Anthia Vu and Hung T. Vu v. The Singer Company, a Corporation, Doing Business as or Also Known as the Singer Education Singer-Career Systems

706 F.2d 1027 Anthia VU and Hung T. Vu, Plaintiffs-Appellants, v. The SINGER COMPANY, a corporation, doing business as or also known as The Singer Education Singer-Career Systems, Defendant-Appellee. No. 81-4632. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1982. Decided May 26, 1983. Allen Ruby, Morgan, Ruby, Teter, Schofield, Franich, Bouchier & Fredkin, San Jose, Cal., for plaintiffs-appellants. Edwin A. Heafey, Jr., Mike C. Buckley, Crosby, Heafey, Roach & May, Oakland, Cal., for defendant-appellee. On Appeal from the United States District Court for the Northern District of California. Before MERRILL and POOLE, Circuit Judges, and ROTHSTEIN * , District Judge. MERRILL, Circuit Judge: 1 Appellants Anthia and Hung T. Vu have sued appellee The Singer Company for damages allegedly resulting from Singer's negligence. The action was removed from California state court on the ground of diversity of citizenship, and the question presented on appeal is whether, under California law, Singer, as the operator of a Job Corps Center, owed the Vus a duty of care in the supervising of Job Corps members. The District Court, construing state law as laid…

Appellants Anthia and Hung T. Vu have sued appellee The Singer Company for damages allegedly resulting from Singer’s negligence. The action was removed from California state court on the ground of diversity of citizenship, and the question presented on appeal is whether, under California law, Singer, as the operator of a Job Corps Center, owed the Vus a duty of care in the supervising of Job Corps members. The District Court, construing state law as laid down in a series of court decisions, held that Singer owed no duty of care and granted summary judgment in favor of Singer. 538 F.Supp. 26 (N.D.Cal.1981).

The Job Corps was created by the Economic Opportunity Act of 1964, 42 U.S.C. § 2711 et seq. (1970) (now 29 U.S.C. § 911 et seq. (1976)). Its purpose is to assist disadvantaged young people toward useful employment by providing vocational training, work experience and educational programs. The Office of Economic Opportunity of the Department of Labor (“OEO”) is authorized to enter into contracts with private contractors for the operation of Job Corps Centers where members are provided room and board and the local activities of the corps are carried out. Singer, under contract…

concurring.

I join the majority because I believe the result is required by the holding of the California Supreme Court in Thompson v. County of Alameda, 27 Cal.3d 741 , 614 P.2d 728 , 167 Cal.Rptr. 70 (1980). Because I recognize that we must follow Thompson in this diversity action, I take issue not with the majority opinion but with Thompson , which enunciates a myopic view of foreseeability in the context of the duty to warn and to supervise.

In Thompson , the California court distinguished Johnson v. State, 69 Cal.2d 782 , 447 P.2d 352 , 73 Cal.Rptr. 240 (1968) and Tarasoff v. Regents of the Univ. of California, 17 Cal.3d 425 , 551 P.2d 334 , 131 Cal.Rptr. 14 (1976), the two leading cases in which an affirmative duty to protect a third party from another was found. In Johnson, 69 Cal.2d at 784-85 , 447 P.2d at 354 , 73 Cal. Rptr. at 242 , the state placed a minor with “homicidal tendencies and a background of violence and cruelty” in a foster home without warning the foster parent. The minor attacked the foster parent and she sued the state. Id. The court held, “As the party placing the youth with Mrs. Johnson, the state’s relationship to plaintiff was such that its duty…