*243 Opinion
Rossum (Rossum) took toxic materials from her employer, the County of San Diego (County), and used them to murder her husband, Greg de Villers (de Villers). The trial court ruled County could be liable in wrongful death damages for de Villers’s death. The jury awarded damages against County. We reverse.
I
FACTUAL BACKGROUND
A. The Relationship Between Rossum and de Villers
Rossum became addicted to methamphetamine during high school. She continued to use methamphetamine periodically during college. In December 1994, while in college, Rossum left school without telling her parents, and went to San Diego to hide a relapse into methamphetamine use. At that time, she met de Villers, they became lovers, and Rossum moved into de Villers’s apartment.
De Villers helped Rossum quit using methamphetamine, and in the fall of 1995 she reenrolled in college, majoring in chemistry. She avoided drug use and graduated with honors in May 2000. Rossum married de Villers in June 1999.
B. Rossum’s Employment at the Office of the Medical Examiner
In 1997, while still in college, Rossum was employed as a student worker at County’s office of the medical examiner (OME). At that time, she had not used drugs for approximately two years. In 1997, OME had no policy requiring applicants to pass a drug or alcohol test, and Rossum’s employment application did not inquire about prior drug or alcohol use or criminal history.
In March 2000, OME promoted Rossum from a student worker to a permanent position as a Toxicologist I. A toxicologist analyzes body fluids for the purpose of determining whether drugs are present. At the time OME promoted Rossum, OME was unaware of her earlier drug history or juvenile record. 1 OME did not conduct a drug test or a background check on Rossum, *244 although County’s policy at that time required all OME applicants to pass a drug and alcohol test and the job description for toxicologist specified the applicant was required to undergo a law enforcement background investigation. Janet Enright, the administrative services manager for OME, thought Rossum should have been drug tested but was told by County’s human resources department that Rossum was not required to be tested because she already worked at OME. Although Rossum signed a waiver agreeing to be tested, OME never arranged for the tests. However, there was no evidence suggesting Rossum had relapsed into drug use at the time she applied for and received the promotion, and neither her physical appearance nor her job performance suggested she had resumed using methamphetamine. Instead, the evidence suggested she did not resume her drug use until late September 2000.
Enright also thought all employees were required to undergo a background check, and asked Mr. Ambom (OME’s operations administrator) whether Rossum should undergo a background check. Ambom told Enright it would be unnecessary. Although Ambom decided in June 2000 to have the sheriff’s department conduct background checks on all employees hired in 2000, and Enright secured a waiver from Rossum permitting a background check, Ambom elected not to conduct a background check on Rossum. However, after de Villers was murdered, Ambom conducted a background check on Rossum and it disclosed no offenses.
C. The Robertson/Rossum Affair
Michael Robertson (Robertson) began working at OME in the spring of 2000. Robertson was Rossum’s supervisor. By May 2000 coworkers suspected he and Rossum were involved in an affair and complained to Enright, who relayed the complaints to Ambom. However, when Ambom questioned some coworkers, they denied seeing the two hugging or kissing. Ambom also asked Robertson (on two occasions) whether he was involved with Rossum, and Robertson denied it. Ambom did not ask Rossum about the rumors or examine the e-mails between Rossum and Robertson.
By October 2000, Rossum had relapsed into methamphetamine use. 2 Robertson became aware of her renewed usage but, contrary to County’s policy requiring supervisors to report any workplace drag use, did not report Rossum’s renewed usage of drags.
*245 D. de Villers’s Death
On Thursday November 2, 2000, de Villers confronted Rossum. He told her he suspected she was using drugs and having an affair with Robertson, and demanded she quit her job at OME. He threatened to reveal her drug use and her affair with Robertson to OME if she refused to quit her job. However, when Rossum and de Villers visited with her parents the following night, the parents did not notice anything to suggest Rossum had relapsed into drug use.
On Monday, November 6, at 9:22 p.m., Rossum called 911 and told the operator de Villers had not been feeling well and that he had suddenly stopped breathing. Paramedics arrived minutes later and found de Villers’s body on the floor next to his bed. Fresh-looking red rose petals were strewn around his body. The paramedics transported de Villers to the hospital, where he was pronounced dead at 10:19 p.m. {People v. Rossum (June 13, 2005, D041343) [nonpub. opn.].)
