Government Liability Update

If No Single Police Officer in Chase or Use of Force Was Liable in Tort, Plaintiff Cannot Argue Combined Actions of Officers Were Unreasonable and Rendered City Liable

In Koussaya v. City of Stockton, published September 21, 2020, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city and defendant police officers.  The plaintiff was a teller in a bank robbed at gunpoint.  Police officers confronted the robbers at the bank.  The robbers took the plaintiff and two others as hostages.  The robbers ignored police commands, and commanded a hostage to drive them from the site in her vehicle.  Police pursued.  Soon after the pursuit began, a robber shot the driver in the leg and threw her out of the vehicle, taking over the wheel.  A robber fired multiple shots from an AK-47 at the lead pursuing officer.  The pursuit reached speeds of over 100 MPH over 60 miles, and involved over 30 police cars.  The robbers continued shooting at the police cars.  There was confusion over which police lieutenant was commanding the pursuit, and lieutenants gave conflicting orders.  A captain who went to head off the vehicle saw it exit an offramp with a robber pointing his rifle toward the offramp.  The captain fired  shots toward the robber, who fired his weapon and withdrew into the moving vehicle.  Another officer shot at the vehicle on the exit ramp.  The plaintiff decided her best chance of survival was to throw herself out of the vehicle while it was traveling at high speed.  Minutes later, police officers fired multiple rounds into the vehicle, killing two robbers and the remaining hostage.  The plaintiff sued the officers and the city for assault and battery, intentional infliction of emotional distress, and negligence.  The complaint alleged violation of general orders, police orders, negligence in conducting the pursuit, and use of excessive force that resulted in her injuries.

The appellate court ruled that the trial court had erred in two respects.  It ruled the court abused its discretion in excluding portions of a critical Police Foundation report about the incident as hearsay.  Since the police chief who requested the review of the incident adopted portions of the report in a press conference, the trial court should have admitted those portions under the adoptive admissions exception to hearsay.  The appellate court also ruled that the trial court erred in excluding some of plaintiff's contentions of wrongdoing on the ground that they were not reflected in her claim.  The claim alleged wrongdoing concerning the response at the bank, the use of force, and the pursuit; the complaint merely filled in details to these general allegations, rather than introducing new theories of liability.  The appellate court concluded, however, that these errors were not prejudicial.  As a matter of law, the officers who used deadly force toward the vehicle at the exit ramp used reasonable force under the circumstances.  They had probable cause to believe the robber they shot at posed a significant threat of death or serious physical injury to the pursuing officers and bystanders.  While firing at the vehicle endangered the hostages in the vehicle, no reasonable juror would conclude those actions were outside the range of reasonable conduct under the circumstances.  The contention that the officers violated superiors' orders and general orders did not raise a material issue on reasonableness; those orders are evidence concerning reasonableness, but do not establish the standard of care for using deadly force.  And even if the officers violated a superior's order to fire, that violation was reasonable under the circumstances.  The argument that the officers provoked the use of deadly force by the manner in which they conducted the pursuit failed.  Vehicle Code section 17004 bars liability for the manner in which the officers operated their vehicles during the pursuit.  Vehicle Code section 17001 did not provide an exception, because the plaintiff was not injured by operation of a police vehicle, but by her decision to jump from the vehicle.  

Since none of the individual officers identified as allegedly being negligent were liable, the city could not be held vicariously liable for the allegedly negligent actions of the police collectively.  Doing so would be to hold the city directly liable despite the lack of statutory liability, in violation of Government Code section 815.

Police Officers Owe Duty of Reasonable Care to Arrestees

In Frausto v. Department of the California Highway Patrol, published August 21, 2020, the First District Court of Appeal, Division 2 affirmed a jury verdict in favor of plaintiffs in a wrongful death case.  Officers conducted a traffic stop of the decedent.  They suspected he was using drugs.  They observed him put something in his mouth and swallow it.  They repeatedly asked him if he had ingested drugs.  He repeatedly stated he had put gum in his mouth and swallowed it.  They observed no signs of drug intoxication.  They brought him to jail.  One of the officers prepared a probable cause declaration for the arrest that stated that the officer and another observed the suspect place what looked like a plastic baggie in his mouth and claim it was only gum.  The arrest report did not mention a plastic baggie.  The officer later testified the statements in the declaration about the baggie were mistakes.  Soon after the officers brought the suspect to jail, he collapsed in his cell.  He died of acute methamphetamine intoxication.  The jury found the arresting officers 68% at fault for the decedent's death, and the decedent 22% at fault.  On appeal, the defendants contended that they owed no duty of care to the decedent to do more than they did.

