Libraries, Latchkey Children and the Law
The following article appeared in California Libraries June 2000 (Vol. 10 No. 6). Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.
My library constantly has children left after closing. If they are left alone in the parking lot after hours and we do nothing, are we responsible? What if we have a policy to wait with the child until a ride comes and/or call the police?
A: It depends. Legally, those are two very different questions, explored below. The general legal principle to guide us here is that under the common law, there is a principle that a person has no duty to come to the aid of others. However, under the "Good Samaritan" rule, a person could be liable if she comes to another's aid, and doesn't exercise due care in administering the aid. One can be liable by failing to exercise due care and increasing the risk of harm, or causing another to rely on aid and thereby suffer harm. Note: the discussion below does not concern dangerous conditions on the library property, which would require a discussion of premises liability.1
Does the "no duty" rule apply to me as a public employee?
Yes. In California, as a general rule, public employees, like ordinary persons, have no duty to come to the aid of others. A person who has not created a peril is not liable for failure to take affirmative action to assist or protect another unless there is some relationship between them, which gives rise to a duty to act.2
Do libraries generally have a duty to aid someone after hours?
No. But again note: if a librarian begins to aid a child, she has essentially undertaken that duty and must see it through.
Have there been any court cases on latchkey children left at libraries?
No, none that are reported. A relevant case, however, concerned the legal responsibility of a crossing guard who saw a little girl attempt to cross a street, but did not help her because he had not yet begun duty.
What happened to the crossing guard?
He won his case. He had no special relationship with the girl, and his "[mere] failure to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued" did not make him liable.3
You mean he was not liable, even though he knew that children often arrived early and could be in danger?
Yes. The court said that no special relationship existed that would impose a duty on the crossing guard to help the girl. His knowledge that the children would arrive early was immaterial.
What do you mean by special relationship?
The evidence that he was not authorized to work before 7:30 a.m. was sufficient to establish that he had no special relationship earlier than that time.4
Does that mean that librarians have no duty to make sure that children are safely picked up after closing?
Unfortunately, the common law is decided on a case-by-case basis, and the only way to know for sure is to have a case brought to court. However, the similarity between the crossing guard case and a librarian is persuasive.
What if the child is very young, like three or four years old?
The courts sometimes do find exceptions to this principle of no duty when the child is particularly young or vulnerable. A court could conceivably find a special relationship i.e. that a librarian has assumed supervisory care over a very young child during the open hours. It's possible a court would find a duty extended after closing if a librarian knowingly left the child alone in the dark.
But the crossing guard had no duty . . .
That's true. Applying that case, the librarian's knowledge that the child is alone and in danger should not impose liability. But sometimes courts extend the law to mitigate harsh results, and it is possible, despite this principle of law, that a court could find the librarian had a duty of care. There is no clear legal authority until a case comes to trial.
If the librarian could be liable for leaving a child in a darkened library parking lot after closing, could she go to jail?
Extremely unlikely. "Criminal endangerment laws" are aimed at parents, legal guardians or others specifically entrusted with the caring for the child's well being. There are criminal penalties for parents who desert a child in any place with the intent to abandon it.5
So are you suggesting that a parent could be sent to jail for leaving a child alone at the library after closing?
Only in the unlikely event that the parent intended to abandon the child.
What if I feel a moral duty to wait with the child or if my library has a policy to wait with the child until a ride comes?
If you help the child, you assume a duty of due care and trigger a liability analysis for breach of duty. This brings us back to the first question; once a librarian assumes the duty to aid another, she must exercise due care.
One who, having no initial duty to do so, undertakes to come to the aid of another is under a duty to exercise due care in performance of that duty and is liable if (a) his failure to exercise such care increases the risk of harm or (b) the harm is suffered because of the other's reliance upon the undertaking.6
You mean I have greater liability when I wait with a child?
