Government Liability Update

Parking Lot Was a "Street" for Purposes of Government Code Section 831's Weather Immunity

In Tindall v. County of Nevada, ordered published June 18, 2025, the Third District Court of Appeal affirmed summary judgment for the defendant county.  The plaintiff slipped on a layer of ices as she walked to her car in the parking lot of the county jail where she worked.  She sued the county for maintaining a dangerous condition of public property.  The trial court granted the county summary judgment based on Government Code section 831, the weather immunity defense.  Section 831 provides in part that "“Neither a public entity nor a public employee is liable for an injury caused by the effect on the use of streets and highways of weather conditions as such."  The trial court concluded that the parking lot was a "street" or "highway."

The appellate court agreed.  The court rejected the plaintiff's argument that section 831 is an exception to liability, and so should be strictly construed.  Under the Government Claims Act, immunity is the general rule, and liability for dangerous conditions of public property is the exception.  The court further ruled that when construing the Government Claims Act, courts properly may consider the interplay of Government Code immunity provisions with definitions found in other codes. Vehicle Code section 590 defines "street" as “way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.”  Government Code section 65002 also broadly defines "street."  Based on Vehicle Code section 590's broad definition of "street," a parking lot open for public use and owned and maintained by a public entity is a "street" within the meaning of section 831.  A parking lot is both a place for parking, and a path of travel from one place to another (by vehicle and by foot).  Because it was undisputed that the patch of ice was an effect of weather conditions, the county was entitled to liability.  The court ruled that other liability arguments that the plaintiff raised for the first time in her summary judgment opposition (without first amending her complaint) or in oral argument of the motion were forfeited.

School Personnel Can Be Found Negligent for Failing to Comply with District and School Anti-Bullying Policies

In E.I. v. El Segundo Unified School District, published June 13, 2025, the Second District Court of Appeal, Division 8 affirmed a jury verdict for the plaintiff.  The plaintiff who was a middle-school student who was subjected to extensive online and in-person bullying by two classmates.  The plaintiff, her parents, and schoolmates repeatedly reported the bullying to school personnel.  The personnel failed to respond as directed in the District's Comprehensive Safety Plan and the school's own safety plan.  The safety plans were modeled on the Education Code's provisions addressing school safety.  At one point, the district called the police when one of the bullies created a "petition to end [plaintiff's] life and multiple students signed it; but the district did not notify the plaintiff or her parents of the petition, and the parents only learned of it from another student's mother.  The plaintiff suffered emotional trauma, including at one point cutting herself to get attention.  The plaintiff sued the district for negligence and negligent hiring, retention, supervision and training, both under Education Code section 44807 and Government Code sections 815.2, 815.4, 815.6, 820, and 835.  During trial the plaintiff dismissed the negligent supervision cause of action.  The jury found the district negligent and that its negligence was a substantial factor in causing the plaintiff's injuries.  It awarded the plaintiff $1 million.

The appellate court rejected the district's multiple arguments for reversal.  The appellate court agreed with the district that Education Code sections 48900, 48900.5, 48900.7 and 48911 do not create private causes of action or create a mandatory duty of care owed to plaintiffs with respect to economic damages arising from educational injury.  But plaintiff did not base her negligence cause of action on those statutes, but rather on Education Code section 44807, which supports the duty of school authorities to supervise children on school grounds and enforce rules and regulations necessary to their protection; and Government Code section 815.2(a), which makes the district vicariously liable for injuries caused by its employees' negligence.  The school employees had a duty to protect the plaintiff from harm caused by other students.  Government Code section 820.2's discretionary immunity did not immunize the school employees' decisions in determining how to respond to the complaints of bullying.  Section 820.2 immunizes basic policy decisions.  The plaintiff did not claim that the district or school were negligent in crafting anti-bullying policies.  She claimed that the employees negligently failed to protect her by, among other things, not following the safety policies already in place.  Lower-level decisions that merely implement a basic policy already formulated are not immunized by section 820.2.  The district complained that the special verdict form set forth the negligent supervision claim that the plaintiff dismissed.  But this was harmless error, because the district failed to show that the jury would have awarded the plaintiff less in damages for negligence if the verdict did not include the negligent training and supervision theory.

