California Supreme Court and Appellate Court Miscellaneous Tort Decisions
Morris v. Blank (2001) B147087 - Retraxit, Res Judicata and Collateral Estoppel
Simmons v. Allstate (2001) C034619
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This is obviously an important decision for those of you who work for governmental entities, or defend or adjust claims involving governmental entities. Beyond that, the decision is of general interest because it contains a very thorough discussion of the concept of duty as an element of negligence, and how duty is affected by immunity. Finally, for those of you outside of California that have long been (understandably) mystified by how California tort law developed to this point, it explains the development of the duty beginning with a negligence statute enacted in 1872.
Holding
Division Two of the First Appellate District (San Francisco) has held that governmental immunity does not protect 911 Dispatchers that negligently perform their duties., “Members of the public are entitled to rely on their government’s willingness to devote whatever resources are needed to ensure that emergency medical services reach the highest feasible level of what may still be an imperfect human endeavor. Similarly, the policy of preventing future harm is furthered by holding our local governments accountable where due care is not exercised by those entrusted with this important public duty.”
Furthermore, the decision pointed out that Emergency Medical Services (EMS) “Dispatchers may be sued individually (Govt. Code, § 820, subd. (a)), the cost of defending that action and any resultant judgment obtained against the employee must be paid by the public entity.”
Comment on Application of this Decision
Although a lot of the language in this decision is very broad, the last part of the decision discusses specific statutory definitions of EMS personnel. While the explanation of duty is of general use, I believe the holding itself is extremely narrow.
Rationale
Whether a particular defendant owes a duty of care to a Plaintiff is based on multiple factors, including:
(1) The foreseeability of harm to the injured party.
One test to apply to the facts in determining if the harm was foreseeable is whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed on the negligent party.
(2) The degree of certainty that the injured party suffered harm.
Because that was
not an issue in this case, this was not discussed in detail.
(3)
The closeness of the connection between the defendant’s conduct and the injury
suffered.
The nexus between the questioned conduct and the injury is significantly different from that needed to satisfy a factual determination of proximate cause. Proximate causation requires simply that the act or omission of the defendant be a ‘substantial contributing factor’ to the harm suffered. In determining the existence of a duty, a causative relationship must exist, but it must be quantified balance with the factors listed here.
(4) The moral blame attached to the defendant’s conduct.
Courts
require a higher degree of moral culpability such as where the defendant:
(1) intended or planned the harmful result;
(2) had actual or constructive knowledge of the harmful consequences of their behavior;
(3) acted in bad faith or with a reckless indifference to the results of their conduct;
(4) engaged in inherently harmful acts;
(5) The policy of preventing future harm
Members of the public are entitled to rely on their government’s willingness to devote whatever resources are needed to ensure that emergency medical services reach the highest feasible level of what may still be an imperfect human endeavor. Similarly, the policy of preventing future harm is furthered by holding our local governments accountable where due care is not exercised by those entrusted with this important public duty.
(6) The extent of the burden to the defendant.
The only additional consideration is to what extent imposing a tort duty would be unfair to a public entity due to budgetary constraints. Imposing a duty on the City in this context would not subvert the public interest by reallocating financial resources of the city to the benefit of individual claimants.
(7)
The consequences to the community of imposing a duty to exercise care,
with resulting potential liability.
The Court did not discuss this, beyond noting
the indemnification obligation of a public employer to a public employee.
Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency’s powers; the role imposed on it by law; and the limitations imposed on it by budget.
Immunity for EMS Services
- Private and public entities engaged in EMS training from any civil liability arising from those training programs. The immunity applies not only to third persons but also to trainee who sustains personal injuries during EMS training exercise.
- Persons rendering noncompensatory emergency care in good faith at the scene of an emergency are immunized.
- Physicians and nurses who transmit emergency medical instructions in good faith to EMT-IIs and paramedics at the scene of an emergency.
- EMT-IIs and paramedics who rely in good faith and without negligence on those instruction are otherwise immune from civil liability.
- Protected by immunity in one degree or other is the medical director of poison control centers that meet certain statutory standards and poison information specialists or information providers who are engaged in providing emergency “information and advice for no charge on the management of exposures to poisonous or toxic substances . . . .”
- Firefighters, police, and persons certified to provide prehospital emergency field care are given limited immunity, as well as physicians and surgeons at general acute care hospital emergency departments.
- “Emergency rescue personnel” who provide “emergency services” are shielded unless their actions are proven to have been grossly negligent or performed in bad faith. “Emergency rescue personnel” are “any person who is an officer, employee, or member of a fire department or fire protection or firefighting agency . . . whether that person is a volunteer or partly paid or fully paid, while he or she is actually engaged in providing emergency services. Emergency services include, but is are limited to, first aid and medical services, rescue procedures and transportation, or other related activities necessary to insure the health or safety of a person in imminent peril. “Emergency rescue personnel” are not, statutorily, emergency dispatchers.
Facts
The facts in this case were detailed in the first 11 pages of the decision, but can be summarized like this: because of a lack of training, language differences that should have been easy to resolve, and some baseless assumptions made by a 911 dispatcher, a 20 year old having a severe asthma attack was classified as a person overdosing on drugs acting bizarrely. As a result, police first responded to the call. Paramedics did not arrive until 30 minutes after the 911 call was made. By that time, Ms. Ma had stopped breathing and could not be revived. Had the dispatcher classified the call correctly, paramedics would have arrived in less than ten minutes and she would not have died.
