Government Liability Update

Mother Cannot Sue City for Bystander Emotional Distress based on Dangerous Condition Liability Absent Contemporaneous Awareness Property Condition Caused Accident

In Downey v. City of Riverside, published April 26, 2023, the Fourth District Court of Appeal, Division 1 reversed the dismissal of the defendant city after demurrer.  The plaintiff was speaking to her daughter via cellphone, giving the daughter directions, when the daughter's vehicle collided with another vehicle at an intersection.  The mother heard the collision, a long pause during which her daughter did not respond to her, and the statements of a person on the scene trying to find her daughter's pulse.  The plaintiff and her daughter contended that the accident was caused by a dangerous condition of public property based on defective traffic markings, signals, warnings, medians, and fixtures.  The trial court sustained the city's demurrer to the plaintiff mother's cause of action, on the ground that the complaint failed to establish contemporaneous sensory awareness of the connection between the city's tortious conduct and the daughter's injuries.  After allowing one amendment, the trial court denied further leave to amend, and dismissed the case against the city.

The court majority agreed that the trial court properly sustained the demurrer.  Although the plaintiff's sensory awareness of the daughter's injuries over the phone was sufficient to satisfy the element of bystander emotional distress requiring the plaintiff to be "present at the scene of the injury-causing event," the law also requires contemporaneous awareness of the causal connection between the tortfeasor's negligent conduct and the resulting injury.  Here, the allegations in the complaint did not establish the plaintiff's contemporaneous or meaningful understanding of a causal connection between the alleged deficient traffic signals and markings and the accident.  But the appellate court reversed the trial court's denial of leave to amend.  On appeal, the plaintiff argued that she could allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by the city.  The court ruled that she should be given an opportunity to allege such facts.

One justice concurred in the result, but dissented from the majority's ruling that the demurrer was properly sustained. 

Officers Were Not Negligent in Using Less-than-Lethal Weapons on Suicidal Suspect after Extended Negotiations

In Villalobos v. City of Santa Maria, ordered published November 16, 2022, the Second District Court of Appeal, Division 6 affirmed summary judgment in favor of the defendant city and its police officers.   Officers responding to a report of a suspicious person with a knife saw the plaintiff's decedent standing in a road holding a knife with a long blade.  The officers ordered the decedent to drop the knife.  The decedent held the knife to his own throat.  He pointed, gesticulated, and appeared upset.  The police attempted to negotiate with him for 42 minutes.  Eventually, without warning, the officers deployed less-than-lethal beanbag rounds and 40 mm rubber projectiles against the decedent.  They were 30-40 feet from the decedent.  The decedent saw the officers taking aim, and made a "go ahead" gesture.  The decedent began jumping up  and down and stabbing himself in the abdomen with the knife.  He slashed his own throat with the knife.  He then charged full speed toward the officers, the knife in his right hand.  The officers fired several rounds of live ammunition at the decedent.  He fell a few feet from the officers.  He died of multiple gunshot wounds.  Based on the totality of the circumstances, the trial court found that the officers were not negligent, and that no reasonable juror could find that the police acted unreasonably.  On appeal, the plaintiff conceded that the shooting became reasonable at some point, but that the officers were negligent in their pre-shooting conduct, resulting in the decedent's suicidal assault with the knife.

The appellate court agreed with the trial court.  The officers were not obliged to let the decedent go.  They could use reasonable force to disable him.  The fact that the less-than-lethal force was unsuccessful is not the reason deadly force was needed.  Viewing the facts in the light most favorable to the plaintiff, no reasonable juror could find that officers were negligent or had acted unreasonably. The officers patiently waited approximately 40 minutes before resorting to less-than-lethal weapons.  The decedent charged the officers in an apparent attempt to commit "suicide by cop."  That the officers did not use alternatives to deadly force did not raise a triable issue on negligence.  Officers are not required to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.

