Metropolitan News-Enterprise


Thursday, July 12, 2018


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Court of Appeal:

DMV Immune for Terminating Suspension of 93-Year Old Woman’s Driving License

Plaintiff Asserts His Injuries Were Caused by Her Faulty Driving


By a MetNews Staff Writer


A man left paralyzed from the waist down after a 93-year-old woman made an illegal left turn into his motorcycle cannot maintain an action against the Department of Motor Vehicles for lifting a suspension on her license, the First District Court of Appeal has held, citing governmental immunity.

The opinion by Justice Martin J. Jenkins of Div. Three was certified for publication yesterday after being initially filed on June 22 as an unpublished decision.

The Department of Motor Vehicles (“DMV”) suspended Elsie Dembowsky’s license in 2011 after she missed a required driving test but lifted that suspension in 2012 after she had shown her fitness to drive. In 2013, she caused the accident that paralyzed plaintiff Alan C. Richardson, 27 at the time, from the waist down and severed his left leg.

Jenkins wrote:

“The undisputed evidence proves the DMV validly exercised its discretion to lift the suspension on Dembowsky’s license after determining that she had passed the requisite written law test, in-person driving test, and vision and medical examinations.”

Similar Authorization

Richardson argued that because Government Code §818.4, providing governmental immunity for discretionary acts, does not expressly cover the lifting of a license suspension, the DMV is not shielded from liability. Jenkins responded:

“We disagree. Section 818.4, in full, provides as follows: ‘A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.’ ”

The jurist continued:

“In this case, the DMV’s action of ‘lift[ing] the suspension’ of Dembowsky’s license falls squarely within the scope of this statutory language when it is given its plain and ordinary meaning. Specifically, reasonably interpreted on this basis, we conclude that lifting the suspension of Dembowsky’s license is a ‘similar authorization’ to issuing or failing or refusing to suspend a license by a DMV employee….”

Discretionary, Not Mandatory

Jenkins acknowledged that §815.6 “carves out an exception to this grant of immunity: specifically, where ‘a public entity is under a mandatory duty imposed by an enactment...’ ”

He rejected Richardson’s alternate contention that, even if §818.4 applies to the DMV’s action, it falls under the §815.6 exception. He pointed to sections of the Vehicle Code that mandate the DMV to deny licenses when it has determined a driver is unsafe.

“To the contrary,” Jenkins said, “on September 14, 2012, the DMV determined the opposite—that Dembowsky was, based upon all the evidence in the file, capable of safe vehicle operation.…[T]he DMV was authorized by the Vehicle Code to exercise its discretion to decide whether Dembowsky was entitled to the driving privilege….Richardson directs us to no facts in this record, nor do we know of any, that would authorize this court to override the DMV’s valid exercise of discretion on this matter.”

The case is Richardson v. Department of Motor Vehicles, A148613.


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