April 2003 Vol. 9 No. 4 ISSN 1087-6219
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In This Issue

• Legislature may not force local governments to arbitrate economic issues
• Location of bus stop may constitute a dangerous condition
• Playground owner must protect children from errant automobile
• Regarded as disabled plaintiffs are not entitled to reasonable accommodation
• School not liable for failing to suspend student who punched another student 
• UPDATES

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Legislature may not force local governments to arbitrate economic issues

The California Supreme Court has held Senate Bill 402 unconstitutional as an interference with a local government's right to provide for the compensation of its employees, and an improper delegation of municipal functions. The bill purported to require arbitration when a public safety employee union declares an impasse in labor negotiations.

The California Legislature enacted the statute in an attempt to reduce strikes by firefighters and law enforcement officers. After the union declares an impasse, each side chooses one arbitrator, who together choose the third arbitrator. The three-arbitrator panel then chooses between each side's last best offer, based on a list of factors.

The California Constitution states that the county “shall provide for the number, compensation, tenure, and appointment of employees.” Art. XI, § 1(b). That express grant to county government implies that the state legislature does not have authority over those areas. Although the legislature may regulate matters of statewide concern even if that impinges to a limited extent on power reserved to local government, SB 402 completely deprives counties of the authority conferred by the constitution.

Another provision of the constitution states that the legislature may not delegate power to perform municipal functions to a private person. Art. XI, § 11(a). That provision was another basis for invalidating SB 402, because the bill delegated the power to set salaries to an arbitration panel.

Chief Justice George concurred, but thought that the Court should not have invoked section 1(b) to support its decision. He was concerned that the Court's broad reading of the section might interfere with legitimate legislative interests in a later case. Justice Moreno also wrote a concurring opinion, which cautioned against taking too broad a view of the powers reserved for local governments.

County of Riverside v. Superior Court, 2003 WL 1904034 (Cal. Apr. 21, 2003).

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Location of bus stop may constitute a dangerous condition

The California Supreme Court has ruled that a transit agency may be liable for injuries sustained by a bus patron while crossing a busy street on a crosswalk with no stop light to get to a bus stop.

The Central Contra Costa Transit Authority operates buses on public streets in Contra Costa County. One of the bus stops was in a location that required many bus passengers to cross a busy street during the morning commute. After complaints several years ago the County had painted a crosswalk at the intersection nearest the crosswalk. Later, a traffic light was installed at an intersection a little bit farther away, but the Transit Authority did not move the bus stop.

As Darlene Bonanno was crossing the street in the crosswalk, a car whose driver was having difficulty seeing through his windshield rear-ended another car that had stopped for the crosswalk. She sued the Transit Authority, the County, the driver of the car that rear-ended, and the hospital that treated her for her injuries.

After all defendants except the Transit Authority settled, a jury found the driver 88 percent responsible, the hospital 10 percent, and the County and the Transit Authority 1 percent each. The Transit Authority was liable for $1.6 million in economic damages and $15,000 in non-economic damages.

By statute, a public entity is liable for injury caused by a dangerous condition, if it had notice of the condition a sufficient time before the injury to take protective measures. Cal. Gov't Code § 835. A dangerous condition is a condition that creates a substantial risk of injury when that property or adjacent property is used with due care in a reasonably foreseeable manner.

Here, the dangerous condition was the location of the property. Public entities are liable when their facilities are located in physical situations that unnecessarily increase the danger to those who use the facilities in a reasonably foreseeable manner.

Justices Baxter and Brown dissented. A property owner should not be liable for injuries caused by crossing an adjacent public street if the property owner does not control the street or the vehicles on it.

Bonanno v. Central Contra Costa Transit Auth., 30 Cal. 4th 139 (2003).

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Playground owner must protect children from errant automobile

The Santa Ana division of the Fourth District Court of Appeal has ruled that a playground owner has a duty to protect children on the playground from errant automobile traffic.

Southcoast Early Child Learning Center operated a facility on property owned by the First Baptist Church of Costa Mesa. The property included a playground that was enclosed by a four-foot high chain link fence. The fence was inadequate to protect children on the playground from errant automobile traffic. After the Church refused Southcoast's request to fund a sturdier barrier, Southcoast did nothing further to remedy the problem.

A few years earlier, a driverless mail truck had jumped the curb and gone through the fence. Other cars had veered onto the curb.

A motorist drove his car through the fence, with the intent to kill children on the playground. He killed two children. Their parents sued Southcoast and the Church for negligence. The Court of Appeal reversed the trial court's grant of summary judgment for the defendants.