Constructive Notice That Employee Is Sexually Abusing Students Is Sufficient for Negligence and CANRA Causes of Action against School District, but Not for Title IX and Education Code Section 220 Claims

In Roe v. Hesperia Unified School District, ordered published November 4, 2022, the Fourth District Court of Appeal, Division 2 reversed dismissal of a case after a demurrer was sustained without leave to amend.  An elementary school custodian allegedly molested multiple six-year-old students.  The plaintiffs sued the school district, alleging negligence in supervising the students and the custodian; negligent hiring and retention; negligence per se; violation of Title IX; failure to perform mandatory duties under CANRA, the mandated reporter act; and sex discrimination in education in violation of Education Code section 220.  The trial court sustained the district’s demurrer to the complaint, on the ground that the complaint failed to allege that the district had actual knowledge of prior acts of abuse by the custodian, or that it had actual knowledge that the custodian was abusing the plaintiffs.

The appellate court held that the complaint adequately pled causes of action against the district.  The district may be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising, and retaining a school employee who sexually harasses and abuses a student.  The negligence standard is “knew or should have known.”  Therefore, actual knowledge that an employee is prone to harming students, or is actually harming students, is not necessary.  Constructive notice is sufficient.  Case law applying an actual knowledge requirement when imposing negligence liability for a third party’s sexual abuse of children deal with non-school settings.  The complaint adequately alleged facts that would show constructive knowledge.  The CANRA cause of action also does not require actual knowledge, because it imposes a duty on mandated reporters to make a report when the reporter “knows or reasonably suspects” a child has been the victim of child abuse.  Reasonable suspicion does not require certainty. A breach of CANRA can support a negligence per se cause of action.  It would be objectively reasonable for persons in the position of the school’s employees who saw the conduct alleged in the complaint to reasonably suspect that the custodian was sexually abusing the plaintiffs.  The trial court properly dismissed the causes of action under Title IX and Education Code section 220, however; those provisions impose liability for a teacher sexually harassing a student only when an official at the district with authority to impose corrective measures on the district’s behalf has actual notice of the misconduct and is deliberately indifferent to it.

Officer's Exchange of Shots with Hostage Taker Did Not Render Officer Liable for the Criminal's Later Murder of the Hostages

In Gorlick v. State of California, published September 8, 2022, the First District Court of Appeal, Division 3 affirmed dismissal of a defendant county, county sheriff’s office, and deputy sheriff after demurrer was sustained without leave to amend.  A disgruntled former resident of a veteran’s home entered the home, armed, and took hostages.  The defendant deputy was dispatched to the hostage situation.  He opened a metal door in the home, and saw the hostage taker holding a rifle.  The deputy closed the door, and fired at the hostage taker through the door.  The hostage taker fired back.  After exchanging several shots, the deputy held back for several minutes until backup arrived.  Hours later, an FBI SWAT team opened the door and found the hostage taker and hostages dead.  It was undisputed that none of the deputy’s shots hit the hostages or the hostage taker; the hostage taker killed the hostages and himself, allegedly within seconds after exchanging gunfire with the deputy.  The plaintiffs alleged the county defendants were liable for the wrongful death of the victims because they failed to exercise reasonable care in preparing for and responding to the shooting incident.  The trial court concluded that the county defendants did not owe a duty of care to the victims.

