No damages for civilians aiding deputy

A Trinity County couple is entitled only to workers' compensation after being attacked when they walked in on a double homicide in their neighbor's house at a deputy sheriff's request a state appellate panel ruled.

Despite the deputy allegedly misrepresenting the nature of the crime to the plaintiffs, the 3rd District Court of Appeal panel ruled that James and Norma Gund were injured as volunteer law enforcement officers after the sheriff's office asked them to check on their neighbor waiving their right to tort relief. The neighbor had phoned 911.

In their complaint, the Gunds sought $10 million in damages, accusing the deputy sheriff -- Ron Whitman -- and the county of negligence and misrepresentation, alleging they created a special relationship with the Gunds and owed them a duty of care.

James Gund was repeatedly punched and tasered in addition to having his throat cut, according to the plaintiffs' attorney, Benjamin H. Mainzer of Zwerdling, Bragg & Mainzer. Norma also sustained "serious life-threatening injuries" after the killer pinned her to the floor, he added.

"Although the deputy misrepresented that the 911 call was likely weather-related and omitted facts suggesting potential criminal activity, the deputy's misrepresentations and omissions are irrelevant to our construction of the statute at issue here," wrote Justice Harry E. Hull, who authored the opinion. "All that matters is that plaintiffs knew they were responding to a 911 call, the nature of which was not certain."

Plaintiffs were assisting in "active law enforcement" under state Labor Code 3366 when Whitman asked them to investigate the neighbor's 911 call because he was "hours away" from the residence, according to Hull. Gund et al v. County of Trinity et al., 2018 DJDAR 5443.

The labor provision provides that any 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 ... and is entitled to receive compensation."

Worker's compensation is the exclusive remedy for work-related injuries, according to Trinity County Superior Court Judge Richard Scheuler, who granted summary judgment. .

"Defendants argue these cases discussing 'active law enforcement' simply use the term as a way of identifying the main duties of a peace officer, and here it is undisputed that a deputy sheriff responding to 911 calls is active law enforcement," Hull said. "Therefore, by responding to the 911 call on the deputy's behalf, plaintiffs were engaged in assisting in active law enforcement."

"Defendants' conduct as alleged herein was despicable conduct," plaintiffs' attorney Mainzer wrote in court documents, "and was carried on by defendants with a willful and conscious disregard of the rights and safety of plaintiffs. Defendants' conduct subjected plaintiffs to cruel and unjust hardship in conscious disregard of plaintiffs' rights."

Neither Mainzer nor John R. Whitefleet of Porter Scott, who represented the defendants, could be reached Tuesday. Messages seeking comment were left with their assistants because they were in court.

Acting Presiding Justice Cole Blease and Justice Jonathan K. Renner concurred in the opinion.

The Gunds contended that Whitman misled them by asserting that the call was "probably no big deal" and likely related to inclement weather, according to Mainzer. The labor code should be inapplicable because "reasonable persons would not believe themselves to be engaged in active law enforcement" and that checking on a neighbor does not constitute such activity, he added in court documents.

But since the deputy would have engaged in active law enforcement had he responded to the inquiry, plaintiffs were also engaged in active law enforcement when they responded to the call on his behalf, regardless of alleged misrepresentations, according to Hull.

Plaintiffs also filed a federal civil rights suit in the Eastern District, which is stayed pending resolution of the state court's litigation, alleging 14th Amendment violations.