefore Glendale was liable under the doctrine of vicarious liability. Even assuming the issue may be raised for the first time on appeal (see Kittle v. Lang (1951) 107 Cal. App. 2d 604, 610, 237 P.2d 673), we find it unpersuasive.
Appellants rely upon John R. v. Oakland Unified School Dist., supra, and on Virginia G. v. ABC Unified School Dist. (1993) 15 Cal. App. 4th 1848, in support of liability. In John R., however, the issues of statutory authority and immunity were not discussed; the defendant had successfully demurred on the ground of timeliness below. In Virginia G., the court ruled that the plaintiff could proceed with the cause of action for negligent hiring and supervision because a "special relationship" is formed between a school district and its students to take all reasonable steps to protect its students (id. at p. 1853) and reserved the issue of public entity immunity for negligent supervision. We reject appellants' claim, made for the first time in their reply brief, that a special relationship was formed when Orr undertook an inspection. (See also Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 410, 205 Cal. Rptr. 1 [immunity for inadequate fire inspection servic
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