Yes. By taking on the responsibility of waiting with unattended children, the library has assumed a duty of due care. Examples of breaching "due care" might include waiting with the child for awhile and then leaving her alone, or taking the child into your car and then driving recklessly.7
Am I personally liable?
That's an important question that I may explore further in a later column. Short answer: it depends. If your library has a policy that its employees should wait with the child, your actions are likely to be within the scope of your employment and legally considered an "exercise of discretion," under Cal. Gov. Code §820.2, shielding you from personal liability, even if you make poor decisions.8
Contrast this to the librarian whose library has no policy, or who otherwise voluntarily assumes the duty on her own time. She is less likely to be shielded by §820.2, or other public employee protections, such as governmental defenses or insurance. Her liability is more likely to be that of a private person-as if she found a child in a park and offered to help.9
What is the library's liability?
In 1963, the California Legislature passed the California Tort Claims Act, which says public entities are liable in tort for their employee' s actions.10 This is subject to statutory immunities and defenses.
What should libraries do?
Each library needs to make its own policy decisions. An excellent "best practice" is the San Marino Public Library. The city passed an ordinance on February 10, 1999 concerning children left at the public library after closing.
What does the San Marino city ordinance say?
The ordinance says that any child 12 or younger who is left alone at the public library at closing time will be directed by library personnel to use the telephone for the purpose of obtaining a ride home. If a child has not been picked up more than one-quarter hour after the closing of the library, library personnel will request a police officer to come to the Library to supervise the child. The police officer will leave a note at the library and then transport the child to his or her own home. The police officer may release the child to an adult in the home, but if no adult is home, the child is to be transported back to the police station to wait for the parent or guardian. The first time the situation occurs, the parent or guardian will be issued a warning that any additional instance may result in the reimbursement of actual costs of administrative and transportation services incurred by the city. Such fees must be paid before the child is released from the supervision of the police officer.11
How is the San Marino policy of calling the police after 15 minutes working out?
According to Carolyn Crain, City Librarian, the ordinance is working out very well. The library has called the police perhaps 10 times for children left after closing. There have been no second offenders. Parents are aware of the ordinance and have made no complaints when the library calls the police to pick up a child. The staff is especially pleased because it takes the burden of worry, or overtime without pay, off of their shoulders.
What authority does the police have to take a child into the station?
According to the California Welfare Code, "Any peace officer may, without a warrant, take into temporary custody a minor: (a) When the officer has reasonable cause for believing . . . that the child is left unattended poses an immediate threat to the child's health or safety. In cases in which the child is left unattended, the peace officer shall first attempt to contact the child's parent or guardian to determine if the parent or guardian is able to assume custody of the child. If the parent or guardian cannot be contacted, the peace officer shall notify a social worker in the county welfare department to assume custody of the child."12
Are you saying I need to get a city ordinance passed to deal with latchkey children at the library?
The San Marino ordinance is a clear statement of policy, and has the advantage of full city and police support. You may be happy to know, however, that courts will enforce clearly articulated library policy that is made known to the public, is uniformly applied, and does not conflict with any existing laws. For example, well written "patron conduct" rules are upheld by courts. You may recall the famous case the homeless patron who sued a public library in New Jersey after he was expelled for violating its "patron conduct" rules. The 3d Circuit Court of Appeals upheld the library's rules.13
What is the library's responsibility for latchkey children during open hours?
The same principle applies. The library should not hold itself out as a place that supervises children or provides a safe place. Several years ago, Santa Ana City Attorney, Edward J. Cooper said that his city assumed no responsibility for children left unattended at the library. "The library staff owes only the same duty (to latchkey children) as they do other library patrons. The library does not undertake responsibility to provide supervision."14 The importance of communicating this with your patrons cannot be overstated.
Special thanks go to Carolyn Crain, Billie Dancy, Sue Luce, Martha Minow, Newton Minow, James Robenolt, Susan Steinhauser, Al Tovar, and especially Cicely Wilson for their assistance with this article.
