Dispatched to check on 911 call, injured couple can’t collect damages

A middle-aged couple who were brutally attacked when they stumbled upon a double homicide at their neighbor's residence after a sheriff's officer asked them to perform a welfare check are only entitled to a workers' compensation payout, the California Supreme Court ruled Thursday.

The 36-page majority opinion authored by Justice Mariano-Florentino Cuellar found that James and Norma Gund were engaged in "active law enforcement" by responding to the call from Trinity County Sheriff's Cpl. Ron Whitman in 2011. The ruling affirmed a 3rd District Court of Appeal panel that limited the Gunds to workers' compensation benefits instead of the $10 million in damages they sought. Gund et al., v. County of Trinity et al., 2020 DJDAR 9463 (Cal. Sup. Ct. Filed Aug. 27, 2020).

"When the Gunds provided the requested assistance, they delivered an active response to the 911 call of a local resident pleading for help," Cuellar wrote. "A response of this kind unquestionably falls within the scope of a police officer's law enforcement duties."

California Chief Justice Tani G. Cantil-Sakauye and Justices Carol A. Corrigan, Goodwin H. Liu and Leondra R. Kruger concurred.

Justice Joshua P. Groban dissented, joined by Justice Ming W. Chin.

"In my view, the details change everything," Groban wrote, saying Whitman omitted crucial facts that might have deterred the Gunds from entering the property alone. He noted that Whitman failed to tell Norma Gund the neighbor had repeatedly whispered "help me" on the 911 call and that the California Highway Patrol dispatcher believed the neighbor had been trying to call secretly.

In contacting the Gunds, Whitman mentioned an impending snowstorm and said the neighbor, a young city woman who recently moved to the remote area, had asked for help. The Gunds had told Whitman they had helped their new neighbor during storms in the past. Whitman responded, "That must be what this is all about. It's probably no big deal," according to court records.

"The majority believes that this context does not matter," Groban added. "I believe it is crucial."

When Norma Gund entered the home, she was attacked by the man who had just murdered her neighbor and the woman's boyfriend. Gund's throat and face were slashed with a knife, and she was hit with a stun gun. When James Gund tried to intervene, he was tased, punched and had his throat cut, records show. The killer fled in a high-speed car chase that resulted in his death.

The Gunds filed a civil suit in Trinity County Superior Court alleging Whitman sought to secure their assistance by misleading them that their neighbor's call was probably weather-related, knowingly withholding facts that the nature of the call showed otherwise.

Judge Richard Scheuler ruled that the Gunds, under Labor Code Section 3366, were engaged in "active law enforcement" when they accepted Whitman's request to respond to the 911 call and that workers' compensation was their exclusive remedy for the injuries they sustained. That ruling was affirmed in 2018 by the appellate panel, which held Whitman did misrepresent the nature of the call but that didn't change the outcome in the trial court. Gund v. County of Trinity et al., 2018 DJDAR 5443.

Section 3366 states that a person "engaged in assisting a peace officer in active law enforcement at the request of such peace officer" is deemed a public employee. The high court reasoned that Whitman requested active law enforcement service to check on the neighbor and that the Gunds, by responding, provided that service as public employees.

The high court further reasoned that the definition of "active law enforcement service" has a much broader meaning under the Labor Code than simply arresting criminals and suppressing crime, rejecting the Gunds' argument that a reasonable person wouldn't interpret Whitman's request as a call to duty.

"We conclude that 'active law enforcement service' includes a peace officer's duties directly concerned with functions such as enforcing laws, investigating and preventing crime, and protecting the public," Cuellar wrote. "Responding to a 911 call for unspecified help serves a vital public protection purpose."

Rural County Representatives of California, amici for Trinity County, had argued in filings that in counties where the nearest sheriff's deputy can be as far as 100 miles away, which was the case for Whitman, law enforcement relies on community members to assist them.

And prior to this January, when Penal Code Section 150 was repealed, it was a misdemeanor for a civilian to refuse to provide that assistance, the majority opinion noted.

While the majority ruled that the specific details of the exchange between Whitman and the Gunds did not "change the essential nature of his request," Groban concluded that the majority did not consider "the words, facts and context" of the request and how the details Whitman omitted led to the Gunds unknowingly placing themselves in danger.

The majority did conclude that it would have been reasonable for the Gunds to suspect they might encounter a dangerous situation based on what wasn't said. "But these omissions do not change our conclusion that Corporal Whitman's request was that the Gunds respond to a 911 call for help."

The ruling lifted the stay of a federal suit the Gunds filed in 2013 in Sacramento alleging 14th Amendment violations.

"We will continue to fight to right this horrific wrong," said Benjamin H. Mainzer of Bragg, Mainzer & Firpo, LLP, Plaintiffs' attorney, in an email.

The defendant's attorney, John R. Fleetwood of Porter Scott, could not be reached Thursday.