Government Liability Update

Public Entity Immunity to Punitive Damages Applies Broadly, and Bars Enhanced Damages under Code of Civil Procedure Section 340.1

In Los Angeles Unified School District v. Superior Court (Jane Doe), published June 1, 2023, the California Supreme Court affirmed a lower appellate court case reversing denial of a motion to strike a damages claim.  An alleged victim of sexual abuse by an employee of the school at which she was a student sued the defendant school district alleging negligence and failure to report suspected child abuse.  She sought an award of up to treble damages from the district under Code of Civil Procedure section 340.1(b)(1), as amended in 2019.  The district moved to strike from the complaint allegations of a cover-up and the request for treble damages, under Government Code section 818, which bars punitive and exemplary damages from being awarded against public entities.  The trial court denied the motion, and concluded that section 340.1(b)(1)'s treble damages provision was intended to be compensatory, not punitive.  The court of appeal granted the district's writ petition reversing the trial court's decision.  The appellate court determined that the treble damages were primarily punitive and thus barred by section 818.  The California Supreme Court granted review of the ruling.  While review was pending, other court of appeal agreed that enhanced damages under section 340.1(b)(1) are not recoverable against public entities.

The Supreme Court unanimously agreed with the appellate court's conclusion.  Government Code section 818 provides, “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”  While the statute clearly shields public entities from punitive damages, also referred to as exemplary damages, its language establishes that its prohibition can extend to more than just what are conventionally referred to as punitive damages.  It applies to other damages imposed primarily for the sake of example and by way of punishing the defendant.  It therefore also applies to other kinds of damages when they function, in essence, as awards of punitive or exemplary damages.  This comports with the purpose of the statute, which codifies the common law rule exempting public entities from punitive damages because such damages impoverish the public treasury without serving any admonitory function.  Based on past case law, considerations relevant to determining whether a particular award is barred under section 818 may include whether the damages involved go beyond those necessary to fully compensate the plaintiff; whether a damages remedy functions to offset some otherwise applicable restriction on compensatory
damages; whether there is an element of discretion by the fact finder in the award of damages; and whether in the normal course actual damages are likely to be difficult to establish or quantify.  The ultimate question remains whether the damages function in essence as a form of punitive or exemplary damages.  The court noted previous decisions it had made reading section 818 narrowly, as only applying to damages that are "simply and solely" punitive:  People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30; San Francisco Civil Service Assn. v. Superior Court (1976) 16 Cal.3d 46; and Kizer v. County of San Mateo (1991) 53 Cal.3d 139.  The court overruled those decisions insofar as they articulated the "simply and solely" or "simply or solely" punitive standard.  The court then concluded that the enhanced damages that section 340.1(b)(1) authorizes amount to punitive damages for purposes of section 818.  Section 340.1(b)(1) provides that, in an action seeking damages suffered due to childhood sexual assault, “a person who is
sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.”  The court interpreted "unless otherwise prohibited by another law" as referring to Government Code section 818.  Section 340.1(b)(1) authorizes treble damages only upon proof of morally offensive behavior on behalf of the defendant.  The decision to increase the award lies entirely with the fact finder.  If the fact finder decides to increase the damages award, the amount by which it does so, although capped at treble damages, is not fixed.  The awards require the existence of actual injury, but may go substantially beyond the amounts necessary to fully compensate plaintiffs for the injuries they have suffered.  The court did not find any nonpunitive characteristic or function that sufficiently distinguishes the enhanced damages from punitive damages.  The court further noted that the language of section 340.1(b)(1).

