In California civil law, "failure to protect" means an organization or person who did not commit the abuse can still be legally responsible for it. That is true when they had a duty to keep someone safe, knew or should have known of the danger, and did not act reasonably to prevent the harm.
Many people who look this up are asking whether the school, church, program or employer that was supposed to be watching shares responsibility for what happened. That question can be hard to raise, especially years later. California civil law has a developed set of rules for answering it, and this article walks through them: what the term means, who can be held responsible, how the duty arises, the filing deadlines, what a claim requires, and how a civil case differs from a criminal one.
What 'Failure to Protect' Means in California Civil Law
The phrase has two separate meanings in California. In criminal law, Penal Code § 273a makes it a crime for a person who has care or custody of a child to willfully cause or permit the child to be injured or placed in danger. That is a prosecution brought by the state. This article does not cover it.
In civil law, failure to protect describes a claim for money damages against someone other than the abuser, who owed the survivor a duty of protection and failed to meet it.
The legal framework is negligence (a failure to use the care a reasonable person or organization would use). A negligence claim has four parts: a duty, a breach of that duty, causation, and harm. Each is explained in more detail below.
The duty usually comes from a special relationship, meaning a relationship in which one side has taken on responsibility for the other's safety or controls the setting. Common examples are a school and its students, a church and the children in its programs, a youth organization and its participants, a healthcare facility and its patients, and an employer that places a worker in contact with vulnerable people.
Courts often frame the question as whether the institution "knew or should have known." "Should have known" means the warning signs were there for a reasonable organization to see: a prior complaint, a pattern of rule-breaking around children, a staff member's concern that went nowhere, or a history that a basic background check would have revealed.
Who Can Be Held Liable: Institutions and Third Parties
Section 340.1 of the Code of Civil Procedure expressly covers actions against "any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault." The categories that come up most often include:
- Schools and school districts, public and private. The school sexual abuse guide covers this setting in more depth.
- Religious organizations and churches. AB 218, passed in 2019, reshaped childhood sexual abuse claims against institutions, including the cover-up damages provision described in the section on what survivors need to show.
- Youth-serving organizations, such as sports clubs, scouting groups, camps and after-school programs.
- Employers. Respondeat superior (the rule that can hold an employer responsible for acts of employees within the scope of their job) is one theory. More often in abuse cases, the claim is that the employer itself was negligent.
- Healthcare and residential care facilities.
- Foster care agencies and child welfare institutions.
Three related theories describe how an institution's own conduct can fall short:
- Negligent hiring means an organization hired someone with a known history of abuse, or did not run the background check that would have revealed one.
- Negligent supervision means the organization failed to screen, train or oversee an employee or volunteer who had access to children or other vulnerable people.
- Negligent retention applies when an organization kept someone on after learning of a risk.
The Legal Duty to Protect: How It Arises Under California Law
The general starting point, from the California Supreme Court's decision in Rowland v. Christian, is that everyone owes a duty of reasonable care. Courts then weigh factors such as how foreseeable the harm was, how closely the conduct was connected to the injury, and the policy of preventing future harm. In cases about protecting someone from a third person's conduct, courts also look for a special relationship. Where prior complaints existed or warning signs were present, the harm becomes more foreseeable.
For children, a second source of obligation is the Child Abuse and Neglect Reporting Act, known as CANRA, at Penal Code §§ 11164 through 11174.3. In the words of § 11164(b), its stated purpose "is to protect children from abuse and neglect." CANRA makes certain professionals mandated reporters, legally required to report known or reasonably suspected child abuse. They include teachers, athletic coaches, clergy members, healthcare providers, social workers and childcare workers, among others, with a narrow exception for communications made in a religious confession.
CANRA does not itself create a private right of action. Under the negligence per se doctrine (a rule allowing a violated safety statute to establish the standard of care), a mandated reporter's failure to report may help show negligence in the civil case.
California Statutes of Limitations for Childhood and Adult Sexual Abuse Claims
A statute of limitations is the deadline for filing a lawsuit. Which deadline applies depends mainly on whether the survivor was a child or an adult at the time, when the abuse happened, and whether the defendant is a public entity. The statute of limitations overview covers these rules in more detail.
Childhood sexual abuse, Code of Civil Procedure § 340.1. For abuse that occurred on or after January 1, 2024, there is no time limit to file. Abuse that occurred on or before December 31, 2023, is governed by the law as it stood on that date. Under that rule, a claim may be filed until the survivor turns 40, or within five years of discovering that an injury was caused by the abuse, whichever is later. The no-time-limit rule did not revive claims that had already expired.
AB 218 also opened a three-year revival window, from January 1, 2020 through December 31, 2022, for childhood claims that had already expired. That window has closed. A plaintiff who files at age 40 or older must also file certificates of merit, signed by the attorney and by a licensed mental health practitioner.
Adult sexual assault, Code of Civil Procedure § 340.16. Where the assault happened on or after the survivor's 18th birthday, the deadline is the later of 10 years from the last act, or three years from the date the survivor discovers or reasonably should have discovered the resulting injury. Separately, § 340.16(b)(3) revives adult claims based on conduct on or after January 1, 2009, that were barred only because the deadline had passed. Those claims may be filed until December 31, 2026. The only claims it does not revive are those litigated to finality before January 1, 2023, and those settled by written agreement before that date.
Public entities. The Government Claims Act (Government Code § 810 and following) generally requires a written claim to be presented to a public entity, on a short deadline, before a lawsuit can be filed. For a local public entity, such as a school district, a 340.1 claim does not have to be presented first, and the entity cannot substitute its own claim procedure. The State is handled under a different provision; for a state defendant, the exemption reaches abuse on or after January 1, 2024 only. For adult claims against public entities, the presentation rules can still matter.
Every one of these deadlines turns on specific dates and facts, and a consultation is the reliable way to know which applies.