Street Survey Did Not Give City Actual or Constructive Notice of Pothole That Caused Skateboard Accident

In Restivo v. City of Petaluma, ordered published May 20, 2025, the First District Court of Appeal, Division 1 affirmed summary judgment for the defendant city.  The plaintiff was injured when her skateboard's wheel caught in a crack or pothole on the street surfaces that she described as 6-9" in length, 1-2" deep, and 4-7" wide.  Although she said it was very clear and that a person walking would see it, she said she had never seen it before despite having traveled the street hundreds of times, including skateboarding multiple times.  She did not take any photos at or near when she fell.  Two months later, she took multiple photos of the street, laced with cracks that have sealant in them.  She was unable to point out the precise spot where she fell.  She initially asserted the city had filled the crack with "slurry."  She sued the city for dangerous condition of public property. The city moved for summary judgment.  It submitted evidence it was unaware of any other incidents or accidents on the street, and in 10 years had not received a complaint about the street.  The city further showed it had not slurried the street before the accident.  Cracks had been filled with crack sealant, for minor cracks, which would not be used for a crack the size the plaintiff described.  There were no work orders for the street between the accident and the date the plaintiff took the photos.  Three months after the accident, the city resurfaced the entire length of the street with slurry seal, pursuant to a 2019 condition report of the street from vendors.  The report is at a high level and does not identify specific cracks or potholes.  The street was given a "fair" grade and an approximate life of 8.94 years.  A map in an appendix to the report showed the street shaded in orange, indicating "poor" condition.  After it received the report, the city conducted its own inspection of the street, concluded that the street was in "good to fair" condition, and the resurfacing would extend the road's life.  The project was done as part of numerous road projects.  The plaintiff submitted an expert declaration declaring the crack/pothole created a substantial hazard; that the plaintiff's photos showed bubbling of the crack sealant; and that the city knew or should have known of the unsafe condition, based on the vendor inspection leading to the pavement report and the city's own subsequent inspection.  The trial court granted summary judgment, based on lack of evidence of actual or constructive notice of a dangerous condition.

The appellate court agreed.  The plaintiff contended that the city was generally aware of cracks in the street, based on the pavement report and the crack sealant applied to the street before her accident.  But that does not establish the city had notice of the large crack/pothole that allegedly caused her accident.  Uncontradicted evidence establishes report shows an overall assessment of city streets and does not identify specific problems.  It was also uncontradicted that after the city's own inspection no employee reported any issue or concern about the street.  There was no evidence the slurry seal was applied because of prior notice of any dangerous condition on the street.  The plaintiff also did not raise a triable issue on constructive notice.  The city undertook regular inspection of its streets, and there was no evidence the inspection schedule was unreasonable.  The plaintiff could not manufacture an issue of fact using an expert declaration based only on speculation.

County Welfare Department Had Mandatory Duty under CANRA to Cross-Report Mandated Reporter's Report of Suspected Child Abuse

In Holman v. County of Butte, ordered published May 15, 2025, the Third District Court of Appeal reversed summary judgment in favor of the defendant county.  The plaintiff alleges that when he was 14, his parents began a pattern of physical abuse against him.  While the plaintiff was 14, the defendant county's welfare department received a report of suspected child abuse from the plaintiff's teacher, who was a mandated reporter under the California Abuse and Neglect Reporting Act (CANRA).  The teacher spoke to an intake social worker.  The teacher then completed a written suspected child abuse report.  The social worker completed a Structed Decision Making Hotline Tools form.  The social worker decided the allegations did not meet the definitions of abuse, and accordingly did not check the boxes on the form regarding abuse.  He "evaluated out" the referral.  He documented his decision, and his supervisor approved it.  Because the referral was "evaluated out," the social worker did not cross-report the allegation to local law enforcement.  The plaintiff contended the abuse continued for two years.  The plaintiff brought two causes of action under Government Code section 815.6 for violation of mandatory duty.  The first cause of action alleged that the Ccounty negligently failed to perform a mandatory duty under Welfare and Institutions Code sections 328 and 16504 to evaluate and investigate the “substantiated” report of child abuse.  The second alleged that the county breached a mandatory duty under Penal Code section 11166, subdivision (j), by failing to cross-report the allegations of abuse to local law enforcement and the district attorney’s office. The trial court granted summary judgment, concluding that the social worker fulfilled his ministerial duties under CANRA, and was exercising his discretion when he decided to "evaluate out" the child abuse report; and that his decision was therefore protected by  discretionary immunity.

