Government Liability Update

Dirt Strip along Street in Residential Area Is Recreational Trail for Purpose of Immunity Statute

In Montenegro v. City of Bradbury, published April 25, 2013, the Second District Court of Appeal, Division Four, affirmed summary judgment in the city defendant's favor against the plaintiff, who fell over a protruding tree trunk while walking along a dirt pathway adjoining a street in a residential area.  The pathway is approximately half a mile long, seven-and-a-half feet wide, and was designed for and used by bicyclists, walkers, joggers, and horseback riders.  The plaintiff contended that the area was essentially a sidewalk for pedestrian safety, since it ran alongside a street, was elevated by a curb, was in a residential area, was not in a natural condition, and was maintained by a landscaping company.  The appellate court affirmed the trial court's conclusion that Government Code section 831.4's immunity for the condition of trails used for hiking, animal riding, and vehicular riding applied, since the path was designed for and used for those purposes.  It held the city absolutely immune for the physical condition of the path.

Conflict-of-Interest Exception for Government Attorneys Does Not Apply to Private Attorneys Who Advise Public Entities

In Sabey v. City of Pomona, published April 16, 2013, the Second District Court of Appeal, Division 2, held that the rule in Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 permitting attorneys from the same public law office (e.g., a county counsel's office) to advocate for one side in an adminstrative dispute, and to advise the decision maker, if the two attorneys are ethically screened from each other does not apply to private attorneys.  In Sabey, an attorney from a private law firm represented a city at an employee's arbitration over his discharge.  Another attorney with the firm was the city's chief labor negotiator, and he advised the city council (the ultimate decision maker) over the matter.  The firm erected an ethical wall between the two attorneys.  Nevertheless, the appellate court concluded that due process barred the same private law firm from providing the advocating attorney and the attorney who advised the decision makers.  The attorneys had a fiduciary duty to the firm, and there was too great a danger that the advising attorney would (consciously or unconsciously) support his colleague.  Government attorneys do not have the same incentive, the court reasoned.  

Judge's Determination of Probable Cause at Preliminary Hearing May Not Preclude Plaintiff from Arguing Lack of Probable Cause in Federal Civil Rights Action

In Wige v. City of Los Angeles, published April 16, 2013, the Ninth Circuit reversed summary judgment for the defendants in a 42 U.S.C. section 1983 action for false arrest, false imprisonment, and malicious prosecution by a plaintiff who spent ten months in jail before a jury acquitted him.  At the plaintiff's preliminary hearing, a police officer testified that a witness identified the plaintiff as the crime's perpetrator.  At the same hearing, the witness denied that the plaintiff committed the crime, and testified that he identified plaintiff because the officers pressured him.  The magistrate judge denied a motion to dismiss for lack of probable cause.  The magistrate bound the plaintiff over for trial, ruling that the issues in the case were for the jury to decide.  The circuit court, reviewing California law on whether preliminary hearing decisions had issue-preclusive effect on probable cause to arrest, ruled that the decision here did not.  Although preliminary hearing decisions will often have preclusive effect on probable cause, this one did not for two reasons:  The plaintiff contended that the officers fabricated evidence; and the magistrate judge did not make an express ruling on whether the officer was telling the truth.

Trial Court Cannot Grant Police Officer Qualified Immunity for 14th Amendment Claim of Improper Use of Force after Jury Finds Against Defendant on That Ground

In A.D. v. State of California Highway Patrol, published April 3, 2013, the Ninth Circuit affirmed a district court's denial of a police officer defendant's motion for judgment as a matter of law in a police shooting case.  The officer shot and killed the plaintiffs' decedent after a high-speed chase.  The plaintiffs sued the officer for killing a suspect with a purpose to harm unrelated to a legitimate law enforcement objective, in violation of their due process rights under the 14th Amendment.  The jury, instructed on that standard of liability, found for the plaintiffs.  The officer moved for judgment as a matter of law based on qualified immunity.  The district court denied the motion.  The Ninth Circuit initially reversed that decision, but on rehearing affirmed the trial court.  Because the jury impliedly found that the officer killed the suspect with an improper motive, and the rule that such a killing violates the 14th Amendment was clearly established at the time, the officer could not be granted qualified immunity.  Although a defendant may move for JMOL based on qualified immunity after a jury verdict, the court must consider such a motion in light of the facts the jury found.

Correctional Employee Who Uses Addresses of Inmates Obtained Through Work to Intimidate Civil Litigant Acts Outside Scope of Employment as a Matter of Law

Perry v. County of Fresno, published April 3, 2013 by the Fifth Appellate District, affirms summary judgment in favor of the defendant county in a lawsuit brought by plaintiffs who were allegedly the victims of a scheme by a county employee to intimidate the plaintiffs into dismissing a personal injury lawsuit against the employee.  The employee, a correctional officer who processed paperwork at a jail, used his access to the jail's computer system to forge insulting letters purportedly from the plaintiffs and mail them to inmates in the jail, resulting in threats to the plaintiff.  The plaintiffs alleged that the county, as the officer's employer, was vicariously liable for the officer's acts.  The court held that the county could not be held liable, because the officer acted outside the scope of his employment as a matter of law.  A public employee does not commit intentional torts within the scope of employment unless the risk of the tort is a generally foreseeable consequence of the enterprise, and its motivating emotions were fairly attributable to work-related events or conditions.  The employee's mere access to the computer system was not a sufficient connection to his employment to warrant respondeat superior liability.