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Understanding The Responsibilities Public Entities Have To Keep Users Safe

In California, cases against public entities operate under a different set of procedure laws.  This includes cases against the State of California, cities, counties, public hospitals, public transit, and other public entities.  Attorneys handling these cases must be knowledgeable about these special laws.

Some important laws related to the statute of limitations in cases against public entities in California include:

Claim Required Within Six (6) Months

Any case “for money or damages” against a public entity or employee requires a claim to be presented to the entity in accordance with the Government Claims Act and the entity must reject it before victims can file a lawsuit. (See Govt C §945.4.)  Claims for injury to person, property, or crops must be presented to the proper public entity within six (6) months of the accrual of the cause of action, which is usually the date of the incident.  Claims for all other injuries must be presented to the proper public entity within one (1) year of the accrual of the cause of action. (See Govt C §911.2(a).)  The complete claims procedure is complex and may serve as a trap for the unwary.

After receiving a claim, the public entity must act on it — either reject it, accept it, or return it as late within the same period (See Govt C §§911.3–911.4, 912.4–912.8, 913.)  See below for the timing of filing a lawsuit if the public entity rejects the claim.

If someone does not present a claim within six (6) months of the accrual of the cause of action (usually the date of the incident), they may apply to the public entity for leave to present a late claim within a reasonable time not to exceed one (1) year after accrual of the cause of action. (See Govt C §911.4.)  If the public entity denies the application for leave by either notice or inaction, the claimant may then petition the court for an order for relief from the claims presentation requirements. (See Govt C §946.6.)  The petition must be filed with the court within six (6) months after the application is denied by the public entity. (See Govt C §§946.6(b) and 911.6.)   If the court grants relief from the claims presentation requirement, the plaintiff must file suit within 30 days of any order granting relief.  (See Govt C §946.6(f).)

Lawsuit Timing

If the public entity rejects the claim, the plaintiff must file suit within six (6) months after the date the public entity serves the notice of rejection of the claim. (See Govt C §945.6(a)(1).)  If the public entity does not serve a notice of rejection within 45 days of the presentation of the claim, the action may be filed within two (2) years from the date of the accrual of the cause of action. (See Govt C §945.6(a)(2).)

The attorneys of Abramson Smith Waldsmith LLP, have represented numerous clients against California public entities, from a state champion diver who suffered a cervical fracture that resulted in quadriplegia in a publicly owned pool in Walnut Creek (link) to dangerous roadway cases against Caltrans (link).  Robert J. Waldsmith is a frequent lecturer on suits against public entities and government tort liability.  Mr. Waldsmith also is the co-author of the California Government Tort Liability Practice handbook published by the Continuing Education of the Bar, the preeminent manual for practitioners handling cases against public entities, from 2007 to the present time. (https://store.ceb.com/california-government-tort-liability-practice.

We have helped many clients with claims against public entities, and examples of some of the cases ASW has handled include:

Public Entity Liability

Diver v. City of Walnut Creek – $27,750,000 verdict

 Jury verdict for diver who became a quadriplegic after striking swimmer while practicing dives in a public pool and suffered a cervical fracture and dislocation

$27,750,000 jury verdict in Contra Costa County Superior Court in Martinez for a 19-year-old California State diving champion diver who suffered a cervical compression fracture and dislocation and rendered an immediate quadriplegic when he collided with a synchronized swimmer while practicing a high dive at Heather Farms dive pool in Walnut Creek, Contra Costa County.  As our diver sprung off the diving board to practice a dive, he did not see that a synchronized swimmer swam out from under the diving board and into his landing area.  His head struck the rear of the swimmer, causing the cervical fracture and dislocation, and his permanent paralysis.

The City of Walnut Creek owned the dive pool and rented it concurrently to both a dive team and a synchronized swimming team for practices without any means of separating the two inconsistent uses, such as deploying floating lane lines, creating a dangerous condition of public property.  The City of Walnut Creek failed to take any responsibility for the incident, and blamed the diver, his coach, the 15-year-old synchronized swimmer who collided with our client, and her coach for causing the incident.  At trial, our firm showed that the City of Walnut Creek was primarily responsible for the incident.