E. The Investigation
San Diego County Medical Examiner, Dr. Brian Blackboume, performed an autopsy on de Villers’s body the day after his death. He concluded de Villers had been dead for at “least an hour or so” by the time paramedics arrived, and that de Villers had been “stuporous or semi-conscious or comatose” for a minimum of six to 12 hours prior to his death. Blackboume also found needle marks on de Villers’s body. {People v. Rossum, supra, D041343.) However, neither the autopsy nor the initial toxicology tests 3 showed the cause of his death.
Based on subsequent toxicology results of de Villers’s body fluids, Blackboume determined de Villers had died of acute fentanyl intoxication. The toxicology results also showed de Villers had oxycodone and clonazepam in his system at the time of his death.
Shortly thereafter, an audit was conducted at OME for the purpose of determining whether any fentanyl was missing from its supply. Fifteen fentanyl patches impounded in three different cases and the contents of a vial *246 of the fentanyl standard 4 were missing from OME. Rossum had been involved in all three cases in question and had logged in the fentanyl standard. Robertson also had authorized access to all drugs stored at OME. Robertson and Rossum, who both knew OME did not routinely test for fentanyl, had traveled together in October 2000 to attend a conference of forensic toxicologists at which they received a copy of a journal that included a paper discussing 25 deaths caused by fentanyl.
In December 2000 and January 2001, OME toxicologist Lowe conducted two further evidentiary audits to determine whether any methamphetamine or other drugs were missing from OME. The audits found impounded methamphetamine was missing from various envelopes, and various drug standards (including those for methamphetamine and cocaine) were missing. These three audits were the first audits of impounded drugs conducted in Lowe’s 32 years at OME. In July 2001, OME directed another toxicologist to conduct an audit of all of OME’s evidence drugs. This audit found that some clonazepam and oxycodone were missing. In addition to the fentanyl, low levels of these latter two drugs were found in de Villers’s system.
At the trial in the case, plaintiffs introduced the testimony of several experts. One expert testified OME’s hiring and supervision practices were inadequate because drugs are constantly present in the work environment. A second expert testified there were several deficiencies in the controls used by OME to prevent drug thefts by its employees. A third expert testified to the effects of methamphetamine on its users and testified that Rossum’s constant access to the drug coupled with the stress of hiding her affair with Robertson nearly guaranteed she would relapse into substance abuse.
E The Criminal Proceedings
Rossum was charged with the first degree murder of de Villers and, as a special circumstance, the information alleged she committed the murder by administering poison. The jury convicted her of the crime and found the special circumstance true. (People v. Rossum, supra, D041343.) She is currently serving a prison sentence of life without possibility of parole.
*247 n
PROCEDURAL BACKGROUND
Plaintiffs filed this wrongful death action against Rossum and County seeking damages for de Villers’s death. 5 Plaintiffs’ claim against County alleged two theories of liability: (1) County was liable for de Villers’s death because it had negligently hired and supervised Rossum and this negligence was a proximate cause of de Villers’s death; and (2) County breached its mandatory duty to guard against the theft of drugs from OME and the breach of that duty was a proximate cause of de Villers’s death. After County’s pretrial challenges to plaintiffs’ theories were rejected, the matter was tried to a jury, which found in favor of plaintiffs on both theories. County’s motion for judgment notwithstanding the verdict was denied, and judgment was entered in favor of plaintiffs. This timely appeal by County followed.
HI
ISSUES ON APPEAL
A. Overview
When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor’s employer, the injured party ordinarily must demonstrate either (1) the employer violated a duty of care it owed to the injured party and this negligence was a proximate cause of the resulting injury (the
direct
liability theory), or (2) the tortfeasor-employee was liable for committing the tortious conduct that caused the injury while acting within the course and scope of his or her employment (the
vicarious
liability theory). (See generally 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, §§ 167-168, pp. 211-213.) When the employer is a governmental agency, the statutory framework permits the injured party to pursue the
vicarious
liability theory in accordance with these general common law principles. (Gov. Code, § 815.2.)
6
However, the statutory framework requires, as a condition to the injured party’s recovery on a
direct
liability theory against a governmental agency, that the injured party identify a “specific statute declaring [the entity] to be liable, or at least creating some specific duty of care” by the agency in favor of the injured party.
(Eastbum
v.