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1 According to Peterson v. San Francisco Community College District, 36 Cal.3d 799, (1984) at 811 and n.10 the majority of cases concerning public entity liability under the California Tort Claims Act hold that third party conduct, by itself, unrelated to the condition of the property, does not constitute a "dangerous condition." These cases rely on the definition of dangerous condition as a "condition of property." But Peterson notes that nothing in California Govt. Code § 835 precludes a finding of duty under special circumstances to protect against harmful criminal conduct on its property.
2 Westbrooks v. State of California, 173 Cal. App. 3d, 1203, 1208 (1985), citing Williams v. State of California 34 Cal. 3d 18, 23; Rest. 2d Torts, Sec. 314
3 The girl, who appeared to be 9 or 10 years old, was injured while crossing the street. Scott v. Farar, 139 Cal. App. 3d 462, 466 (1985) citing Davidson v. City of Westminster, 32 Cal. 3d 197 (1982). There are also a number of cases that show public schools have no duty to supervise students on their way to and from school. For example, see Gilbert v. Sacramento Unified School District, 65 Cal. Rptr. 913, 916 (Ct. App. 1968) (no liability was imposed on school personnel when a child was injured; ". . . an indispensable condition of liability for negligence is that a duty of care be owed to the person injured . . .")
4 139 Cal. App. 3d at 466, 467
5 California Penal Code § 273a(b)(2000) "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
California Penal Code §271 (2000) "Every parent or any child under the age of 14 years, and every person to whom any such child has been confided for nurture, or education, who deserts such child in any place whatever with intent to abandon it, is punishable by imprisonment in the state prison or in the county jail not exceeding one year or by fine not exceeding one thousand dollars ($1,000) or both."
6 Westbrooks v. State of California, 173 Cal. App. 3d 1203, 1208 (1985) citing Williams v. State of California, 34 Cal. 3d 18 (1983)
7 By analogy, look at Gonzales v. City of San Diego, 130 Cal. App. 3d 882, 182 Cal. Rptr. 73 (1982). In Gonzales, the court held that by voluntarily providing lifeguard services on a public beach, the city assumed a duty of care and then breached its duty after failing to warn swimmers about dangerous riptide conditions.
8 California Government Code § 820.2 (2000) "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
9 California Government Code §820 (2000) "Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person."
10 California Government Code § 815.2(a) (2000) "A public entity is liable for injury is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission, would, apart from this section, have given rise to a cause of action against that employee or his personal representative."
11 City of San Marino, Ordinance No. 099-1129 amending Section 14.08 of Article 8 of Chapter XIV of the City Code. Resolution No R99-3, passed unanimously, approved and adopted 10 February, 1999.
12 California Welfare Code § 305(a) (2000)
13 Kreimer v. Bureau of Police for Town of Morristown, 958 F. 2d 1242, 60 USLW 2607 (3rd Cir. (N.J.), Mar 23, 1992) rehearing denied (Apr 21, 1992). The rules included prohibitions against loitering (not using library materials), noisy or boisterous activities, unnecessary staring, as well as a requirement that personal hygiene "shall conform to the standard of the community for public places." Despite a First Amendment challenge claiming the "right to receive information," the Court found the rules to be reasonable "time, place or manner" restrictions.
14 Danielle A. Fouquette, "Libraries' Young Patrons are often Latchkey Children. Trends: Working Parents View Facilities as a Safe After-School Refuge. Librarians don't want to Discourage Users, but Caution that they are not Babysitters," Los Angeles Times March 22, 1992 p. B3
Mary Minow is an attorney and consultant with librarylaw.com. She is currently writing a book on library law for the American Library Association with Tomas Lipinski. She is President of the California Association of Library Trustees and Commissioners.
Copyright© 2002 Mary Minow
minow@librarylaw.com
minow@stanfordalumni.org
www.librarylaw.com
Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.