Government Liability Update

Because City's Fire Department and Transit Agency Were Not Separate Public Entities, Exclusive Remedy for Firefighter Allegedly Injured by Bus Driver Is Workers' Compensation

In Vann v. City and County of San Francisco, published December 12, 2023, the First District Court of Appeal, Division 2 affirmed dismissal of a personal injury lawsuit after demurrer was sustained without leave to amend.  The complaint alleges that a bus driver with the San Francisco Municipal Transportation Agency drove through an active emergency scene and over a fire hose.  The fire hose broke and caused the plaintiff, a firefighter with the San Francisco Fire Department, to fall and sustain serious injury.  The city sent the plaintiff a notice that he was receiving workers' compensation benefits.  The plaintiff sued the city and the bus driver for alleged negligence.  The defendants filed a demurrer on the ground that workers' compensation benefits were the exclusive remedy for the injury.  The plaintiff asserted that he was employed by the fire department, while the driver was employed by the transit agency, and that the two were separate legal entities; and that the fire department, rather than the city, was his employer.  The trial court sustained the demurrer.

The appellate court affirmed.  Workers' compensation benefits are the exclusive remedy when an employee injures a co-employee while acting in the scope of the employee's duties.  The exclusive remedy rule is an affirmative defense to an action at law.  The primary issue is whether the city, the fire department, and the transit agency are separate entities, or whether the department and agency are subsidiaries of the city.  If an entity is not independent, it is not properly named as a defendant.  If an entity is a subsidiary, an action must be filed against the parent entity.  Factors that may be considered in determining if an entity is independent include whether there is an express statutory declaration that the entity is a body corporate and politic; whether the entity has a governing body separate from that of the city, county, or district; or whether it has statutory power to own property, levy taxes, or incur indebtedness in its own name.  Applying these factors to the city charter, city municipal codes, and other legislative material established as a matter of law that the transit agency does not have a legal existence separate and apart from the city.  Although the transit agency is governed by its own board of directors, those directors are appointed by the mayor and confirmed by the city's legislative branch.  Per the city charter, the city controller, city attorney, and city civil service commision have oversight of the agency.  The agency therefore does not have a governing body apart from the city.  The fact that the agency's funding is segregated from other city funds does not mean it is fiscally separate from the city.  While the agency has exclusive power to acquire, control and operate property under its jurisdiction, it cannot transfer or dispose any property of the city without city legislative approval.  It cannot incur debt without concurrence and certification of the city.  The agency must contract with the city attorney for legal matters.  The city employs the plaintiff.  His attempt to divide the city, the fire department, and the transit agency into separate entities for purposes of the workers' compensation exclusivity rule fails.

Public Employee's Dangerous Condition Suit against Employer for Injury on Employer's Property Barred by Exclusive Remedy Rule

In Jones v. Regents of the University of California, ordered published November 28, 2023, the Fourth District Court of Appeal, Division 3 affirmed summary judgment for the defendant regents.  An employee of the regents who worked on the UC Irvine campus was riding home from her work on a bicycle.  Ten seconds into her ride, while still on campus, she swerved and attempted to brake to avoid a trench, and fell off her bike, sustaining injuries.  She sued the Regents for maintaining a dangerous condition of public property.  The trial court granted the regents summary judgment, ruling that the plaintiff's exclusive remedy was workers' compensation.

The appellate court affirmed.  The premises line rule provides that after the worker enters the employer's premises, injury is generally presumed subject to workers' compensation until the employee leaves the premises.  Because the plaintiff's injuries occurred on the employer's campus, just after she left her workstation, her injuries occurred in the course and scope of her employment as a matter of law.  The facts that she was leaving work, that she was not using an employer-designated vehicle or route, and that the campus is large do not raise triable issues.

