Government Liability Update

Natural Condition Immunity Applies to Tree That Is in Municipal Park, That Has Been Pruned, and That Drops a Branch onto a Path

In City of Chico v. Superior Court (McKenzie), published August 30, 2021, the Third District Court of Appeal issued a writ directing a trial court to grant the petitioner city summary judgment.  While jogging on a bike path in a municipal park, the plaintiff was injured by a falling tree branch.  She sued the city for maintaining a dangerous condition of public property.  The park is a naturally occurring riparian woodland.  The tree is a 160-year-old Valley Oak Tree.  It predates the park.  Valley oaks are indigenous to the park location.  Valley Oaks are subject to sudden branch drop, which cannot be anticipated; it is often associated with long, horizontal branches and warm temperatures.  The city moved for summary judgment based on Government Code section 831.2's immunity from liability for injuries caused by a natural condition of unimproved public property.  The plaintiffs submitted expert evidence that the tree had been pruned, and that pruning can push growth into the remaining branches, increasing their diameter.  They did not submit evidence that previous pruning actually caused the branch to break.  The trial court denied summary judgment, finding triable issues of fact on whether the injuries were caused by a natural condition of unimproved public property.

The appellate court ruled that the city was entitled to section 831.2 immunity as a matter of law.  The natural growth of indigenous trees in natural habitats is a natural condition.  Pruning did not change that.  Natural condition immunity is not lost because of changes that duplicate models common to nature combine with natural forces to shape the condition.  Despite the pruning, the continued growth of the tree was a natural condition.  The tree grew on unimproved property; that the branch fell on (and the injury occurred on) an improved path did not  change that the condition was on unimproved public property.  There was no evidence that the pruning caused the branch to fall; at most there was evidence it affected the diameter of the branches, which did not cause branches to drop.

Discovery Accrual Standard Applies to Statute of Limitations for Liability Based on Statute

In Holman v. County of Butte, ordered published August 25, 2021, the Third Appellate District reversed the dismissal of a case on demurrer.  The plaintiff alleged that the defendant county, its Health and Human Services Department, and its Sheriff's Office negligently failed to perform mandatory duties related to investigating and reporting allegations of child abuse the plaintiff's parents perpetrated on him in the mid-2000s.  The plaintiff alleged repressed childhood memories returned to him in 2017.  He filed the lawsuit in 2020.  He sued under Government Code section 815.6.  The county defendants demurred, argued that the statute of limitations prescribed in Code of Civil Procedure section 338, subdivision (a) governing liability based on statute applied.  The statute of limitations is three years.  The defendants contended that because other subdivisions of section 338 expressly provide for accrual based on discovery, the discovery standard of accrual does not apply to subdivision (a).  The trial court agreed.

The appellate court disagreed.  The common law discovery rule is available when section 338, subdivision (a) is the applicable statute of limitations.  The courts have applied the discovery rule to other subdivisions of section 338 that do not expressly provide for application of the discovery rule.  Absent the Legislature's clear intent, the court presumes the Legislature intended to make the common law discovery rule applicable.  The Legislature did not provide that the rule was inapplicable to subdivision (a), nor did it adopt a statute of repose cutting off all liability after a given amount of time no matter the circumstances.  The other subdivisions merely provide different triggers of the limitation period than the judicial discovery rule.  Further, at least one previous case had applied the discovery rule to subdivision (a).  That the plaintiff failed to plead diligence after discovering his cause of action did not affect the timeliness of his complaint, because the plaintiff filed suit within three years of accrual.

Because the Law Did Not Clearly Establish Testimony in Violation of Rules by Employee Who Testified as Part of Duties Was Protected Speech, Supervisors Entitled to Qualified Immunity

In Ohlson v. Brady, published August 23, 2021, the 9th Circuit affirmed summary judgment in favor of the plaintiff’s supervisors in a 42 U.S.C. section 1983 lawsuit alleging First Amendment retaliation.  The plaintiff was a forensic scientist employed by the state in an agency that analyzes blood samples for alcohol content.  The plaintiff believed that the agency should make the results of all of the samples within a batch of samples available to criminal defendants, and suggested making the batch data public.  His employers declined.  Part of the plaintiff’s job duties was testifying in court.  When examined by a defense attorney in court, the plaintiff testified about his disagreement with his superiors on this point.  He was placed on administrative leave pending an investigation.  The investigation resulted in a suspension, followed by the plaintiff’s retirement.  The plaintiff filed suit alleging First Amendment retaliation for testifying in court and in advocating in the agency for a change in procedure.  The district court ruled that the plaintiff had established a violation of his First Amendment rights but had failed to show that they were clearly established.  The court granted the defendants summary judgment based on qualified immunity.

The 9th Circuit went over the complicated case law governing First Amendment retaliation claims by  public employees.  It disagreed that the plaintiff necessarily spoke as a private citizen (lending First Amendment protection to his speech) simply because he was speaking in defiance of orders.  Although the Ninth Circuit had previously ruled that speaking outside the chain of command was an important factor in concluding an employee spoke as a private citizen, interpreting speech in defiance of orders as always being a strong indication of protected speech could lead to protecting employees defying legitimate orders aimed at deterring employee misconduct, incentivizing insubordination and making government administration more difficult.  Instead, the balancing test requires weighing the interests of both sides.  But previous case law had not clearly established whether an employee who testified as part of his job spoke as a public employee or private citizen when he gave testimony in violation of orders.  Therefore, the supervisor defendants were entitled to qualified immunity to the retaliation claim arising out of court testimony.  Regarding the internal advocacy retaliation claim, no authority established that constitutional right so clearly that any reasonable official in the defendant’s shoes would have understood they were violating that right.  The plaintiff was therefore not able to show that the supervisors violated clearly established law with respect to this claim.

Family of Decedent May Recover "Loss of Life" Damages under 42 U.S.C. § 1983, Even Though Barred by California Law

In Valenzuela v. City of Anaheim, published August 3, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed a judgment based on jury verdict for the plaintiffs in a 42 U.S.C. section 1983 action.  The defendant officers tased and used multiple choke holds on a "suspicious person" at a laundromat who had a screwdriver in his bag and who did not immediately comply with a command to put his hands behind his back.  The decedent fell into a coma, and died eight days later.  The jury awarded the decedent's family a total of $13.2 million in damages.  The award included $3.6 million for the decedent's pre-death pain and suffering; $3.6 million for the decedent's children's loss of decedent's companionship and society; and $3.6 million for decedent's "loss of life."  The defendants appealed the award of damages for decedent's loss of life, on the ground that California state law on wrongful death damages (Code of Civil Procedure section 377.34) barred damages for loss of life.  The district court rejected the defendants' argument.

The majority of the 9th Circuit panel agreed.  Because section 1983 is silent as to loss of life damages, the California law barring such damages controls, unless it is inconsistent with the policies of section 1983.  In Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), the 9th Circuit concluded that California law's ban on damages for pre-death pain and suffering was inconsistent with he policies of section 1983.  Section 1983 was intended to provide a remedy for killings unconstitutionally caused or acquiesced in by state governments, the  Chaudhry court concluded; and in cases where the victim dies quickly, there often will be no damages remedy at all under section 377.34.  The Chaudhry court therefore concluded that section 377.34 does not apply to section 1983 claims where the decedent's death was caused by violation of federal law.  The majority saw no meaningful way to distinguish Chaudhry from this case.  

A dissenting judge concluded that the award of damages for the decedent's pre-death pain and suffering was sufficient to satisfy section 1983's remedial purpose without also awarding damages for loss of life.  He further urged the court to revisit Chaudhry en banc.