Use of Lethal Force on Mentally Ill Man Who Pointed Replica Firearm at Police Was Reasonable

In Estate of Strickland v. Nevada County, published May 31, 2023, the 9th Circuit Court of Appeals affirmed a district court order dismissing a lawsuit at the pleading stage.  The plaintiffs' decedent had been arrested by the county sheriff's department multiple times.  While incarcerated, he was diagnosed with mental illness.  Two days after his most most recent incarceration ended, police received reports of a man walking on a residential road  with what appeared to be a shotgun slung over his shoulder.  City police officers and count sheriff's deputies arrived on the scene. The decedent was carrying a black plastic airsoft rifle with an orange tip, pointed at the ground.  The officers and deputies recognized the decedent, and knew he was homeless, had mental health issues, and that he had been released from custody days before.  They would have known the decedent was likely suffering from a mental health episode and would not likely respond to their commands in a normal or expected manner.  The officers surrounded the decedent with guns drawn, and yelled to him to drop the gun.  The decedent said, "It's a BB gun."  He slapped the gun with his hand, making a noise that sounded more like plastic than metal.  The officers continued to yell orders to drop the gun.  They told the decedent, "We don't know that's a fake gun."  When the decedent pointed to the orange tip, the officers responded that he could have painted that."  The decedent said, "I'm not doing nothing wrong."  The officers did not contact their supervisors, request assistance from other officers with crisis training, or attempt to bring a professional negotiator, crisis de-escalator, or mental health provider to the scene.   Instead, officers approached the decedent while the others covered him.  The decedent dropped to his knees, and then began pointing the gun at the approaching officers, and at other times at the sky.  An officer deployed a taser, but it did not attach.  After the decedent again lowered the barrel at the officers, the approaching officers shot him several times.  He passed away.  His survivors and estate sued the officers, agencies, and entities under 42 U.S.C. section 1983 and state law for use of excessive force, and alleged deliberate disregard of the decedent's mental health needs.  The district court dismissed the case under FRCP 12(b)(6).

The appellate court concluded that the use of force was reasonable.  While the bulk of the Graham v. Connor factors for analyzing use of force favored the decedent (including the decedent's known mental health issues, and the officers' lack of effort to deescalate the situation), the most important factor is whether the suspect posed an immediate threat under an objective standard.  When a suspect points a gun in an officer's direction, the Constitution undoubtedly entitles the officer to respond with deadly force.  Reasonableness does not always require officers to delay fire until a suspect turns a weapon on them.  If a person is reasonably suspected of being armed, a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat.  These principles apply even when the officers make a reasonable mistake of fact about the threat.  Taking the allegations of the complaint in the light most favorable to the decedent, the court concluded that the officers' mistaken belief that the decedent possessed a dangerous weapon was reasonable, and that they were justified in using deadly force when he pointed it at them.  That the weapon turned out to be a replica does not change the analysis.  The weapon, like all replicas, was presumably intended to look like a real firearm.  The only indication it was not real was the orange-painted tip.  The officers were reasonably justified in not taking the decedent's assurances that the gun was a BB gun at face value, since misplaced trust could be fatal.  Under the totality of the circumstances, it was objectively reasonable for the officers to believe the decedent posed an immediate threat.  The district court properly concluded that the complaint could not be saved by amendment, especially since the plaintiffs had been given leave to amend previously.  Although the plaintiffs contended discovery could reveal additional circumstances, pleading standards must be met before unlocking the doors of discovery.

In Federal Court, a Summary Judgment Motion Preserves Purely Legal Issues for Appeal; They Need Not Be Raised in a Post-Trial Motion

In Dupree v. Younger, published May 25, 2023, the United States Supreme Court reversed a circuit court decision dismissing an appeal.  The plaintiff alleged that while he was being held as a pretrial detainee, three corrections officers assaulted him.  He sued them in federal court under 42 U.S.C. section 1983 for allegedly using excessive force in violation of the Fourteenth Amendment.  One of the officers moved for summary judgment based on his contention that the plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act.  The district court denied the motion, based on its conclusion that the plaintiff had satisfied the exhaustion obligation under the law.  The case proceeded to trial.  The jury found for the plaintiff.  The officer did not file a FRCRP 50(b) post-trial motion.  He appealed a single issue to the Fourth Circuit Court of Appeals:  the district court's rejection of his exhaustion defense at summary judgment.  The Fourth Circuit dismissed the appeal based on its precedent holding that a claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion.