Regional Fire Protection Authority
(2003)
B. Issues on Appeal
In this case, plaintiffs asserted County was liable under both vicarious and direct liability theories. Although conceding County could not be held vicariously liable for Rossum’s direct conduct because she was not acting within the course and scope of her employment when she killed de Villers, plaintiffs nevertheless appear to assert County may be held either directly or vicariously liable for de Villers’s death because the negligence of County’s managers in hiring and supervising Rossum were proximate causes of the murder. 7 Plaintiffs alternatively contend that, even if a direct liability claim is limited to cases in which a legislative enactment has created a specific duty of care by the agency in favor of the injured party, the provisions of 21 Code of Federal Regulations part 1301.71(a) (2007) imposed a mandatory duty on County to take effective steps to safeguard against the theft and abuse of drugs in its possession, and County’s violation of that mandatory duty supports the judgment for plaintiffs.
IV
THE NEGLIGENT HIRING/SUPERVISION CLAIM
Plaintiffs first argue County may be held liable, either vicariously or directly, for negligently hiring and supervising Rossum.
A. The Vicarious Liability Theory
Plaintiffs assert various County employees, acting within the course and scope of their employment, negligently (1) failed to discover Rossum’s prior drug history or juvenile criminal record when it hired her or terminate her when another County department learned of her prior history, (2) failed to prevent or uncover the theft of drugs from OME by its staff, (3) failed to discover her affair with Robertson, and (4) permitted Rossum to learn of the lethality of fentanyl. Plaintiffs contend these acts and omissions were substantial factors leading to de Villers’s murder, and therefore County is vicariously liable for de Villers’s murder.
*249
When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury. (§ 815.2, subd. (a);
Eastbum, supra,
As a general rule, citizens do not have a duty to prevent criminal attacks by third parties.
(Margaret W.
v.
Kelley R.
(2006)
Here, there was no evidence supporting a conclusion any County employee had undertaken a special protective relationship toward de Villers.
8
Moreover, the evidence appears undisputed that no one—including de Villers or other family members—had
actual
knowledge that Rossum posed a threat to de Villers. Plaintiffs contend it is unnecessary to prove County employees were actually aware of Rossum’s malignant heart, arguing all that “is required to be foreseeable is the general character of the event or harm ...[,] not its precise nature or manner of occurrence.”
(Bigbee
v.
Pacific Tel. & Tel. Co.
(1983)
However,
Bigbee
did not involve a criminal act, and our Supreme Court’s more recent and pertinent analysis is contained in
Wiener v. Southcoast Childcare Centers, Inc.
(2004)
Plaintiffs cite no relevant California authority suggesting that persons who do
not
occupy a special protective relationship to the victim (or the class to which the victim belonged), and who lack
actual
knowledge of the perpetrator’s propensity to engage in criminal conduct, nevertheless owe a duty to anticipate and protect against the criminal conduct of a perpetrator.
9
The law is to the contrary.
(Margaret W.
v.
Kelley R., supra,
*251 Plaintiffs appear to suggest that because the jury found Robertson was acting “within the course and scope of his employment with respect to the manner in which he supervised” Rossum, County can be held vicariously liable for de Villers’s death. Noticeably absent from this argument is any discussion of why Robertson would be liable for de Villers’s death. If Robertson was merely negligent in failing to anticipate and prevent Rossum’s crime, Wiener would insulate him from liability. However, if Robertson’s liability arose because he was a coconspirator or aider and abettor, then the jury’s finding that he was acting in the scope of his employment would lack evidentiary support. Thus, the finding Robertson was acting in the scope of his employment in his “supervision” of Rossum, in addition to being so broad as to lack meaningful content, does not aid plaintiffs’ claim against County for vicarious liability based on the acts of its employees.
B. The Direct Liability Theory
Plaintiffs argue that, even if County employees would not be liable for failing to anticipate and prevent Rossum’s criminal act, a governmental entity may be held directly liable for negligently hiring and supervising its employees. However, in both
Zelig
v.
County of Los Angeles
(2002)
In
Zelig,
the governmental entity was sued for failing to protect against a criminal assault on public property in which the perpetrator killed a person.
