Opinion
This is an action for assault and battery and negligence. Plaintiffs (appellants) are three minor girls who, according to the allegations of the complaint, were sexually molested by defendant Richard *208 Farmer, Jr., at his home between July 1976 and May 1977. 1 Defendant Elsie Farmer (respondent) is Richard’s wife. Richard answered the complaint, but Elsie demurred to it. Plaintiffs appeal from a judgment of dismissal as to Elsie, following the sustaining of her demurrer to the second amended complaint. (Code Civ. Proc., §§ 581, subd. 3, 581d.)
The pertinent allegations against respondent in the second amended complaint are as follows:
“III
“That prior to defendant Richard Farmer’s having sexual relations dr other sexual acts with plaintiffs, Pamela L., age 12, Christine T., age 13 and Marion F., age 11, at the home of defendants, Richard Farmer аnd Elsie Joanne Farmer, ... defendant Elsie Joanne Farmer knew: That defendant Richard Farmer had a record as a sexual offender and had molested women and children in the past, аnd knew that said children above named were being invited to swim in defendants’ swimming pool by defendant Richard Farmer while defendant Elsie Joanne Farmer was at work and when defendant Richard Farmer would be alone with said children on said premises, and knew that defendant Richard Farmer intended to commit sexual acts with said children on said premises if not prevented therefrom and knеw that serious danger of sexual misconduct by her husband, defendant Richard Farmer on said children would occur unless said defendant Elsie Joanne Farmer warned said plaintiff children and their parents of said defendant Richard Farmer’s intentions and nature, notified the police or took whatever steps were reasonably necessary under the circumstances to protect said children from her husband’s sexual misconducts.
“IV
“That although defendant Elsie Joanne Farmer knew that which is set forth in Paragraph [] III said defendant Elsie Joanne Farmer negligently, carelеssly, recklessly, wantonly and unlawfully failed to protect said minor children plaintiffs, Pamela L., Christine T. and Marion F. against her husband defendant Richard Farmer’s sexual conduct toward them, failed to wаrn or apprise said minor plaintiffs or their parents of their danger from defendant Richard Farmer, failed to no *209 tify the police, permitted said children on her premises while she was absent and when only defendant Richard Farmer was present and failed to take any steps reasonably necessary under the circumstances to prevent harm to said plaintiff children.
“V
“Further said defendant Elsie Joanne Farmer negligently, carelessly, recklessly and wantonly encouraged the parents of plaintiffs Pamela L., Christine T. and Marion F. to permit these children to go onto her premises by telling said parents it was perfectly safe to permit their girls to go to her premises to swim when she wasn’t there because ‘Dick,’ her husband would be there and the сhildren would be perfectly safe and negligently, carelessly, recklessly and wantonly encouraged and invited these children to play in her swimming pool at her home when she knew that said сhildren would be alone with her husband, defendant Richard Farmer and negligently prepared food, ice cream and drink to entice said children to her premises when she knew that said childrеn would be alon[e] with her husband, defendant Richard Farmer.”
Respondent cites the principle that generally a person has no duty to control the conduct of a third person, nor tо warn those endangered by such conduct, in the absence of a “special relationship” either to the third person or to the victim. (Rest. 2d Torts, § 315;
Tarasoff
v.
Regents of University of California
(1976)
This latter principle is embodied in Restatement Second of Torts section 302B which provides: “An act or an omission may be negligent if the actor realizes оr should realize that it involves an unreasonable risk
*210
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.” (See
O’Hara
v.
Western Seven Trees Corp.
(1977)
Here respondent did not merely fail to prevent harm to plaintiffs from Richard. Respondent by her own acts increased the risk of such harm occurring. According to the allegаtions in paragraph V, respondent “encouraged and invited” the children to play in her swimming pool, prepared refreshments to “entice” the children, and “encouraged the parents... to permit” the children to come to her premises by telling them it would be perfectly safe for the girls to swim when respondent was not there, because her husband would be there. This was done, it is alleged, with knowledge that Richard had molested women and children in the past and that it was reasonably foreseeable he would do so again if left alone with the children оn the premises. By encouraging and inviting the children to be alone with Richard under circumstances where he would have peculiar opportunity and temptation to commit such miscоnduct, respondent could be held to have unreasonably exposed the children to harm. 2
In
Wallace
v.
Der-Ohanian
(1962)
The court upheld a judgment against the defendant, finding both a duty to the child and the foreseeability of harm in the particular circumstances of the case. With regard to duty, the court notеd, “‘The measure of precaution which must be taken by one having a child *211 in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances.’” (Id., at p. 144.)
Analyzing respondent’s liability in light of relevant policy considerations rather than arbitrary classifications of “inviteе” or “licensee,” 3 we conclude respondent can be held liable in this case. Assuming the allegations of Richard’s past conduct and respondent’s knowledge thereof were аdequately proved, the most important factor, foreseeability of harm, is great. The harm occurred at respondent’s home, committed by a person having a close relаtion tor respondent. According to the allegations, plaintiffs were expressly invited by respondent. The burden on respondent to avoid the harm was slight; she could have suggested simply that shе did not want plaintiffs to come over to swim while respondent was not home. Although Richard’s primary responsibility for the harm is obvious, nevertheless there is a fairly close connection bеtween respondent’s invitation and the ultimate harm. There is moral culpability for respondent’s conduct which increased the risk of harm. The victims were children entitled to more stringent prеcautions than necessary for an adult.
Finally, even if this case were analyzed in terms of nonliability in the absence of a “special relationship,” the necessary special relationship between respondent and plaintiffs in this case can be inferred. The trend has been to expand the list of special relationships which justify imposing liability.
(Tarasoff
v.
Regents of University of California, supra,
The judgment is reversed.
Kaus, P. J., and Hastings, J., concurred.
Notes
In comment e, paragraph D, illustration 10, to Restatement Second of Torts section 302B, it is stated that the actor is required to take precautions “[w]here the actor has brought into contact or association with the other a person whom the actor knows or should know to bе peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct. [TI]... A, a young girl, is a passenger on B Railroad. She falls asleep and is carried beyond her station. The conductor puts her off of the train in an unprotected spot, immediately adjacent to a ‘jungle’ in which hobоes are camped. It is notorious that many of these hoboes are criminals, or men of rough and violent character. A is raped by one of the hoboes. B Railroad may be found to be negligent toward A.” (See also Rest. 2d Torts, § 449.)
Rowland v. Christian
(1968)