The full text of this decision can be viewed at http://www.courtinfo.ca.gov/opinions/documents/A092105.PDF.
In this decision, Division Two of the First Appellate District (Marin County) has decided that a son-in-law is not “closely related” to his mother-in-law, and therefore, cannot recover under a bystander claim for negligent infliction of emotional distress.
Applicability – This decision is limited to cases involving negligent infliction of emotional distress. Please note that in some cases, a son-in-law may be entitled to recover if he is the closest relative.
Rationale
The court explained that the following factors need to be considered to assess foreseeability: “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.”
The full text of this decision is available at http://www.courtinfo.ca.gov/opinions/documents/A094155.PDF.
Morris v. Blank (2001) B147087 - Retraxit, Res Judicata and Collateral Estoppel
Division One of the Second Appellate District (Los Angeles) has rendered a decision that attempts to explain some chewier legal issues that can affect settlements in Morris v. Blank (2001) B147087. The factual and procedural circumstances of this case are convoluted, and, I am certain, will end up as a bar exam for some unfortunate law school graduates a few years from now.
PRACTICAL APPLICATION
If you’ve are handling a claim that involved previous litigation, look for the circumstances described in bold text in the explanation to see if the present litigation might be barred.
HOLDINGS
Retraxit - Under the doctrine of retraxit, “where the parties to an action settle their dispute and agree to a dismissal, it is a retraxit and amounts to a decision on the merits and as such is a bar to further litigation on the same subject matter between the parties.” In common law, a retraxit was “a voluntary renunciation by plaintiff in open court of his suit and cause thereof, and by it plaintiff forever loses his action.” [NOTE: To have retraxit, you need the same parties and a settlement.]
Res Judicata - Res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Conclusive effect is given to a previous judgment in subsequent litigation involving the same claim or controversy. [NOTE: To have res judicata, you need the same parties and a judgment.]
Collateral Estoppel - Bars relitigation of an issue actually litigated and necessarily decided in previous litigation. [NOTE: To have collateral estoppel, you need identical issues and a judgment.]
Compulsory Cross-Complaints - California Code of Civil Procedure §426.30 states, “If a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not plead.”
FACTS
Blank and Morris were in an accident. Morris, represented by Attorney Arthur H.
Barens, sued Blank in Superior Court. Blank answered the Complaint.
A few days later, Blank sued Morris in Municipal Court without telling the
Municipal Court about the Superior Court action. Morris never answered the
Complaint. In fact, she might not have been served with it.
Attorneys Selman * Breitman, appointed by Blank’s insurer AAA, accepted service
of the Blank’s Complaint against Morris. Morris’ insurance company, Carnet,
settled the Blank Complaint.
Blank then claimed the settlement with Carnet was a retraxit to the Morris v.
Blank Superior Court action. The Trial Court affirmed.
The Appellate Court reversed, finding no retraxit because (1) Blank had not
answered the Municipal Court claim, barring retraxit; (2) There was no judgment
in the Blank v. Morris action, barring res judicata; and (3) Collateral estoppel
did not operate, also because there was no judgment.
To view the full text of this decision, click http://www.courtinfo.ca.gov/opinions/documents/B147087.PDF.
This unfortunate case involves a two-year old that walked into a fire ring at De Anza State Beach that, as it turned out, was still smoldering. Division One of the Fourth Appellate District (San Diego) discussed California Government Code §830.2 and §835 in finding immunity for this incident for the City of San Diego. Those particular codes deal with dangerous conditions of public property and are only relevant if you are dealing with a case with those allegations, so I am not going to do a full brief of that portion of the decision. It is available at http://www.courtinfo.ca.gov/opinions/documents/D036894.PDF.
What is of general interest in this decision is the Appellate Court’s discussion of evidentiary problems with the Summary Judgment arising from the Trial Court’s application of Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410. What the Fourth Appellate District held was that the Trial Court should have ruled on all of the evidentiary objections made by the defendants in this matter. The reason for that is because it is not the function of the Appellate Court to determine admissibility of evidence. Because of the Biljac decision, it had been common for Trial Courts to make rulings on Summary Judgments (and presumably, Summary Adjudications) on the legal fiction that the Judge did not rely on evidence that may have been inadmissible because it was incompetent, or for other reasons.
Practical Application: This is a split in holdings among Appellate Court districts, since Division One of the First Appellate District (San Francisco) decided Biljac. That means it may or may not be followed.
In practice, I only recall two situations in which the Trial Court ruled on all objections that I asserted in conjunction with the many Summary Judgment/Summary Adjudication proceedings I have been involved with. Although I almost always prevail on part or all of Motions I bring, evidentiary rulings would be particularly helpful when portions of a case are going forward.
So, if you are doing a MSJ/MSA, ask the Court to rule on all the evidence.
Simmons v. Allstate (2001) C034619
Allstate sued a chiropractor for fraud and the chiropractor cross-complained for defamation. Allstate's Motion to Strike the chiropractor's cross-complaint was affirmed.