Key Takeaway

The Rowland Factors (Rowland v. Christian) broaden the formalistic “special relationship” categories to impute duty to a defendant for third-party injuries.


  1. Foreseeability of harm to π
  2. Degree of certainty that π suffered injury
  3. Closeness of the connection between the ∆’s conduct and the injury suffered

 Moral Blame

   4. Moral blame attached to ∆’s conduct


   5. Extent of the burden to the ∆

   6. Availability, cost, and prevalence of insurance for the risk involved

Policy Considerations:

 No Duty

  • Chilling effect? (Bad deterrence)
  • Widespread impact?
  • Crushing liability?
  • Confidentiality in special relationships?
  • Necessary to compensate victim?
  • Corrective justice served?

Impose Duty

  • Deterrence against future harm?
  • Ensure compensation?
  • Corrective justice?

Randi W. v. Muroc Joint Unified School District

Randi W. v. Muroc Joint Unified School District

929 P.2d 582 (1997)

(Employment Recommendations)


The complaint makes specific negligence allegations as to each defendant. It alleges that Gadams worked in the Mendota Unified School District (Mendota) from 1985 to 1988. In May 1990, Gilbert Rossette, a Mendota official, provided to the placement office at Fresno Pacific College (where Gadams received his teaching credentials) a "detailed recommendation" regarding Gadams, knowing that it would be passed on to prospective employers, although Rossette allegedly knew of Gadams's prior improper contacts with female students. These contacts included hugging some female junior high school students, giving them back massages, making "sexual remarks" to them, and being involved in "sexual situations" with them. Rossette's recommendation noted numerous positive aspects of Gadams's tenure in Mendota, including his "genuine concern" for students and his "outstanding rapport" with everyone, and concluded, "I wouldn't hesitate to recommend Mr. Gadams for any position!"

The complaint makes similar allegations regarding Richard Cole, an official of Tranquility High School District and Golden Plains Unified School District (Golden Plains), where Gadams was employed between 1986 or 1987 and 1990. The complaint alleges that in 1990, Cole provided Fresno Pacific College's placement office with a "detailed recommendation" of Gadams, although he knew of Gadams's prior inappropriate conduct while an employee of Golden Plains. Specifically, Cole knew that Gadams had been the subject of various parents' complaints, including charges that he "led a panty raid, made sexual overtures to students, sexual remarks to students...." These complaints had allegedly led to Gadams's "resigning under pressure from Golden Plains due to sexual misconduct charges...." Cole's recommendation listed Gadams's various favorable qualities as an instructor and administrator and stated Cole "would recommend him for almost any administrative position he wishes to pursue."

Gary Rice and David J. Malcolm, officials in the Muroc Joint Unified School District (Muroc), where Gadams was employed in or around 1990 or 1991, also allegedly provided a "detailed recommendation" to Fresno Pacific College's placement office in 1991, despite their knowledge of disciplinary actions taken against Gadams regarding sexual harassment allegations made during his employment with Muroc. The allegations included charges of "sexual touching” of female students and induced Muroc to force Gadams to resign. The recommendation, signed by Malcolm, described Gadams as "an upbeat, enthusiastic administrator who relates well to the students" and who was "in a large part" responsible for making the campus of Boron Junior/Senior High School "a safe, orderly and clean environment for students and staff." Malcolm concluded by recommending Gadams "for an assistant principalship or equivalent position without reservation."

Defendants made these recommendations on forms that Fresno Pacific College supplied, which clearly stated that the information provided "will be sent to prospective employers."


Under what circumstances courts may impose tort liability on employers who fail to use reasonable care in recommending former employees for employment without disclosing material information bearing on their fitness.


Although ordinarily, a duty of care analysis is unnecessary in determining liability for intentional misrepresentation or fraud, here we consider liability to a third person injured as a result of the alleged fraud, an extension of ordinary tort liability based on fraud.

All persons have a duty to use ordinary care to prevent others from being injured as the result of their conduct. "Rowland enumerates a number of considerations... that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate: 'the major are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' The foreseeability of a particular kind of harm plays a very significant role in this calculus, but a court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party."

Defendants could foresee that Livingston's officers would read and rely on defendants' letters in deciding to hire Gadams. Likewise, defendants could foresee that had they not unqualifiedly recommended Gadams, Livingston would not have hired him. And, finally, defendants could foresee that Gadams, after being hired by Livingston, might molest or injure a Livingston student such as plaintiff. We must assume, for purposes of demurrer, that plaintiff was indeed injured in the manner she alleges, and that a causal connection exists between defendants' conduct and the injury suffered. As plaintiff's complaint alleges, her injury was a "direct and proximate result" of defendants' fraud and misrepresentations.

It is certainly arguable that their unreserved recommendations of Gadams, together with their failure to disclose facts reasonably necessary to avoid or minimize the risk of further child molestations or abuse, could be characterized as morally blameworthy.

Defendants had alternative courses of conduct to avoid tort liability, namely, (1) writing a "full disclosure" letter revealing all relevant facts regarding Gadams's background, or (2) writing a "no comment" letter omitting any affirmative representations regarding Gadams's qualifications, or merely verifying basic employment dates and details. The parties cite no case or Restatement provision suggesting that a former employer has an affirmative duty of disclosure that would preclude such a "no comment" letter. Liability may not be imposed for mere nondisclosure or other failure to act, at least in the absence of some special relationship not alleged here.

The writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons. In the absence, however, of resulting physical injury, or some special relationship between the parties, the writer of a letter of recommendation should have no duty of care extending to third persons for misrepresentations made concerning former employees. In those cases, the policy favoring free and open communication with prospective employers should prevail.

These letters, essentially recommending Gadams for any position without reservation or qualification, constituted affirmative representations that strongly implied Gadams was fit to interact appropriately and safely with female students. These representations were false and misleading in light of defendants' alleged knowledge of charges of Gadams's repeated sexual improprieties. We also conclude that plaintiff's complaint adequately alleged misleading half-truths that could invoke an exception to the general rule excluding liability for mere nondisclosure or other failure to act.


Although policy considerations dictate that ordinarily a recommending employer should not be held accountable to third persons for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a third person.