The Court of Appeal held that the arresting officers were in a special relationship with the decedent once they arrested him, imposing a duty of care similar to that a jailer owes a jailed person. Once in custody, an arrestee is vulnerable, dependent, subject to the officer's control, and unable to attend to his or her own medical needs.  The officer therefore owes a duty of reasonable care to the arrestee regarding the arrestee's medical needs.  The question of whether under the circumstances the officers should have recognized the arrestee had a need for immediate medical attention does not go to whether a duty exists, but rather whether the officers breached the duty.

Intentional Tortfeasors Are Not Entitled to Reduction or Apportionment of Damages Based on Comparative Fault

In B.B. v. County of Los Angeles, published August 10, 2020, the California Supreme Court reversed a judgment after jury trial in a case alleging police use of force against a resisting suspect, resulting in the suspect's death, was battery.  A decedent who appeared to be under the influence of PCP was accused of attempting to kill a woman.  In the presence of the defendant officers, the suspect began chasing the woman.  The officers tackled the suspect, who fought against them.  The officers pinned the suspect by kneeling on him, using tasers, hitting him, handcuffing and hobble-tying him.  The suspect passed away from brain death and swelling from lack of oxygen, following a cardiac arrest, due to post-restraint maneuvers or behavior associated with drug use.  The jury found the officers committed battery by using unreasonable force.  The jury apportioned 20% liability to one of the officers, 40% to the decedent, and 40% to other officers.  The trial court entered judgment against the 20% at fault officer for 100% of the non-economic damages because his liability was based on an intentionaltort.  The Court of Appeal reversed, holding that the officer could be held liable for only his proportionate share of the damages.

The Supreme Court reviewed case law leading up to the 1986 passage of Proposition 51, case law interpreting Proposition 51, ballot materials for the proposition, and an unpassed bill that preceded the proposition, and concluded that intentional tortfeasors may not assert the defense of comparative fault.  Although jurors should apportion fault between negligent and intentional tortfeasors (to determine the apportionment to which negligent tortfeasors are entitled), the judgment should not reduce or apportion the damages award against intentional tortfeasors based on comparative fault.  

Going and Coming Rule Bars City's Vicarious Liability for Employee's Auto vs. Pedestrian Accident, Despite Workers Compensation Treatment of Employee's Injury

In Bingener v. City of Los Angeles, ordered published January 9, 2020, the Second District Court of Appeal, Division 3 affirmed summary judgment for the defendant city in a personal injury suit.  A city employee who worked in a lab, seldom left the lab, and never used his personal vehicle for work-related travel, struck a pedestrian during the employee's morning commute to work.  The pedestrian passed away.  The city sought summary judgment based on the going and coming rule, which provides that an employee is generally not considered to be acting within the scope of employment when going to or coming from his regular place of work.  The Plaintiff argued that there was a dispute of fact on the work-spawned risk exception, because the city allegedly knew of health conditions that impaired the employee's ability to drive, but allowed him to return to work prematurely without placing restrictions on his driving.  The trial court granted summary judgment based on the going and coming rule.

The appellate court agreed that there was no issue of fact on the work-spawned risk exception.  The evidence established without dispute that the employee did not have a health condition or took medication that impaired his ability to drive on the date of the accident.  The employee's treating physician, not the city, cleared the plaintiff to return to work after a back injury, and did not place restrictions on the employee's driving.  No evidence supported the plaintiff's theory that the accident was a foreseeable consequence of the employee's back injury two months earlier.

Pursuit Policy and Training Need Not Set Forth Speed Limits to Provide Immunity

In Riley v. Alameda County Sheriff's Office, published December 17, 2019, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant sheriff's office under Vehicle Code section 17004.7, which immunizes public agencies from liability for collisions involving vehicles pursued by peace officers if the agency adopts and promulgates a written policy on, and provides regular training for, vehicular pursuits.  The plaintiff's motorcycle was struck by a car fleeing sheriff's deputies.  He alleged that the sheriff's office's policy, promulgation of the policy, and training did not meet statutory requirements.