The appellate court agreed.  Peace officers owe a duty of care to act reasonably when using deadly force.  But the complaint failed to allege facts showing that this duty encompassed an obligation to prevent the hostage taker from shooting his hostages.  Under California law, a peace officer may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.  A corollary is that the officers have a duty in tort to act reasonably when using deadly force against a suspect.  An officer’s lack of due care when employing deadly force may give rise to liability for injuries incurred by third parties in the deadly force incident, when the officer injures those persons.  But no one suffered physical injury during the exchange of gunfire between the officer and the hostage taker.  Generally, there is no duty to protect others from the conduct of third parties.  By using deadly force, the deputy did not assume a tort duty of care to the hostages to prevent the hostage taker from killing them.  Case law differentiates injury caused by an officer’s allegedly negligent use of deadly force (which is actionable) from failure to prevent a third party’s use of force (which is generally not actionable).  There are exceptions from the rule that a person owes no duty to protect others from perils the defendant did not create.  But none of them applied here.  The plaintiffs did not allege facts showing that the deputy placed the hostages in danger.  By discharging his duty to protect the public as a whole from the hostage taker’s criminal actions, the deputy did not assume a duty of care to the hostages distinct from or greater than his duty to the public.  The complaint did not plead facts linking the deputy’s acts to the hostages’ death, and therefore did not establish that the deputy’s acts increased the risk the hostages already faced.  To state a claim for affirmatively increasing a risk of harm, plaintiffs must allege a direct connection between the challenged conduct and some risk of harm or heightened risk of harm that would not otherwise have arisen if not for the defendant’s conduct.  Neither the speculative conclusion that the gunfire exchange prompted the hostage taker to shoot the hostages, nor the allegation that the deputy should have entered the room and killed the hostage taker after making his presence known, showed the required connection.  An officer does not increase a risk of harm by failing to stop an individual from acting dangerously.  The court also rejected the argument that the deputy or county entered into a special relationship with the victims or the killer.  The deputy’s mere appearance and attempt to stop the crime did not create a special relationship with the victims.  The plaintiffs did not allege that the hostages detrimentally relied on anything the deputy did or said.  An “interagency agreement” between the sheriff’s department and the entity running the home, requiring the department to respond to all calls for service at the home, did not create a contractual duty for the department to protect the decedents from the killer.  While the department had verbal interactions with the home’s staff about security issues at the home, this did not create a special relationship analogous to that in cases where police secure a person’s cooperation in exchange for promises of protection or assurances that a threat does not exist.

HIgh School Owed Duty of Care to Student Stabbed on Campus After Hours

In Achay v. Huntington Beach Union High School Dist., published June 28, 2022, the Fourth District Court of Appeal, Division 3 reversed summary judgment for the defendant school district.  The plaintiff, a 10th grader, was on the school track team.  Her last class ended at 2:30 p.m. Between 2:30 p.m. and 10 p.m., the public could come onto campus freely.  The plaintiff usually had track practice on campus between 3-5:30 p.m.  One day, track practice ended at 4:30 p.m.  The plaintiff and a friend walked to a nearby Starbucks at left at 5:00 p.m.  They walked back to campus to retrieve their schoolbooks from the girls' locker room.  As they walked back, they encountered a stranger on roller blades, who taunted them.  When they returned to the school campus at 5:15 p.m., the stranger was in the parking lot, talking with students.  The students went to the locker room, which was customarily not locked until 6 p.m.  They went to an inner locker room with a lockable door, because they did not feel safe.  Eventually, they went to the school parking lot to be picked up by the plaintiff's friend's mother.  They passed the school swimming pool where practice was taking place.  After they passed the pool, the stranger roller bladed behind the plaintiff and stabbed her in the back, seriously injuring her.  The plaintiff sued the school for breaching a duty to provide security for students.  The district moved for summary judgment on the grounds that the school district owed her no duty of care, and that there was no causal connection between the alleged negligence and the swift, unpredictable attack.  The trial court granted summary judgment.

The appellate court held that the school district owed the plaintiff a duty of care.  School personnel owe students under their supervision a protective duty of ordinary care, including the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties.  Schools have a general duty to supervise the conduct of children on school grounds during school activities.  The appellate court ruled that the District owed the plaintiff a duty of care because she was stabbed while she was on campus during school-related activities, after-school sports.  The district argued its duty to protect the student ended when her track practice was over and she left campus for 45 minutes.  But the incident occurred on school grounds, during ongoing after school sports activities (the swim practice was ongoing nearby).  That she left campus briefly and returned to be picked up made no difference.  Because the plaintiff's track practice usually lasted until 5:30 p.m. and the locker room was open until 6:00 p.m., it was reasonably foreseeable that a student would leave campus briefly, return to pick up schoolbooks, and walk to the school parking lot to be picked up.  All was part of the school activity.  As for causation, the facts that the campus was open after 2:30 p.m., after-school activities continued on campus after that, and the plaintiff and her friend were fearful about the assailant being on campus raised a triable issue of fact on whether the presence of security the girls could have summoned would have prevented the attack.

