Thursday, July 11, 2019
Court of Appeal:
By a MetNews Staff Writer
The Court of Appeal for this district has relieved the County of Los Angeles of a $1.2 million judgment against it based on a serious injury caused by a volunteer traffic control officer motioning a motorist to turn right, into the path of a bicyclist competing in the Malibu Triathlon, resulting in a collision with her.
The unpublished opinion by Justice Judith Ashmann-Gerst of Div. Two, filed Tuesday, affirms the judgment against the volunteer, Widge Galloway. But her gross negligence cannot be imputed to the county, Ashmann-Gerst said, because Galloway was not its employee.
Plaintiff Allison Ewart argued respondeat superior does apply because she was assisting law enforcement.
Labor Code Provision
She pointed to Labor Code §3366(a) which provides:
“For the purposes of this division, each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person (other than an independent contractor or an employee of an independent contractor) engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.”
Ashmann-Gerst said “the statute explicitly limits its rule to the ‘purposes of this division,’ ” noting that the division deals with workers’ compensation. She wrote:
“Thus, we conclude that Labor Code section 3366 only dictates that unpaid volunteers may be able to claim workers’ compensation benefits if they are injured while engaged in active law enforcement…; nothing in Labor Code section 3366 expands the scope of vicarious liability to hold a governmental entity liable for one of its volunteers’ actions.”
Ewart pointed to the 1999 decision in Munoz v. City of Palmdale, decided by this district’s Div. One. Then-Justice Reuben Ortega, now retired, wrote the opinion declaring that the City of Palmdale was not liable for the negligence of a volunteer at a senior center, but observed in a footnote:
“There are exceptions to the volunteer exclusion, but none applies to this case….[T]he volunteer exclusion does not apply to…certain persons assisting law enforcement officers (§ 3366)….”
“We are not convinced. Aside from the fact that the Munoz court’s comments were dicta, to the extent the Munoz court was suggesting that Labor Code section 3366 expanded government liability for unpaid volunteers, we respectfully disagree.
The jury found that total damages were $1,398,000, but it ascribed 85 percent of the fault to Galloway and 15 percent to the motorist, who had settled, with judgment being entered against Galloway and the county for $1,228.050.
The case is Ewart v. County of Los Angeles, B286379.
Tomas A. Guterres and James C. Jardin of the South Pasadena firm of Collins Muir + Stewart represented the county and Galloway and Dana M. Cole and Nancy Cole Loeterman of the Century City firm of Cole & Loeterman were the attorneys for Ewart.
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