Zelig
explained that: “[T]he public entities’ potential liability for the death of plaintiffs’ mother arises under the California Tort Claims Act. . . and has two sources: (1) the public entities’ liability based on their own conduct and legal obligations, and (2) the public entities’ liability, based on respondeat superior principles, for the misconduct of their employees that occurred in the scope of their employment. The Tort Claims Act draws a clear distinction between the liability of a public entity based on its own conduct, and the liability arising from the conduct of a public employee. Although the Act provides that a
public employee
generally is liable for an injury caused by his or her act or omission ‘to the same extent as a private person’ (Gov. Code, § 820, subd. (a)) and that, when the act or omission of the public employee occurs in the scope of employment the public entity will be vicariously liable for the injury (Gov. Code, § 815.2), the Act contains
no
provision similarly providing that a
public entity
generally is liable for its own conduct or omission to the
*252
same extent as a private person or entity. Rather, the Act provides that a public entity is not liable for an injury ‘[e]xcept as otherwise provided by statute . . . .’ (Gov. Code, § 815.) Certain statutes do provide expressly for public entity liability in circumstances that are somewhat parallel to the potential liability of private individuals and entities but, as past cases have explained, ‘ “[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances ....”’
(Brown v. Poway Unified School Dist.
(1993)
Zelig
proceeded to examine each of the two theories of potential liability.
Zelig
first concluded the complaint did not state a claim for vicarious liability because the complaint did not “allege that a public employee engaged in conduct within the scope of employment that would render the employee liable to plaintiffs for their mother’s death, and thus there is no basis for imposing vicarious liability upon the public entities.”
(Zelig v. County of Los Angeles, supra,
In
Eastbum,
the court reiterated the importance of distinguishing between vicarious liability and direct liability, noting that the latter requires identification of a “specific statute declaring [the entity] to be liable, or at least creating some specific duty of care [by the agency in favor of the injured party], and not on the general tort provisions of Civil Code section 1714.”
(Eastburn, supra,
We find no relevant case law approving a claim for direct liability based on a public entity’s allegedly negligent hiring and supervision practices. Instead, the court in
Munoz
v.
City of Union City
(2004)
Plaintiffs do not on appeal identify any statutory basis supporting a direct claim against a governmental entity for injuries allegedly caused by the entity’s generic negligence in hiring and supervising its employees. Instead, they rely on a series of cases that purportedly authorized a direct claim against the entity for negligence. However, we are unconvinced those cases support a direct claim for negligent hiring and supervision.
The two Supreme Court cases relied on by
plaintiffs—John R. v. Oakland Unified School Dist.
(1989)
Plaintiffs’ reliance on John R. is even less convincing. In John R., the court’s holding was limited to two narrow issues: (1) was the claim timely filed, and (2) may a school district be held vicariously liable for a sexual assault by a teacher during an after-school program. Although the lead opinion in John R. contained dicta at various points suggesting that its holding—declining to permit vicarious liability—would not bar a claim for direct liability for the school’s negligence in supervising the activity (see John R., supra, 48 Cal.3d at pp. 441, 451, fn. 10), the language is both dicta and is contained in an opinion that did not command a majority of the court. 10 We conclude dicta contained in an opinion that did not gamer a majority of the court is an insufficient basis to ignore the requirement, as *254 outlined in the subsequent majority holdings in Zelig and Eastbum, that a statutory basis for a direct claim against a governmental entity must be identified.
Plaintiffs also cite a series of appellate court cases
11
to support their contention that a direct claim for negligence may be maintained against a governmental entity for injuries allegedly caused by the entity’s negligent hiring and supervising of its employees. These cases do not persuade us that the analysis required by
Eastbum
and
Zelig
is preempted by a claim for direct liability under a negligent hiring/supervision theory. For example, in both
Virginia G. v. ABC Unified School Dist.
(1993)
In
Doe 1,
the court again made no effort to identify a statutory basis for the direct claim against the public entity. Instead,
Doe 1
concluded the entity could be liable for negligent supervision by finding a duty of care under two theories. First, it employed a traditional duty analysis, relying in part on
Ma v. City and County of San Francisco
(2002)
As we interpret Eastburn, the fundamental basis underlying the first rationale relied on by Doe 1 has been eviscerated by Eastburn’s discussion of Ma and Rowland. We conclude Doe 1 was impliedly disapproved in Eastburn and should not be followed.