The appellate court reversed summary judgment as to the second cause of action.  Because the county moved for summary judgment and summary adjudication, the county had to defeat both causes of action to prevail.  In B.H. v. County of San Bernardino, the California Supreme Court ruled that subdivision (k) of Penal Code section 11166, which applies to law enforcement agencies, imposed a mandatory and ministerial duty on a sheriff's department to cross-report child abuse allegations made to a 911 operator to a child welfare agency.  The B.H. court further held that the determination of whether a reported incident involves child abuse or neglect is a mandatory, not a discretionary function; and that use of judgment to determine whether a report involves child abuse or neglect does not involve the exercise of discretion.  By the same reasoning, subdivision (j) of section 11166, which deals with cross-reporting by county welfare agencies, imposed a mandatory duty on the county agency here to cross-report the report of abuse to law enforcement.  Even if social workers are required to cross-report only those allegations determined to meet the definitions of abuse or neglect, there is a triable issue of fact in this case as to whether the county violated a mandatory duty by failing to cross-report the referral.  Because a triable issue existed as to the second cause of action, the court did not have to decide whether the court correctly ruled on the first cause of action.  

Officers Who Allegedly Chased Suspect with Intent to Make Him Crash, then Failed to Assist Injured Bystanders, Not Entitled to Qualified Immunity at Pleading Stage

In Estate v. Soakai v. Abdelaziz, published May 16, 2025, a divided panel of the 9th Circuit Court of Appeals affirmed denial of the police officer defendants' motion to dismiss the action at the pleading stage based on qualified immunity.  According to the complaint's allegations, the defendant officers spotted a person they believed had participated in an illegal car rally.  Against department policy, the officers began pursuing the suspect, through busy city streets, at speeds exceeding 60 mph.  The defendants did not turn on their lights or siren, or report the chase to the dispatcher.  They were allegedly intent on making the suspect crash.  The suspect's car crashed into an area near a taco truck.  The plaintiff's decedent was struck and died of his injuries in front of his plaintiff mother, who suffered a broken back in the crash.  Other plaintiffs in the group suffered severe injuries.  The defendant officers allegedly did not stop, but drove past the scene of the accident, still with lights and siren off, and did not return until they heard other officers approaching the crash scene.  When they returned, the officers pretended not to have been at the scene previously.  The officers were allegedly overheard at the scene saying that they were satisfied that the suspect appeared injured, and hoped he died of his injuries.  The officers filed an interlocutory appeal from denial of their motion to dismiss.

The panel majority affirmed.  The plaintiffs' claim that the officers violated their constitutional rights by conducting the high-speed chase was a claim for violation of the substantive due process clause of the 14th Amendment.  To state a claim, they had to allege facts showing that the high-speed chase was for the purpose of harming a fleeing suspect and was unrelated to any legitimate law enforcement purpose.  The majority held that the facts alleged stated such a claim, and that the intent to injure did not have to be directed toward the injured bystanders for them to be able to state a claim.  The majority further held that existing precedent clearly established that bystanders were foreseeable victims of high-speed chases intended only to injure the suspect, and so the officers were not entitled to qualified immunity.  The alternative substantive due process claim was a state-created danger claim arising out of failing to summon or render emergency services after the crash.  Even if the officers had not intended to harm a person, the facts alleged showed that they placed the plaintiffs in a worse position than they would have occupied if the defendants had not acted at all; they created or exposed the plaintiffs to a particularized danger; and the danger resulted in a foreseeable harm to the plaintiffs.  Although the danger from the car chase itself was not particularized to the plaintiffs, the harm from the officers allegedly delaying medical treatment by driving past, doubling back only when other officers approached, and then pretending they were arriving for the first time was particularized to the plaintiffs.  They also showed deliberate indifference by their actions.  Although no controlling case applied the state-created danger to bystanders injured after a high-speed chase, existing precedent concerning state-created dangers and impeding medical care placed the constitutional violation beyond debate.

The dissenting judge opined that the majority had expanded the two theories of violation of substantive due process beyond existing precedent, and that the officers should therefore be entitled to qualified immunity.

