JAMES GUND et al., Plaintiffs and Appellants, v. COUNTY OF TRINITY et al., Defendants and Respondents.
S249792
IN THE SUPREME COURT OF CALIFORNIA
August 27, 2020
Third Appellate District C076828; Trinity County Superior Court 11CV080
Justice Cuéllar authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, and Kruger concurred. Justice Groban filed a dissenting opinion, in which Justice Chin concurred.
GUND
S249792
Opinion of the Court by Cuéllar, J.
We entrust to police officers the enormous responsibility of ensuring public safety with integrity and appropriate restraint, a mission they sometimes pursue by requesting help from the very public they‘re sworn to protect. When members of the public engage in “active law enforcement service” at a peace officer‘s request, California law treats those members of the public as employees eligible for workers’ compensation benefits. (
Norma and James Gund received a call from Trinity County Sheriff‘s Corporal Ronald Whitman, who asked them to assist law enforcement by checking on a neighbor who had called 911 requesting help. When the Gunds did so, they walked into an active murder scene and suffered a violent attack. What we must resolve is whether Mr. and Mrs. Gund engaged in active law enforcement service and are limited to workers’ compensation benefits for their injuries based on Corporal Whitman‘s request for assistance, which they allege misrepresented the potential danger.
We conclude the Gunds were indeed engaged in “active law enforcement service.” When the Gunds provided the requested assistance, they delivered an active response to the 911 call of a local resident pleading for help. A response of this kind unquestionably falls within the scope of a police officer‘s law enforcement duties. Whether or not any alleged omissions in Corporal Whitman‘s request could conceivably prove relevant to legal actions alleging malfeasance, they do not change our conclusion about the scope of workers’ compensation in this tragic case. We affirm the judgment of the Court of Appeal.
I.
On the afternoon of March 13, 2011, the California Highway Patrol (CHP) received a phone call from Kristine, a female caller.2 Kristine whispered, “Help me,” and said she lived at end of the Kettenpom airstrip. Kettenpom is situated in the southwest corner of Trinity County, a mountainous expanse of 3,200 square miles. (Trinity County, About Trinity County <https://www.trinitycounty.org/About> [as of Aug. 24,
Corporal Whitman knew the Gunds lived in the vicinity of the Kettenpom airstrip. En route to Kristine‘s home but still some distance away, he called Norma Gund and explained that her neighbor, Kristine, had called 911. He asked Mrs. Gund if she would go check on Kristine, as they were much closer to Kristine‘s home and he was still hours away. After Mrs. Gund agreed, Corporal Whitman asked if Mr. Gund was home, and Mrs. Gund said no. He instructed Mrs. Gund not to go to Kristine‘s home by herself. Mrs. Gund asked what Kristine said on the call, and Corporal Whitman responded that she said, “Help me.” Mrs. Gund then inquired: “Are you sure? Is that all she said?” Corporal Whitman responded, “She said two words, ‘Help me.’ ” Mrs. Gund told Corporal Whitman that Mr. Gund had just arrived home, and Corporal Whitman said, “Good.” Corporal Whitman did not tell Mrs. Gund that Kristine had whispered on the phone, that the CHP dispatcher believed she had been trying to call secretly, or that the county dispatcher‘s return calls to Kristine went straight to voicemail.
Mrs. Gund confirmed for Corporal Whitman that she‘d been to Kristine‘s property before, to help the previous owner with snow and fallen trees. Corporal Whitman mentioned the impending arrival of a major storm, which “must be what this is all about.” “It‘s probably no big deal,” he continued. Corporal Whitman then asked if Mrs. Gund had ever met Kristine‘s boyfriend and if he seemed violent. Mrs. Gund confirmed that she had met Kristine‘s boyfriend. In response to whether he ever seemed violent, Mrs. Gund indicated she “didn‘t know. He seemed real mellow.” Corporal Whitman gave Mrs. Gund his cell phone number and instructed her to call him as soon as she and her husband had checked on Kristine. Believing the emergency to be weather related, the Gunds drove to Kristine‘s home. They speculated that
After arriving at Kristine‘s home, Mrs. Gund went in first, while Mr. Gund stayed in the truck. Immediately after entering Kristine‘s home, Mrs. Gund was attacked by the man who had just murdered Kristine and her boyfriend. Mr. Gund, hearing some of the commotion, entered the home and saw the man holding down his wife and cutting her throat with a knife. The man then attacked Mr. Gund, as well — tasing him, punching him, and cutting his throat. During the attack, Mr. Gund saw on the floor a motionless body with a bag over the head. Mrs. Gund escaped to the truck and drove to a nearby store for help. Mr. Gund managed to disarm the attacker and flee on foot to his home. He got another vehicle and reunited with Mrs. Gund at the store.
