Government Liability Update

Transit Company Is Not Liable under Common-Carrier Statute for Fall Caused by Ordinary Risks of Busy Train Platform

In Churchman v. Bay Area Rapid Transit District, published August 28, 2019, the First District Court of Appeal, Division 5 affirmed dismissal after demurrer.  While the plaintiff was standing on a BART platform, the opening and closing of doors on opposite sides of the cars, partially inaudible and confusing public address announcements, and abrupt turns and moves by passengers trying to board a train created a confusing situation for the plaintiff.  These factors allegedly caused the plaintiff to lose her balance and fall.  The plaintiff sued the defendant district for violating its duty as a common carrier under Civil Code sectoin 2100 et seq.  The trial court sustained the district's demurrer without leave to amend.

The appellate court held that while the common carrier statutes may serve as a statutory basis for public entity liability, a common carrier's duty does not extend to protecting passengers waiting on or passing through a train platform from injuries caused by ordinary risks of a busy train platform.

Absent "Peculiar Condition," City Could Not Be Held Liable for Dangerous Condition of Public Property Because It Did Not Light a Crosswalk Better

In Huerta v. City of Santa Ana, published August 23, 2019, the Fourth District Court of Appeal, Division 3, ruling 2-1, affirmed summary judgment for the defendant city.  Three children, wearing black on Halloween night, were crossing a marked crosswalk leading to an elementary school when a speeding car struck and killed the children.  The driver later pleaded guilty to felony vehicular manslaughter.  The children's parents alleged that the crosswalk was a dangerous condition of public property.  They alleged that a large tree at the north end of the crosswalk, lit by a single light at the southern end, cast a shadow rendering the children invisible as they crossed.  They also argued that the speed limit of 45 miles per hour (25 miles per hour when children were present) was dangerous because it caused drivers to out-drive the reach of their headlights.  The trial court rejected these arguments and granted summary judgment.

The majority agreed.  Under case law, absent a statute or charter provision to the contrary, a city has no duty to light its streets.  An exception is where a "peculiar condition" of the property makes lighting necessary to make the street safe for travel.  The tree was not such a condition.  Since the sole light cast that night was on the opposite end of the crosswalk, any shadow the tree cast would necessarily be away from the street and toward the school.  It could not have created a shadow over the area of impact.  No other peculiar condition required lighting.  The posted speed did not encourage drivers to outdrive their headlights; it was only the maximum allowed speed, and did not change the basic speed law that required drivers not to drive at a dangerous speed given the visibility.  Further, the driver who struck the girls far exceeded the speed limit.

Statute of Limitations for Placement of Name on Child Abuser's List without Due Process Accrued upon Discovery

In Bird v. State of Hawaii, published August 23, 2019, the 9th Circuit affirmed dismissal of a 42 U.S.C. section 1983 complaint on statute of limitations grounds.  In 2007, the plaintiff's younger child died as an infant.  Authorities concluded that the child died due to maltreatment.  The defendant state put the plaintiff and her husband on a state registry of child abusers.  The state did not give plaintiff notice of doing so.  The husband confessed to prosecutors to harming the child, causing her death, and pleaded guilty to first degree murder.  The plaintiff was not a suspect.  The plaintiff regained custody of her older child, moved to another state, and remarried.  When she sought to adopt a child, she learned she was on the registry and so could not adopt.  In 2012, she contacted the state and requested an administrative hearing before the listing agency.  It offered her a limited administrative hearing, which she refused.  In 2013, she threatened litigation.  She filed her action for damages and injunctive relief, based on denial of due process, two years and two months after threatening litigation.  The district court ruled the action barred by the state's two-year statute of limitations on personal injury.

The 9th Circuit agreed.  Although the state statute of limitations for personal injury is applied to section 1983 actions, federal standards of accrual control. The discovery standard of accrual typically governs section 1983.  Under it, accrual occurs when the plaintiff knows or has reason to know of the injury that is the basis for the action.  The court rejected an argument that the plaintiff was faciallychallenging a statute, and that accrual did not occur until the statute was overturned.  That position would essentially abolish statutes of limitations for facial challenges.  The court also rejected the argument that there was a continuing violation during the time that she was on the registry.  Federal law has limited application of the continuing violation doctrine for individual claims, limiting the doctrine to hostile environment workplace claims.  The plaintiff therefore had knowledge of the injury giving rise to her suit no later than 2013, when she was denied the hearing she requested and threatened litigation.  A concurring judge opined that an injustice had been done to the plaintiff.