Employee's Immunity Does Not Bar Public Entity's Liability under Vehicle Code section 17001

In Silva v. Langford, ordered published June 9, 2022, the Second District Court of Appeal, Division 7 affirmed in part and reversed in part a trial court's dismissal of a lawsuit after demurrer.  The operative First Amended Complaint alleged that in the early morning hours an Uber driver pulled into the Number One lane on the 101 Freeway and demanded that his passengers get out of the vehicle.  While one of the passengers was attempting to cross the lanes of traffic to get to safety, the defendant CHP officer struck and killed him.  The CHP officer was allegedly driving at an excessive speed without activating lights and sirens.  The original complaint alleged that the officer was responding to a call.  These allegations were omitted from the FAC.  The plaintiff sued the officer and CHP for wrongful death, alleging the CHP was liable under Government Code section 815.2(a) for the officer's negligence, and also liable under Vehicle Code section 17001 for the officer's violation of the basic speed law.  The officer and CHP demurred on the ground that liability was barred by Government Code section 821.6, because the officer was allegedly responding to a call, the first step in a police investigation.  CHP contended that under Government Code section 815.2(b), it was entitled to the benefit of the officer's immunity.  The trial court sustained the demurrer on the ground that section 821.6 immunized both the officer and the CHP.

The appellate court noted that the issue of the scope of section 821.6, and whether it applied to acts in the course of a police investigation or merely malicious prosecution actions, was currently pending before the California Supreme Court and was undecided.  It nevertheless ruled that the officer's actions were independently immunized under Vehicle Code section 17004, which immunizes public employees from civil damages resulting from the operation in the line of duty of an emergency vehicle when responding to an emergency call.  Although the court sustained the officer's demurrer on a different basis, the ruling must be upheld if correct on any ground.  But the appellate court reversed demurrer against the CHP.  Vehicle Code section 17001 provides an independent ground for public entity liability for negligent or wrongful operation of a motor vehicle by a public employee, which is not based on vicarious liability under Government Code section 815.2(a).  The liability is therefore not subject to Government Code section 815.2(b), which is an exception to vicarious liability of public entities for their employees' acts under section 815.2(a).

School Personnel Do Not Owe Students Duty to Review Alarm Data and Video Recordings to Constantly Monitor Everyone on Campus

In Doe v. Anderson Union High School Dist., published May 4, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant school district, principal, and superintendent.  A teacher at a high school in the district had a sexual relationship with the plaintiff student, then 17.  The relationship included sexual activity in his classroom.  The school district had no facts, reports, or rumors that the teacher had engaged in any improper relationship.  There were video security cameras aimed at the doors of the classroom.  The video footage was saved for 14 days before automatic erasure.  Per district policy, footage was reviewed only if the district learned of an incident that may have been caught on video.  The district maintained an alarm system that covered the main building and the classroom.  Each employee had a code to deactivate the alarm.  The district had not requested data from the alarm company on when alarms were deactivated or by whom.  The student sued the defendants for negligent hiring and negligent supervision.  The defendants moved for summary judgment on the ground that there was no evidence they knew or should have known that the teacher posed a risk of harm to students.  The plaintiff conceded lack of evidence of negligent hiring, and so focused on negligent supervision.  In opposition to summary judgment, the plaintiff submitted an expert declaration from a retired principal and school administrator.  He opined that the principal had a duty to monitor teachers to determine if they were spending too much time on campus late at night, including interviewing teachers and reviewing video footage.  The trial court ruled that the risk to the plaintiff was not foreseeable.

The appellate court ruled that the district's administrators' duty of supervision to protect students was limited to the risks of harm that were reasonably foreseeable--those known to the administrators or that reasonably should have been known to them.  School districts are not the insurers of their students' physical safety.  Sexual misconduct by school personnel is not inherently foreseeable.  The administrators did not know that the teacher would have se with the student, and had no information that would support a conclusion that they should have known.  They therefore did not have a duty to review alarm data and video recordings to constantly monitor all teachers, students, and campus visitors.  Nor did they have such a duty specifically as to the plaintiff and the teacher.  To impose such a duty on this record would be unreasonable.