The Gunds filed this action against Trinity County (the County) and Corporal Whitman. The First Amended Complaint alleges causes of action for: liability for the act or omission of a public employee; vicarious liability for the act or omission of a public employee; misrepresentation by a public employee, with actual malice; and vicarious liability for misrepresentation by a public employee, with actual malice. The Gunds contend Corporal Whitman sought to secure their assistance by falsely assuring them that Kristine‘s call was probably weather related and knowingly withholding the following facts: Kristine whispered, the CHP dispatcher thought Kristine was calling secretly, and the county dispatcher‘s return calls went straight to voicemail.
The County and Corporal Whitman moved for summary judgment. Workers’ compensation, they argued, was the Gunds’ exclusive remedy because they sustained their injuries while engaged in active law enforcement service under section 3366.4 The Gunds argued that section 3366 did not apply because, given Corporal Whitman‘s alleged misrepresentations, they did not understand themselves to be engaged in “active law enforcement service” when they complied with his request, nor would a reasonable person have understood this to qualify under that standard.
The trial court granted the summary judgment motion. Despite the Gunds’ contention that they relied on Corporal Whitman‘s alleged misrepresentations, the trial court found that section 3366 applied because a response to a 911 call under the circumstances in this case amounts to assisting a peace officer in active law enforcement. The Gunds appealed. Although the Court of
We ordered review on the court‘s own motion to decide the scope of workers’ compensation coverage available to the plaintiffs in this situation, as the availability of such coverage would constrain them in seeking other redress for their injuries. Specifically, we address whether plaintiffs engaged in active law enforcement under section 3366 after a peace officer asked them to check on a neighbor who dialed 911 for help and the officer allegedly misrepresented the situation.
II.
Workers’ compensation spreads the cost of injuries associated with the risks of employment even as it also limits the extent of recovery a covered worker could have gained through ordinary civil litigation. (
Section 3366, subdivision (a) provides the following: “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 . . . 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.”
No one in this case disputes that the Gunds assisted “at the request of” a peace officer, nor is there any dispute that they were “engaged in assisting” that officer when they sustained their injuries. (
Based on what we glean from the language, structure, and legislative history of section 3366 — as well as related statutory provisions that round out the relevant context — we conclude that Corporal Whitman requested “active law enforcement service” when he asked the Gunds to respond to Kristine‘s 911 call for help, and that “active law enforcement service” is what the Gunds provided.
“[A]ctive law enforcement service” is not a phrase defined by section 3366, nor is it parsed by any other related statutory provision. The Gunds contend it reaches only a narrow subset of policing tasks: the type of active investigation and suppression of crime entailing risk of death or serious injury while providing protection to the public. But defendants assert “active law enforcement service” simply identifies the main duties of a police officer. These words arguably support either the Gunds or the defendants, because one could reasonably understand “law enforcement” to either describe a specialized portion of police activity or to encompass most of what police do. A literal reading of “law enforcement service” conveys the idea of service to enforce the law, and perhaps especially — given how the term “law enforcement” is less commonly associated with civil regulatory law — efforts to investigate violations of or otherwise enforce criminal or traffic laws. (See, e.g., Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 298 [” ‘Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state’ “].) This reading treats as separate from “law enforcement” the broader range of public welfare and routine order maintenance functions police officers may perform, irrespective of how tenuously such activities connect to enforcing criminal or traffic law. (See Decker, Emergency Circumstances, Police Responses, and Fourth Amendment Restrictions (1999) 89 J.Crim. L. & Criminology 433, 445–446, fn. omitted [“police serve to ensure the safety and welfare of the citizenry at large,” which “may involve approaching a seemingly stranded motorist or lost child to inquire whether he or she needs assistance, assisting persons involved in a natural disaster, or warning members of a community about a hazardous materials leak in the area“]; Michigan v. Bryant (2011) 562 U.S. 344, 368 [“Police officers in our society function as both first responders and criminal investigators“].)
Yet judicial opinions and the public discourse routinely embrace a more capacious understanding of “law enforcement,” treating police officers as all but synonymous with “law enforcement officers.” (See, e.g., Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215, 216 [using both “law enforcement officers” and “police officers” in discussing the reasons for imposing vicarious liability on a public entity when such an officer commits a sexual assault while on duty].) From this vantage point, “active law enforcement service” plausibly refers to the full range of work law enforcement officers do — stretching far beyond the investigation of crime, the suppression of criminal offenses, and the detention of criminals. It is this subtle but meaningful distinction in what “law enforcement” means that we must address at the outset.