The Supreme Court ruled that a purely legal challenge made and rejected in a summary judgment motion is preserved for appeal, regardless of whether it is renewed in a post-trial motion.  An appeal from final judgment generally permits review of all rulings that led up to the judgment.  Some interlocutory district-court rulings are unreviewable from final judgment, because they are superseded by later developments in the litigation.  For instance, a sufficiency-of-the-evidence made at the summary judgment stage and rejected is superseded by the complete trial record.  A party must therefore raise a sufficiency-of-the-evidence claim in a post-trial mtion to preserve it for appeal.  The Supreme Court declined to apply this rule to pure questions of law.  Trials leave pretrial legal rulings undisturbed.  Trials resolve the facts, not the law.  A district court's purely legal conclusions at summary judgment are not superseded by later developments in the litigation.  Instead, they follow the general rule and merge into the final judgment.  They are therefore reviewable on appeal.  The court did not decide whether the exhaustion issue raised in this case was a purely legal issue.

Plaintiff's Statute of Limitations for Filing State Court Lawsuit against Public Entity Was Not Tolled by FRCP 60(b)(6) Motion

In Feliz v. County of Orange, published May 19, 2023, the Fourth District Court of Appeal, Division 3 affirmed the dismissal, after demurrer, of the plaintiff's lawsuit.  In August 2010, the plaintiff's decedent committed suicide in a county jail.  The plaintiff presented a timely claim to the county, which was denied by operation of law.  In November 2010, the plaintiff sued the county in federal district court, alleging federal claims and a state law wrongful death claim.  The district court granted summary judgment on the federal claim, and declined to exercise supplemental jurisdiction over the state law claim, dismissing it.  The plaintiff appealed, and the 9th Circuit reversed and remanded the ruling.  On remand, the district court again granted summary judgment on the federal claim, and dismissed the state law claim without prejudice, declining to exercise supplemental jurisdiction.  The plaintiff appealed the summary judgment, but did not independently challenge the court's decision to decline supplemental jurisdiction.  The 9th Circuit affirmed the judgment, and issued its mandate in January 2017.  The plaintiff then moved to vacate the judgment under Federal Rules of Civil Procedure rule 60(b)(6), seeking to resurrect the federal claim and asking the court to exercise supplemental jurisdiction over the state law claim.  The district court denied the motion.  The plaintiff appealed the motion's denial. The 9th Circuit affirmed.  It issued its mandate in December 2018.  Later the same month, the plaintiff filed suit in state court for wrongful death, violation of the Bane Act, and unsafe condition of public property.  She contended her lawsuit was timely under 28 U.S.C. 1367(d) and equitable tolling.  The state trial court sustained the county's demurrer on the ground that the action was untimely.

The appellate court agreed.  The plaintiff's statute of limitations under Government Code section 945.6(a) barred the lawsuit unless the running of the limitations was tolled until the 9th Circuit issued its mandate in the rule 60(b)(6) proceeding.  28 U.S.C. 1367(d) tolls a plaintiff's statute of limitations for filing suit in state court while a claim is pending in federal court, and for 30 days after dismissal, unless state law provides for a longer tolling period.  Although the statute does not define "pending," there is consensus in case law that for purposes of the statute a claim remains pending in the federal system through the appeal of the judgment to the federal court of appeals, but not during a period when the plaintiff pursues a petition for writ of certiorari to the Supreme Court.  As a matter of first impression, the appellate court determined that the section 1367(d) tolling period does not extend to proceedings under rule 60(b)(6).  Rule 60(b)(6) allows a court to grant relief from a judgment or order under extraordinary, exceptional circumstances.  Like a petition for certiorari, a 60(b)(6) motion does not affect the finality of the claim's dismissal.  Further, the denial of a 60(b)(6) motion does not affect the finality of a claim's dismissal.  It instead seeks to reopen a matter that is no longer pending.  A plaintiff who has prosecuted an unsuccessful appeal or who chooses not to appeal dismissal of a state law claim has received a full opportunity to seek a federal forum.  The rationale for tolling the plaintiff's time to sue in state court while the federal action is pending no longer applies.  And because rule 60(b)(6)  imposes no specific time limit, and does not forbid multiple motions, allowing tolling would leave state statutes of limitation at the mercies of plaintiffs.  The appellate court also affirmed the trial court's decision that equitable tolling did not apply.  Equitable tolling while a plaintiff pursues an alternative remedy requires that the party's effort must be objectively reasonable--fair, proper, and sensible in light of the circumstances.  Reviewing the decision de novo, the appellate court concluded that the plaintiff's pursuit of the rule 60(b)(6) motion and appeal were not reasonable under the circumstances.

