July 1998 Vol. 4 No. 7 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer

In This Issue

• “Real television” producer may be liable for intrusion into accident victim's privacy
• Primary assumption of the risk bars cheerleader's claim against school
• Proof of prior incidents not a prerequisite to landowner liability
• Improper handling of claims may eliminate defenses under Tort Claims Act
• There is no constitutionally protected interest in promotions
• UPDATES

Use the Newsletter Link to request a free e-mail subscription to the newsletter.

“Real television” producer may be liable for intrusion into accident victim's privacy

The California Supreme Court has ruled that the First Amendment does not protect a documentary film producer from liability for intrusion into private matters. At the same time it affirmed dismissal of a claim for publication of private facts, because the facts were newsworthy.

When Ruth Shulman and her son, Wayne, were injured in a car accident, a rescue helicopter came to their aid, carrying a flight nurse, Laura Carnahan, and a video camera operator, Joel Cooke. Nurse Carnahan wore a wireless microphone, which recorded her conversations with Ruth. Cooke videotaped the accident scene, and the scene inside the helicopter on the way to the hospital. A 9-minute piece on the event appeared as a segment of “On Scene: Emergency Response.”

The elements of a claim for publication of private facts are: (1) public disclosure (2) of a private fact (3) which would be offensive to a reasonable person and (4) which is not newsworthy. In this case, the possibly private facts were Ruth's appearance and words during the rescue. They were newsworthy because they were substantially relevant to the legitimate public interest in rescue and medical treatment of accident victims. The Court did not decide whether the First Amendment would allow a plaintiff to recover damages for accurate publication of non-newsworthy facts.

The elements of an intrusion claim are (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. Cooke's presence in the helicopter on the ride to the hospital, and the recording of Ruth's conversations with the nurse may have constituted such an intrusion. The First Amendment was not a defense to this claim. The press does not have immunity from generally applicable laws for its news gathering activities. (A publication of private facts claim implicates the press's news reporting activities, which enjoy a form of qualified immunity.)

Shulman v. Group W Prods., Inc., 18 Cal. 4th 200 (1998).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Primary assumption of the risk bars cheerleader's claim against school

The Ventura division of the Second District Court of Appeal has ruled that a cheerleader may not pursue a claim against her school district, because risk of injury is inherent in cheerleading.

Denning Aaris, a sophomore at Agoura High School, injured her knee while participating in a gymnastic stunt at cheerleader practice. Aaris and another cheerleader launched a third cheerleader into the air. The third cheerleader fell on Aaris, causing the injury.

Under the primary assumption of risk doctrine, there is no duty to protect a participant from risks that are inherent in the nature of an activity. Modern cheerleading often involves gymnastic stunts that require group effort. It is inherent in such stunts that one cheerleader's small slip may cause injury to her teammates.

Assumption of the risk does not bar a claim if the defendant has increased the risk of harm inherent in the activity. Aaris claimed that the cheerleading coach had increased the risk of harm by insisting that the cheerleaders practice the stunt. However, there was no evidence that the coach took the cheerleaders beyond their level of experience and ability.

A discussion of the California Supreme Court's most recent assumption of the risk decision -- Cheong v. Antablin, 16 Cal. 4th 1063 (1997) -- appeared in the January 1998 issue of Appellate Decisions Noted. That case involved the inherent risks skiing.

Aaris v. Las Virgenes Unified Sch. Dist., 1998 WL 312846 (Cal. Ct. App. Jun. 15, 1998).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Proof of prior incidents not a prerequisite to landowner liability

The Second District Court of Appeal in Los Angeles has ruled that a landowner is not absolved of liability merely because there is no evidence of prior similar incidents.

The Magic Mountain amusement park maintains a picnic area on an island inside its parking lot. A car owner and his developmentally disabled friend were attempting to push-start his car in the parking lot. When the car started, the friend was in the driver's seat, even though she had never driven a car. The friend could not control the car. It ran unimpeded onto the island and crashed into a picnic table, injuring those at the table.

Magic Mountain argued that it did not owe a tort duty to the picnickers because the accident was unforeseeable. There had been no prior similar incidents. The circumstances that led to an incompetent driver piloting the car were unusual.

The existence of a tort duty does not depend upon the foreseeability of the particulars of how and why an injury occurred. The proper focus is on the foreseeability of a harmful event of the general type that occurred. In this case, the duty arose from the possibility that an out-of-control car might hit an unprotected picnic table placed in the parking lot. How the car went out of control did not matter.

The lack of prior similar incidents was also irrelevant. The California Supreme Court requires such a showing for any claim resting on an alleged duty by a landowner to provide security guards to prevent criminal activity. Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666 (1993).

This case was fundamentally different. A criminal can commit a crime anywhere. It would be an unfair burden to require every landowner to take precautions against crime. However, Magic Mountain had created the danger to the picnickers by placing an unprotected picnic table in harm's way. When an unreasonable risk of danger exists, the landowner bears a duty to protect against the first occurrence.