The remaining cases relied on by plaintiffs are equally inapplicable. 14 We conclude that a direct claim against a governmental entity asserting *256 negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.
V
THE MANDATORY DUTY CLAIM
Plaintiffs contend that, even if their claim against County requires a legislative enactment creating a specific duty of care by the agency in favor of the injured party, the provisions of 21 Code of Federal Regulations part 1301.71 (2007) imposed a mandatory duty on County to take effective steps to safeguard against the theft and abuse of drugs in its possession, and County’s violation of that mandatory duty supports the judgment here.
A. Legal Framework
Section 815.6 provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Section 815.6 has three discrete requirements, two of which are dispositive here.
15
First, “the enactment at issue be
obligatory,
rather than merely discretionary or permissive, in its directions to the public entity; it must
require,
rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]”
(Haggis v. City of Los Angeles
(2000)
The second “but equally important [requirement is] that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘ “one of the consequences which the [enacting body] sought to prevent through imposing the alleged
*257
mandatory duty.” ’
(Hoff v. Vacaville Unified School Dist.
(1998)
Whether the enactment creates a mandatory duty designed to protect against the particular injury is subject to de novo review because it involves a question of statutory interpretation for the courts.
(Haggis v. City of Los Angeles, supra,
B. The Evidence
OME is an analytical laboratory that performs chemical analysis for civil and law enforcement purposes, including analyzing drugs removed from death scenes and to determine cause of death. To acquire drug standards and store controlled substances, OME must qualify as a registrant licensed by the federal Drug Enforcement Administration (DEA). The DEA imposes regulatory requirements on licensees who hold controlled substances, although the nature of the regulations vary depending on the nature of the licensee’s activity. (See 21 C.F.R. § 1301.71 et seq. (2007).) Among the requirements imposed on all registrants is that a registrant “shall provide effective controls and procedures to guard against theft and diversion of controlled substances.” 16 (21 C.F.R. § 1301.71(a).)
At the time of de Villers’s murder, OME stored the drug standards in a locked room within the locked toxicology laboratory. Plaintiffs do not cite *258 any evidence this double set of locked doors failed substantially to comply with the physical security requirements applicable to OME.
At the time of de Villers’s murder, materials impounded by investigators were taken to OME. 17 The materials were placed in envelopes, which were then deposited into a locked “evidence box” previously inspected and approved by DEA investigators. However, when the evidence box was full to overflowing, investigators would place the excess envelopes adjacent to the evidence box. Persons with authorized access to OME’s offices had access to the envelopes that were not inside the locked evidence box.
The envelopes were periodically collected, moved into the toxicology laboratory and placed in the “balance room.” A toxicologist would periodically sort through the collection to remove envelopes marked “destroy, no hold”; these would be placed into a cardboard box to be later taken to the sheriff’s office for destruction. The remainder of the envelopes were eventually sorted and placed into locked storage cabinets in the toxicology laboratory. After the envelopes had been moved from the evidence box area into the toxicology laboratory, only the toxicologists or others with keys to the laboratory had access to the materials in the balance room or the locked storage cabinets.
Plaintiffs’ expert, Mr. Mudri, testified certain aspects of OME’s security arrangements violated the mandatory obligations the Code of Federal Regulations imposed on OME. First, he testified only one or two persons should have keys that would allow access to the drug standards and the other locked areas where seized drugs were stored but, instead, the keys were accessible to all of the toxicologists after they were inside the toxicology laboratory. He stated the “key control systems and/or combination lock control systems” (21 C.F.R. § 1301.71(b)(8) (2007)) were inadequate. Second, he noted there was no system for recording or monitoring when an OME employee had possession of a drug envelope or drug standard. He concluded the “supervision over employees having access to . . . storage areas” (21 C.F.R. § 1301.71(b)(ll)) was also inadequate. 18
*259 C. The Required Action Was Not a Mandatory Duty Within the Meaning of Section 815.6
The provisions of 21 Code of Federal Regulations part 1301.71(a) (2007) require a registrant to provide “effective” controls to “guard against” theft of controlled substances, but does not impose a mandatory obligation to guarantee no materials will ever be stolen. The regulation does not mandate that any particular method or procedure be adopted to guard against theft; to the contrary, it expressly recognizes that “[substantial compliance” with the physical and other security requirements imposed on registrants may be “deemed sufficient” to satisfy the registrant’s obligations. (21 C.F.R. § 1301.71(b).) Indeed, plaintiffs’ expert conceded that neither of the measures he specified as complying with the regulations (e.g., limiting keys to two people and having a witnessed monitoring when any toxicologist accessed a drug standard or an evidence envelope) were mandated by the enactment, and he agreed the guidelines are “general guidelines” that afford discretion on how to design and implement safeguards against theft. 19
We conclude the Code of Federal Regulations does not impose the type of mandatory obligation contemplated by section 815.6. Although the regulations set goals to which the registrant must aspire, it grants latitude on how best to achieve those goals and does not describe discrete acts that must be performed. Under the analysis of
Creason v. Department of Health Services
(1998)
In determining whether a mandatory duty actionable under section 815.6 had been imposed, the Legislature’s use of mandatory language (while necessary) is not the dispositive criteria.
