Margaret W. v. Kelley R.

Filed 5/5/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

INTRODUCTION

The night of December 12, 1998, devolved into tragedy for appellant Margaret W., Appellant, who was then 15 years old and a high school sophomore, went to a sleepover at a friend's house and drank too much. Without permission from either her parents or the host parent, she left the house in the company of a girlfriend and some boys from school to hang out at the house of one of the boys, where she alleges she was brutally raped by the boys.[1] Several people's lapses of judgment, failures to communicate, and criminal conduct contributed to the horrible events of that night. The issue is not whether plaintiff was the victim of a terrible wrong nor whether she suffered devastating injury as a result of that wrong, but instead who is liable under our tort law for her injuries.[2] Appellant has sued the boys she alleges raped her, the parents of the boy at whose house she was raped, and respondent Kelley R., the mother of appellant's sleepover host. The trial court granted summary judgment in favor of respondent, concluding that she did not owe appellant a duty to prevent the criminal conduct that occurred under the circumstances of this case, and appellant challenges that ruling on appeal. The potential liability of the other defendants is not at issue. We affirm.

I. STATEMENT OF FACTS

Respondent planned to go to dinner with friends and then to a small Christmas party on the evening of December 12, 1998. She did not want to leave her 15‑year‑old daughter Brianna R. home alone, so Brianna invited friends to join her during the evening and sleep over at respondent's home. With respondent's permission and approval, Brianna made plans with appellant and at least one other girl, Lauren M., for the sleepover. Respondent's younger daughter, J.R., had plans to be at a friend's home.

Appellant had slept over at respondent's home on many prior occasions. Appellant's mother assumed that a host parent could be away for several hours so long as the children would not be left unsupervised overnight. Appellant's mother did not talk directly to respondent about respondent's plans for this evening or about the rules that respondent would impose. Respondent did, however, tell Brianna to make sure that her guests and their parents knew she would be out during the evening.

Respondent took various steps to avoid problems during the evening. She left her liquor cabinet locked.[3] She left the phone number where she could be reached. She also gave the girls express rules to govern their conduct. She wanted to talk to all the girls about the rules, but appellant had not arrived by the time respondent had to leave. Therefore, respondent told Brianna and Lauren that they could not have a party, could not have boys or other girls come over, could not drink any alcohol, and could not leave the house. Both girls agreed to follow those rules and told respondent that they could be trusted to do so. With these steps taken, respondent left her house about 6:30 p.m.

Alexis D. arrived after respondent left.[4] Alexis invited some boys to come over, and the boys brought alcohol. Brianna and Lauren began drinking before appellant arrived.

Appellant, whose parents were divorced, was at a family dinner with at least her older sister, her father, and her stepmother. During the dinner, appellant learned that her father and stepmother were going to have a baby. Appellant was upset by this news. After dinner, appellant's sister drove her to respondent's house, where she arrived after 9:00 p.m. Appellant began drinking heavily to â€