Courts decide whether a defendant owes a negligence duty by examining whether the negligent conduct in question is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. Although the motorist's murderous intent may not have been reasonably foreseeable, failure to take adequate steps to shield children from errant automobile traffic could reasonably be expected to lead to injuries, in light of the previous incident involving the mail truck.

Presiding Justice Sills dissented. He opined that risk, not a generic kind of harm, defines the duty owed. In his words: “There is a difference in risk between a stray bullet from a firing range and a gunshot fired with intent to kill, between accidentally poking someone next to you with a pencil and stabbing them with it, between accidentally hitting a pedestrian because you lose control of a car and trying to use the car as a deadly weapon by mowing someone down.”

Wiener v. Southcoast Childcare Centers, Inc., 2003 WL 1917335 (Cal. Ct. App. Apr. 22, 2003).

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Regarded as disabled plaintiffs are not entitled to reasonable accommodation

The Ninth Circuit has ruled that an employer does not have a duty to provide a reasonable accommodation to an employee who is not actually disabled, but only regarded as disabled.

Frederick Kaplan worked for the City of North Las Vegas as a deputy marshal. The essential functions of his job involved extensive use of his hands to restrain, grip and grasp. After he sustained an injury to his right hand during a training exercise he was unable to perform many of those functions. A doctor diagnosed him as suffering from rheumatoid arthritis, and concluded that the condition had stabilized at a point where he could not perform the essential functions of his job. The City discharged him based on that opinion.

The Americans with Disabilities Act protects both employees who are disabled and those who are not actually disabled, but are regarded as disabled. Kaplan eventually recovered the use of his right hand. Two doctors subsequently determined that he had never suffered from rheumatoid arthritis. Therefore, he never had a disability, but his employer regarded him as disabled based on the earlier doctor's report.

To maintain a disability discrimination claim, the plaintiff must prove that he could perform the essential functions of his job, with or without a reasonable accommodation. Here, the evidence established that Kaplan could not perform the essential functions of a deputy marshal without an accommodation.

Although the wording of the ADA appears to require reasonable accommodations for employees who are merely regarded as disabled, applying such a rule might lead to bizarre results. Most non-disabled employees would not be entitled to accommodations, but those who were misperceived as having a disability would be. Employees would have no incentive to correct those misperceptions. Requiring accommodations for those not truly disabled would also result in wasted resources.

There is no duty under the ADA to accommodate an employee who is merely regarded as disabled.

Kaplan v. City of North Las Vegas, 323 F.3d 1226 (9th Cir. 2003).

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School not liable for failing to suspend student who punched another student

The Third District Court of Appeal in Sacramento has ruled that a school district is not liable to a student who claimed that it should have protected him from an assault by another student.

Christopher Thompson was attacked at his high school by two students who were trying to rob him of marijuana that they believed he was carrying. Demarcus, who inflicted the serious damage, had been suspended several times, and then expelled from his middle school. After going through a rehabilitation process, the district readmitted him to public school, and assigned him to Thompson's high school.

Two days before the attack on Thompson, three students had accused Demarcus of setting fire to a poster on an outdoor bulletin board. The day before the attack, Demarcus had threatened to hit a female student. The Court of Appeal affirmed summary judgment for the district.

Thompson could not base his claim on the decision to readmit Demarcus to public school, because that was an exercise of discretion, immune from liability under Government Code section 820.2.

Although Thompson argued that the district should have immediately suspended Demarcus after the incidents on the two days preceding the fight, the law imposes no such duty. The prior incidents had nothing to do with Thompson. There was not a close connection between the failure to suspend and Thompson's injury. The power to suspend was constrained by statutory and constitutional requirements.

Even if there were a duty, no reasonable fact finder could decide that the district acted unreasonably. It was reasonable for the district's employees to wait to take action until all relevant information had become available.

Thompson v. Sacramento City Unified Sch. Dist., 2003 WL 1521981 (Cal. Ct. App. Mar. 25, 2003).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Bank of America v. City and County of San Francisco (December 2002 issue), petition for certiorari filed (Mar. 20, 2003).

Brown v. California Department of Transportation (March 2003 issue), now reported at 321 F.3d 1217 (9th Cir. 2003).

Colemenares v. Braemar Country Club, Inc. (March 2003 issue), rehearing denied (Apr. 16, 2003).

Mackey v. Department of Corrections (February 2003 issue), review granted (Apr. 23, 2003). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Richelle L. v. Roman Catholic Archbishop of San Francisco (March 2003 issue), modified (Mar. 17, 2003).

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