20
Instead, the courts have focused on the particular action required by the statute, and have found the enactment created a mandatory duty under section 815.6 only where the statutorily commanded act did not lend itself to a normative or qualitative debate over whether it was adequately fulfilled. Thus, actionable mandatory duties have been found where a county failed to release an arrestee after dismissal of charges as required by Penal Code section 1384
(Sullivan v. County of Los Angeles
(1974)
In contrast, when the statutorily prescribed act involves debatable issues over whether the steps taken by the entity
adequately
fulfilled its obligation,
*261
we believe the act necessarily embodies discretionary determinations by the agency regarding how best to fulfill the mandate, and this discretion removes the duty from the type of activity that supports a claim under section 815.6. “Like the court in
Haggis,
we also read
Creason
as endorsing the view that,
for purposes of establishing damages liability under section 815.6,
if the predicate enactment confers the exercise of discretion on government officials, the use of ‘shall’ and like words will not alone support liability under the California Tort Claims Act.”
(Sutherland
v.
City of Fort Bragg, supra,
Here, the mandated act—to “guard against” theft with “effective controls and procedures”—does not involve a discrete act over which there can be no debate, but instead involves actions that admit to a qualitative debate over whether OME’s actions were sufficient to fulfill its obligation. Indeed, the Code of Federal Regulations itself contemplates that “[substantial compliance with the standards . . . may be deemed sufficient by the Administrator” to satisfy the mandate (21 C.F.R. § 1301.71(b) (2007)), which confirms that the qualitative judgments on the adequacy of the steps taken to fulfill the mandate have been vested in administrative agencies. We do not believe that 21 Code of Federal Regulations part 1301.71 imposes a duty that is mandatory for purposes of establishing damages liability under section 815.6, because the predicate enactment confers on government officials the discretion to evaluate and decide how best to implement the required security.
D. The Enactment Was Not Designed to Protect Against the Particular Injury
The second essential element of section 815.6—that the mandatory duty was designed to protect against the particular kind of injury the plaintiff suffered—is also absent here. Plaintiffs have not produced any relevant legislative history demonstrating that the
particular
injury suffered—the
*262
danger that stolen drugs would be used to commit premeditated murder—is “ ‘one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.’ ”
(Hoff v. Vacaville Unified School Dist., supra,
The courts have repeatedly rejected the contention that a plaintiff’s ability to articulate some causal nexus between the broad protective purposes of the mandatory duty and the specific injury suffered is sufficient to show the particular injury suffered was within the intended ambit of the duty. For example, in
Nunn v. State of California
(1984)
Other courts have similarly declined to find a particular injury suffered was within the intended ambit of the duty merely because there was some causal connection between the alleged violation of the duty and the specific injury. For example, in
Fleming
v.
State of California
(1995)
Plaintiffs cite neither pertinent legislative history nor analogous case law suggesting that a measure designed to deter drug theft encompasses, as “ ‘one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty’ ”
(Hoff v. Vacaville Unified School Dist., supra,
VI
OTHER CLAIMS
Because we conclude there is no cause of action against County in this case for negligent hiring and supervision under either a vicarious or direct liability theory, and no cause of action for failure to perform a mandatory duty within the meaning of section 815.6, it is unnecessary to address the alternative claim of County that the murder of de Villers by Rossum was not foreseeable for purposes of establishing either a duty on County or causation resulting from any breach of duty.