Consider at the outset the structure of section 3366. It applies when an individual is injured while engaged in active law enforcement service, either on command or voluntarily at the request of a peace officer.
Section 3366, subdivision (a) contains additional language bearing on our construction of “active law enforcement service.” It deems individuals providing this “active law enforcement service” as employees of the public entity they are serving ”in the enforcement of the law.” (Ibid., italics added.) This variation on law enforcement service is consistent with the idea that the statute covers a range of activity somewhat more limited than all police work, and it reinforces the notion that coverage extends only to those individuals undertaking certain explicit action “in the enforcement of the law.” (Ibid.) Taken together, section 3366 and
The statute‘s language, structure, and legislative history also suggest a more capacious understanding of “active law enforcement service” to encompass protection of civilians from the kinds of physical threats to their well-being that could plausibly expose volunteers to material risk of injury. The statute provides compensation to individuals who sustain injuries while assisting peace officers with such active law enforcement service. (
Moreover, providing coverage through a workers’ compensation model means that, although the extent of compensation may be limited, civilians can get that compensation without fighting over the specifics of an officer‘s request for help or whether the request amounted to a negligent misrepresentation. (
This broader, civilian-protective interpretation also fits with the statute‘s history. The Law Revision Commission proposed the bill enacting section 3366 in direct response to this court‘s 1961 decision in Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211 (Muskopf). In Muskopf, we abolished the “vestigial remains” of common law sovereign immunity due to its significant erosion over time. (Id. at p. 221.) In response, the Legislature temporarily suspended Muskopf‘s effect (Stats. 1961, ch. 1404, pp. 3209–3210) and directed the Law Revision Commission to complete a study of the issue (see Assem. Conc. Res. No. 22, Stats. 1957 (1956–1957 Reg. Sess.) res. ch. 202, p. 4590). The Law Revision Commission considered a report by Professor Arlo Van Alstyne about injuries sustained when citizens aid police in law enforcement. (See A Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) pp. 404, 452–453.) Van Alstyne suggested that “the elimination of possible misgivings as to financial consequences in the event injury is sustained might conceivably tend to promote more willing and wholehearted cooperation by citizens when called upon to give aid in law enforcement.” (Id. at p. 453.) Van Alstyne proposed alternative possibilities to compensate citizens injured while providing that requested assistance: absolute tort liability or limited workers’ compensation benefits. (Id. at pp. 453–454.)
The bill‘s author, Senator James A. Cobey, also served on the Law Revision Commission — and he appears to have shared this concern. In his floor statement, Senator Cobey echoed the Law Revision‘s Commissions recommendation that when someone without law enforcement training “is required by law to assume the risk of death or serious injury to provide such protection to the public, or when he undertakes to do so at the request of a peace officer . . . , he and his dependents should be provided with some protection against the financial consequences of his death or injury.” (Floor statement by Senator James A. Cobey regarding Sen. Bill No. 47 (1963 Reg. Sess.) (Cobey Floor Statement).) He also included this same language in his letter to Governor Edmund Brown. (James A. Cobey, Senate Bill Author, letter to Governor Edmund G. Brown, June 21, 1963 (June 1963 Cobey Letter).)
A complementary concern familiar from the history and underlying logic of workers’ compensation was also at play in the legislative drafting process: limiting expansive liability for public agencies. Senator Cobey repeatedly explained that the exclusive remedy provision of the workers’ compensation scheme “will prevent such persons from bringing civil actions for damages and will eliminate the possibility of public entities having to pay catastrophic judgments.” (Cobey Floor Statement, supra; and June 1963 Cobey Letter, supra.) The legislative analysis for the bill also notes that using the workers’ compensation system responds to a lack of uniformity of law and practice in an area that “contains large potential liability.” (Legis. Analyst, analysis of Sen. Bill
When eventually enacted by the Legislature, the bill containing section 3366 was almost identical to what the Law Revision Commission had embraced. (Compare Stats. 1961, ch. 1684, § 2, p. 3306 with Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep., at p. 1506.) Reading the Law Revision Commission‘s deliberation alongside the legislative history, and what we can glean from the structure of the statute, we discern three purposes that the legislation appears crafted to serve: (1) creating an incentive for individuals to provide requested law enforcement service; (2) compensating, without concern for fault, someone who is injured while assisting a peace officer with law enforcement duties; and (3) limiting the state‘s financial exposure.
