Government Liability Update

Exceptions and Discretion Do Not Render City's Billboard and Supergraphic Restrictions Unconstitutional

In a case published May 26, 2010, World Wide Rush v. City of Los Angeles, the Ninth Circuit upheld a city ban on billboards that faced freeways, despite the city’s exceptions from the bans for specific projects designed to alleviate downtown blight (the Staples Center complex) and traffic congestion (changes to Santa Monica Boulevard). Although bans on expressive conduct, such as billboards, that is based on aesthetic regulation can be rendered unconstitutional by excessive exceptions, these exceptions served legitimate civic planning interests.

The plaintiff also challenged the city’s bans on supergraphics (signs stretched across the faces of high-rise buildings) and off-site billboards (billboards that advertise a business but that are not located on the business), despite the city council’s reservation of power to itself to create legislative exceptions to the bans. Although giving the executive branch of government unbridled discretion in applying a restriction on expression can render the restriction unconstitutional, the legislative branch’s right to create legislative exceptions is a permissible aspect of its inherent legislative discretion.

Court Has Discretion to Conclude That Devastating Injury Supports Request for Late Claim Relief Based on Excusable Neglect

In Barragan v. County of Los Angeles, published May 26, 2010, the Second District Court of Appeal holds that a claimant’s serious injuries can render the claimant’s failure to obtain an attorney within six months of injury, combined with lack of knowledge of a potential claim, excusable neglect – even if the injuries don’t amount to “incapacity” to present a claim.  In particular, the court notes that a claimant who can authorize another person to present a claim on her behalf is not entitled to relief based on incapacity; but if that person’s devastating injuries occupy their thoughts after their accident, to the extent that they do not think of contacting an attorney, a court can find that to be excusable neglect.  (The opinion emphasizes that all seriously-injured people likely suffer some preoccupation with their injury, and that the claimant must show extraordinary injury to prove excusable neglect.)

 

Police Not Liable for Failing to Assess Injured Person's Medical Condition at Scene of Accident

Camp v. State of California, published May 18, 2010, holds that a CHP officer could not be held liable in negligence for the alleged exacerbation of a passenger’s injuries in an auto accident. The plaintiff was one of four persons -- all intoxicated, according to the opinion -- in a car that the driver drove off the road. When the CHP arrived, the plaintiff was lying on the ground near the car, having somehow exited. The investigating officer repeatedly asked her if she was injured and whether she wanted an ambulance. She answered both questions no. A friend arrived to transport the four persons. Witnesses testified that the officer ordered the four to leave the scene. One of the other passengers picked the plaintiff up to move her. The plaintiff had sustained spinal cord injuries in the accident, and was left a paraplegic. A jury found the CHP officer partially liable for the injuries.

The appellate court reversed the judgment and ordered judgment be entered for the officer and the state. The officer did not enter into a special relationship with the plaintiff by investigating the scene, or by asking her about her injuries. The officer had no duty to inquire further into her condition, or to force her to seek medical attention. The officer did not increase the danger to her, or induce false reliance in her. The officer’s common-sense order that the four leave the scene (instead of spending the night drunk in the field) did not cause the plaintiff’s injury.

Minor's Suspicion of Wrongdoing May Suffice to Trigger Accrual

In S.M. v. Los Angeles Unified School District, published May 13, 2010, the Second District Court of Appeal held that a minor’s belief that a defendant injured the minor through wrongdoing may trigger accrual of the minor’s cause of action -- and start the minor’s time to present a claim running -- even if the minor’s parent does not know of the alleged wrongdoing. The court affirmed summary judgment for the defendant district on the ground that the minor plaintiff’s claim for negligent supervision of a teacher was untimely. The minor testified that when her fourth-grade teacher allegedly touched her inappropriately, she believed the act was wrong. Even though the minor was ten at the time, the evidence showed that she suspected wrongdoing and her cause of action accrued. The court noted that the result could be different if the evidence showed the minor was incapable of suspecting the wrongfulness of the alleged act.

The court also rejected the plaintiff's argument that the district was estopped from asserting the claim issue, because the plaintiff was afraid to accuse the teacher of wrongdoing.  To establish estoppel, the plaintiff must present evidence of an affirmative act of intimidation or violence intended to deter the child from speaking up.

Prison Litigation Reform Act Satisfied if Plaintiff Complains About Relief Offered but Not Provided

Under the Prison Litigation Reform Act, a prisoner must timely exhaust the prison's internal grievance procedures before bringing suit.  In Harvey v. Jordan, filed May 11, 2010, the Ninth Circuit explored this rule's application where a plaintiff is allegedly promised administrative relief, but then does not get it.

A prisoner brought an administrative grievance, and was promised part of the relief he sought in the grievance.  The prison allegedly failed to deliver what it promised.  Plaintiff filed a grievance from that alleged failure.  The prison treated the grievance as an untimely appeal from the original result, and argued the prisoner failed to exhaust his administrative remedies.

The Ninth Circuit ruled that the second grievance was not an untimely appeal.  The plaintiff had no reason to appeal, because he got what he asked for.  That he also sought other relief did not change matters.  The prisoner should not be required to appeal a favorable outcome, or anticipate that the prison would not provide the relief it allegedly promised to provide.

Limits on Property Buyer's Rights to Sue for Inverse Condemnation and Nuisance

In Ridgewater Associates LLC v. Dublin San Ramon Services District, published on May 11, 2010, the plaintiff purchased a warehouse at a discount because water seepage from nearby public works apparently damaged the warehouse.  The new owner then sued the agency that maintained the public works, for inverse condemnation and nuisance.  The trial court granted the agency summary judgment on both causes of action.  The appellate court affirmed.

The court ruled that a purchaser who buys property after it has been damaged for a public purpose can sue for inverse condemnation only if the owner can prove damage to the property that took place after the purchase.  Since the purchaser here had no proof of such damage, the trial court properly granted summary judgment on that cause of action.

The court also upheld the trial court's decision that Government Code section 830.6's design immunity applied to nuisance claims; and barred the plaintiff's nuisance claim here.