Government Code Immunity for Mental Examination's Application to School District's Threat Assessment Is Limited

In Cleveland v. Taft Union High School District, published March 25, 2022, the Fifth District Court of Appeal affirmed a judgment entered after a jury verdict.  A high school student told fellow classmates about a dream he had of shooting multiple students.  The school district suspended the student and performed a threat assessment.  As part of the threat assessment, the school psychologist interviewed the student.  The assistant principal oversaw the threat assessment and interviewed other students about the student.  The School Resource Officer searched the student's house for weapons and a "hit list," and did not find anything.  The school psychologist prepared a report determining the student could return to school.  Students made additional complaints about the student over the succeeding months, and the assistant principal assessed those events.  Ten months after making the initial statements, the student brought a shotgun to class and shot the plaintiff.  The plaintiff sued the school district and its administrators for negligence.  The school district asserted that under Government Code section 855.6, which immunizes public entities and employees from liability for inadequate physical and mental examinations made to determine whether a person is a threat to himself or others, it and its employees were immune from liability for making an allegedly inadequate threat assessment.  The trial court determined that the immunity applied only to the school psychologist's examination of the student and his conclusions from that examination, and did not apply to the rest of the threat assessment.  The jury held the school psychologist, the assistant principal, other administrators, and a school security officer were negligent, and assigned them collectively 54% of the fault for the shooting.  The district was held liable for damages.  On appeal, the district contended that section 855.6's immunity applies to the entire threat assessment.

The appellate court agreed with the trial court.  Analyzing the law and policy concerning administrators' duty of care to protect students, as well as the legislative and case law history of section 855.6, the court concluded that the immunity applies to any public employee, not just medical personnel.  But it interpreted the term "mental examination"  in the statute to apply only to the process of inspecting visually, or by use of the other senses, the physical, mental, and emotional state of the person examined.  Typically, this would involve a face-to-face meeting, although it could also include interviews by telephone or videoconference.  The court determined that applying section 855.6 to all negligent acts or omissions of a threat assessment team would undermine the goal of protecting students, rather than encouraging school districts to diligently perform the threat assessment.  The court responded to the concern that the threat of liability would dissuade school districts from performing threat assessments by reasoning that the districts' duties to protect their students would incentivize them to continue to perform the assessments.  The acts and omissions the plaintiff's expert found in the threat assessment's performance were therefore outside the scope of the immunity.

Pollak, Vida & Barer participated in the appeal.

Police Agency Vicariously Liable for Injury Resulting when Officer's Firearm, Left in Vehicle, Is Stolen and Used

In Perez v. City and County of San Francisco, published March 1, 2022, the First District Court of Appeal, Division 5 reversed summary judgment granted to the defendant city.  The City's police department allowed officers to carry a secondary firearm on duty, and authorized them to carry loaded handguns when off-duty.  Both department policy and state law required officers to secure handguns in unattended vehicles.  The officer in this case had a personal handgun that the department had approved and qualified as a secondary firearm.  He regularly carried the handgun on duty, and transported it when he commuted to and from work.  He regularly carried it when off-duty.  He was a department specialist who worked with a special operations group outside of patrol assignments.  There was evidence specialists were on call 24/7 and were not permitted to respond to incidents without a firearm.  The officer was assigned to a training session in a different county.  When the officer returned home, during scheduled work hours, he left the secondary firearm unsecured inside his vehicle.  That night, the vehicle was broken into, and the firearm stolen.  The stolen firearm was used to kill the son of the plaintiff who brought this action.  The trial court granted the city summary judgment on the ground that the undisputed facts demonstrated the officer was not acting within the scope of his employment.