These goals are best served by a more capacious understanding of “active law enforcement service.” The workers’ compensation model makes the public agency liable for the costs of the injuries of people assisting police with requested active law enforcement service, whether or not the requesting officer was ultimately at fault. (
Moreover, because peace officers and citizens providing requested assistance may not always know the extent of risk a response implicates, the bill appears to make workers’ compensation coverage available whenever a peace officer requests assistance in “active law enforcement service” — as law enforcement duties often entail a risk of injury. (
coverage under
B.
A more expansive interpretation of active law enforcement service — covering tasks that objectively qualify as a peace officer’s law enforcement
The phrase “active law enforcement service” appears elsewhere in the Labor Code. (See, e.g.,
As with the cases interpreting
These Labor Code provisions further buttress the case for reading “active law enforcement service” in
Certain Government Code provisions, both current and former, also use the phrase “active law enforcement service” to establish which employees are eligible for various benefits. (See, e.g.,
Courts of Appeal construing active law enforcement for purposes of these Government Code provisions also discuss the physical hazards of law enforcement activity. (See, e.g., Crumpler, supra, 32 Cal.App.3d at p. 578; Neeley v. Board of Retirement (1974) 36 Cal.App.3d 815, 822 (Neeley).) But in Crumpler, the Court of Appeal concluded that active law enforcement service means “the active enforcement and suppression of crimes and the arrest and detention of criminals,” with specific attention to crimes against people or property. (Crumpler, supra, 32 Cal.App.3d at p. 578; see id., at pp. 578-579.) Supporting this conclusion, the Court of Appeal discussed a formal opinion from the Attorney General contending that “active law enforcement service” in these Government Code provisions does not extend to everything a police officer does, but rather is limited to physically active work — such as the arrest and detention of criminals — that exposes officers to physical risk. (Id. at p. 577, citing 22 Ops.Cal.Atty.Gen. 224, 229.) The Court of Appeal in Boxx v. Board of Administration (1980) 114 Cal.App.3d 79 also focused on criminal investigation, finding that a Housing Authority of the City of Los Angeles (HACLA) officer provided active law enforcement service because he was required to make arrests for criminal activity occurring in and around HACLA property. (Id. at p. 86.) Although these cases discuss crime suppression and investigation, they ground much of their reasoning in exposure to hazard to provide public protection. Read in this light, action meant to prevent specific criminal activity — by showing a potential perpetrator that a would-be victim is not isolated, for example — constitutes a common and readily available example, rather than the exclusive category, of the hazards the covered public employees undertake. (See Glover v. Bd. of Retirement (1989) 214 Cal.App.3d 1327, 1333 [“The common thread running through cases [that interpret the term ‘safety member‘] is the concept that the classification of a ‘safety member’ engaged in active law enforcement is largely controlled by the extent to which the category exposes its holders to potentially hazardous activity“].)
C.
Responding to a 911 call for assistance of an unknown nature is what the Gunds did, so they are properly deemed employees under
At its core, the request from Corporal Whitman was that the Gunds respond to a 911 call for help of an unspecified nature. Responding to a 911 call for unspecified help serves a vital public protection purpose. As the Gunds assert, Corporal Whitman explained that Kristine called 911 seeking help. Because he was far away, Corporal Whitman sought the Gunds’ help to check on Kristine at her home. That Corporal Whitman or one of his law enforcement colleagues would ordinarily provide such a response is unremarkable and uncontroversial. Whatever the limits of “active law enforcement service” under
The specific details of the exchange between Corporal Whitman and Mrs. Gund do not change the essential nature of his request that the Gunds respond to a 911 call for unspecified help. After requesting Mrs. Gund’s assistance, Corporal Whitman implored her not to go alone to Kristine’s home, which prompted her to ask what Kristine said in the 911 call. Corporal Whitman relayed that Kristine said, “Help me.” Mrs. Gund asked, “Are you sure? Is that all she said?” Corporal Whitman confirmed, “[S]he said two words, ‘Help me.’ ” Corporal Whitman made clear he did not know the reason for Kristine’s call for help. After learning the Gunds were familiar
The dissent treats Corporal Whitman’s assessment that Kristine’s 911 call “must be” weather related and “probably no big deal” as an assurance to the Gunds about what awaited them at their neighbor’s home. (Dis. opn., post, at p. 5.) But Corporal Whitman also conveyed that Kristine had said two words, ” ‘Help me.’ ” He used equivocal language to assess the situation, noting that the issue “must be” weather-related and that it was “probably no big deal.” After this speculation, he asked whether Kristine’s boyfriend seemed violent. Though it may have been eminently sensible for the Gunds to conclude Kristine was likely having a weather-related emergency based on this assessment, that sensibility did not convert the requested assistance in response to a 911 call for unspecified help into a request concerning a weather-related issue that could conceivably prove beyond the scope of “active law enforcement service.”