Motorcyclist v. Caltrans – $3,000,000

 Traumatic amputation of motorcyclist’s foot when struck by a left-turning vehicle.

$3,000,000 for our 50-year-old client, who was riding a motorcycle El Camino Real in Burlingame when a vehicle driven by Defendant Qun Tang attempted a left turn at Floribunda Avenue and struck our client, causing a traumatic below-the-knee (BK) amputation to his left leg.  The State of California (“Caltrans”) owns, maintains and controls El Camino Real.  Caltrans knew that the very narrow roadway caused obstructed views of opposing vehicles and created a dangerous condition.  During the 10 years before the incident, Caltrans data showed that more than 100 collisions occurred at this intersection and that more than 60 of those collisions were correctable with a left turn lane and protected left turn signal phases.  Yet, Caltrans failed to do anything to remedy the dangerous condition.  A simple sign prohibiting left turns would have been easy and inexpensive, and would have prevented this collision.

Minor Passenger v. County of Tulare – $3,030,000

 2-year-old suffered TBI in auto collision after a driver ran a stop sign obscured by an overgrown palm tree

$3,030,000 settlement for 2-year-old who rode as a backseat passenger as his parents  drove home from the father’s softball game in Visalia, Tulare County, with their son in a booster seat in the right rear passenger seat.  As they drove on Orange Belt Drive in Strathmore, another driver did not stop at a stop sign and collided with our clients’ car.  The stop sign was completely covered by palm fronds from a palm tree planted directly in front of the sign on Tulare County’s right-of-way.  The first responders immediately cut back the palm tree to prevent such an accident from occurring again.  The two-year old suffered a traumatic brain injury, including a frontal lobe parenchymal hemorrhage, subarachnoid hemorrhage, and a midline shift.  Our firm brought a case against the driver of the vehicle that ran the stop sign and against County of Tulare for creating a dangerous condition of public property due to its inadequate inspections and maintenance of its stop sign.  The driver paid her policy limits of $30,000 and the County of Tulare paid $3,000,000 to settle the case.

Student v. Turlock Unified School District – $6,000,000

 Student knocked over by another student playing tag, causing her to strike her head and suffer a severe TBI.

Our client, a student at Dennis Earl Elementary School within the Turlock Unified School District in Stanislaus County, suffered an occipital skull fracture and a significant traumatic brain injury with frontal and subarachnoid hemorrhage when she was knocked backwards by another student playing tag and the back of her head slammed against the concrete walkway.  School personnel negligently failed to supervise and control the conduct of their students on campus before class by allowing them to play a game against school rules in an uncontrolled manner, then negligently failed to provide necessary medical care to our client for over two hours after her injury which allowed her brain injury to worsen.  The damage to her frontal lobe caused permanent deficits in cognitive ability, memory and attention.  The Turlock Unified School District settled the case for $6,000,000.

Student v. School

10-year-old boy suffered a TBI when he ran into crossbeam on a partially installed fence while playing on a school playground

While playing tag during recess at Rivergold Elementary School (part of the Yosemite Unified School District) in Coarsegold, California, our client, a 10-year-old 5th grader, collided with a horizontal metal pole of a partially installed chain link fence.  The pole, virtually invisible to the student, “clotheslined” him at his upper chest and he landed on his head.  The fence, immediately adjacent to the playground, should not have been left mid-construction without adequate barriers and warnings by defendant Torres Fence Company, located in Fresno.  As a result of the incident, our client suffered a lacerated scalp and a mild traumatic brain injury, including a subdural hematoma in the right frontal region, and a small midline shift.  He had persistent symptoms of post-concussive syndrome, including headaches, blurred vision, and fatigue, as well problems with his memory, concentration, and reading comprehension.

