Government Liability Update

Neither Driver's Drinking Nor Plaintiff's Diagonal Parking in Roadside Area Superseded Alleged Dangerous Design of Public Property

In Cole v. Town of Los Gatos, published April 27, 2012, the Sixth District Court of Appeal reversed summary judgment granted to the defendant town on a roadway dangerous condition case.  The lawsuit arose out of an accident where a driver, who was drinking, drove off the road and ran into the plaintiff, who was standing behind her car, diagonally parked in a gravel area between the road and a park.  The defendant contended that the driver's drinking and the plaintiff's improper parking in the "gravel shoulder" caused the accident, rather than any dangerous condition of property.  The trial court granted summary judgment after sustaining the defendant's objections to the plaintiff's roadway-engineering expert's testimony.  The appellate court reversed.  Evidence that drivers periodically left the roadway and drove on the gravel area to avoid stopped traffic; that drivers parked diagonally on the gravel without objection from the defendant; and that aspects of the roadway might encourage drivers to drive on the gravel, combined with evidence of a prior accident in the area, raised triable issues of fact concerning the existence of a dangerous condition, causation, and notice.

The court rejected the theory that when a third party causes the injury by acting improperly, the property is not dangerous unless it facilitates the improper conduct.  A dangerous condition may also be an independent contributing cause of the accident.

 

 In addition, the appellate court reversed the trial court's rulings on the defendant's objections to the plaintiff's expert's declaration.  

School District's Supervising Managers May Be Held Liable for Retaliation under Whistleblower Statute, But Managing Employees May Not Seek Punitive Damages under Statute

 

[Note:  By request, I've edited the summary of this case from that initially posted, to clarify the interaction of the statutes involved.]

In Hartnett v. Crosier, published April 26, 2012, the Fourth District Court of Appeal, Division 1, agreed with the Third District Court of Appeal's decision in Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, and held that a school district's management employees may be held liable under Education Code section 44113(a) when they act in a supervisory capacity.  

Section 44113(a) bars an “employee” from using his or her power to interfere with any person’s right to disclose to an official agent evidence of improper governmental activity, or threats to employee or public safety.  Section 44114(c) states that a “person” who engages in retaliation against a “public school employee” may be liable for punitive damages.
 
Section 44112(a) defines “employee” under the statute as a “public school employee” as defined in Government Code section 3540.1(j). Subdivision (j) excludes “management employees” from that definition.  But it does not exclude “supervisory employees,” which under Government Code section 3540.1(m) means an employee who has the power to hire, transfer, suspend, layoff, recall, discipline, etc. other employees, or the responsibility to assign work to or direct them, or to adjust their grievances, or to recommend these actions.
 
The court agreed with a previous court’s interpretation of these statutes:  If a management employee is also a supervisory employee, she is an “employee” subject to the Reporting by School Employees of Improper Governmental Activities Act.  But a plaintiff who is a management employee is not entitled to the punitive damages provided by Education Code section 44114(c).

County Hospital Immune from Liability for One Patient's Sexual Assault upon Another

In Johnson v. Alameda County Medical Center, published April 25, 2012, the First District Court of Appeal, Division 4, upheld summary judgment for Alameda County in a case where a patient on a 72-hour psychiatric hold alleged that negligence by the facility and its employees contributed to another patient's sexual assault upon her.  The plaintiff alleged the other patient was able to gain access to her room because the lock on her door was defective and failed to latch.  Although statutes and regulations entitle psychiatric patients to be "free from harm" and the premises of psychiatric hospitals to be in good repair, no regulation requires locks on hospital doors.  Instead, regulations prescribe that locks on doors are optional.  The appellate court therefore upheld the defendants' immunity from liability under Government Code section 845.8, which generally immunizes public entities from liability for injuries to or from inpatients at mental institutions.  The statute does not immunize public employees from their own negligence; but the plaintiff failed to present any evidence that any employee's negligence contributed to the assault.  And although Government Code section 855(a) creates an exception to immunity for injury caused by insufficient personnel, equipment or facilities required by statute or regulation, no specific regulation required a working lock on the door.  The general statutory and regulatory duties that applied to the hospital did not impose requirements specific enough to create a minimum requirement under section 855. 

Private Attorneys Retained by Local Government to Do Its Work Are Entitled to Protections of Qualified Immuni

In Filarsky v. Delia, published April 17, 2012, the U.S. Supreme Court unaniously held that a private attorney whom a California city retained to conduct an employment investigation was entitled to qualified immunity.  The investigated employee sued the attorney and the city employees who participated in the investigation for allegedly violating his 4th Amendment rights by ordering him to take materials from inside his home and display them on his front lawn for inspection.  The district court held all of the defendants were entitled to qualified immunity, because the order did not violate clearly-established constitutional rights.  The Ninth Circuit upheld qualified immunity for all of the defendants except the private attorney.  The Supreme Court reversed.  The reasons for extending qualified immunity to public employees -- the desire not to chill government activity, the need to attract talented persons to do government work, and the policy of avoiding lawsuits that will interfere with the business of government -- apply to private individuals who are temporarily retained to do government work.

There were two concurring opinions.  Justice Ginsburg opined that whether the private attorney could establish the elements of qualified immunity remained in question.  Justice Sotomeyer opined that the analysis might differ depending on the task the private individual is performing for the government.