Reasonableness of Police Use of Force Determined under Totality of Circumstances, Not Just Events at Moment of Risk

In Barnes v. Felix, published May 15, 2025, the United States Supreme Court reversed summary judgment granted to the defendant police officer in a 42 U.S.C. section 1983 case.  The defendant officer pulled a suspect's car over for outstanding toll violations.  During the stop, the suspect stated he did not have his license with him, and that the car was a rental in his girlfriend's name.  The suspect rummaged through papers in the car, despite orders to stop doing so.  The officer commented he smelled marijuana.  The suspect said he had identification in his truck.  The officer told the suspect to open the trunk from his seat.  He did so, and turned off his ignition.  The officer ordered the suspect out of the car.  Instead, the suspect started the car again.  The officer unholstered his gun.  As the car moved forward, the officer jumped onto the car's doorsill.  He twice ordered the suspect not to move.  WIth no visibility into the car, he fired two shots inside.  The suspect was killed. Between the car starting and when iit stopped, five seconds passed.  Two seconds passed between the officer jumping on the windowsill and the first shot. The decedent's mother alleged the officer violated the 4th Amendment by using excessive force.  The district court granted the officer summary judgment, and the 5th Circuit Court of Appeals affirmed, by applying the 5th Circuit's approach of analyzing officers' use of lethal force:  looking only at the situation existing "at the moment of threat" that sparked the fatal shooting.  That moment was two seconds before the first shot.  Since the officer was on the windowsill of a moving vehicle, the threat to the officer at that point justified use of deadly force.  Any prior events leading up to the shooting were irrelevant.

The Supreme Court unanimously rejected the "at the moment of threat" approach.  The touchstone of whether use of force violated the 4th Amendment is whether the use was reasonable.  Whether police force was reasonable requires analyzing the totality of circumstances.  Determining reasonableness demands careful attention to the facts and circumstances relating to the incident, as then known to the officer.  The totality of the circumstances inquiry into a use of force has no time limit.  While the situation at the precise time of the shooting will often be what matters most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.  Considering prior events may benefit either party in an excessive-force case.  The moment-of-threat rule conflicts with the instruction to consider the totality of circumstances.  The court must look at any relevant event coming before the moment of risk.  The Supreme Court remanded the matter to the lower court to apply the proper standard.  

A concurring opinion by one justice, joined by three others, asserted that when analyzing the reasonableness of an officer's conduct at a traffic stop, particularly where the driver has suddenly pulled away, courts must appreciate the dangers and risks officers and the community at large face.

Deputy Acted Reasonably as a Matter of Law in Advancing Toward Woman with Knife, and Tasing Her When She Advanced on Him

In County of Nevada v. Superior Court (A.C.), published May 12, 2025, the Third District Court of Appeal issued a writ directing the trial court to grant summary judgment to a sheriff's deputy defendant and his agency.  Multiple individuals called 911 about an erratically-acting woman walking along a street with two small children. The defendant sheriff's deputies were dispatched to the area to perform a welfare check on the woman and children.  The first deputy pulled up behind the woman and attempted to speak with her.  She did not respond.  The second deputy then arrived.  He understood he was to provide backup.  The woman turned to the deputies, unsheathed a knife, and accused the officers of hurting her "babies."  The first deputy drew his gun and pointed it at the ground in front of him.  The second drew a taser.  The first officer tried to talk the woman down.  She continued complaining about her babies being threatened, and advanced toward the first deputy.  He backed up to give her space.  The woman alternated her focus betwen the two deputies. As one child repeatedly approached the first deputy, the woman took several quick steps toward the first deputy, who continued backing up.  The second deputy lost sight of the first deputy around a patrol car, and so came around the front of the car with his taser and followed the woman.  The woman suddenly turned and quickly advanced toward the second deputy while raising her knife.  The second deputy discharged the taser.  The woman continued to chase the second deputy into the street.  The first deputy followed and shot the woman in the back.  The woman passed away.  These events occurred in less than two minutes. The events were captured on the deputies' bodycams.  The children sued the deputies and the county that employed them for negligence, wrongful death, and negligent infliction of emotional distress.  They asserted a separate cause of action against the second deputy, who used the taser, under the Bane Act.  The trial court granted summary judgment to the deputy who shot the woman, concluding he acted reasonably as a matter of law throughout the encounter and did not unreasonably use deadly force.  It denied the motion as to the deputy who tased the woman, concluding that a reasonable juror could find he acted unreasonably by closing the distance between himself and the woman and by using his taser, and that he had acted with reckless disregard to her constitutional rights.  The court denied the county's motion for summary judgment to the extent it could be held vicariously liable for the tasing deputy's conduct.