Without Ruling Out Eleventh Amendment Immunity for Counties Entirely, 9th Circuit Rules Counties Are Not Acting as Arms of State When Running In-Home Care Programs

In Ray v. County of Los Angeles, published August 22, 2019, the 9th Circuit affirmed in part and reversed in part a district court's ruling on a motion to dismiss in a Fair Labor Standards Act case brought by employees of California’s In-Home Supportive Services program, which is implemented and run by the State and its counties.  The defendant county argued that it should be dismissed because it was immune from liability under the Eleventh Amendment.  The district court ruled that the county was not immune as an arm of the state.

The 9th Circuit agreed.  Although courts have long held counties are not entitled to Eleventh Amendment immunity, case law from the Supreme Court suggests that they might be entitled to that immunity under some circumstances.  The 9th Circuit therefore declined to rule categorically that counties were not entitled to the immunity.  Instead, it applied the five-factor test set forth in Mitchell v. Los Angeles Community College District, 861 F.2d 198 (9th Cir. 1988) for determining whether an entity is an arm of the state for purposes of Eleventh Amendment immunity. The court held that MItchell was still valid law.  The most important factor under Mitchell is whether a judgment against the county would be satisfied out of state funds.  The county could not show that a judgment against it under the FLSA by in-home care workers would be paid out of state funds.  Of the remaining four factors, only one weighed in favor of finding the county an arm of the state:  because the state mandated the payment rules at issue, the county had no control over the conduct that exposed it to potential liability.  But since all the other factors weighed against finding the county acted as an arm of the state, the 9th Circuit ruled that Eleventh Amendment immunity did not apply to the subject matter of the lawsuit.

Officer Entitled to Qualified Immunity against Fourteenth Amendment Claim for Shooting Bystander While Responding to Believed Robbery

In Nicholson v. Gutierrez, published August 21, 2019, the 9th Circuit affirmed in part and reversed in part a district court ruling on a police officer's motion for summary judgment, based on qualified immunity, in a 42 U.S.C. section 1983 case.  A group of youths were gathered in a circle in an alley dancing and rapping.  One held a plastic replica gun, with a bright orange tip, as a prop.  Two plainclothes officers drove by.  The defendant, in the passenger seat, saw the youths, saw the toy gun, and believed one of the youths was going to be robbed at gunpoint or shot.  He yelled, "Gun, gun, gun!"  His partner stopped the car.  Without conferring with his partner, the defendant jumped out of the car and ran into the alley.  According to the youths, the defendant did not identify himself as a police officer or make any verbal commands.  The officer fired three shots.  The youths stated that the defendant fired with one hand while running.  One shot hit one of the youths (who was not carrying the prop gun) in the back.  At the time, the youth who was shot was putting on cologne, while another youth was about to put on his school uniform.  The youth with the toy gun dropped it either before or after the shots.  The officers held the group at gunpoint while the partner requested an ambulance for the shot youth.  The officers did not answer questions from the youths.  Responding officers handcuffed the group.  Two of them--including the one shot--were kept in handcuffs for about five hours.  The two sued the officer for violating their rights under the Fourth and Fourteenth Amendments.  The district court granted the defendant officer summary judgment against the claim the shooting violated the Fourth Amendment.  That ruling was not at issue in the appeal.  The district court denied summary judgment, based on qualified immunity, on the Fourth Amendment claim against the officer for unlawful arrest, excessive force, and overlong detention, and on their Fourteenth Amendment claim.

