Government Liability Update

Firefighters Statutorily Immune for Vehicular Liability Occurring at the Scene of the Fire

In Varshock v. California Department of Forestry and Fire Protection, published April 20, 2011, the Fourth District Court of Appeal, Division One, interpreted the interplay between an immunity statute (Government Code section 850.4) and a statutory exception to that immunity (Vehicle Code section 17001).  While traveling to the plaintiff's and decedent's property during the Harris Ranch Fire, the defendant's fire engine struck the ATV in which the plaintiff and decedent rode, disabling the ATV.  The firefighters allowed the plaintiff and decedent to ride in the engine.  At the scene of the fire, the engine was overrun by flames and broke down.  The decedent was unable to exit the engine and passed away.  The decedent's family sued the firefighters for negligence and wrongful death.

Government Code section 850.4 immunizes public entities and employees from liability for fighting fires, subject to Vehicle Code section 17001.  Section 17001 prescribes that public entities are liable for death or injury caused by negligent operation of a motor vehicle by an employee of the entity.  If the statutes were interpreted according to their plain language, the court noted, firefighters would not be immune for any firefighting activity involving their fire engines.  That result would frustrate the statute's purpose, and allow an exception to swallow an immunity.  The court therefore interpreted the section 17001 exception to apply only when the fire engine is moving from another place to the scene of the fire.  Once the fire engine is at the scene, the section 850.4 immunity applies to negligent operation of the fire engine.  Under that interpretation, and the undisputed facts, the court concluded that the firefighters were entitled to summary judgment.

Ordinance Requiring Spaying or Neutering of Pets Is Constitutionally Valid Exercise of Police Power

In Concerned Dog Owners of California v. City of Los Angeles, published April 29, 2011, the Second District Court of Appeal, Division One upheld a trial court decision rejecting a constitutional challenge to a city ordinance requiring pet owners to spay or neuter dogs and cats with limited exceptions.  The city's legislative solution to the problems of pet overpopulation was a legitimate exercise of the city's police powers, the appellate court ruled.  The court rejected the plaintiff group's arguments that the ordinance violated constitutionally-protected rights of free speech, free association, equal protection, due process, and individual liberties.  It also rejected contentions that the ordinance was overbroad and vague, constituted a taking of property without compensation, and granted city officials unfettered discretion concerning exceptions to the spaying/neutering requirements.

District Court's Conclusion That Parents Enrolled Child in Private School for Reasons other than Disability Upheld

In Forest Grove School District v. T.A. -- a sequel to a prior Ninth Circuit and U.S. Supreme Court opinion in the same case -- published April 27, 2011, a divided Ninth Circuit panel concluded that a district court acted within its discretion in reversing a hearing officer's decision awarding a student's parents private school tuition under the Individuals with Disabilities Education Act.  The student's school district evaluated the student for a learning disability.  It concluded the student had ADHD -- a basis for special education services -- but denied the student those services.  After the student began having drug and behavioral problems, his parents enrolled him in a private school.  They then sought reimbursement for the tuition from the district.  A hearing officer concluded that the private school enrollment was in part due to the student's disability and the district's denial of a free and appropriate public education for his ADHD, and ordered reimbursement.  The district court concluded the parents enrolled the student not because of his ADHD and resulting academic problems, but because of his drug and behavioral problems.

The majority affirmed.  It reviewed the record and concluded that sufficient evidence supported the district court's conclusion, and that the conclusion was therefore within the district court's discretion.  The dissenting judge pointed to evidence in the record that the parents' decision was based both on the drug and behavioral problems and the ADHD; and concluded that the district court abused its discretion.

If Minor Files Late Claim Application within Year of Accrual, Minor Need Not File Petition for Relief

**Update:  This case was disapproved on March 6, 2017 by the California Supreme Court in J.M. v. Huntington Beach Union School District.**

 

In E.M. v. Los Angeles Unified School Dist., published April 20, 2011, the court held that a minor suing a school district for alleged molestation could maintain her lawsuit against the district despite failing to file a timely Government Code section 946.6 petition for relief from the claim requirements.  The minor filed a Government Code section 911.4 Application for Leave to File Late Claim within one year of the last alleged act of molestation.  The district denied the application.  The plaintiff filed suit five months after the application was denied, and file a 946.6 petition seven months after the application's denial.  The trial court ruled that the action could not proceed because the petition was not filed within six months of the application's denial, as required by statute.

 

The Second District Court of Appeal, Division 3, reversed and remanded.  When a minor files a late-claim application with a public entity within one year of accrual, the minor is entitled to late-claim relief.  The minor's filing of the application within a year of the last alleged molestation act complied with the claim requirements, at least as to that act.  When the entity rejected the application, the minor could proceed with a lawsuit without prevailing on a section 946.6 petition.  The minor's failure to file a timely section 946.6 petition therefore did not matter.

Despite Jury Finding of Improper Motive to Harm, Officer Entitled to Qualified Immunity for Using Deadly Force on Driver Using Car as Weapon

A.D. v. Markgraf, published April 6, 2011, dealt with the aftermath of a high-speed police chase of a woman.  The chase ended when the driver pulled into a cul-de-sac and crashed into a chain link fence.  The defendant stopped his police unit 30 feet behind the cornered car, and broadside of the car's rear.  He exited the unit.  His partner was still in the unit.  The driver backed her car into the defendant's unit, multiple times, and swore at the defendant when he tried to open her door and get her to turn off her engine.  The defendant emptied his gun at the driver, killing her.  The defendant testified he feared for the other officers at the scene, although they turned out not to be behind the driver.  Less than 25 seconds passed between the first ramming and the shooting.

A jury found the defendant officer liable for using deadly force in violation of the decedent's children's due process rights in their mother's life.  In the process, the jury found that the defendant acted with a purpose to cause harm unrelated to the legitimate object of the arrest.  On appeal, the 9th Circuit upheld this finding; but it concluded that the defendant was entitled to judgment on the ground of qualified immunity.  The appellate court ruled that under the circumstances of the shooting a reasonable officer could mistakenly conclude that the amount of force used was legal.  Nothing in the jurisprudence of high-speed chases (which generally involved injuries caused by speeding cars) would have made clear to the officer that using deadly force against a driver who led a chase, and who was using her car as a weapon, violated the law.