Under these circumstances, Corporal Whitman’s omissions — Kristine’s whispering, the CHP dispatcher’s belief the call was secret, and the county dispatcher’s return calls going straight to voicemail — may have provided additional context for the Gunds to suspect they might encounter a dangerous situation. But these omissions do not change our conclusion that Corporal Whitman’s request was that the Gunds respond to a 911 call for unspecified help — a typical law enforcement task often associated with investigation of possible criminal activity, response to such activity, or protection of the public.6 (See, e.g., Crumpler, supra, 32 Cal.App.3d at p. 577, citing 22 Ops.Cal.Atty.Gen. at p. 229.)
Under these circumstances, Corporal Whitman requested that the Gunds assist in active law enforcement service, and the Gunds were injured in the course of providing that service.
III.
We have established that the state has liability for the Gunds’ injuries under workers’ compensation because they were injured in the course of assisting with active law enforcement service at the request of a peace officer. The Gunds nonetheless argue that any misrepresentation by the requesting officer about the nature of the risk involved trumps the application of this statutory test.
Corporal Whitman’s misrepresentations matter, the Gunds allege, because whether they engaged in active law enforcement depends in part on what they subjectively believed to be true about Kristine’s 911 call and their provided service. To support this proposition, the Gunds rely on the plurality opinion in People v. Ray (1999) 21 Cal.4th 464 (lead opn. of Brown, J.) (Ray). This reliance is misplaced. Ray is a Fourth Amendment case concerning the community caretaking function exception to the warrant requirement for a search. (See id. at pp. 467-468.) In the Fourth Amendment context, a plurality opinion concluded that the community caretaking exception to the warrant requirement does not apply where a stated reliance on property protection is pretext for a crime-solving rationale. (Id. at p. 477.) There, the subjective and reasonable belief of the officer directs whether the exception applies. (Id. at pp. 476-477.)
The Gunds seem to imply that misrepresentations matter because they bear on whether an individual subjectively understood the hazards involved in assisting an officer. This approach risks consequences that are difficult to justify. Under their approach, the subjective understanding of an individual request would be central to our analysis. That would potentially leave individuals providing the same type of assistance with different coverage determinations depending on the specifics of a request or the individual’s ability to assess the risks inherent in the type of requested service.
The Gunds additionally contend that
Furthermore, even when an employer intentionally conceals and misrepresents hazards in order to induce an individual to accept employment, workers’ compensation is the individual’s exclusive remedy. (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 157-158
A plaintiff may, however, allege a tort claim under circumstances not argued here. A plaintiff may pursue tort claims for intentional misconduct that has only a questionable relationship to the employment, an injury that did not occur while the employee was performing a service incidental to and a risk of the employment, or where the employer stepped out of its proper role. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 702, 713 (Fermino) [citing Cole, supra, 43 Cal.3d at p. 161].) These types of injuries are beyond the compensation bargain. (Fermino, supra, 7 Cal.4th at p. 714.) But these are not the types of injuries the Gunds assert. Their assertion that Corporal Whitman’s misrepresentations caused their injuries turns on his state of mind and does not present a case in which he engaged in some conduct beyond the employment-like relationship created by
Simply alleging a request for assistance contained a misrepresentation, without more, does not preclude application of
IV.
No one disputes the Gunds were selfless neighbors and, when carrying out Corporal Whitman’s request, model citizens. With little information, they agreed to help their neighbor in a time of need. And they suffered mightily for providing that help. But we cannot fashion a rule that somehow shrinks the scope of workers’ compensation for the Gunds — effectively leaving them with no remedy at all for their injuries if they lack a viable tort claim — while keeping it robustly consistent with its legislatively determined scope for countless other volunteers. When injuries to a volunteer trigger provisions making society bear the cost of those harms through workers’ compensation, this means greater protection for volunteers assisting law enforcement, and greater clarity for society about the costs it must bear through its institutions when harms tragically occur. Because the help the Gunds provided was active law enforcement service, and the workers’ compensation bargain offers protection with one hand even as it removes access to civil recourse with the other, the only remedy available to the Gunds is through workers’ compensation. This outcome makes it easier for police to benefit from the public’s help, and ultimately, for the public to benefit from the police’s help.