Disabled Passenger v. Public Paratransit Service – $5,000,000

 Wheelchair passenger with pre-existing double leg amputations fell while exiting paratransit van, causing complete tears of his rotator cuffs in both shoulders

$5,000,000 for a pre-existing double upper leg amputee who relied on public paratransit services to get around.  He had a manual wheelchair that required the use of his arms to move its wheels.  Upon arrival at his destination during one trip, the paratransit driver extended the wheelchair ramp, unsecured the wheelchair from the anchor points in the van, moved him to the top of the ramp, then walked away.  She left our client at the top of the ramp to negotiate rolling down the ramp himself, rather than assist the wheelchair down the ramp backwards as was the company’s policy.  As his wheelchair rolled down the ramp, it gained too much speed and when the front wheels hit the pavement, it tripped the chair and caused our client to fall forward onto his outstretched arms.  The impact caused complete tears of the rotator cuffs in both his shoulders, a devastating injury as he relied heavily on his shoulders to perform activities of daily living, including operating his wheelchair and transferring in and out of his wheelchair.  After a half dozen surgeries, our client had limited use of his shoulders.

Family v. City of Oakland – $1,500,000

$1.5 million settlement against the City of Oakland for the wrongful death of a mother and daughter in a home invasion robbery

Our firm represented the surviving family members in a wrongful death case after a mother and her 18-year-old daughter were killed during a home invasion robbery. Intruders tied up the mother and did not realize that the daughter had locked her bedroom door, hid in her closet, and called 9-1-1. Oakland Police Officers quietly surrounded the home. Without knowing whether or not the intruders were still inside the home, one responding officer communicated instructions to the 9-1-1 operator to have the girl to come out of her locked bedroom and ensured that it was safe to do so. When the girl opened her bedroom door, she startled the intruders, who began to chase her through the house. As the girl approached the backdoor one of the intruders shot and killed her, then killed her mother.  The intruders surrendered to the police that had surrounded the home.  Six years after the incident, the Alameda County District Attorney office handed the surviving family members a transcript of the 9-1-1 call at the start of the long-delayed penalty phase trial.  Until that time, the surviving family did not know that the actions of the Oakland Police led to the two deaths.  The San Francisco Chronicle described the $1.5 million settlement as the City of Oakland’s largest payout for a police negligence case. Click here to read more about the case on the Oakland City Attorney’s website.

January 16, 2001
XXXXXX vs. City of Oakland, et al.
Oakland, CA—On January 16, 2001 in closed session, the Oakland City Council unanimously approved settlement of the above-entitled action for the sum of One Million Five Hundred Thousand Dollars ($1.5 million), payable to XXXX and their attorneys of record, Robert Waldsmith and William Smith.

This lawsuit arises from a September 10, 1991 home invasion robbery that resulted in the deaths of XXXX and her daughter XXXX. Oakland police officers responded to a 911 telephone call from XXXX in which she reported that several intruders had entered her home. After taking up positions outside the home, the officers concluded that the intruders had left and directed XXXX to leave the bedroom where she had been hiding. Complying with the instructions of the police, Ms. XXXX left her bedroom and was chased and shot by one of the robbers. Apparently unaware that the house was surrounded by police, the intruders then killed XXXX’s mother, XXXX, in order to avoid having a witness to the first murder.

This settlement is a risk management decision by the City Council. The City does not admit liability and the settlement is a compromise of the City’s and the plaintiffs’ interests in this matter to avoid the costs of litigation and the risk of possible adverse judgment.

Students v. City and County of San Francisco – $947,665

 Two girls suffered severe injuries to lower legs, including multiple fractures, when driver lost control of his vehicle in a school courtyard used as a parking lot

Our firm represented a family that attended the annual winter orchestra concert at Presidio Middle School between Geary Avenue and Clement Street when a driver attempting to exit a courtyard used for parking collided other vehicles pinning the two daughters of the family between and under vehicles.  The two girls suffered serious injuries, including compound fractures of the lower legs.  Our firm brought a case against the negligent driver, Leonard Ho, and against the San Francisco Unified School District created a dangerous condition of public property by allowing cars to park in a small courtyard not designed for parking without any safety measures to protect the pedestrians as they mixed in the congested area.  The case settled for $947,665.

