Friday, July 13, 2018
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Court of Appeal:
Deputy Sheriff Not Personally Liable for $8 Million Judgment
Opinion Departs From Conclusion Reached by Fourth District That Intentional Tortfeasor Is Liable for Entire Award; Doctrine of Comparative Fault Found Applicable
By a MetNews Staff Writer
An intentional tortfeasor who is only partially to blame for a harm can no longer be held liable for the total award of noneconomic damages, the Court of Appeal for this district has declared, relieving a Los Angeles deputy sheriff of responsibility for the entirety of an $8 million judgment based on the death of a suspect resulting from efforts to subdue him.
Wednesday’s opinion, by Justice Anne H. Egerton of Div. Three, repudiates a 2006 Court of Appeal decision by the San Diego-based Fourth District’s Div. One in Thomas v. Duggins Construction Co., Inc. Los Angeles Superior Court Judge Ross M. Klein relied upon that holding in declaring that Deputy David Aviles, found by a jury to be 20 percent at fault in the suspect’s death, is, along with the County of Los Angeles, 100 percent liable on the total award.
Klein was “obliged to follow Thomas as controlling Court of Appeal precedent,” Egerton noted, adding that “we are not bound by the opinion in reviewing the judgment on appeal.”
Though of doubtful actual significance to Aviles in light of the county inevitably paying the entirety of the judgment, the opinion creates a split among the districts likely to be resolved by the California Supreme Court.
Injury During Arrest
The action was brought by the estranged wife and five children of Darren Burley, who died 10 days after an Aug. 3, 2012 scuffle with deputies who arrested him, on-the-scene, based on reports of his attack on a woman on a street in Compton. Burley, believed to be under the influence of drugs, resisted arrest, and, once deputies forced him down on the ground, Avila pressed a knee on the back of his head to hold him still prior to handcuffing.
The suspect suffered cardiac arrest caused by lack of oxygen, resulting in his death 10 days later.
A jury, in addition to finding Avila 20 percent at fault, ascribed 40 percent of the blame to Burley, 20 percent to Deputy Paul Beserra, and 20 percent to other deputies. Avila was found to have committed a battery, while the other deputies, it was determined, acted negligently.
At issue with respect to liability for payment of the judgment was the effect of Civil Code §1431.2, a part of the Fair Responsibility Act of 1986, enacted through an initiative, Proposition 51. It provides, in part:
“In any action for…wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”
2006 Decision
In Thomas, then-Justice James A. McIntyre (since retired) wrote:
“At the time Proposition 51 was adopted, it was well established that a tortfeasor who intentionally injured another was not entitled to contribution from any other tortfeasors….Thus a defendant who committed an intentional tort against the plaintiff was not entitled to a reduction of the judgment because the plaintiff’s injuries also resulted from his or her own negligence or the negligence of a third party….”
McIntyre continued:
“The question presented in this case is whether the passage of Proposition 51 changed the existing law regarding the intentional tortfeasor’s potential liability for the entirety of the plaintiff’s damages, an issue that is not resolved by the existing published authorities. Facing this question for the first time, we conclude that Proposition 51 did not alter the existing principles governing an intentional tortfeasor’s liability to an injured plaintiff.”
Case Overlooked
Egerton said the Fourth District’s opinion failed to take into account the California Supreme Court’s 1992 decision in DaFonte v. Up-Right, Inc. There, then-Justice Marvin Baxter (now retired) said that in “every case,” §1431.2 “shields every ‘defendant’ from any share of noneconomic damages beyond that attributable to his or her own comparative fault.”
In that case, an employee was injured while using equipment, and sued the manufacturer. The employer was not sued in light of workers’ compensation being the exclusive remedy.
A jury found the manufacturer 40 percent at fault, the employer 45 percent, and the employee 15 percent. The Fifth District Court of Appeal held that §1431.2 did not apply and that the manufacturer was liable for the full amount of damages, minus 15 percent, representing the employee’s fault, and minus the workers’ compensation benefits paid to the plaintiff.
The California Supreme Court reversed, holding that the manufacturer could not be liable for more than 40 percent of the damages. Baxter said:
“Here we conclude that the plain language of section 1431.2 eliminates a third party defendants joint and several liability to an injured employee for unpaid noneconomic damages attributable to the fault of the employer, who is statutorily immune from suit.”
In Wednesday’s decision, Egerton said:
“Just as DaFonte found section 1431.2 ‘neither states nor implies an exception for damages attributable to the fault of persons who are immune from liability’…, we likewise find the statute neither states nor implies an exception for damages attributable to the fault of a person who acted intentionally rather than negligently.”
Only seven published decisions have cited Thomas, and Egerton’s opinion is the only one to criticize it.
Her opinion also reverses Klein’s grant of summary adjudication to the defendants on the plaintiffs’ claim of a violation of civil rights under the Bane Act, Civil Code §51.2.
“Although Defendants’ evidence established as an undisputed fact that they had probable cause to detain Burley, Plaintiffs’ evidence suggested Defendants deliberately subjected Burley to excessive force beyond that which was necessary to make the arrest,” Egerton wrote. “Once Defendants’ use of force crossed that threshold, their conduct became a coercive interference with Burley’s civil rights as proscribed by the Bane Act.”
She said there was “a triable issue as to whether Defendants subjected Burley to excessive force with the specific intent to interfere with his Fourth Amendment rights.”
The case is B.B. v. County of Los Angeles, 2018 S.O.S. 3463.
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