The court ruled that the policy, promulgation, and training met the requirements.  The plaintiff contended that the policy did not meet the requirement to determine factors to be considered by an officer and supervisor in determining speeds throughout a pursuit.  The court ruled that although the policy did not expressly state factors to be considered in determining speeds, it set forth 17 factors to be considered in making pursuit decisions, which included the speeds involved and other factors that would require the consideration of speed.  Similarly, the training included warnings against excessive speeds, and required consideration of factors involving speed.  The law did not require the policy to include numeric speed limits.  The court also rejected the argument that the department's promulgation of the policy did not meet the requirements of ordering that all officers sign off on the policy.  The department promulgated a general order requiring all officers to read the policy in a timely manner and sign off electronically that they had done so.  Eighty percent of officers in the department had done so.

Sheriff Entitled to Discretionary Immunity for Enacting Policy of Not Informing ICE of Undocumented Alien Releases

In Steinle v. City and County of San Francisco, published March 25, 2019, the 9th Circuit affirmed dismissal of state law negligence claims against the defendant municipality.  The county sheriff informed the federal government that his department would not honor Immigration and Customs Enforcement detainer requests (to detain released prisoners for ICE) or notify ICE of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal.  The sheriff then issued a memo establishing protocols and parameters for the department's communications with ICE.  The memo changed the longstanding practice of freely providing information to ICE regarding undocumented aliens in custody.  After serving federal time for drug offenses, an undocumented alien was released to the sheriff's custody to face felony charges for selling drugs.  The charges against him were dropped the next day.  ICE sent the sheriff's department a detainer request asking to be notified 48 hours before the alien's release and that the sheriff's department hold the alien until ICE could take custody of him.  The sheriff's department released the alien without notifying ICE.  Later, the alien shot and killed plaintiffs' decedent.  The plaintiffs sued the municipality for negligence in issuing the policy.  The district court granted the municipality's motion to dismiss the negligence claim.

The 9th Circuit panel unanimously held that the municipality was entitled to discretionary immunity under Government Code sections 820.2 and 815.2(b).  The memo was the sort of policy decision that is immunized by section 820.2.  The sheriff actually exercised his discretion in issuing the policy.  Further, the law gave the sheriff discretion to issue the policy.  Under Government Code section 26605, the sheriff had the authority to keep the jail and the prisoners in it.  8 U.S.C. sections 1373(a) and 1644, which prohibit local restrictions on sending information regarding the immigration status of individuals to the INS, did not deprive the sheriff of discretion to enact the policy; despite legislative history to the contrary, nothing in the statutes' language required sharing information about the release of prisoners to the ICE.  The federal government's control over immigration matters did not require the sheriff to provide ICE with the release date.  The court rejected the argument that issuing the policy was an act of legislation outside the sheriff's discretion.  It also rejected the argument that the sheriff violated the California Public Records Act by not sharing the information.  The detainer request was not a CPRA request;  the CPRA did not require the sheriff to create a record; and at the time the detainer request was made, there was no record of a release that had not happened yet.  The court also rejected arguments that the policy conflicted with California or local laws.  A concurring judge opined that liability for the prisoner's release was barred by Government Code sections 845.8 (immunity for paroling or releasing a prisoner) and 846 (immunity for failure to retain a person in custody).

Officer Entitled to Qualified Immunity for Failure to Prevent Arrestee's Suicide Attempt in Cell, but Is Not Entitled to Summary Judgment on State Law Claim

In Horton v. City of Santa Maria, published February 1, 2019, a divided 9th Circuit panel affirmed in part and reversed in part a district court order denying summary judgment to a police officer and his city employer in a case brought under 42 U.S.C. section 1983 and California Government Code section 845.6.  The plaintiff was arrested after slashing the tires of a vehicle his girlfriend was riding in.  He admitted to hitting the girlfriend in the past. While in the holding cell at the police station, he told the defendant officer of various troubles in his life, and that he was nervous being in a cell, but twice denied needing medical care.  Another officer referred to the possibility of a psych consult for the plaintiff.  The plaintiff's mother talked to him on the phone.  The officer then spoke to the mother on the phone for about 15 minutes.  The mother told the officer the son had engaged in self-harm and suicidal ideation.  While the officer talked with the mother, the plaintiff undid his belt, looped it through the bars, and hanged himself.  The plaintiff was left alone for a half hour, during which he developed brain damage from the hanging.  The district court denied summary judgment to the officer and the city on the federal and state claims.

