Government Liability Update

CHP 911 Operators Do Not Enter into Special Relationship with Potential Victims of Traffic Accident by Failing to Respond Properly to Call

In Greyhound Lines, Inc. v. Department of the California Highway Patrol, published February 14, 2013, the Fifth District Court of Appeal affirmed the CHP's demurrer to a bus company's cross-complaint arising out of a collision between a bus and an overturned SUV.  On a dark highway, the SUV was involved in a single-vehicle accident and came to rest on its side blocking at least one lane.  Passing motorists called 911 and reported the accident and lane blockage.  The CHP 911 operator summoned a CHP unit to investigate, but did not enter the code for lane blockage, a high priority.  As a result, a unit close to the accident was not summoned.  Approximately three minutes after the SUV's accident, a bus collided with the SUV, causing the deaths of bus passengers and the SUV's occupants.  Sued for negligence, the bus company cross-complained against the CHP.  The trial court ruled that the CHP owed no duty to the injured persons.

The appellate court agreed.  Law enforcement personnel owe a duty to citizens only if they enter into a special relationship with them.  They do so only if they make misrepresentations that induce a citizen's detrimental reliance, place a citizen in harm's way, or lull a citizen into a false sense of security and then withdraw essential safety precautions.  The CHP 911 operator did not do any of those things.  The bus company argued that the operator induced a false sense of reliance in the motorists who called 911; and that the motorists would otherwise have gotten out and helped the SUV's occupants.  The appellate court rejected that argument as rife with speculation and conjecture.

Arrestee States Prima Facie Case for Arrest in Retaliation for Criticizing Officer, Despite Probable Cause for Arrest

In Ford v. City of Yakima, pubished February 8, 2013, a divided Ninth Circuit panel reversed summary judgment in favor of defendant police officers in a case arising from a motorist's arrest.  The motorist was playing his radio while driving, and was pulled over.  The motorist was angry and yelling.  The officers informed him that he was violating a noise ordinance, which could be punished by either a ticket or jail; but that he would be jailed if he kept talking.  When he continued critizing the officers, he was handcuffed and booked into jail.  The motorist sued the officers under 42 U.S.C. section 1983 for First Amendment Retaliation.  The district court granted the officers summary judgment on the ground of qualified immunity.  Reversing, the majority held that criticism of police officers is protected by the First Amendment; and that the law on that was clearly established in 2007 when the arrest occurred.  The officers would therefore not be entitled to qualified immunity for arresting the plaintiff for his criticism of them.  The court further held that the existence of probable cause to arrest the plaintiff for a legitimate purpose -- violation of the noise ordinance -- did not entitle the officers to summary judgment.  Instead, the existence of a proper motive for the arrest was a factor for the trier of fact to consider in deciding whether the officers arrested the plaintiff out of retaliation for his speech.  The dissenting judge opined that detained persons have less First Amendment protection than ordinary citizens; that the existence of probable cause for a proper arrest entitled the officers to summary judgment; and that the law otherwise was not clearly established.

Employee May Not Recover Damages for Discrimination if Employer Proves It Would Have Made Same Decision for Nondiscriminatory Reasons; But Other Remedies Available

In Harris v. City of Santa Monica, published February 7, 2013, a unanimous California Supreme Court analyzed how courts should handle mixed-motive-firing cases under FEHA, in which the plaintiff (here, a city bus driver) proves unlawful discrimination was a substantial factor motivating her firing, but the employer proves as an affirmative defense that the it would have made the same decision absent that discrimination.  The court decided that if the jury so finds, the plaintiff cannot recover any economic or noneconomic damages, and cannot obtain reinstatement.  Those remedies would be a windfall to the plaintiff.  But the legitimate motive is not a complete affirmative defense, because there is a public interest in ending unlawful discrimination.  The plaintiff can therefore seek declaratory relief, or an injunction ending discriminatory practices.  The court also has discretion to award the plaintiff attorney fees under FEHA.