Government Liability Update

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.