*264 DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to grant the County’s motion for judgment notwithstanding the verdict. The County is entitled to costs on appeal.
McIntyre, J., and Irion, J., concurred.
Respondents’ petition for review by the Supreme Court was denied January 16, 2008, S158544.
Notes
Rossum had a juvenile record on charges of being under the influence and in possession of controlled substances.
Detectives investigating de Villers’s death found a prescription in Rossum’s name, with a late September 2000 date on it, obtained from a Mexican physician and apparently filled in Mexico. The prescription was for a drug that metabolized as methamphetamine.
Ambom decided the toxicology tests to be performed on de Villers’s body fluids should be performed by an agency other than OME to avoid any potential conflict of interest. This was the first time Ambom had used an outside agency to conduct toxicology tests. When Ambom told Robertson he had decided to have the tests performed outside OME, Robertson expressed shock.
OME performs toxicological analyses to determine whether drugs may have contributed to a death and, to facilitate the analysis, OME maintains an inventory of drug “standards,” which are vials of pure drugs that may be used to chemically compare with drugs impounded at death scenes.
Plaintiffs’ complaint also sought damages against Robertson, but the claims against Robertson were voluntarily dismissed before trial.
All statutory references are to the Government Code unless otherwise specified.
Plaintiffs also argue that several cases have permitted a plaintiff to pursue a negligent hiring and supervision claim against a governmental entity as a claim for direct rather than vicarious liability. We discuss those cases at part IV.B., post.
Plaintiffs acknowledge there was no special relationship between de Villers and County.
Plaintiffs rely on
Lugtu v. California Highway Patrol
(2001)
In
Mary M.
v.
City of Los Angeles
(1991)
Although respondents cite
Mary M. v. City of Los Angeles, supra,
In
Virginia G.,
a junior high school student was molested by a teacher while at school
(Virginia G. v. ABC Unified School Dist., supra,
Rowland v. Christian
(1968)
For example, although
Mendoza
v.
City of Los Angeles, supra,
The third requirement is that the entity’s failure to fulfill that duty was a proximate cause of the injury.
(Sutherland
v.
City of Fort Bragg
(2000)
The regulation provides that, to determine whether a registrant has provided “effective controls,” the DEA’s administrator “shall use the security requirements set forth in §§ 1301.72-1301.76 as standards for the physical security controls and operating procedures necessary to prevent diversion.” (21 C.F.R. § 1301.71(a) (2007).) Parts 1301.72 and 1301.73 address the standards for physical security controls to be employed by nonpractitioners. Part 1301.74 addresses “other security controls” to be employed by nonpractitioners. Part 1301.75 addresses physical security controls to be employed by practitioners, and these latter controls apparently apply to nonpractitioners “authorized to conduct research or chemical analysis under another registration.” (21 C.F.R. § 1301.75(c) (2007).) Finally, part 1301.76 addresses “other security controls” for practitioners, but does not similarly extend such controls to nonpractitioners authorized to conduct chemical analysis under another registration.
OME did not maintain a “witnessed” inventory of materials deposited by investigators. .
Mudri initially testified he had three reasons for concluding OME’s procedures violated 21 Code of Federal Regulations part 1301.71. However, the third criterion he cited was subdivision (b)(14), which refers to the “adequacy of the . . . system for monitoring the receipt . . . and disposition of controlled substances in its operations.” (21 C.F.R. § 1301.71(b)(14).) When describing how this provision was violated, Mudri acknowledged it “falls along the lines with the other two, [the] monitoring activities [and] access to only a minimum number of employees.” It appears that Mudri believed that controlling access to the keys and monitoring when employees accessed the drugs held in OME offices were required to comply with the three cited subdivisions.
The subdivisions cited by Mudri as the foundation for his opinion that County violated its mandated obligations are contained in 21 Code of Federal Regulations part 1301.71(b) (2007). That subdivision explicitly grants to the administrator the power to determine whether the security provided by the registrant adequately meets the regulatory demands. Thus, discretionary determinations as to the adequacy of security are made in the first instance by OME and in the second instance by the DEA.
For example, in
Department of Corporations v. Superior Court
(2007)
Other courts have found mandatory duties under similar enactments, including (1) the obligation of an entity to issue a building permit only on proof the applicant has workers’ compensation insurance
(Morris v. County of Marin
(1977)