The 9th Circuit panel unanimously reversed denial of summary judgment as to the section 1983 claim against the officer.  Because insufficient case law established that the officer's actions amounted to deliberate indifference under the then-prevailing Fourteenth Amendment standard for denial of medical care to pretrial detainees, any Fourteenth Amendment violation was not clearly established.  The officer was therefore entitled to qualified immunity. The court also unanimously ruled that it lacked jurisdiction over the denial of summary judgment to the city on the Monell claim.  While denial of summary judgment based on qualified immunity is immediately appealable, denial of summary judgment to a municipal defendant may be appealed only if reversal on the qualified immunity issue as to the individual will also lead to reversal for the municipality.  That standard was not met here, because the municipality could be held liable even if the officer was entitled to qualified immunity due to lack of clearly-established law.

The majority held that the district court also properly denied summary judgment on the state law claim.  Under the facts, the majority found triable issues of fact on whether the information the defendant officer had showed that the plaintiff required immediate medical care to prevent his suicide attempt.  The dissenting judge argued that there was no evidence that the plaintiff required immediate medical care, or that immediate medical care would have prevented the suicide attempt or injury.  The dissenting judge further criticized the majority for following 9th Circuit case law interpreting Government Code section 845.6 whcih the California appellate courts subsequently criticized.

University Not Immune to Potential Liability for Failing to Prevent Mentally Ill Student from Attacking Fellow Student

In Regents of the University of California v. Superior Court (Rosen), published December 3, 2018, the Second District Court of Appeal, Division 7, on remand from the California Supreme Court, affirmed denial of the defendant Regents and university personnel's motion for summary judgment in a negligence case brought by a UCLA student who was stabbed in chemistry lab during a class by a fellow student.  Before the attack, the university received several indications that the attacker was having hallucinations, accused other students of insults that they did not make, and physically confronted one student.  The university moved him to a different dorm and required him to participate in counseling.  The plaintiff's experts opined that the university should have taken further action to address the disturbed student.  The university contended that it did not violate any duty of care to the injured student, and alternatively that it was immune from liability.  It challenged denial of its summary judgment motion by petitioning for writ relief.  The appellate court initially found no duty and granted the petition.  The California Supreme Court reversed, holding that universities owe a duty of reasonable care to students to protect them from foreseeable acts of violence in the classroom or during curricular activities.  It remanded the matter to the appellate court to determine the standard of care under the duty, whether triable issues of fact existed on breach of the duty, and whether the defendants were statutorily immune.

The appellate court held that the standard of care that applied was the reasonable person standard that generally applies to negligence cases, rather than the more limited standard applied to mental health professionals who fail to prevent their patients from attacking others.  The plaintiff must prove three elements to establish the university's vicarious liability under Government Code section 815.2 for its personnel's breach of the duty to protect students:  That the injury occurred while the plaintiff was engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services; that the university was aware of information that placed, or should have placed, it on notice that the perpetrator presented a foreseeable threat of violence to other students; and that the university failed to act with reasonable care in response to the foreseeable threat of violence.  The reasonable person standard of care is similar to that applied in K-12 school situations, although the degree of care may vary due to the different circumstances in a university, which deals with older students.  Based on the information the university personnel had before the attack, triable issues of fact exist on whether the student presented a foreseeable risk of violence and whether the university could have done more to prevent the attack.  The defendants are not immune under Government Code section 856, which immunizes decisions on whether to confine a person for mental illness.  The plaintiff did not contend that the university is liable for failing to confine the attacker, but rather that the school was negligent in its behavior toward the attacker, including failure to use the intervention techniques that were available to the school under its existing policies and procedures.  Discretionary immunity under Government Code section 820.2 also did not apply.  The  immunity applies only to policy and planning decisions.  The plaintiff did not challenge the school's policies and procedures, but rather how those policies were implemented.

