Government Liability Update

Neither State Nor Public Utility Created Dangerous Condition by Allegedly Underlighting Intersection and Not Using More Visible Crosswalk Markings

In Mixon v. State, published June 22, 2012, the First District Court of Appeal, Division Four, upheld summary judgment in favor of the state and an electrical utility in a dangerous condition case arising out of a vehicle hitting a boy walking with his family in a marked crosswalk. The plaintiff alleged that the state maintained the intersection in a dangerous condition due to the lighting configuration, lack of traffic control signals and signs, type of crosswalk markings, and the intersection's grade. It sued the utility for allegedly failing to provide adequate lighting with overhead street lights. The appellate court upheld the trial court's ruling that the intersection was not a dangerous condition of public property. None of the features, alone or in combination, created a substantial risk of injury when the pedestrian was used by motorists and pedestrians with due care.

A lighting engineer's declaration that the intersection should have been more brightly lit, because the state undertook to light surrounding areas more brightly than the intersection, was simply a variation of the long-rejected argument that a public entity is negligent for failing to provide street lights. The entity cannot be held liable for failing to provide a consistent level of lighting between one street and the next.

The lack of a traffic control signal, as a matter of law, did not render the intersection dangerous unless an additional feature combined with the absence to make the intersection dangerous. None did. The accurate warning signs leading up to the intersection did not constitute a "trap" that would require additional warning signs.

The fact that a crosswalk is marked with parallel lines, rather than some other configuration that might give greater visibility, is a trivial condition as a matter of law, and does not create a dangerous condition. The difference in grade amounted to no more than a minor dip; and the fact that it was darker at night did not make it dangerous.

The traffic accident statistics for the intersection showed only one similar accident, despite high traffic volume.

A public utility that provides lighting cannot be charged with a greater duty to provide lighting for a public entity than the public entity itself.

Attorney Witness Statements -- including Statements Taken by Government Investigators for Public Entity Defense Attorneys -- are Entitled to Work Product Protection

In Coito v. Superior Court (State), published June 25, 2012, the California Supreme Court resolved a split in authority over whether witness statements taken by an attorney (or an attorney's agent) are entitled to work product protection. It did so by discussing whether recorded witness statements concerning a drowning case, taken by special agents from the Bureau of Investigation of the California Department of Justice were protected work product.

The attorneys for the state provided the agents with questions they wanted the agent to ask the witnesses. The state's attorney used the contents of one witness's recorded interview in deposing that witness.

The Supreme Court concluded that witness statements taken by attorneys or their agents are entitled by law to at least qualified work product protection. It reached this conclusion based on the history of work product protection in California. Treating them as work product prevents one side from benefitting from the other's industry; and encourages attorneys to fully investigate their cases. A particular statement may be entitled to absolute work product protection if the attorney makes a sufficient showing that the statement reflects the attorneys thoughts, impressions, and opinions. The court disapproved contrary lower court language in several cases.

The Supreme Court also resolved a split in authority over whether an interrogatory asking for a list of witnesses whose statements have been taken invades work product privilege. It held that such lists are not automatically deemed work product; but that a showing could be made on a case-by-case basis that the attorney's selection of the witnesses from whom to take statements reflects the attorney's thoughts and impressions and is thus protected work product.

Allegations of Prison Doctor's Negligent Failure to Diagnose Hernia Fail to State Case for Deliberate Indifference; But Allegations of Failure to Deliver Prescribed Treatment Do

In Wilhem v. Rotman, published May 25, 2012, the 9th Circuit affirmed in part and reversed in part an order dismissing a pro se prisoner's lawsuit against two prison doctors for deliberate indifference in his treatment in violation of the Eighth Amendment.  Plaintiff alleged that one doctor failed to diagnose him with a hernia, despite having a three-year-old hernia diagnosis and plaintiff's symptoms.  The prisoner alleged the doctor's exam lasted only two seconds.  The doctor did not prescribe any symptoms for the prisoner's pain.  The appellate court affirmed dismissal of the deliberate indifference suit against that doctor, holding that the prisoner had at most accused the doctor of negligence, which is insufficient to establish deliberate indifference.  But plaintiff stated a case against another prison doctor, who, the plaintiff alleged, repeatedly diagnosed plaintiff with a hernia and prescribed treatment, but did not carry out that treatment over the course of over a year.