The appellate court disagreed.  Viewed in the context of the enterprise of policing, the centrality of firearms to that enterprise, and the underlying rationale for respondeat superior that losses fairly attributable to an enterprise--those that foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business, a jury could reasonably find a nexus between the department's policing enterprise and the risk that one of its officers would negligently fail to secure a department approved secondary firearm upon returning home from work.  A jury could therefore find the officer's negligent failure to secure his approved firearm in an unattended vehicle upon returning home from a department-assigned training fell within the scope of his employment.  The court disagreed with the majority opinion in Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, in which an officer's accidental discharge of his firearm while drinking was friends was found to be outside the scope of his employment.  The court opined that the Henriksen majority opinion failed to rigorously apply the rules for respondeat superior liability.  The court further opined that the case was distinguishable from Henriksen, in that the officer's possession of a department-approved firearm was not the sole factor linking his conduct to his employment, and in that the officer here did not consume alcohol before the tortious act.

Because Parole Agents Did Not Enter into Special Relationship with Victim Murdered by Her Parolee Grandson, Their Employing Agency Could Not Be Held Liable for Negligence

In Russell v. Department of Corrections and Rehabilitation, published December 16, 2021, the Third Appellate District reversed a trial court’s denial of judgment notwithstanding the verdict after a jury trial.  The plaintiff was the son of a woman who was raped and murdered by her grandson, a parolee who suffered from severe mental illness and substance abuse.  The victim had raised the grandson and treated him like a son.  One of the defendants was the grandson’s parole agent from 2007 to 2012, and the other was the parole agent from 2012 to the month of the victim’s murder in 2013.  From 2007 to 2011, the grandson lived with the victim while the grandson was on parole.  The first parole agent and the victim interacted at least twice a month and were friendly.  The agent authorized the grandson living at the victim’s house.  He regularly drug tested the grandson, assisted the victim by ordering the grandson to obtain mental health treatment when he appeared unstable, and agreed to help the grandson find his own place to live.  He advised the victim not to give the grandson all of his Social Security money at once, so that he would have enough money through the month.  In 2011, the grandson was arrested for sex crimes.  In 2012, the grandson was released from state hospital.  He went to stay with the grandmother at her house.   When the second parole agent took over the case, the grandson was homeless, and the grandmother wanted him to stay at her home.  The parole agent informed them that they could not live together, because the house was too close to a school and the grandson was a registered sex offender.  The agent eventually told her that the grandson could be at her home during the day, but had to leave at night.  There was disputed evidence the agent  promised the grandmother that he would find the grandson his own place to live.  The grandson repeatedly absconded and cut off his GPS tracking device.  At one point, the grandson was arrested at the victim’s house by a fugitive apprehension team.  The grandmother was allowing the grandson to live with her.  In late 2012 or early 2013, the grandmother called the agent and told her the grandson was “acting out,” and that the grandmother had had to pull a knife on him. In February 2013, the grandson was jailed and released.  Three days later, the grandson killed the grandmother.  The plaintiff sued the Department of Corrections and the parole agents for negligence.  At trial, the court instructed the jury to determine whether the agents were in a special relationship with the grandmother.  The jury found a special relationship existed, that the agents breached a duty of care to the grandmother, and that the breach caused the rape and murder.  The jury apportioned 60% fault against the Department.  The trial court denied the Department’s JNOV motion.

The Court of Appeal ruled that the trial court had erred in submitting the issue of whether a special relationship existed to the jury.  A person does not owe another person a duty to warn or protect against a third party’s acts unless there exists a special relationship between the parties (or between the defendant and the third party) or some other set of circumstances giving rise to an affirmative duty.  Whether a duty exists is an issue of law for the court, not an issue of fact for the jury.  Although the Department did not object to the special relationship instruction to the jury, a party does not forfeit application of the proper standard of review by failing to object in the trial court.  Further, the Department stated in briefing that the duty issue was one of law.  The appellate court therefore examined the evidence de novo to determine whether a special relationship existed, viewing the facts in the light most favorable to the plaintiff.  The court determined that neither agent formed a special relationship with the grandmother that would have given rise to a duty to warn her of the grandson’s dangerous propensities.  Neither agent made an express or implied promise of protection to the grandmother that caused her to detrimentally rely on the promise.  Neither agent lulled the grandmother into a false sense of security, inducing detrimental reliance and causing her to worsen her position.  Neither created a foreseeable peril to the grandmother that was not readily discoverable by the grandmother.  The court therefore reversed the judgment.