Order to Public Employee under Investigation Not to Discuss Matter with Other Employees or Potential Witnesses Did Not Violate the Employee's First Amendment Rights

In Roberts v. Springfield Utility Board, published May 12, 2023, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant agency.  The agency investigated the plaintiff, an employee, for allegedly misrepresenting his reason for taking time off.  It put the plaintiff on paid administrative leave during the investigation.  The notice of administrative leave stated plaintiff was prohibited from communicating with other employees during the investigation (without prior written permission) and that any contact with other employees regarding the matter would be subject to disciplinary action.  When the agency's attorney conducting the investigation interviewed the plaintiff, the attorney instructed the plaintiff that, to protect the integrity of the investigation, he was restricted from discussing it with other employees while it was ongoing.  During the investigation, the plaintiff sued the agency under 42 U.S.C. section 1983, alleging that the instructions violated his 1st Amendment right to free speech.  The district court granted the agency's motion for summary judgment.  The district court assumed the instructions limited the plaintiff's right to speak on matters of public concern, but concluded that the restriction was permissible because it served a legitimate interest in preventing interference with the investigation.

The appellate court ruled that the restrictions were constitutionally permissible.  It applied the two-step balancing test derived from Pickering v. Board of Education (1968) and its progeny.  The first step is determining whether the employee spoke as a citizen on a matter of public concern.  Where, as here, a public employer instructs an employee not to communicate with potential witnesses regarding a workplace misconduct investigation during the pendency of that investigation, the impacted speech generally is not on a matter of public concern under Pickering.  The communication restriction here affected the plaintiff's personal ability to discuss only the investigation into his own alleged violation of agency personnel policies governing time off and employee dishonesty.  Further, his attorney was not restricted form contacting any agency employees about the plaintiff's alleged actions during the investigation.  Any speech impacted concerned a quintessential individual personnel dispute that is of no relevance to the public's evaluation of the agency's performance.  The instructions did not affect the plaintiff's right to speak with other employees about the agency's performance--only about the ongoing investigation into his own alleged misconduct.  Because the instructions did not restrict speech on a matter of public concern, the plaintiff did not state a 1st Amendment cause of action.

Fifth District Court of Appeal Disagrees with Other Appellate Courts’ Approach to Determining Whether Sidewalk Defect Is Trivial

 

In Stack v. City of Lemore, published May 3, 2023, the Fifth District Court of Appeal affirmed a judgment against the defendant city entered after jury trial.  The plaintiff was jogging his usual route around his neighborhood when he tripped over a raised slab of sidewalk.  The raised slab created two defects:  a first defect where the panel is elevated about 1-3/4” above the next panel; and a second defect caused by the lifted panel sloping slightly downward and creating a second elevated ridge where it meets with the following downward-sloping raised panel.  A layer of pine needles appears all along the base of the first defect, except at its outermost edges.  The plaintiff was familiar with both defects; he had jogged over the stretch of sidewalk some 300 times in the previous two years.  During this jog, the plaintiff saw the first defect as he approached.  But as he was striding over it, he was focused on the second defect ahead of him.  He caught his toe on the lip of the first defect and stumbled.  He had never fallen in the area before.  The plaintiff’s human factors expert opined that the second defect enhanced the fall risk for joggers, whose brains would be focused on the second defect while they were clearing the first.  The expert acknowledged that the first defect was clearly visible from 25 feet away.  The expert opined that the layer of pine needs at the base of the first defect also increased the fall risk, because they made it difficult to tell how high the first defect was by obscuring portions of the elevation’s face, and created a color issue making it more difficult to judge the contrast of the where the defect starts and ends.  The plaintiff sued the city for maintaining a dangerous condition of public property under Government Code section 835.  The city did not move for summary judgment.  The jury found the property in a dangerous condition at the time of the accident.  The city appealed.  For the first time on appeal, it raised the argument that the defect was not a dangerous condition because it was trivial under Government Code section 830.2.

