Tuesday, November 6, 2001
City Immune for Death of Child Infected on Its Property—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
The city of Los Angeles is immune from liability in the death of a child who apparently contracted the Hantavirus while exploring in and around an abandoned building on city-owned property, the Fourth District Court of Appeal has ruled.
Div. Two Friday affirmed a judge’s ruling that the statutory immunity for acting or failing to act in response to a public health matter bars the suit brought by the parents of young Misty Wright.
Misty lived with her parents in a mobile home on the Bishop Airport property in Inyo County. The city of Los Angeles—through the Department of Water and Power—owns the property, which is the site of a municipal airport and related buildings along with an old, abandoned hospital building and some mobilehome spaces.
The city leases the property to Inyo County, which in turn leases the mobilehome spaces. The tenants pay a small annual rental and are obligated to report acts of vandalism or other problems on the property.
Misty died of Hantivirus Pulmonary Syndrome in June 1999. The disease—which is spread via contact with the droppings or urine of rodents, especially the deer mouse—was tracked to the old hospital, located within 100 yards of the family residence.
The parents sued the city for wrongful death, saying it had an obligation to eliminate rodents from its property, but retired Ventura County Municipal Court Judge Lee E. Cooper Jr.—sitting on assignment as an Inyo Superior Court judge—sustained the city’s demurrer based on Government Code Sec. 855.4.
The statute immunizes public entities and their employees from liability “for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee.”
The Wrights’ attorneys, Duke D. Rouse and Donovan C. Collier of Gresham, Savage, Nolan & Tilden, argued that the immunity doesn’t apply to claims resulting from hazardous conditions on public land. They also contended that the Legislature only intended to immunize against liability based on the response or lack of response to “an outbreak of a disease which affects the community as a whole such as smallpox and tuberculosis” and did not intend to bar claims like the Wrights’.
But the Court of Appeal sided with Inyo County Counsel Paul N. Bruce and San Diego lawyer John D. Kirby, who represented the city, holding that Sec. 855.4 applies and bars the claim.
Justice Thomas L. Hollenhorst, writing for the panel, noted that immunity statutes are, as a general rule, given precedence over laws imposing liability. Thus, he explained, Sec. 855.4 would bar liability even in a case where Sec. 835—which makes public entities liable for certain hazardous conditions on their property—would otherwise apply.
The justice went on to agree with the city that “[t]he presence of germs, bacteria and viruses and the like, many of which are microscopic, and which may or may not be contained in saliva, animal droppings, or any multitude of other forms, upon the vast public property of this state, cannot . . . be viewed as liability events, without some specifically stated intent of the legislature.”
The justice also emphasized that the hospital building wasn’t open to the public.
The case is Wright v. City of Los Angeles, 01 S.O.S. 5432.
Copyright 2001, Metropolitan News Company