So we affirm the judgment of the Court of Appeal.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GUND v. COUNTY OF TRINITY
S249792
Dissenting Opinion by Justice Groban
On a small ranch in a remote area, near the end of winter, Norma Gund received an unexpected call from Trinity County Sheriff’s Corporal Ronald Whitman. Corporal Whitman told Ms. Gund that her neighbor had called 911 asking for unspecified help. After learning that Ms. Gund and her husband, James Gund, had been to the neighbor’s house “many times” before to help the prior owner with weather-related events such as “snow and fallen trees,” Corporal Whitman remarked “There’s a big storm coming. That must be what this is all about. It’s probably no big deal.” The Gunds are a middle-aged couple who have no law enforcement training or experience. But, having heard Corporal Whitman’s assessment that the 911 call “must be” weather related and was “probably no big deal,” the Gunds readily obliged with his request to go check on their neighbor.
Oblivious to any potential risk and thinking she was about to assist a neighbor with a nondangerous task, Ms. Gund entered the neighbor’s house alone and unarmed while Mr. Gund waited in the car. Inside the house, a murderer had just killed the Gunds’ neighbor and her boyfriend. The still-present murderer immediately attacked Ms. Gund with a stun gun and a knife, brutally slashing her throat and face. Upon hearing the commotion, Mr. Gund got out of the car and approached the house. He saw the murderer cutting his wife and, when he ran inside to try to protect her, the murderer began to attack Mr. Gund. Ms. Gund fled the scene and frantically drove to a nearby store to seek help. Meanwhile, Mr. Gund fought for his life as the murderer repeatedly “Tased” him, punched him, and cut his throat. Somehow, Mr. Gund managed to wrestle the knife out of the murderer’s hands and escaped by running through the woods back to his home. The Gunds suffered near-fatal injuries but miraculously survived.
Based on the belief that the Gunds were providing “active law enforcement service” (
I disagree.
I. DISCUSSION
I begin by noting the points on which I agree with the majority, as our agreement is considerable. I agree with the majority’s proposed two-part test to determine whether
objective inquiry. (Id. at pp. 20, 30–31.)1 Finally, I agree that a request to investigate possible criminal activity is a request for active law enforcement service. (Maj. opn., ante, at p. 25.)
My disagreement lies with the majority’s conclusion that the “specific details” of the exchange between Corporal Whitman and Ms. Gund “do not change the essential nature of his request.” (Maj. opn., ante, at p. 26.) In my view, the details change everything. The majority frames its test to determine whether something qualifies as active law enforcement service at an exceedingly high level of generality, first by describing the phrase as “capacious” (id. at pp. 11, 14, 19, 25, 35) and then by focusing on only the “essential nature of the requested task” (id. at p. 27, fn. 5). But if we agree that “‘the words, facts, and context’ of a peace officer’s request” matter (ibid.), then the “specific details” (id. at p. 26) of the exchange between Ms. Gund and Corporal Whitman should matter too. I do not understand why the majority limits its inquiry by excluding any analysis of what the parties objectively understood about the nature of the requested task. While I agree with the majority that the inquiry is objective, I would formulate the objective
While I believe many requests to respond to a 911 call of an uncertain nature will objectively be understood as a request for assistance with active law enforcement service, Corporal Whitman’s request was different. Corporal Whitman expressly characterized the nature of the call, assuring Ms. Gund that the request “must be” about “a big storm coming” and was “probably no big deal.” He also failed to relay to Ms. Gund critical details of the 911 call that would make her aware of the true nature of the request and the potential danger. The majority believes that this context does not matter. I believe it is crucial. Indeed, the Legislature recognized in enacting
I also cannot accept the majority’s conclusion that Corporal Whitman’s alleged omissions would simply have provided “more information” to the Gunds. (Maj. opn., ante, at p. 31.) This, in my view, is a significant understatement. The majority and I agree that the inquiry here is an objective one, but I believe that this inquiry should take into account the relevant facts
To accept the majority’s holding that the Gunds were asked to and did in fact engage in an inherently dangerous law enforcement task, one must accept its implicit suggestion that the Gunds acted incredibly recklessly by having Ms. Gund walk in to the home unarmed, with little or no preparation, while her husband waited in the car. One must also accept the majority’s implicit, if not explicit, assumption that Corporal Whitman asked two untrained, unarmed middle-aged civilians to risk injury or death to “investigate and prevent crime, enforce the laws, and protect the public” (maj. opn., ante, at p. 26) without the aid of trained law enforcement officers. Even the Trinity County Sheriff’s Department denied that it would ever do such a thing, stating in a press release issued shortly after the incident that it would never “send a citizen to perform a Deputy’s job.” (Sabalow, This couple was attacked by knife-wielding killer. Did their sheriff put them in harm’s way?, Sacramento Bee (Aug. 29, 2018) <https://www.sacbee.com/latest-news/article216246885.html> [as of August 27, 2020] (hereafter Sabalow).)3 I believe that a reasonable person, upon hearing Corporal Whitman’s description of the 911 call — which characterized the call as “no big deal” and weather related and omitted crucial details that would have alerted the Gunds to the potential danger — would not have understood Corporal Whitman’s request to be seeking help with “the investigation and prevention of criminal activity.” (Maj. opn., ante, at p. 22.)