Bicyclist v. Eastern Contra Costa Transit Authority

Bicyclist lost control when bus drove too close to him, causing serious injuries

During a morning bike ride with friends, our client was forced to veer into a fellow cyclist when an Eastern Contra Costa Transit Authority public bus failed to provide adequate space as it passed on the left.  The collision rendered our client’s bicycle instantly inoperable, causing him to crash and sustain multiple serious injuries.

Since the time of this case, California passed the Three Feet for Safety Act, California Vehicle Code section 21760, which requires that drivers maintain a minimum 3-foot buffer when passing a bicyclist.

Family v. City and County of San Francisco – $15,000,000 verdict

 Tenants perished in fire in San Francisco Housing Authority public housing unit.

$15,000,000 jury verdict in San Francisco Superior Court against the City and County of San Francisco and a furniture manufacturer in a wrongful death case involving multiple deaths in a public housing unit due to a disabled smoke detector and very flammable furniture that contained polyurethane foam which gave off toxic cyanide, preventing the occupants to escape the burning apartment.

Family v. Caltrans – $10,000,000

Two family members suffered serious impalement injuries when the father fell asleep at the wheel, veered off the freeway and struck the end of a guardrail which had been installed backwards by Caltrans, creating a substantial hazard.

A father fell asleep at the wheel with his son in a child seat in the backseat of a van that veered off the freeway into the end of a guardrail. Caltrans installed a guardrail backwards, causing it to provide no protection and instead created a sharp spear that penetrated the front of their vehicle and through the driver’s compartment and into the rear seat.  The guardrail impaled both occupants, traumatically amputating the father’s leg and internal injuries to his son.  Caltrans settled the case for $10,000,000.

Family v. Caltrans – $1,250,000

 Wrongful death of driver who lost control due to patch of black ice in roadway resulting in fatal collision after Caltrans failed to de-ice roadway or warn of danger.       

$1,250,000 settlement against Caltrans in a wrongful death case arising out of a head-on collision that occurred on State Route 299 at Berry Summit, the highest peak in Humboldt County, which connects Eureka with Willow Creek.  The decedent’s vehicle lost traction with the roadway’s surface due to the presence of a patch of black ice, slid sideways into oncoming traffic and collided with an on-coming truck.  Despite the forecast for freezing temperatures, the Caltrans crew monitoring the roadway failed to use any deicing material or warn motorists of ice on the road.  During discovery, our firm learned that critical Caltrans employees were sleeping on the job.

Passenger v. Caltrans – $5,500,000

Passenger in a rollover accident suffered cervical spine fracture resulting in quadriplegia due to a dangerous condition on Highway 1 in Marin County. 

Our 23-year-old client was a passenger in a new Mazda Miata driven by his girlfriend from San Francisco to Stinson Beach, up State Route 1 toward the Point Reyes Lighthouse, in western Marin County.  She lost control of the Miata attempting to negotiate a curve just north of the Town of Olema and it left the roadway, went up an adjacent embankment, and rolled one and a half times.  It landed upside down back on the roadway.  Our client suffered fractures to his C4-6 vertebrae, rendering him an immediate C4-5 quadriplegic.  The driver who lost control subsequently admitted to the CHP that she was going “too fast” for the curve at 60-65 mph in a 55-mph zone.

Our firm brought a case against the State of California (Caltrans), which owns State Route 1, for a dangerous condition of public property (Government Code §835).  After extensive litigation, the case proceeded to trial in Marin County Superior Court in San Rafael.  At trial, we showed that the curve’s radius, length, and superelevation violated Caltrans’ standards, and that it was compound in nature (it had a diminishing radius), indicating that it was a 35-mph curve.  The evidence showed that there was no advance warning sign indicating that it was only a 35-mph curve, creating a trap for the unwary.

