In addition to (or as an alternative to) raising civil rights claims under federal law, plaintiffs can sometimes assert related claims for negligence under California law. When the defendant is a government employee or government agency, there can be both advantages and complications to raising such claims.
The idea of negligence as alleged against an individual state actor has the same structure as in a claim against a private actor, requiring a showing of duty to the plaintiff, breach of that duty by the defendant, and causation of harm.
The initial existence of a duty may be a tricky factor in some situations where the nature of the state action is merely a failure to take some action because, as discussed elsewhere, state actors do not necessarily have a duty to ensure the safety of members of the public except in certain scenarios. But state actors do have a duty to use reasonable care in the way they perform their jobs. See, e.g., Munoz v. Olin, 24 Cal.3d 629, 634 (1979) (reasonable care required in the use of force). So when the state actor’s own actions are what causes a harm, there is the potential for a negligence cause of action. See Cal. Gov. Code, § 820 (“a public employee is liable for injury caused by his act or omission to the same extent as a private person“). In the context of excessive force claims, a state-law cause of action of negligence can be a useful component of a plaintiff’s case because the factors that are evaluated in determining negligence under California law are broader than the factors considered under the Fourth Amendment. Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 639 (2013).
Tricky questions can exist about whether a state actor’s acts were within the course and scope of their government employment.
As with any cause of action brought against a government defendant under California law, a claim for negligence must be presented to the relevant agency via a government tort claim and “exhausted” via the initial denial of that claim.
Assuming that occurs, it is then necessary to navigate statutory immunities. Government employees have discretionary immunity under California Government Code § 820.2. The idea of this immunity is that if an employee has discretion to perform a range of actions as part of his or her employment, then the selection of one of those options does not create liability, even if the employee is mistaken in their judgment. However, this immunity has been fairly narrowly construed, and obviously a public employee does not have “discretion” to, say, violate the federal Constitution, so this immunity may be of limited use to defendants in civil rights cases. See, e.g., Barner v. Leeds, 24 Cal.4th 676, 685 (2000). In a similar vein, Government Code § 820.4 creates an immunity for law enforcement officers who act while “exercising due care,” but the premise of a negligence claim is that such care was not exercised.
Vicarious liability for government employers based on the negligence of their employees will exist in some, but not all, situations under California Government Code § 815.2. Section 815.2 is an exception to the broad language of Government Code section 815, which states that “[e]xcept as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Section 815.2, in turn, says that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative” except “where the employee is immune from liability.”
Vicarious liability for employers does not exist when injuries to prisoners are based on employee negligence, with certain exceptions. Government Code § 844.6. See Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1383 (2010). The exception that section 844.6 explicitly calls out is the failure to render emergency medical aid under section 845.6 if a situation where an inmate “is in need of immediate medical care and [the employee] fails to take reasonable action to summon such medical care.”
Negligent Hiring/Training/Supervision of employees can also give rise to liability for government employers in a manner that has parallels to a cause of action in federal law under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978). But California "does not recognize a general duty of care on the part of supervisors with respect to negligent hiring, retention, or training." Estate of Osuna v. County of Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019). So this type of claim is limited to specific situations. School districts, the California Supreme Court has held, may be held liable for negligent hiring because of the “special relationship” between schools and their students. C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861, 865-866 (2012). But in the same case the California Supreme Court stated: “Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” 53 Cal.4th at 877.
This focus on the existence of a “special relationship” also suggests that jail and inmates may be able to assert such claims based on the special relationship that is understood to exist for individuals in custody, but there is also a considerable amount of bad law in this area, making these claims tricky. See Kendrick v. County of San Diego, No. 15-cv-2615-GPC (AGS), 2018 U.S. Dist. LEXIS 42185, 2018 WL 1316618, at *11 (S.D. Cal. Mar. 14, 2018) ("Plaintiff does not allege a special relationship existed between [the decedent] and Sheriff Gore. Therefore, Sheriff Gore cannot be personally liable for a claim of negligent hiring and supervision . . . ."); Fuentes v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 U.S. Dist. LEXIS 96048, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 2017) (dismissing claim because "Plaintiffs generally allege that the City and/or SDPD have a duty to protect people from harm and exercise care in selection, retention, training, and supervision of their employees. However, these alleged duties do not resemble the enhanced duties imposed on school personnel that formed the basis for their special relationship with the minor plaintiff in William S. Hart.").