In Bitner v. Department of Corrections and Rehabilitation, ordered published January 26, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant department. The plaintiffs were employed by the department as vocational nurses. They alleged that while they were assigned to one-on-one suicide monitoring, they were subjected to acts of sexual harassment by inmates, and that the department failed to remedy the situation, in violation of the Fair Employment and Housing Act. The trial court granted the department summary judgment under Government Code section 844.6, which immunizes public entities for injuries proximately caused by any prisoner.
The appellate court agreed that section 844.6 immunized the department. It rejected the plaintiffs' arguments that section 844.6 did not apply to liability under FEHA. Section 844.6 sets forth a list of statutory exceptions to the immunity, and FEHA is not included in that list. When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent. The court further rejected the argument that FEHA is an exemption to section 844.6 because FEHA creates a "direct" duty. Since all public entity liability is statutory, interpreting section 844.6 not to apply to any statute creating a "direct" duty would interpret the immunity out of existence. Plaintiffs argued that the immunity did not apply because their injury was caused not only by the prisoner's acts, but also the department's acts in breaching its duty. The court rejected this argument as well, both because the plaintiffs forfeited it by not arguing it in the trial court or properly setting it forth in their opening brief, but also on the merits. Where the undisputed material facts show that the alleged injury was proximately caused by a prisoner, it is not enough for a plaintiff to simply present evidence that additional, concurrent causes may have also contributed to the same injury.
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