 

The appellate court upheld the jury’s verdict.  It rejected the city’s argument that the defect was trivial as a matter of law.  The court rejected the two-step analysis previous appellate decisions have applied to determine whether a sidewalk defect is trivial as a matter of law.  Instead, the court applied “a holistic, multi-factor analysis.”  The court began with the size of the defect.  It rejected “dictum” in other cases suggesting that defects up to 1-1/2” are trivial.  It found more accurate the statement that when the size of the depression is more than 1”, courts are reluctant to find the defect not trivial as a matter of law.  The court found no firmly fixed arbitrary size below which the defect is trivial and above which danger becomes an issue of fact.  Instead, the court should not rely solely on the size of the defect.  The court further opined that a defect cannot be deemed trivial as a matter of law based only on size.  The minimum 1-3/4” height differential of the first defect weighed heavily against finding the sidewalk condition trivial as a matter of law.  Therefore, there must be a strong showing of other circumstances that made the defect not dangerous despite its height.  A fact finder could find the danger was aggravated by the presence of the two defects.  A jury could credit the human factors expert’s opinion that the two created a danger for joggers.  While the expert’s opinion that the defects increased the danger was not dispositive, it was relevant.  Further, reasonable minds could differ on whether the roughness of the lip of the first defect increased the risk of catching a pedestrian’s toe.  Although the overall obstruction was clearly visible, reasonable minds could differ on whether the full depth of the first defect and its danger would have been apparent to an approaching jogger in light of the dirt and pine needles at the base.  This also increased the danger.  The lack of evidence of prior accidents at this section, combined with plaintiff’s lack of prior accidents there, is relevant to the existence of a dangerous condition.  But the appellate court declined to follow other appellate courts that found the plaintiff’s familiarity with the property relevant to whether the defect was trivial.  On balance, the factors did not combine to create a risk so trivial, minor, or insignificant that the sidewalk condition must be held not dangerous as a matter of law.

Claim for Damages Stating Plaintiff Tripped on Uplifted Sidewalk Did Not Support Action for Tripping on Empty Tree Well

In Hernandez v. City of Stockton, published April 28, 2023, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city.  The plaintiff tripped and fell on a city street.  He presented a claim to the city alleging that he sustained injuries when he tripped and fell due to a "dangerous condition" on the city-owned "sidewalk surface," which he identified as an "uplifted sidewalk."  A liability claims investigator for the city inspected the sidewalk near the address given in the claim.  He was unable to locate any uplifted sidewalk.  The city sent the plaintiff's counsel a notice of insufficiency, stating that the city was unable to determine the loss location.  The notice requested photos, a map, or diagram showing the exact loss location, and advised the plaintiff he could submit an amended claim within six months of the incident.  The plaintiff did not respond to the notice.  After his claim was rejected, the plaintiff filed suit.  In his complaint, he alleged that the "sidewalk surface" had a "dangerous condition" that created an unspecified hazard.  During a deposition, the plaintiff testified he tripped and fell when he stepped into a tree well that had no tree in it.  In his deposition, he agreed that his fall was not caused by an "uplifted sidewalk."  The city moved for summary judgment, on the ground that the plaintiff was suing on a factual basis never reflected in his claim.  The plaintiff responded that his claim's statement that he tripped and fell due to "an uneven sidewalk surface" was the "factual equivalent" of what his claim stated, and that his complaint's allegations did not alter the theory of the nature of the dangerous condition.  The trial court granted the city's motion, ruling the claim and lawsuit were not based on the same factual basis.