The 9th Circuit affirmed denial of summary judgment on the Fourth Amendment claim.  Viewing the facts in the light most favorable to the youths, although the defendant officer did not directly participate in the detention of the youths after other officers arrived, he was an integral participant because he set the events in motion and either instructed the other officers to arrest the plaintiffs or consulted in that decision.  Further, under plaintiffs' facts, the detention continued after probable cause had dissipated.  That violated clearly-established law.  The appellate court also held that the facts, interpreted in the light most favorable to the plaintiffs, supported a Fourteenth Amendment violation by showing deliberate indifference in failing to assess the situation before using deadly force.  But the officer was entitled to qualified immunity on the Fourteenth Amendment Claim, because no existing Circuit Precedent or Supreme Court case law clearly established that accidental shooting of a bystander while using deadly force violated the Fourteenth Amendment.

Jury Finding That Dangerous Condition Exists Is Not Fatally Inconsistent with Finding the Condition Did Not Create a Reasonably Foreseeable Risk the Particular Incident Would Occur

In Fuller v. Department of Transportation, published August 20, 2019, the Second District Court of Appeal, Divison 6 affirmed a jury verdict in favor of Caltrans in a dangerous-condition case.  A driver tried to pass a 45-foot tourbus on State Route 1 near Vista Point 1 (a highway scenic turn-out), and collided head-on with the plaintiff's car, severely injuring the plaintiff and killing his wife.  The passing driver pleaded no contest to misdemeanor reckless driving causing injury and vehicular manslaughter.  At trial, the plaintiff asserted two dangerous property conditions:  (1) that the road striping allowed passing despite an alleged dip or blind spot in the road, and (2) passing should have been prohibited at the turnout because there could be traffic conflicts when vehicles turned into the turnout.  There was no evidence submitted in support of the first theory.  The plaintiff submitted expert testimony of the potential for t-bone collisions when cars turned into the turnout.  Witnesses opined that the recklessness of the passing driver caused the accident.  The jury answer the first question on the verdict form, "Was the property in a dangerous condition at the time of the incident," "Yes."  It answered the second question, "Did the dangerous condition create a reasonably foreseeable risk that this type of incident would occur," "No."  On appeal, the plaintiff argued that the two answers were fatally inconsistent, because the jury was instructed that to find a dangerous condition it had to find that the condition created a reasonably foreseeable risk of the kind of injury that occurred.

The appellate court rejected the argument.  Although the plaintiff tried the case on the theory there were two dangerous conditions, the verdict form did not ask which dangerous condition existed.  The finding on dangerous condition was thus tantamount to a general verdict, and all inferences were drawn to support it.  The plaintiff's argument assumes that Government Code section 835 foreseeability encompasses any kind of injury or incident once a dangerous highway condition established.  That would make foreseeability boundless.  Section 835 requires that the plaintiff p[rove that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred.  The second question asked for a more restrictive foreseeability:  whether this kind of incident would occur.  The jury could have found that the turnout situation was a dangerous condition, but that it did not cause this incident because there was no collision with a driver using the turnout.  Or it could have found that the accident was caused only by the reckless driver.  Any property can be dangerous if used in a sufficiently improper manner.  The entity is only required to provide roads that are safe for reasonably foreseeable careful use.  The entity is not charged with anticipating that drivers will be criminally reckless in passing vehicles.

Inverse Condemnation Liability Requires More Than Mere Causal Connection between Public Improvement and Property Damage

In City of Oroville v. Superior Court (California Joint Powers Risk Management Authority), published August 15, 2019, the California Supreme Court unanimously reversed a lower appellate court decision denying a writ of mandate seeking to overturn an interlocutory decision under Code of Civil Procedure section 1260.040 holding the city liable for inverse condemnation.  A city sewer backed up into the plaintiffs' building.  The building's owners failed to install a backwater valve, which was legally required by the plumbing code and which would have prevented or mitigated the risk of damage.  The trial court ruled that the city was liable for inverse condemnation because one of the causes of damage was root blockage of the sewer, an inherent risk of sewer operation, even if the private owner's failure to install the valve was a secondary cause.  The appellate court concluded that the trial court had correctly held the city liable, because if a public improvement fails to function as intended, and the failure is a cause of the property damage, inverse condemnation has taken place.