If Law Enforcement Agency Induced Family's Detrimental Reliance on Search Efforts, It Owed Duty to Carry Out Search with Due Care, but Did Not Violate the Constitution

In Arista v. County of Riverside, published November 20, 2018, the Fourth District Court of Appeal, Division 2 reversed in part and affirmed in part a trial court decision sustaining a demurrer without leave to amend and dismissing an action against the defendant county.  According to the complaint's allegations, the plaintiffs' decedent set out mountain biking one morning in light clothing.  He intended to return early that afternoon.  In the early evening, the decedent's wife contacted the decedent by cellphone.  The decedent stated that he had been injured in an accident, but was returning home.  He sounded disoriented and confused.  The wife called 911.  The operator instructed her to stay home and wait for law enforcement.  First city police, and then a sheriff's deputy came to the home.  The deputy had the cellphone company ping the decedent's phone.  The location was near the decedent's original destination on the mountain.  The company had personnel working in the area.  The deputy asked the company to have its personnel be vigilant for the decedent's location.  At 10 p.m. a sheriff's lieutenant arrived at the home.  He identified himself as the "Incident Commander" for the case.  He had no search and rescue training.  He allegedly told the deputy that he believed the decedent was having an affair, and questioned why law enforcement was involved.  The lieutenant told the wife that the sheriff's department would start the search in the morning.  When the wife asked the chances of the decedent dying of hypothermia, the lieutenant replied that the decedent was a grown man and could take care of himself.  The department had a team with all-terrain vehicles that could have been dispatched to search for the decedent, but were not.  Deputies with sedan-type vehicles were assigned to watch the trailheads.  The department allegedly told the wife not to initiate any search.  Nevertheless, the family organized itself into a search team and began searching on foot at 3:45 a.m.  In the morning, a volunteer who worked with the sheriff's department searched for the decedent, and found his body on a fire access road.  He had died of hypothermia.

The appellate court held that based on those allegations, the complaint stated causes of action against the county for wrongful death, negligence, and negligent infliction of emotional distress.  Police officers may owe a duty to provide affirmative assistance if they enter into a special relationship with a member of the public.  A special relationship may be found when the state, through its agents, voluntarily assumes a protective duty toward a member of the public and undertakes actions on behalf of that member, inducing reliance.  One who voluntarily comes to the aid of another is under a duty of due care in performance, and may be held liable in negligence if failure to exercise due care increases the risk to the person or if reliance on the undertaking causes harm.  The court concluded that the sheriff's department's alleged actions showed that they undertook the responsibility of rescuing the decedent.  They induced reliance on their actions, as shown by the allegation that the family did not undertake its own rescue efforts until the lieutenant told the wife the department would not begin searching until morning.   The appellate court affirmed, however, the demurrer as to the Monell cause of action under 42 U.S.C. section 1983.  Monell liability requires facts showing deliberate indifference.  The complaint did not plead any such facts.  Because the plaintiffs did not show how they would amend the complaint to show deliberate indifference, the trial court properly denied leave to amend as to that cause of action. 

Pursuit Immunity Does Not Require 100% Certification by Agency's Officers

In Ramirez v. City of Gardena, published August 13, 2018, the California Supreme Court affirmed summary judgment in favor of the defendant city in a wrongful death suit arising out of a police pursuit.  In doing so, it resolved a split in authority between the lower court's decision and the one in Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144.  Vehicle Code section 17001 imposes liability on public entities for negligent or wrongful acts or omissions by public employees operating motor vehicles in the scope of their employment.  Vehicle Code section 17004.7 creates an immunity to that liability for injuries occurring during police pursuits if the entity adopts and implements a vehicle pursuit policy that meets the requirements of that statute.  Subdivision (b)(2) of section 17004.7 requires that promulgation of the policy include " a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy."  The subdivision further provides that failure of an individual officer to sign a certification "shall not be used to impose liability" on an officer or entity.  The question was whether the statute required every officer in a department to certify that he or she had received, read, and understood the policy.

The Supreme Court agreed with the lower court that the answer was no.  It interpreted the statutory language to mean that the policy must include a requirement that all of the officers certify in writing, not that the immunity will not apply if a single officer does not so certify.  If the Legislature had required otherwise, it would have said so.  The alternative interpretation would place a heavy burden on large police agencies by eliminating immunity, despite conscientiously implementing the policy, if a single officer refused or failed to certify receipt, reading, and understanding.  The court did not rely on the "shall not be used" language, since that appears to relate to imposing liability rather than on the existence of immunity.  The court disapproved the Morgan decision to the extent it was inconsistent with this decision.