2012-00129925-CU-PT

Navarro VanHook vs. Cosumnes Community Service District

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Jay, Daniel P.

Defendant Cosumnes Community Service District’s (”CCSD”) Demurrer to Plaintiff’s
First Amended Complaint is OVERRULED.

Plaintiff’s First Amended Complaint filed July 13, 2013 alleges that plaintiff suffered a
stroke, and was being wheeled into the public entity defendant’s ambulance on a
gurney/stretcher. Plaintiff was hand cuffed and strapped to the gurney but the Doe
Emergency Medical Personnel failed to keep a steady grip on the gurney, causing the
gurney to tilt to the side, dropping him off the gurney onto the concrete.

Plaintiff alleges that if he had been properly strapped to the gurney he would not have
fallen.  If the CCSD employees had kept a steady grip on the gurney he would not
have fallen.  (FAC, para. 6.)

Defendant public entity CCSD is sued for negligence for plaintiff’s injuries.

Defendant demurs to the cause of action for negligence on the grounds that it fails to
state facts sufficient to constitute a cause of action because plaintiff has failed to allege
a statutory basis for liability against a public entity and because Defendant is immune
from liability pursuant to Health and Safety Code sections 1799.106 and 1799.107.
(C.C.P., sec. 430.10(e)).

Firefighters, police officers or other emergency medical personal may not be found
civilly liable for rendering emergency medical services at the scene of an emergency            for any acts or omissions unless they are performed in a grossly negligent manner or
the acts or omissions are not performed in good faith.  A public agency employing
such persons is not liable, if the emergency personnel are not liable.  Health & Safety
Code, sec.1799.106.

On demurrer, all material facts that were properly pleaded are deemed true, but not
contentions, deductions, or conclusions of fact or law. Pang v. Beverly Hospital, Inc.
(2000) 79 Cal. App. 4th 986, 989.

Here, the FAC has been amended to include the allegations that the emergency
personnel were “grossly negligent” and acted in “bad faith”. (FAC, para.8) The court
finds that the facts as pleaded could be found to support a claim of gross negligence.
Pleadings are to be liberally construed. The FAC alleges (para. 6) that Plaintiff was
hand cuffed and strapped to the gurney, but the emergency medical personnel both
failed to keep a steady grip on the gurney causing it to tilt and drop plaintiff off the
gurney onto his head, and that the strapping of plaintiff failed to keep him securely on
the gurney so that it may be inferred that the strapping would have prevented the fall,
even if the gurney had been tilted.

Our Supreme Court has explained the difference between ordinary and gross
negligence: “‘Ordinary negligence’ – an unintentional tort – consists of a failure to
exercise the degree of care in a given situation that a reasonable person under similar
circumstances would employ to protect others from harm. [Citation.]  ‘Gross
negligence’ long has been defined in California and other jurisdictions as either a ‘want
of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.'” (
City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 757, 753-754; Eastburn v.
Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186.) Gross
negligence “connotes such a lack of care as may be presumed to indicate a passive
and indifferent attitude towards results.” (Calvillo-Silva v. Home Grocery (1998) 19
Cal.4th 714, 729, disapproved on other grounds in Aguilar v. Atlantic Richfield Co .
(2001) 25 Cal.4th 826,  853, fn. 19.) Generally it is a triable issue of fact whether there
has been such a lack of care as to constitute gross negligence. (Decker v. City of
Imperial Beach (1989) 209 Cal.App.3d 349, 358, citing Pacific Bell v. Colich (1988)
198 Cal.App.3d 1225, 1240; see, also DeVito v. State of California (1988) 202
Cal.App.3d 264, 272.) Gross negligence is also defined as “the lack of any care or an
extreme departure from what a reasonably careful person would do in the same
situation to prevent harm to oneself or to others.” 1-400 CACI 425.

Defendant shall file and serve its answer to the FAC not later than Friday, Dec. 20,
2013.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.