The appellate court ruled that as a matter of law the tasing deputy and the county were entitled to summary judgment, because as a matter of law the deputy acted reasonably under the circumstances.  All of the causes of action turned on the allegation that the deputies' use of force against the woman was unreasonable.  The plaintiffs did not dispute that the deputy using lethal force was entitled to summary judgment, and the appellate court agreed he acted reasonably as a matter of law.  The plaintiffs contended that the tasing deputy's conduct was unreasonable, and created the need for the other deputy to use deadly force.  There was no triable issue of material fact on whether the tasing deputy acted reasonably in closing the distance between himself and the woman.  Applying the perspective of a reasonable officer on the scene, no reasonable juror could conclude the deputy's movement to maintain line of sight with the other deputy, as the woman advanced on him with a deadly weapon, was unreasonable.  There was no triable issue as to whether the woman would be perceived as an immediate threat as she advanced toward one deputy with the knife, then suddenly turned and quickly advance toward the other while raising her weapon.  There was no triable issue that it was not feasible for the deputy to warn the woman in the instant she turned and advanced before the deputy deployed the taser.  No reasonable juror could conclude that firing the less-lethal taser under the circumstances was unreasonable.  There is no material disputed fact on whether the deputy followed his training regarding welfare checks and contacting individuals with mental illness.  A general order governing officer conduct in specific situations does not establish the standard of care for the use of force.  Instead, the standard is whether the use is reasonable under the totality of circumstances.  Even if the deputies' training required better or more reasonable actions, as long as the deputies' actions were within the range of what was reasonable under the circumstances, they need not have chosen the "most reasonable" action.  Both the tasing deputy and the county were entitled to summary judgment.

Because the Law Was Not Clearly Established, Qualified Immunity Applied to Public Employee's Claim for 1st Amendment Retaliation Based on Family Member's Speech

In DeFrancesco v. Robbins, published May 7, 2025, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit at the pleadings stage due to qualified immunity.  The lawsuit alleged that both the plaintiff and his husband held high positions at a university.  The plaintiff's husband spoke out about the university's hiring of a friend of the university president to serve as senior vice president of the university despite several objections.  The plaintiff's husband, along with other senior university officials, met with the president and objected to what appeared to be a hiring process pre-planned by the president.  The complaint alleges that the husband spoke in his capacity as a private citizen, not as a university employee.  With no explanation, the new senior vice president told the plaintiff he was filed and had to reapply for his job.  The plaintiff was then targeted for harassment.  The senior vice president eventually terminated the plaintiff.  The plaintiff sued the university for 1st amendment retaliation.  The district court granted  a motion to dismiss the complaint, on the ground that the law did not clearly establish the right asserted.

The 9th Circuit agreed.  As of June 2019, when the plaintiff was terminated, neither binding precedent nor a persuasive body of law had established that a plaintiff could sue for 1st Amendment retaliation based on a family member's exercise of free speech rights.  Because the law did not clearly establish a violation of the constitution, the majority did not reach the question of whether the plaintiff stated a claim for 1st Amendment retaliation.  A concurring judge opined that the court should reach that issue, and rule that the plaintiff had stated a claim.

School District Forfeited Appellate Argument It Had No Mandatory Duty to Inform Teachers of Available Defibrillator

In Tillinghast v. Los Angeles Unified School Dist., published May 5, 2025, the Second District Court of Appeal, Division 8 affirmed the judgment in favor of the plaintiff.  The plaintiff's decedent, a middle-school student, passed away in PE class, after jogging, of sudden cardiac arrest.  He had an unsuspected heart defect.  When the decedent collapsed, teachers began performing CPR and called 911.  The teacher on the 911 call was trained to use a defibrillator.  The 911 operator asked the teacher if the school had a defibrillator.  The teacher had worked at the school for more than a decade, but did not know that the school had an AED-type defibrillator in its main office.  A cardiac arrest victim's chance of survival decreases by 7-10% each minute that passes without defibrillation.  The defendant school district promulgated a defibrillator policy and bulletin in 2012.  The policy stated that AEDs will be maintained on the premises of selected schools and other locations in the district.  The school principal, who started at this school in 2012, did not know of the defibrillator bulletin.  Had he known of it, he would have told the teachers about the school's AED.  The plaintiff sued the principal and the school district for negligence under Government Code sections 820, 815.2, and 815.6.  At trial, the plaintiff's strategy focused on the district's liability, rather than the principal's.  The district's policy was to admit mistakes were made, but that the there was no causation because the decedent's abnormal heart caused his death and defibrillation would not have made a difference.  During the trial, the parties agreed on a version of CACI 423, the jury instruction about mandatory duty.  The jury found the district negligent, but the principal not liable.  On appeal, the district contended that the trial court erred by giving CACI 423.  It also argued that insufficient evidence supported the verdict.