The State claimed that the only similar incident, which involved a motorcycle in 1993, occurred seven years before this incident and more than 3 million vehicles safely negotiated the curve without incident between that prior incident and the subject incident.  Thus, the curve could not be dangerous to those using due care and the State had no notice of any condition that was dangerous.  It also claimed that the curve was readily apparent and clearly visible to approaching motorists, so no warning sign was necessary.  It further claimed that the single vehicle rollover was solely caused by the negligence of the driver.

The jury found in favor of our client on liability and before the separate deliberations on damages, Caltrans settled for $5,500,000.

Student v. Lodi Unified High School District

Student sustained brain injury after suffering a cardiac arrest in P.E. class and his resuscitation was delayed due to high school’s AED having expired batteries

Our 18-year-old client suffered a cardiac arrest in the Lodi High School gym during PE class.  His PE teachers immediately checked his condition and saw that he was not breathing and was non-responsive.  The teachers called for began CPR, called 9-1-1, and retrieved an automated electronic defibrillator (AED).  The teachers stopped CPR to use the Medtronic Lifepak CR Plus AED but it did not work due to expired batteries.  Once the EMTs finally arrived and used their defibrillator to shock our client’s heart back into normal rhythm, he suffered an anoxic brain injury.  Lodi High School failed to regularly inspect the AED, failed to perform any maintenance on the AED and allowed the service contract with Medtronic to expire, despite repeated warnings from the manufacturer, which caused our client’s injuries.

Cheerleader v. High School – $17,500,000

 High school cheerleader suffered a severe TBI when she fell from the bed of a pickup truck in a school-sponsored parade and struck her head against the roadway.

$17,500,000 for our 17-year-old client, a high school cheerleader, who fell from the bed of a jacked-up pickup truck in a 4th of July parade and struck her head against the roadway, causing a severe traumatic brain injury.  She had just finish practice with her Gustine High School cheerleading team when her coach instructed the squad to sit in the truck in formation to go to Gustine’s traditional 4th of July Parade.  Soon after he began driving the cheerleaders, the driver of the pickup truck, also age 17, aggressively accelerated around a turn to show off to the cheerleaders, causing several of them to fall out the back of the truck.  Our client sustained suboccipital and occipital skull fractures and a devastating traumatic brain injury.  The impact to the back of her head propelled her brain forward into the rough lining of her frontal skull, contusing the frontal and temporal lobes, resulting in bleeding – a coup-contre coup injury.  The extensive brain bleeding caused brain swelling and she was airlifted to Children’s Hospital of Oakland for a craniectomy to allow the decompression of the brain tissue.  Thereafter, she was transferred to Santa Clara Valley Medical Center for rehabilitation.  Her cognitive deficits and paraplegia require 24-hour care and therapeutic rehabilitation.

Minor v. County of San Mateo

15-year-old girl lost both legs when she fell under a train while attempting to escape from custody of juvenile hall employees

San Mateo County juvenile hall employees were transporting our 15-year-old client to the San Mateo Juvenile Hall from the Butte County Juvenile Hall in the rear seat of a San Mateo County sedan with her hands handcuffed in front of her body.  When the vehicle stopped for a train at a train crossing, our client opened the rear door of the sedan, jumped out, ran towards the slow-moving freight train, and tried to climb onto a box car while still handcuffed.  She fell beneath the wheels of the train and lost both her legs. Our case against San Mateo County alleged that its employees lacked proper training, supervision and equipment, including a vehicle with locked rear doors in failing to properly restrain and protect the minor.  The San Mateo County Superior Court granted San Mateo County’s motion for summary judgment, finding that the County and its employees were immune from liability pursuant to Government Code section 845.8 (immunity for injuries caused by an escaping prisoner) and Government Code section 846 (immunity for the failure to retain an arrested person in custody).  The Court of Appeal affirmed that San Mateo County and its employees were immune from liability under Government Code section 845.8 without reaching the question of whether defendants also were immune under section 846.

Passenger v. U.S.A.

