Government Liability Update

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. 

Officers' Sudden Warrantless Entry into Plaintiffs' Home Was Proximate Cause of Officer Shooting Homeowner When Homeowner Moved BB Gun

In Mendez v. Conley, published July 27, 2018, the 9th Circuit Court of Appeals, on remand from the U.S. Supreme Court, affirmed judgment against the defendant sheriff's deputies under 42 U.S.C. section 1983, and reversed the judgment in the defendants' favor under California negligence law.  The deputies were looking for a fugitive.  They received a tip that the fugitive rode a bicycle past a residence.  The deputies knocked and entered the residence.  There was a small house behind the residence.  The house showed signs of being inhabited. The deputies entered the house, without knocking.  One of the plaintiffs was sleeping on a futon within.  His BB gun was by his side.  When the officers entered, the plaintiff picked up the BB gun to move it.  It momentarily faced the deputies.  The deputies fired on that plaintiff, seriously wounding him and the other plaintiff in the house.  The district court and 9th Circuit originally ruled that the use of force was reasonable in itself, but was unconstitutional under the "provocation" rule because the deputies' illegal entry provoked the plaintiff to pick up the gun and resulted in the use of force.  The Supreme Court reversed this ruling, holding that the "provocation" rule conflated Fourth Amendment violations.  It remanded for determination of whether the improper warrantless entry proximately caused the plaintiffs' injuries.

The 9th Circuit ruled that the entry did proximately cause the injury.  One of the purposes on the Fourth Amendment's ban on officers entering a residence without a warrant, exigent circumstances, or consent is to avoid violent confrontations between officers and those within a dwelling.  The deputies' violation of the Fourth Amendment without entering was therefore a proximate cause of the incident.  Although the officers were entitled to qualified immunity for not knocking and announcing their presence, and that might be seen as another cause of the incident, the violation of multiple duties causing an incident does not eliminate proximate cause by the actionable violation.  Because the inhabitant's act was foreseeable, it was not a superseding cause.  The 9th Circuit also held that under the circumstances, the officers were negligent.  Although the deputies' failure to knock and announce was not actionable under section 1983 due to qualified immunity, that did not eliminate exposure to liability under state negligence law.

Split in Authority on Whether Intentional Tortfeasors Entitled to Fault Apportionment under Proposition 51; Use of Excessive Force with Intention to Deprive Person of Civil Rights Violates Bane Act

In B.B. v. County of Los Angeles, partially published on July 10, 2018 and modified on July 12, 2018, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a judgment against the defendant county and its deputies in a case in which a suspect passed away after deputy use of force.  The jury apportioned the decedent 40% fault for his own death, found two deputies each 20% at fault, and allocated 20% fault to the remaining deputies.  The jury awarded $8 million in noneconomic damages.  The court entered judgment against one of the deputies for the full amount of the award, on the ground that the jury found he intentionally harmed the decedent.

The appellate court reversed this ruling.  It ruled that in personal injury and wrongful death cases, Civil Code section 1431.2 (aka Proposition 51) requires that noneconomic damages be apportioned as to all defendants according to their respective fault for the injury.  It declined to follow case law from other courts holding or stating in dictum that intentional tortfeasors are not entitled to have the noneconomic judgments against them reduced. 

The appellate court also reversed summary adjudication of the plaintiffs' Civil Code section 52.1 (Bane Act) cause of action.  The trial court ruled that because there was probable cause to arrest the decedent, the use of excessive force was not sufficient in itself to establish Bane Act liability; instead, the plaintiffs had to show some threat, coercion, or intimidation independent of the violation of the civil right itself.  The appellate court ruled that this standard applies only where the violation of the civil right results from negligence or unintentional error.  Where the violation is intentional or spiteful, however, the threat, coercion, or intimidation inherent in the violation of the civil right is sufficient.  There must be a showing that the defendant had the specific intent to violate the subject's civil rights.  The plaintiffs' opposition to summary adjudication presented sufficient evidence to raise a triable issue of fact on whether the defendants deliberately subjected the decedent to excessive force beyond that necessary to make the arrest.  Once the deputles'  use of force crossed that threshold, their conduct became a coercive interference with the decedent's civil rights as proscribed by the Bane Act. 

 

Public Defender Was Not Driving in the Scope of His Employment when Driving Personal Vehicle Home from Office

In Newland v. County of Los Angeles, published June 18, 2018, the Second District Court of Appeal, Division 5 reversed denial of a defense motion for judgment notwithstanding the verdict in an auto accident case.  The driver was a county public defender who worked in the Norwalk courthouse, and commuted from Long Beach.  He needed his personal vehicle for work from time to time, when trying cases in branch courts, meeting clients in jail, and inspecting crime scenes.  On days when he needed his car, he brought it.  When he did not, and public transit was available, he took it.  On the day of the accident, he did not need his car for work.  Convenient public transit was not available from his home in Long Beach.  Driving from the courthouse home at the end of the day, he was involved in the subject accident.  The jury found that the driver was driving in the scope of his duty, and awarded damages against the employer county.