The appellate court agreed.  A complaint is subject to dismissal if it alleges a factual basis for recovery that is not "fairly reflected" in the government claim.  The plaintiff's claim specifically and solely identified an "uplifted sidewalk" as the dangerous condition that caused his injuries.  His action premised liability on a different dangerous condition--a hole crated by an empty tree well.  Such a variance subverts the purpose of the Government Claims Act:  giving the public entity an opportunity to investigate and evaluate its potential liability and, where appropriate, avoid litigation by settling meritorious claims.  The complaint did not merely elaborate upon or provide further detail to a government claim based on the same fundamental facts; it premised liability on an entirely different factual basis.  The court rejected plaintiff's contention of substantial compliance.  Further, the fact that a city employee testified he knew the claim was based on plaintiff tripping on an empty tree well did not satisfy the claim requirement.  The claim presentation requirement must be satisfied even if the public entity actually knows the circumstances surrounding the claim.  Further, the employee only inspected the property after the claim was rejected, and testified only after the plaintiff disclosed in deposition that he tripped over an empty tree well.

Design Immunity Does Not Apply to Failure to Warn of Dangerous Condition of Which Entity Has Notice

In Tansavatdi v. City of Rancho Palos Verdes, published April 27, 2023, the California Supreme Court affirmed a lower appellate court decision that partially reversed an order granting the defendant city summary judgment.  While riding a bicycle on a city street, the plaintiff's decedent collided with a turning truck.  The plaintiff contended the street was a dangerous condition of public property because the portion of the street where the accident occurred lacked a bicycle lane.  She further contended that the city failed to warn of a concealed trap created by the absence of the bicycle lane.  The city obtained summary judgment based on design immunity under Government Code section 830.6.  The order granting summary judgment did not specifically address the plaintiff's failure to warn theory of liability.  The lower appellate court affirmed the grant of design immunity.  But it reversed summary judgment, because the trial court had not addressed the failure to warn cause of action.  The appellate court held that under Cameron v. State of California (1972) 7 Cal.3d 318 a public entity may be held liable for failure to warn of a a concealed dangerous condition even if the dangerous condition was caused by design immunity.  The Cameron case based this holding on Government Code section 830.8, which establishes immunity from liability for failure to place warning signs, but exempts warning signs necessary to warn of a dangerous condition that would not be reasonably apparent to those using the roadway with due care.  The lower court declined to follow Weinstein v. Cal. Dept. of Transp. (2006) 139 Cal.App.4th 52, which held that design immunity applies to failure to warn of a danger created by a design that is covered by the immunity.  The California Supreme Court granted the city's petition for review.

The Supreme Court agreed that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity form liability for failure to warn of the same dangerous condition.  Design immunity under Government Code section 830.6 immunizes liability for having created a dangerous traffic condition under Government Code section 835(a) (liability for a public employee negligently creating a dangerous condition), but does not necessarily immunize liability for failing to warn of a known dangerous traffic condition under Government Code section 835(b) (failing to warn or protect against a dangerous condition of which the entity had actual or constructive notice).  In addition to loss of design immunity due to changed circumstances, a public entity can be held liable for failure to warn of a dangerous condition of which it had notice, even if creation of the condition is covered by design immunity.  There are restrictions on that theory of liability.  First, the plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition.  Second, failure to warn claims may be subject to a separate, more limited form of statutory immunity:  the signage immunity set forth in Government Code section 830.8.  Because of the "concealed trap" exception to section 830.8, the plaintiff must overcome signage immunity by establishing the accident-causing condition was a concealed trap.  Third, the plaintiff must prove that the absence of a warning was an independent, separate  concurring cause of the the accident, by establishing that the absence of a warning sign was a substantial factor in causing the accident.  The court declined to address whether a public entity can be held liable if the public entity is able to show that the presence or absence of warning signs was part of the approved design.  The court disapproved Weinstein and another case with a similar holding, Compton v. City of Santee (1993) 12 Cal.App.4th 591.  Further, while the court noted that a discussion in Cornette v. Dept. of Transp. (2001) 26 Cal.4th 63 applying design immunity to liability under Government Code section 835(b) "is arguably in tension with some of our discussion in Cameron," it concluded that application of design immunity to section 835(b) was not the legal issue presented in Cornette, and was not intended to modify or overrule Cameron.