Robison v. Six Flags Theme Parks Inc., 1998 WL 320820 (Cal. Ct. App. Jun. 18, 1998).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Improper handling of claims may eliminate defenses under Tort Claims Act

Two recent Court of Appeal decisions explain the circumstances that give rise to waiver or estoppel of defenses under the California Tort Claims Act.

In the first case, the Sixth District Court of Appeal in San Jose ruled that a school district could not assert the Tort Claims Act's statute of limitations as a defense. A jury awarded Mona Lisa Ortega and her father $1,662,000 on a claim that one of her teachers molested her in 1986. They filed their tort claim in February 1993, and their lawsuit in August 1993.

A claim against a public entity is barred if not presented to the entity within six months after it accrues; any lawsuit must be brought within two years, at the very latest. Cal. Gov't Code §§ 911.2, 945.6. However, the public entity is estopped from invoking those defenses if it engaged in unconscionable affirmative acts that deterred the claimant from filing a claim.

In Ortega's case, the accused teacher, acting as the district's agent, threatened her with suspension if she “disrespected” him. He then filed a defamation lawsuit to intimidate her further. The district also led Ortega to believe that it did not consider her credible. It never told Ortega's father that the accused teacher had a prior history of molestation complaints, despite his two requests.

The deterrent effect of that conduct lasted until November 1992 when the accused teacher pleaded no contest to a charge of molesting another student. Only then could Ortega think that she might be taken seriously. She filed her claim within two months and a week of that plea, a reasonable time under the circumstances.

In the other case, the First District Court of Appeal in San Francisco ruled that a letter from a claimant's attorney was sufficient to require a public entity to notify the claimant that it did not contain all the elements required by Government Code section 910.

Alliance Financial's attorney sent two letters to the City and County of San Francisco. Those letters did not have all the information required by section 910, but did refer to the possibility of litigation. When San Francisco refused to pay, Alliance filed a lawsuit without first filing a formal claim.

Government Code section 911 provides that any defense as to the sufficiency of a claim is waived if the entity does not give notice of the insufficiency within 20 days after the claim is filed. A filing is sufficient to trigger that provision if it discloses the existence of a claim which, if not satisfactorily resolved, will result in a lawsuit against the entity. The attorney's letter satisfied that requirement. San Francisco waived the claim filing requirement by not informing Alliance of the deficiencies in its attorney's letter.

Ortega v. Pajaro Valley Unified Sch. Dist., 1998 WL 307378 (Cal. Ct. App. Jun. 12, 1998); Alliance Financial v. City and County of San Francisco, 75 Cal. Rptr. 2d 341 (Ct. App. 1998).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

There is no constitutionally protected interest in promotions

The Ninth Circuit has ruled that police officers do not have a substantive due process claim for an alleged decision to promote inexperienced candidates based on cronyism, in disregard of official policy. A substantive due process claim must be based on deprivation of a protected property or liberty interest. An expectancy in a promotion is not a property interest. There is no liberty interest in being free from capricious government action.

Nunez v. City of Los Angeles, 1998 WL 289724 (9th Cir. Jun. 5, 1998).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Application Group, Inc. v. Hunter Group, Inc. (March 1998 issue), review denied (May 13, 1998).

Bell v. Wells Fargo Bank, N.A. (May 1998 issue), review denied (June 24, 1998).

Berger v. Hanlon (December 1997 issue), petition for certiorari filed (May 26, 1998).

Cedars-Sinai Medical Center v. Superior Court (June 1998 issue), now reported at 18 Cal. 4th 1 (1998).

De La Rosa v. Scottsdale Memorial Health Sys., Inc. (March 1998 issue), petition for certiorari filed (Mar. 2, 1998).

Deteresa v. American Broadcasting Cos. (September 1997 issue), cert. denied, 118 S.Ct. 1840 (1998).

Drain v. Betz Laboratories, Inc. (June 1998 issue), now reported at 63 Cal. App. 4th 1225 (1998), rehearing granted (Jun. 11, 1998). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Jones v. United States (December 1997 issue), cert. denied, 1998 WL 221294 (Jun. 22, 1998).

Lai v. Prudential Ins. Co. of America (April 1998 issue), review denied and official reporter directed not to publish the decision (Jun. 10, 1998).

Muller v. Automobile Club of Southern California (March 1998 issue), review denied (May 27, 1998).

Murillo v. Fleetwood Enterprises, Inc. (June 1998 issue), time for grant or denial of rehearing extended to July 26, 1998.

People v. Johnson (May 1998 issue), review denied (May 13, 1998).

People v. Metters (April 1998), review granted (Jun. 10, 1998). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

People v. Venegas (June 1998 issue), now reported at 18 Cal. 4th 47 (1998).

Randall v. Orange County Council, Boy Scouts of America (April 1998 issue), rehearing denied (May 13, 1998).

Wooden v. Raveling (March 1998 issue), review denied (May 13, 1998).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Privacy Policy

URL for this page http://www.appellate-counsellor.com/newsletter/9807.htm