Passenger suffered a severe TBI when U.S Army howitzer went out of control while being towed on I-405 in Los Angeles

Our client was a backseat passenger in a car on I-405, a Los Angeles freeway, when a U.S. Army truck towing a large howitzer lost control and crashed into the back of our client’s car.  Traffic had suddenly stopped on the 405 and the Army truck attempted to stop but it was too small to tow such a large piece of artillery and jack-knifed and continued down the freeway before colliding with the rear of the car, causing a catastrophic brain damage that ultimately killed our client.

Family v. City of Oakland – $4,750,000

 Severe burn injuries to a husband and wife in the Oakland Hills Fire

Our clients suffered severe burn injuries in the Oakland Hills Fire.  A small fire continued to burn after the fire department failed to fully extinguish it and spread rapidly due to winds after a eucalyptus grove provided significant fuel.  The narrow streets in the Oakland Hills prevented a timely emergency response and quickly became clogged from vehicles attempting to escape the blaze that got incinerated.  Our clients were burned when their car turned over as they tried to get around the traffic jam and they were forced to flee their disabled car on foot.

Family v. Caltrans – $2,000,000

 Driver crashed in flood on freeway and perished when another car lost control in flood and struck him after Caltrans failed to clean drains

Our firm represented the family of a 19-year-old whose car became disabled due to flooding on I-880 in Oakland that created an extremely large, 2-foot deep puddle due to clogged drains.  When he got out of his car to check on the damage to his car, another vehicle that lost control in the same flooding, struck the young man and caused his death.  Caltrans knew that flooding at this location occurred every time it rains and identified it as a “hot spot” for flooding but failed to keep the drains in this location clear and free of debris.  CHP reported this flooding but the Caltrans dispatcher left her post for an hour to have lunch at McDonalds.  By the time the Caltrans dispatcher returned and reported the flooding to a maintenance crew, it was too late to prevent the collision and the unnecessary death of a young man.

Driver and Passenger v. Caltrans

 Driver and passenger suffered spinal fractures and deep chest laceration when negligently maintained Caltrans tree fell onto US-101

While driving south on US-101 in Sonoma County near the Asti on-ramp in the right lane, our clients (husband and wife with two children in the back seat) sustained catastrophic injuries when a large Acacia tree, owned by Caltrans, fell directly on their moving vehicle from the west shoulder of the highway, smashing down the roof and penetrating the windshield.  The crushed roof caused C-1, C-2 an C-6 fractures to the front seat passenger.  A large branch from the tree impaled the driver’s chest and he lost consciousness as his foot remained on the accelerator.  As the vehicle continued south out of control, it crossed the center median, crossed both northbound lanes and rode up an embankment on the east side of the roadway before the front seat passenger was able to grab the steering wheel, direct the vehicle down from the embankment and back across the two northbound lanes into the median, and bring it to a stop after she was miraculously able to reach the brake pedal with her foot.  After the terrifying ride and following surgery to remove the tree branch from the driver’s chest, our clients enjoyed an astonishing recovery.  Caltrans paid $950,000 to settle the case.

Student v. Natomas Unified School District

 Student suffered a mild TBI when another student on a school playground collided with her while playing tag

Our 7-year-old client, a student at Natomas Park Elementary School within the Natomas Unified School District, suffered a subdural hematoma and a skull fracture during recess when another student, who was playing tag, ran into our client and knocked her to the pavement, causing her to strike her head.  The school deleted the video of the incident from its surveillance video system.

Student v. John Swett Unified School District

Third grader molested by volunteer at elementary school

Our client, a third-grade boy at Rodeo Hills Elementary School within the John Swett Unified School District in Contra Costa County was molested by a 17-year-old school volunteer at the school who dressed like a vampire and was negligently allowed access to the students.  The perpetrator was caught by a janitor when he attempted to molest another boy, and the responding police found two knives on him.

 Jackson v. Clements (1983) 146 Cal.App.3d 983

Appealed to preserve the right of heirs to bring a wrongful death case against the County of Sonoma and several police officers for negligently allowing two intoxicated minors to drive their cars from a party immediately before crashing their cars and killing three people.