The Supreme Court ruled that the trial and appellate courts had applied the wrong legal standards.  a court assessing inverse condemnation liability must find more than just a causal connection between the public improvement and the damage to private property.  The damage to private property must be substantially caused by an inherent risk presented by the deliberate design, construction, or maintenance of the public improvement.  The court must consider whether the inherent dangers of the public improvement as deliberately designed, constructed, or maintained materialized and were the cause of the property damage.  Such risks may arise from a public entity's adoption of a comparatively lower cost plan to create or maintain the public improvement, because the likelihood of damage is remote, but the expense of additional protection is great.  A causal link to one of the inherent risks of the creation or maintenance is necessary, but not sufficient, for a successful inverse claim.  The injury to private property must be an inescapable or unavoidable consequence of the improvement as planned and constructed or maintained.  It is not enough that the improvement failed to function as intended; the damage must be the direct and necessary effect of the inherent risks posed by the improvement as deliberately designed, constructed, or maintained.  The court must also consider whether the damages resulted from the acts of the private property owner.  In this case, no evidence established that an inherent risk of the sewer system as designed, constructed, or maintained.  It was not the necessary or probable result of the system's operations.  Instead, it was caused by the private property owner's failure to comply with the law.  The city was therefore not liable in inverse condemnation.

Although Stairway Was Covered by Recreational Trail Immunity, Uncertainty in Law Barred CCP 1038 Fee Award

In Lee v. Department of Parks and Recreation, published July 31, 2019, the First District Court of Appeal, Division 4 affirmed summary judgment in favor of the defendant department, but reversed the Code of Civil Procedure section 1038 fee award in the department's favor.  The plaintiff fell on a flat, wide stone stairway that winds through a wooded hillside between a parking lot and a campground.  She sued the department, alleging the stairway was a dangerous condition of public property.  The department repeatedly advised the plaintiff of its view that the stairway was a recreational trail, and thus covered by Government Code section 831.4, the recreational trail immunity.  The trial court eventually granted the department summary judgment based on section 831.4.  It then granted the department's motion under section 1038, finding the suit unreasonable as a matter of law because the immunity was "conclusive."

The appellate court agreed with the trial court that the stairway was a recreational trail.  It applied the various standards provided by case law, and concluded that the stairway led to recreational facilities and was in the nature of a trail.  But it concluded that the trial court erred in ruling the suit unreasonable as a matter of law, justifying the fee award.  Because no case law resolved whether a stairway could be a recreational trail, the law was not settled on the matter, and the suit was not unreasonable. 

Interagency Firefighting Immunity Does Not Apply to Non-Fire Lifesaving Activities

In Wilson v. County of San Joaquin, published July 30, 2019, the Third District Court of Appeal reversed summary judgment in favor of the defendant county.  The plaintiffs' infant child, in critical condition, was transported from plaintiffs' house by private ambulance.  Two City of Stockton firefighters rode in the ambulance and performed emergency medical procedures.  The infant eventually passed away. The city firefighters provided their services under an agreement between the city and county under which the city's fire department would provide emergency medical services as part of the county's emergency medical services system.  The plaintiffs sued the county for the firefighters' lifesaving efforts.  They alleged that the firefighters committed medical malpractice and professional negligence.  The trial court granted the county summary adjudication under Government Code section 850.6.  Section 850.6 provides that when a public entity provides "fire protection or firefighting service" outside of the public entity's regular area, the public entity receiving the fire protection or firefighting service is not liable for any act or omission of the public entity providing the service.

The appellate court concluded that section 850.6's immunity did not apply.  The Law Revision Commission comment on section 850.6 stated that the statute makes clear which public entity is liable "when one entity calls for the assistance of another in fighting a fire."  The comment, along with the statute's plain language, indicates that it applies only to services related to fighting a fire.  Cases interpret a related immunity, Government Code section 850.4 (providing immunity for injury caused in fighting fires) not to apply absolute immunity to lifesaving actions unrelated to fighting fires; instead, Health & Safety Code section 1799.107 provides only a qualified immunity to such activities, immunizing public entities and emergency rescue personnel from liability for providing emergency medical services unless performed in bad faith or in a grossly negligent matter.  The court concluded the placement of both section 850.4 and 850.6 in the same chapter suggests a legislative intent that they be interpreted similarly.