Government Liability Update

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.

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.