Elected Official Is Not an Employee of Public Entity for Purposes of Labor Code § 1102.5 Whistleblower Action

In Brown v. City of Inglewood, ordered published June 30, 2023, the Second District Court of Appeal, Division 1 reversed in part a trial court decision denying an anti-SLAPP special motion to strike.  The plaintiff was the elected treasurer of the defendant city.  She alleged that after she reported concerns about financial improprieties, the city and members of the city council retaliated against her by reducing her duties and authority, reducing her salary by 83 percent, taking away her seat on the dais at council meetings, and temporarily locking her and her staff out of her office.  The defendants produced declarations and other evidence that the reduction in authority and salary plaintiff complained of were enacted by ordinances passed by the council; that because she is not a member of the council, the treasurer has no standing to sit on the dais, and that a previous practice of allowing the treasurer to sit on the dais was discontinued when plaintiff purportedly became disruptive during meetings; and that the plaintiff's entry badge was temporarily deactivated when she failed to present a negative COVID-19 test.  The trial court granted the anti-SLAPP motion as to the plaintiff's claim for defamation, and her intentional infliction of emotional distress claim to the extent it was based on defamation, but denied it as to the plaintiff's claim under Labor Code section 1102.5 (protection from liability for whistleblower employees) and for IIED based on alleged retaliation.  The defendants appealed denial of the anti-SLAPP motion.

The appellate court held that the retaliation-based claims against the individual defendants arose from activity protected under anti-SLAPP.  The individual defendants did not have authority to reduce the plaintiff's authority or salary except by voting on ordinances or policies.  After they pass an ordinance or policy, the acts implementing the ordinance or policy are the city's rather than the individuals.  Elected officials' votes taken after a public hearing are protected activity under anti-SLAPP.  The plaintiff alleged that the individual defendants also retaliated against her by removing her from the dais.  But that removal alone is not sufficiently  material to satisfy the elements of her retaliation claims.  The court then analyzed the second prong of anti-SLAPP:  Whether the plaintiff could demonstrate that the claims were legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted is credible.  The section 1102.5 retaliation claim was not legally sufficient, because an elected official is not an "employee" for purposes of that statute.  Although the Legislature has defined "employees" to include elected officials in other statutes, it chose not to do so in section 1102.5.  The retaliation-based IIED claim against the individual defendants failed, because it is subsumed under the exclusive remedy provisions of worker's compensation.  The worker's compensation statutes, unlike section 1102.5, do include elected officials in their definition of "employees."  The trial court therefore should have granted the anti-SLAPP motion as to the individual defendants.

Under Privette Doctrine, Public Entity Owner of Roadway Was Not Liable for Alleged Dangerous Condition of Property That Resulted in Subcontractor's Employee's Death

In Marin v. Department of Transportation, ordered published February 23, 2023, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant department.  The department subcontracted to a company construction work on the department's highway.  The contract expressly delegated matters of safety at the project to the subcontractor.  The contract also provided that the department's residential engineer at the project site was authorized to make the final decision on questions concerning the contract, including as to work quality and acceptability and the manner of the performance at work.  One night, the department, at the subcontractor's request, closed two lanes of the highway. The contractor marked the closure by using traffic signs and an arrow board, a cone pattern with reflective tape, multiple signs, and construction and street lights.  Several department employees were on site.  While an employee of the subcontractor was on the site working, a car operated by a drunk driver entered the closed lanes of the project site, and struck and killed the employee.  The employee's survivors sued the DOT for vicarious liability for the alleged negligence of its employees, and for maintaining a dangerous condition of public property.  The department moved for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 because the department properly delegated workplace safety to the subcontractor.  The plaintiffs contended that triable issues of fact existed on whether the department retained control over the construction project.  The trial court granted summary judgment.

The appellate court agreed that the Privette doctrine barred liability.  Under the doctrine, when the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to worker's compensation coverage, the doctrine of peculiar risk does not permit the employee to seek recovery of tort damages from the principal if the principal did not cause the injuries.  The doctrine does not apply if the hirer of the contractor retains control of the site, and the exercise of retained control affirmatively contributed to the injuries.  If the injury takes place after delegation of safety to the contractor takes place, the court presumes the contractor alone was responsible for any failure to take precautions.  To rebut the presumption, the hirer must induce--not just fail to prevent--the contractor's injury-causing conduct, or the hirer's retained control must contribute to the injury independent of any contribution by the contractor.  Here, the contract expressly delegating control to the contractor established the Privette presumption applied, shifting the burden to the plaintiff to raise a triable issue of fact.  The portion of the contract giving the department final decision on questions concerning the contract did not raise a triable issue on whether retained control affirmatively contributed to the employee's death.  Undisputed evidence established that the department did not direct or order the means and methods the subcontractor used to provide worker safety, did not have responsibility for setting up barriers, cones, or signs, and did not prevent the subcontractor from complying with its obligation to provide a safe work site.  Evidence that the department could have authorized further safety measures, and expected the subcontractor's employees to learn and follow department safety policies, at most shows that the department passively permitted an unsafe condition.  That is not affirmative contribution to the injuries.