Medical Board's Rejection of Prisoner's Doctors' Medical Recommendations May Create Issue of Fact on Whether Board Violated Eighth Amendment Through Deliberate Indifference

In Snow v. McDaniel, published May 25, 2012, the 9th Circuit reversed summary judgment granted to various Nevada prison and Department of Corrections officials in a lawsuit filed by a penitentiary inmate alleging violation of his Eighth Amendment rights.  The 69-year-old prisoner developed degenerative hip disease and could barely walk. Multiple orthopedic specialists examined him and recommended he undergo hip replacement.  A medical review board, composed of doctors board-certified in family medicine and similar disciplines, rejected each recommendation, without giving any reason, and instead ordered pain medication.  There was evidence that the medication injured the plaintiff.  The district court granted the defendants summary judgment.  The Ninth Circuit reversed, and ruled that the plaintiff had presented sufficient evidence of deliberate indifference in his treatment to raise a jury issue.  Although mere difference of medical opinion (or even medical malpractice) does not amount to deliberate indifference, the review board's doctors' rejection of board-certified orthopedists' recommendations, unsupported by medical reasons, suggested they were rejecting needed treatment for non-medical reasons, such as indifference to inmate suffering.  Further, the warden defendants' awareness of the plaintiff's requests and the board's refusal, combined with the warden's failure to act, raised a jury issue about whether the warden participated in violation of the Eighth Amendment.

Because Secret Service Agents' Arrest of Suspect Was Supported by Probable Cause, Agents Entitled to Qualified Immunity to Liability under First Amendment for Retaliatory Arrest

Reichle, et al. v. Howard, a decision by the U.S. Supreme Court published June 4, 2012, dealt with Secret Service agents who arrested a man attending an appearance by then vice president Richard Chaney who complained about the vice president in the agents' presence, touched the vice president's shoulder, and then denied doing so when the agents questioned him.  The agents had probable cause to arrest the man for lying to a federal agent.  But a lower court ruled that the man could nevertheless maintain a suit under the First Amendment for an arrest in retaliation for his speech.

The Supreme Court declined to rule on whether a cause of action for retaliatory arrest could be maintained when the arrest was supported by probable cause.  But the Court ruled that the agents were entitled to qualified immunity, because the law had not clearly established that such an arrest would support a cause of action under the First Amendment.

Unequal Forgiveness of Assessed Cost of Utility Does Not Violate Equal Protection if It Can Be Supported by Rational Administrative Reasons

In Armour v. City of Indianapolis, published June 4, 2012, a divided U.S. Supreme Court ruled that a city's decision to forgive future payments of a sewer assessment paid in installments, but not to refund assessments already paid in full, did not violate equal protection, although it resulted in the latter paying several times what the former paid.  Because the taxing decision did not involve suspect classes or fundamental rights, it did not violate the equal protection clause of the U.S. Constitutional if there was any reasonably conceivable state of facts that would provide a rational basis for the different treatment.  The majority concluded that the administrative burdens of issuing refunds to those who had paid were a sufficient rational basis for the decision.  Three dissenting justices opined that an "administrative hassle" was not a rational basis for the different treatment.

Officers Not Entitled to Qualified Immunity Where Plaintiffs Presented Evidence Supporting Scenario in which Officers Tasered Compliant Man and Allowed Him to Asphyxiate

In Mendoza v. City of West Covina, published May 30, 2012, the Second District Court of Appeal, Division 8, affirmed a wrongful death verdict under 42 U.S.C. section 1983 against a police department and officer arising out of the asphyxiation death of a man who was tasered while in medical custody and handcuffed to a chair, and then was piled upon by police officers.  The court held that the defendants had waived an appeal from their nonsuit motion based on qualified immunity, because they failed to set forth a sufficient summary of the evidence in their briefs.  The court nevertheless reached the merits of the qualified immunity issue.  It ruled that in 2007, when the incident took place, sufficient published and unpublished case law existed to clearly establish that tasering a compliant suspect, and failing to ensure that he could breathe, violated the suspect's constitutional rights.  Since plaintiffs provided evidence supporting a scenario in which the officers tasered the suspect after he had become compliant, and failed to ensure the suspect could breathe, the countervailing evidence that the suspect was fighting the officers did not entitle the officers to nonsuit based on qualified immunity.