(Pollak, Vida & Barer, along with other counsel, represents the defendant city in this case.)

Mother Cannot Sue City for Bystander Emotional Distress based on Dangerous Condition Liability Absent Contemporaneous Awareness Property Condition Caused Accident

In Downey v. City of Riverside, published April 26, 2023, the Fourth District Court of Appeal, Division 1 reversed the dismissal of the defendant city after demurrer.  The plaintiff was speaking to her daughter via cellphone, giving the daughter directions, when the daughter's vehicle collided with another vehicle at an intersection.  The mother heard the collision, a long pause during which her daughter did not respond to her, and the statements of a person on the scene trying to find her daughter's pulse.  The plaintiff and her daughter contended that the accident was caused by a dangerous condition of public property based on defective traffic markings, signals, warnings, medians, and fixtures.  The trial court sustained the city's demurrer to the plaintiff mother's cause of action, on the ground that the complaint failed to establish contemporaneous sensory awareness of the connection between the city's tortious conduct and the daughter's injuries.  After allowing one amendment, the trial court denied further leave to amend, and dismissed the case against the city.

The court majority agreed that the trial court properly sustained the demurrer.  Although the plaintiff's sensory awareness of the daughter's injuries over the phone was sufficient to satisfy the element of bystander emotional distress requiring the plaintiff to be "present at the scene of the injury-causing event," the law also requires contemporaneous awareness of the causal connection between the tortfeasor's negligent conduct and the resulting injury.  Here, the allegations in the complaint did not establish the plaintiff's contemporaneous or meaningful understanding of a causal connection between the alleged deficient traffic signals and markings and the accident.  But the appellate court reversed the trial court's denial of leave to amend.  On appeal, the plaintiff argued that she could allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by the city.  The court ruled that she should be given an opportunity to allege such facts.

One justice concurred in the result, but dissented from the majority's ruling that the demurrer was properly sustained. 

Procedural Due Process Cause of Action for Denial of Convict's Request for DNA Testing Accrues when State Litigation Ends

In Reed v. Goertz, published April 19, 2022, a divided U.S. Supreme Court reversed dismissal of the plaintiff's 42 U.S.C. section 1983 lawsuit on statute of limitations grounds.  The plaintiff was convicted of murder.  He moved under Texas's post-conviction DNA testing law for DNA testing on certain evidence.  The state court denied the motion as to particular items.  The Texas Court of Criminal Appeals affirmed.  That court then denied the plaintiff's petition for rehearing.  The plaintiff then filed suit in federal court under section 1983.  He asserted the Texas post-conviction DNA testing law violated procedural due process.  The district court dismissed the action as untimely.  The Fifth Circuit affirmed, holding that the statute of limitations began running when when the Texas trial court denied the plaintiff's motion, not when the appellate court denied rehearing.

The majority disagreed.  A cause of action accrues when the plaintiff has a complete and present cause of action.  The existence of a complete and present cause of action depends on the specific constitutional right allegedly infringed.  A procedural due process cause of action does not accrue when the deprivation occurs; it accrues when the the state fails to provide due process.  The state's process at issue here includes both trial court proceedings and appellate review.  Under Texas appellate procedure rules, the appellate process includes a motion for rehearing.  The alleged violation of due process here was complete when the state litigation ended.  It ended when the rehearing motion was denied.

Justice Thomas dissented, opining the plaintiff lacked standing.  Justice Alito, joined by Justice Gorsuch, opined that the cause of action accrued either when the Texas prosecutor denied his testing request, or when the court affirmed that decision, but disagreed it did not accrue until rehearing was denied.