The appellate court ruled that the district had forfeited its objections to CACI 423, by acquiescing to it without requesting any additional instructions.  The insufficient evidence argument could not succeed, because the district conceded in its opening statement and closing argument that it had made mistakes.  The stipulated verdict form did not ask the jury to distinguish between negligence based on breach of a statutory duty and negligence based on any other theory.

In Positional Asphyxiation Case, Jury Verdict That Officers Did Not Use Excessive Force Could Be Reconciled with Verdict That Officers Were Negligent under California Law

In Alves v. County of Riverside, published April 29, 2025, the 9th Circuit Court of Appeal affirmed a district court's decision declining to grant a renewed motion for judgment as a matter of law after a jury trial.  The defendant deputies encountered a bleeding man speaking incoherently and engaged in unusual behavior.  The deputies believed the man was under the influence of a controlled substance or experiencing a mental health crisis.  As the deputies approached the man, he stood up and advanced toward them.  The deputies repeatedly tased the man as he advanced twice toward the deputies.  The deputies struggled to handcuff the man as he lay face down.  One deputy placed a knee on the man's back.  The man rolled to his side, and the deputies continued pinning him down.  The man became silent and stopped breathing.  The deputies rolled the man on his back.  Paramedics arrived and transported the man to the hospital, where he died.  The decedent's successor-in-interest sued the county and deputies under 42 U.S.C. section 1983 for excessive force and deliberate indifference to medical needs, and under California law for violation of the Bane Act, negligence, and battery.  The claims for excessive force, battery, and negligence were tried to a jury.  The jury found unanimously for the defendants on the 4th Amendment excessive force and state law battery claims, but found unanimously for plaintiff on her state law negligence claim.  It apportioned 20% fault to the deputies and 80% to the decedent.  The defendants moved for judgment as a matter of law on the ground that the verdicts were inconsistent.  The district court ruled the verdicts could be reconciled.

The 9th Circuit agreed.  Courts must search for a reasonable way to read verdicts as expressing a coherent view of the case, and determine whether it is possible to reconcile the verdicts on any reasonable theory consistent with the evidence.  Here, the jury's finding that the officers did not use excessive force may be reconciled with the finding that the deputies were negligent.  4th Amendment jurisprudence and California negligence law are two distinct legal frameworks.  Both bodies of law focus on whether an officer's use of deadly force has been reasonable under a totality of the circumstances.  But based on the California Supreme Court's decision in Hayes v. County of San Diego, the 4th Amendment's reasonableness standard is not the same as the standard of reasonable care under tort law, and negligent acts do not incur constitutional liability.  State negligence law, which considers the totality of circumstances surrounding use of deadly force, is broader than 4th Amendment law, which tends to focus more narrowly on the moment when force is used.  Since Hayes was decided, the 9th Circuit has repeatedly held that California negligence law is broader than federal 4th Amendment law.  The 9th Circuit rejected the contention that Hayes applies only to whether tactical conduct and decisions before use of lethal force is used are considered.  Here, for the 4th Amendment claim, the jury was instructed to consider whether the deputies' use of force and restraint was objectively reasonable under the totality of the circumstances, based on the Graham v. Connor factors.  For the negligence claim, the jury was asked whether the deputies were negligent in using unreasonable force or restrain, based on a totality of circumstances that included all facts known to the deputies at the time, including their conduct leading up to the use of force or restraint.  From the expert evidence provided, the jurors could have reasonably determined the deputies owed the decedent a duty of care after restraining him in handcuffs and breached the duty by failing to place him in a recovery position, failing to check whether he was breathing and had a pulse, or applying pressure on his back when it was no longer necessary, even though they concluded the deputies did not use excessive force.