The majority at one point suggests that misrepresentations may matter if they alter the “essential nature of the requested task” (maj. opn., ante, at p. 27, fn. 5; see id. at p. 28, fn. 6), but then it later implies that misrepresentations are irrelevant since workers’ compensation is the exclusive remedy even where employees allege that their employers intentionally
I do not mean to suggest that Corporal Whitman intentionally misrepresented the true nature of the situation or wished the Gunds any harm. Corporal Whitman was hours away from the 911 caller’s home and may have simply been trying to find a solution to a very difficult dilemma. Nevertheless, as a general matter, if a peace officer’s misrepresentations and omissions regarding the nature of the 911 call or the requested assistance may be ignored (see maj. opn., ante, at pp. 31–32), then a peace officer could intentionally lie about the potential danger involved and assure the civilian that no harm will come to him or her, and the civilian still would be unable to pursue a remedy in tort. Under the majority’s holding, if the peace officer requests assistance with a task that entails a possibility of requiring a law enforcement response, then the civilian is bound by
To illustrate this quandary further, consider the disparate results that would likely result under the majority’s holding in the following two scenarios: Suppose a peace officer requests a civilian to help a neighbor who was having trouble starting her car, even though the officer knew the caller had reported an armed intruder. The majority would likely hold that because the peace officer’s misrepresentation “alter[ed] the essential nature of the requested task” (maj. opn., ante, at p. 27, fn. 5),
I also disagree with the majority’s conclusion that the Gunds were “enforcing the laws, investigating or preventing crime, or providing public protection.” (Maj. opn., ante, at p. 34.) Neither Ms. Gund (who thought that her neighbor might be having “trouble with her wood-burning stove”), Mr. Gund (who let his wife walk into the neighbor’s house while he waited in the car), Corporal Whitman (who said the call “must be all about” “a big storm coming”) nor the Trinity County Sheriff’s Department (which said it would never “send citizen to perform a Deputy’s job” (Sabalow, supra, at <https://www.sacbee.com/latest-news/article216246885.html>)) thought the Gunds were “assuming the law enforcement duties and risks of police officers.” (Maj. opn., ante, at p. 20.) When peace officers perform active law enforcement service, they do so knowingly and with some level of preparation. Similarly, in those few cases in which we have analyzed whether certain civilians were entitled to workers’ compensation when they were commanded to assist in a law enforcement task, those civilians knew they were assuming the functions and risks of a peace officer and were at least somewhat prepared to do so. (See, e.g., Monterey County v. Rader (1926) 199 Cal. 221, 223 [civilian was given a firearm and was led by trained officers in attempting to capture criminals].) Here, in contrast,
And the Gunds were right not to assume that their response to the 911 call would require them to “enforce[] the laws, investigat[e] or prevent[] crime, or provid[e] public protection” (maj. opn., ante, at p. 34) since most 911 calls do not involve criminal activity. (Neusteter et al., The 911 Call Processing System: A Review of the Literature as it Relates to Policing, Vera Institute of Justice (July 2019) p. 34 [most 911 calls “are unrelated to crimes in progress”].) The Sacramento Police Department reports that its officers have spent only 4 percent of their time this year responding to calls reporting violent crimes and only 19 percent of their time responding to calls reporting nonviolent crimes. (Asher & Horwitz, How Do the Police Actually Spend Their Time?, N.Y. Times (June 19, 2020) <https://www.nytimes.com/2020/06/19/upshot/unrest-police-time-violent-crime.html> [as of August 27, 2020].) Similarly, of the nearly 18 million 911 calls logged by the Los Angeles Police Department in 2010, less than 8 percent reported violent crimes. (Rubin & Poston, LAPD responds to a million 911 calls a year, but relatively few for violent crimes, L.A. Times (July 5, 2020) <https://www.latimes.com/california/story/2020-07-05/lapd-911-calls-reimagining-police> [as of August 27, 2020].) The Gunds were not entering their neighbor’s house to perform an inherently dangerous law enforcement task. Instead, the Gunds reasonably understood that they were being asked to provide neighborly assistance with a weather-related problem and tragically stumbled into a murder scene.