Civilians Responding to 911 Call Engaged in Active Law Enforcement for Worker's Compensation Purposes, Despite Officer's Alleged Misrepresentations of Fact

Update:  The California Supreme Court granted review of this case sua sponte.  On August 27, 2020, the Supreme Court affirmed the appellate court's decision.  Two justices dissented.

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In Gund v. County of Trinity, published June 4, 2018, the Third District Court of Appeal affirmed summary judgment granted to the defendant county and a sheriff's deputy on the ground of Worker's Compensation as the plaintiffs' exclusive remedy.  A CHP dispatcher received a 911 call in which the caller whispered, "Help me" and gave her location.  The dispatcher conveyed the information, and her belief that the caller was trying to avoid being overheard, to the county sheriff's department.  The county dispatcher tried to call the number back.  There was no response.  The county dispatcher passed the information on to the defendant deputy.  The deputy called the plaintiffs, who were neighbors of the caller.  The deputy told the plaintiffs that the caller had called for help, likely due to the inclement weather.  He asked the plaintiffs to go check on her.  He told them it was "probably no big deal." He told the female plaintiff not to go without her husband. The plaintiffs arrived at the scene.  The caller and her boyfriend were there, murdered.  The presumed murderer attacked and injured the plaintiffs.  The trial court granted summary judgment based on the exclusive remedy of Worker's Compensation.  It relied on Labor Code section 3366, under which a person engaged in assisting a peace officer in active law enforcement is deemed to be an employee of the public entity and entitled to receive Worker's Comp benefits.

The appellate court analyzed the language and history of section 3366, as well as other statutes on similar subjects, and concluded the trial court was correct.  Regardless of whether the plaintiffs were misled into checking on the caller, responding to a 911 call is active law enforcement.  The plaintiffs were therefore covered by section 3366, and could not sue the county or the deputy under state law.  The court expressed no opinion concerning the plaintiffs' parallel federal court action under 42 U.S.C. section 1983.

 

Final Decisions in Workers' Compensation Cases in Which Public Employer Disproved Discrimination Preclude Separate FEHA Actions

In Ly v. County of Fresno, published October 12, 2017, the Fifth District Court of Appeal affirmed summary judgment granted the defendant county in a Fair Employment and Housing Act discrimination case brought by three correctional officers.  The officers pursued the FEHA action and workers' compensation proceedings simultaneously, with both arising out of alleged employment discrimination based on their race.  In the workers' compensation proceedings, the county established the affirmative defense that the county's actions were non-discriminatory, good faith personnel decisions.  After the workers' compensation proceedings were final, the county moved for summary judgment in the FEHA action, asserting that the results were res judicata and collateral estoppel on whether the county engaged in employment discrimination against the plaintiffs.  The trial court granted the motion.

The appellate court agreed that res judicata barred the FEHA action.  Workers' compensation is not the exclusive remedy for an employee who alleges racial or national discrimination; the employee may pursue a workers' compensation claim for psychiatric injury from the alleged discrimination, a FEHA action, or both.  In the workers' compensation claim, the employer may raise the affirmative defense that the psychiatric injury was caused by a lawful, nondiscriminatory, good faith personnel action.  The same primary right was at stake in both the workers' compensation and FEHA actions:  recovery for the psychiatric injuries caused by the allege discrimination.  When two tribunals have jurisdiction, and neither party objects to the tribunals' jurisdiction, the first final decision from one tribunal becomes res judicata in the second tribunal.