The court reversed the finding that he was driving in the scope of his duties, because no evidence supported it.  Generally an employee is not acting within the scope of his duties when driving his personal vehicle to and from work.  The exceptions are where the employee is using his personal vehicle for work purposes, and where the employee's use of his personal vehicle provides his employer with a benefit.  Here, while the driver occasionally used his personal vehicle for work purposes, he did not have to do so that day. He did not have any emergency situations that required him to have a vehicle available. There was no evidence that he was required to drive to and from work on the day of the accident for work purposes.  Driving to and from work was not driving within the scope of his employment.

The court split on whether the case should be remanded to determine whether the driver's use of his vehicle benefited the county.  The majority ruled no remand was necessary.  There was no evidence that the county received a benefit from the driver's use of his car to drive to and from work on a day when he did not need his vehicle available for work purposes.  A dissenting justice opined that the benefit issue should go to the jury.

Officers Entitled to Qualified Immunity for Using Lethal Force against Erratically-Behaving Suspect Who Charges Them with Stabbing Weapon

In Vos v. City of Newport Beach, pubilshed June 11, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted to a city and two of its police officers in a police shooting case. Because the undersigned's firm represented the defendants in the case, the undersigned will refer readers to the text of the case rather than summarizing the holding.

Public Colleges and Universities Owe Students a Duty to Protect Them from Foreseeable Violence during Curricular Activities

In Regents of University of California v. Superior Court (Rosen), published March 22, 2018, the California Supreme Court reversed the lower appellate court's decision that UCLA owed no duty to a student to warn her of or protect her from another student's attack.  The school was aware that the student who ultimately attacked the plaintiff was experiencing auditory hallucinations and was showing symptoms of paranoid schizophrenia, including shoving one student.  The school attempted to provide the assailant with mental health care, and evicted him from student housing after he shoved the other student.  While in a school chemistry lab doing schoolwork, the assailant unexpectedly stabbed the plaintiff with a kitchen knife.  

The Supreme Court concluded that because of the relationship between colleges and their students--particularly the vulnerability of students to attacks from fellow students, and the schools' superior knowledge of threats--public colleges and universities are in a special relationship with their students, which imposes a duty of care to take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety--including foreseeable violence--during curricular activities.  The various policy considerations of duty analysis support the existence of that duty.  Foreseeability and reasonable care will vary under the circumstances of each case.  The Supreme Court remanded the case to the court of appeal to decide whether triable issues of material fact remain on the questions of breach of duty and immunity.  In a concurring opinion, Justice Corrigan opined that because the attack occurred in a classroom, there was no need to consider whether colleges owed a duty to students involved in curricular activities outside the classroom.

Equity Prevents Claim Preclusion Where Earlier Judgment against Plaintiff Was Based on Federal Court Decision from Same Facts That Was Overturned on En Banc Review

In F.E.V. v. City of Anaheim, published September 19, 2017, the Fourth District Court of Appeal, Division 3 reversed the dismissal on demurrer of a wrongful death case arising out of a police shooting.  The plaintiffs brought federal and state causes of action against the police and city in federal court.  The federal district court granted summary judgment on the federal claims, ruling that the officers did not use excessive force and did not violate the Fourth Amendment.  It dismissed the state law causes of action without prejudice. The plaintiffs appealed that decision to the 9th Circuit. The plaintiffs then filed a state court action based on their state law claims, including negligence, battery, and violation of the Bane Act.  The trial court sustained a demurrer against the state court action and dismissed it, on the grounds that the federal decision had claim preclusion effect on the state law claims. The plaintiffs appealed the state court dismissal.  Before the state court appeal was decided, the 9th Circuit affirmed the federal district court decision.  The state appellate court ruled that the federal decision collaterally estopped the plaintiffs from pursuing their state law claims.  Months later, the 9th Circuit issued an en banc review decision reversing the panel decision in the federal case as to the claims of excessive force.  Plaintiffs then filed a new state court complaint, re-asserting their state law causes of action.  The state court denied a motion to vacate the earlier state court decision.  The appellate court denied a writ petition challenging that ruling.  The defendants demurred on the ground of collateral estoppel.  The trial court sustained the demurrer and dismissed the second state case.

The appellate court concluded that claim preclusion based on the earlier state court decision would apply, if equity permitted.  But under the unusual circumstances, equity did not permit claims preclusion to bar the plaintiffs from litigating their state law claims, since the earlier judgment was based on a federal ruling that was ultimately reversed.