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.

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.

State Controller Cannot Be Held Liable under Abuse of Process for Improperly Using Discovery Product to Conduct Audit

In Yee v. Superior Court (Thrivent Financial for Lutherans), published January 8, 2019, the First District Court of Appeal, Division 2 issued a writ directing the trial court to grant a motion for judgment on the pleadings.  The State Controller's Office initiated an audit of the real party insurance company's records.  The insurance company and Controller's Office filed cross-litigation concerning the audit.  The Controller filed a motion to compel production of records from the insurer sought under discovery.  The court granted the motion, allegedly after the Controller's counsel assured the court that the the information obtained in discovery would not be used to conduct the audit.  The Controller allegedly then used the records produced to pursue the audit.  The litigation was eventually dismissed by order of an appellate court.  The insurer then sued the Controller's office for abuse of process, alleging that Controller's Office employees used the discovery information to conduct the audit, in violation of court order and protective order.

The appellate court ruled that the lawsuit was barred by Government Code section 815.  Section 815 bars nonstatutory causes of action against public entities.  The central issue was whether the Controller's Office could be held vicariously liable under Government Code section 815.2, subdivision (a).  Section 815.2 provides for public entity respondeat superior liability for the acts or omissions of employees, but only if the act or omission would have given rise to a cause of action against the employee.  Under the facts of the case, no Controller's Office employee could be held liable for abuse of process.  The abuse was using the records in the audit.  Only the State Controller's Office, not its individual employees, had the power to perform the audit.

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.