The majority purposefully avoids “[d]rawing precise lines to define” what tasks would fall within “active law enforcement service” (maj. opn., ante, at p. 25) and instead repeatedly describes the phrase as being “capacious” (id. at pp. 11, 14, 19, 25, 35). Nonetheless, the majority nowhere suggests that assisting a neighbor with snow, a fallen tree, a wood-burning stove, or some other weather-related problem objectively qualifies as active law enforcement service. Nor could it reasonably do so given that, as the majority acknowledges, the phrase “active law enforcement service” as used elsewhere in the Labor and Government Code has long been defined as encompassing “a peace officer’s duties directly concerned with functions such as enforcing laws, investigating and preventing criminal activity, and protecting the public.” (Maj. opn., ante, at p. 22; see also Kimball v. County of Santa Clara (1972) 24 Cal.App.3d 780, 785 [active law enforcement service encompasses particularly hazardous job functions undertaken for the protection of the public].) The court in Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, for example, held that animal control officers who are hired by the police department, wear uniforms, and carry guns do not principally perform “active law enforcement service” because they do not deal with hazardous crimes “against persons and property.” (Crumpler, at p. 579.) The court found persuasive an Attorney General opinion — one which was issued 10 years prior to
I am additionally unpersuaded by the majority’s policy rationales for its holding. The majority reasons that “quicker availability of [workers’ compensation] benefits can incentivize individuals to oblige a peace officer’s request for help, because they will ostensibly be less concerned with the financial consequences of potential injury or death.” (Maj. opn., ante, at p. 19.) Though a person might conceivably be motivated to assist a peace officer based on the availability of workers’ compensation, I am skeptical that the average civilian would make a quick assessment of possible tort or statutory recovery outcomes before complying with a peace officer’s request. As noted above, the Legislature recognized that most people will feel compelled to assist peace officers as part of their “civic duty” and regardless of whether compensation for their injuries might be available. (Second Supp. To Mem. 23, supra, at p. 1.) I certainly cannot imagine that the Gunds were thinking about the ready availability of workers’ compensation when they agreed to check on their neighbor at Corporal Whitman’s request. Moreover, the rule embraced by the majority — one that allows peace officers to omit crucial information or even to lie in order to convince civilians to render assistance without risking tort liability — will only disincentivize civilians from agreeing to help. (See Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 298 [“‘The abuse of a patrolman’s office can have great potentiality for social harm’”]; Schuster v. City of New York (1958) 5 N.Y.2d 75, 80–81 [154 N.E.2d 534] [the government “owes a special duty to use reasonable care
More fundamentally, I am wary of the majority’s tendency to view the availability of workers’ compensation as beneficial to civilians, no matter the circumstances. (See maj. opn., ante, at pp. 15–19.) The so-called workers’ compensation bargain is just that — a bargain. “It should not be viewed as a victory of employees over employers.” (Friedman & Ladinsky, Social Change and the Law of Industrial Accidents (1967) 67 Colum. L.Rev. 50, 71.) Workers’ compensation may be “a simpler path to compensation” for the Gunds (maj. opn., ante, at p. 33), but it is not their preferred path, which is why they so vigorously oppose its application here. The majority’s ruling precludes the Gunds from seeking “pain and suffering” damages (San Bernardino County v. State Indus. Acc. Commission (1933) 217 Cal. 618, 625), which includes damages to compensate them for their physical pain as well as any “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal” they have suffered since becoming the victims of a particularly brutal attack (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893). I do not think anyone doubts that the Gunds have suffered considerable pain and suffering as a result of this horrible crime, but the majority’s holding will not allow them to be compensated for it. The Gunds will also be unable to seek punitive damages to compensate them for defendants’ alleged wrongdoing. (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 478.)
The majority worries about creating a rule that looks closely at the specific details and context of the peace officer’s request, believing this would open the door for defendants to refuse to provide workers’ compensation by claiming that the request did not specifically seek assistance with a law enforcement task. (Maj. opn., ante, at p. 28, fn. 6.) While this is a legitimate concern, I believe it is overstated. The facts of this case are incredibly unique and are unlikely to recur. Many cases in which a peace officer seeks a civilian’s assistance in responding to a 911 call of an uncertain nature will likely fall within the scope of
We need not decide how every factual scenario, however unlikely or bizarre, might be decided under this highly esoteric statute. In this case, Corporal Whitman affirmatively described the call as weather related and assured Ms. Gund that the call was “probably no big deal” while also failing to disclose the details of the call that would have revealed the potential danger and need for law enforcement service. The Gunds had every reason to believe Corporal Whitman and almost lost their lives in doing so. They should not lose their tort claims as well.
II. CONCLUSION
In sum, I agree with the majority that
GROBAN, J.
I Concur:
CHIN, J.