Government Liability Update

Hazardous Recreational Activity Immunity Applies to Rope-Swinging in County Park, Despite Lack of Maintenance of Rope or Failure to Remove Debris under Rope

In County of San Diego v. Superior Court (Casteen), published November 20, 2015, the Fourth District Court of Appeal, Division 1 issued a writ directing a trial court to set aside its order denying the petitioner county summary judgment in a personal injury case.  The plaintiff, a teenager, swung on a rope hanging from a tree in a county park.  The rope hung over a ravine.  There was debris in the ravine, including cut-down tree limbs and brush left by the county's maintenance crews.  As the plaintiff swung over the ravine, the rope broke, and the plaintiff fell onto the ravine.  The rope broke because the sun had weakened it.  The county moved for summary judgment based on Government Code section 831.7's immunity from liability for injuries that result from hazardous recreational activities.  The trial court found triable issues of fact on whether the exceptions to the statute applied.

The appellate court concluded that the undisputed facts established that the immunity applied. Section 831.7 itself states that "tree rope swinging" is a hazardous recreational activity to which the statute applies.  The statute contains exceptions.  When an affirmative defense contains an exception, an the complaint alleges facts triggering potential application of the exception, the defendant must negate the exception as part of its initial burden on summary judgment.  The appellate court ruled that the county satisfied its burden.  The exception for failure to guard or warn of a known dangerous condition not reasonably assumed by the participant as part of the hazardous activity did not apply to the debris at the bottom of the ravine.  The debris was not a dangerous condition of property, because it did not pose a danger to those using the park with due care; only to those engaged in hazardous recreational activities.  Further, the debris was an obvious danger, and falling is part of the inherent risk of the activity.  The exception for failure to maintain the property involved in the activity did not apply; there was no evidence that the county supplied the rope, and no duty should be imposed on the county to eliminate rope swings.  The exception for gross negligence did not apply, because there was no evidence that the County was negligent.

Police Officer's Alleged Threat to Suspect Subject to Unreasonable Traffic Stop Does Not Violate Bane Act

In King v. State, published November 18, 2015, the Second District Court of Appeal, Division 1 affirmed in part and reversed in part a judgment after jury trial in favor of a plaintiff who alleged that state police improperly subjected him to a traffic stop and unreasonably frisked him.  The court affirmed the jury's verdict finding liability for the traffic stop and frisk, ruling that the conflicting evidence on the circumstances provided substantial evidence for the jury's findings.  But the court reversed the portion of the verdict finding that one of the officers violated the plaintiff's rights under the Bane Act when he put a control hold on the plaintiff during the stop and whispered in the plaintiff's ear, "Do something."  A defendant violates the Bane Act when the defendant prevents the plaintiff from doing something the plaintiff  has a right to do, or forces the plaintiff to do something the plaintiff has a right not to do, by force or the threat of force.  Assuming that the whispered words were a threat of force if plaintiff "did something," a person has no right to use force during even an unreasonable traffic stop or frisk.  The threat therefore did not violate the Bane Act.

Police Officer Entitled to Qualified Immunity for Shooting Vehicle Leading High-Speed Chase and Killing Driver

In Mullenix v. Luna, published November 9, 2015, the U.S. Supreme Court ruled that a police officer who shot a driver who was leading police on a high-speed chase was entitled to summary judgment against a 42 U.S.C. section 1983 claim that he violated the 4th Amendment by use of excessive force.  The decedent had fled from police officers attempting to arrest him.  During the 18-minute chase, the decedent repeatedly called the police department and threatened to shoot officers if they did not abandon their pursuit.  The dispatcher relayed these threats (and the decedent's intoxication) to the officers.  Officers set up spike traps in the decedent's path.  The defendant officer proposed stopping the car by shooting it from an overpass with his service rifle.  One of the pursuing officers agreed with the idea.  The defendant's supervisor said to stand by and see if the spikes worked first.  As the defendant officer waited, the decedent's car appeared, headed toward the position where another officer waited with a spike trap.  The defendant officer shot at the car, killing the driver.  The car continued on to the spike trap.

The court majority held that the officer was entitled to qualified immunity for his use of deadly force.  Qualified immunity for use of force was appropriate unless existing precedent placed the conclusion that the officer acted unreasonably under the specific circumstances "beyond debate."  Since no U.S. Supreme Court case had held use of deadly force in ending a car chase to violate the 4th Amendment, and no lower court precedent put the unreasonableness of the use here beyond debate, the officer was entitled to qualified immunity.

Justice Scalia concurred.  He opined that the officer's act in shooting the car should not be analyzed as use of deadly force, because the officer was trying to shoot the car itself, not the driver.  Justice Sotomayor dissented.  She opined that the officer's choice of tactics was unreasonable under the circumstances.

City Employee Fails to Prove Any Actionable Discrimination or Harassment within Statute of LImitations

In Jumaane v. City of Los Angeles, published November 10, 2015, the Second District Court of Appeal, Division 8, reversed a $1 million jury verdict against the defendant city, and ruled that the trial court should have granted the city JNOV in a racial discrimination and harassment suit brought by a fire fighter.  The plaintiff, who became a city employee in 1986, alleged continuing racial discrimination and harassment from the 1990s through 2001.  He filed his complaint with the DFEH in 2002.  The trial court declined to allow the city's statute of limitations defense to go to the jury.

The appellate court ruled that the trial court erred in rejecting the statute of limitations defense.  A plaintiff claiming employment discrimination or harassment ordinarily cannot recover for acts that took place more than a year before the plaintiff files a DFEH complaint.  An exception is the continuing acts doctrine:  when the employer engages in a continuing course of conduct that is unlawful under FEHA, the statute of limitations does not begin to run until the conduct ends, the employee is discharged, or the employee is on notice that further attempts to stop the conduct will be in vain.  Pleading and proving the action is timely under this doctrine is the plaintiff's burden.  There was no evidence in the record that the statute of limitations did not start running in 1999, when the plaintiff was suspended and believed that further evidence to stop the alleged discrimination and harassment would be in vain.  The appellate court further ruled that there was no prima facie evidence to support the plaintiff's claims of disparate impact discrimination, harassment, retaliation, or failure to prevent discrimination or harassment within the statute of limitations period.  In particular, the disciplinary suspensions the plaintiff received could not, as a matter of law, be considered harassment, because only acts outside the scope of job duties that are not necessary to personnel or business management are harassment.  Further, the suspension within the statute of limitation was not retaliatory, because plaintiff failed to rebut the city's evidence that the suspension was for a legitimate business reason.