In Harb v. City of Bakersfield, published January 23, 2015, the Fifth District Court of Appeal reversed a defense verdict for the city and one of its police officers in a lawsuit arising out of allegations that the officer negligently failed to secure medical care for a stroke victim. The victim, a doctor, suffered a severe stroke and crashed his car. When an officer arrived, she believed the victim was intoxicated. The plaintiff alleged that the officer, a paramedic, and an ambulance driver were negligent in assessing the victim's condition and in getting him to a hospital, and that the delay exacerbated the stroke's debilitating effects. The jury found, in a special verdict, that none of the defendants were negligent.
The court of appeal ruled that the trial court had erred in giving the jury an instruction based on Government Code section 820.4. Section 820.4 immunizes public employees for their acts or omissions in executing or enforcing the law, so long as the employee acts with due care. The appellate court concluded that this immunity does not apply to negligence claims against public employees, since a public employee who is negligent is not acting or omitting to act with due care. The instruction was superfluous to the negligence instructions; and the record showed that the jury was probably misled by the instruction.
The appellate court also found error in the trial court's instruction that the jury could consider the victim's negligence (in failing to regulate his own blood pressure) before the police officer arrived as comparative fault. The court ruled, as an issue of first impression, that a first responder sued for negligence cannot assert comparative fault based on the conduct of the victim that put the victim in that situation. The first responder takes the victim as he or she finds the victim. Although the jury did not reach the comparative fault issue, the record showed that the evidence and argument concerning the victim's alleged negligence prejudiced the verdict.
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