Harb v. City of Bakersfield
| Decision Date | 01 January 2015 |
| Docket Number | F066839 |
| Citation | 183 Cal.Rptr.3d 59,233 Cal.App.4th 606 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Mohamad HARB et al., Plaintiffs and Appellants, v. CITY OF BAKERSFIELD et al., Defendants and Respondents. |
OPINION TEXT STARTS HERE
See 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Reversible Error, § 7 et seq.
APPEAL from judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. (Super. Ct. No. CV265887)
Law Offices of Young & Nichols, Steve W. Nichols, Thomas A. Brill, Bakersfield; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich, Encino, for Plaintiffs and Appellants.
Marderosian, Cercone & Cohen, Michael G. Marderosian and Heather S. Cohen, Fresno, for Defendants and Respondents City of Bakersfield, Bakersfield Police Department and Claudia Payne.
Borton Petrini, James J. Braze, Bakersfield; Jones & Dyer, Gregory F. Dyer and Scott H. Cavanaugh, Sacramento, for Defendants and Respondents Hall Ambulance Service, Inc., and Brian Dumont.
Mohamad Harb, M.D. was driving home from his shift at Kern Medical Center's neonatal intensive care unit when he suffered a stroke and drove his car onto a sidewalk. The police officer who arrived at the scene did not call an ambulance immediately because she deduced from Dr. Harb's vomiting, slurred speech and disorientation that he was intoxicated and, after a struggle, placed him in handcuffs. The first ambulance that arrived on the scene left without Dr. Harb. Later, a second ambulance took Dr. Harb to a hospital where he received treatment and survived, but the brain damage he suffered rendered him unable to care for himself.
Harb and his wife sued the City of Bakersfield (City), the responding officer, the ambulance company, and the paramedic who drove the first ambulance. They alleged the defendants' delay in getting Harb medical treatment made the consequences of his stroke much worse. The case was tried to a jury, which returned a defense verdict. Plaintiffs appealed, contending the jury instructions contained two errors.
First, plaintiffs argue a police immunity instruction (an officer is not liable if exercising due care) should not have been given because it used confusing language and, moreover, was unnecessary in a negligence case. We agree. While the immunity instruction was a correct statement of the law in the abstract, it was unnecessary because plaintiffs were already required to prove the police officer acted negligently. Also, the instruction's use of the phrase “exercising due care” without defining it, and without explaining how the due care standard related to the reasonable care standard in the negligence instructions, created an ambiguity. Based on the record before us, there was a reasonable likelihood the police immunity instruction misled the jurors because it is unlikely the jurors would have understood there was no immunity for a police officer who acted negligently.
Second, plaintiffs contend the jury should not have been instructed on comparative negligence because Harb's alleged negligent failure to manage his high blood pressure occurred before the accident and the defendants' interaction with him. Plaintiffs contend any preaccident negligence by Harb was irrelevant because (1) a tortfeasor takes the plaintiff as she finds him and (2) plaintiffs were not seeking to recover damages caused by the stroke, only damages resulting from the delay in treatment caused by the defendants. Whether a plaintiff's preaccident negligence is a type of comparative fault under California law appears to be a question of first impression. We conclude that, where a plaintiff is seeking damages only for the aggravation or enhancement of an injury or condition, California will follow the majority view that a plaintiff's preaccident conduct cannot constitute comparative negligence when that conduct merely triggers the occasion for aid or medical attention. As a result, defendants who render aid or medical attention cannot reduce their liability for the harm resulting from their tortious acts and omissions by attributing fault to the plaintiff for causing the injury or condition in the first place.
Under the facts of this case, the jury should not have been instructed on comparative negligence and defendants should not have been allowed to argue Harb's neglect of his high blood pressure was comparative negligence that rendered him responsible for all of the harm suffered.
We also conclude the errors in the instructions were prejudicial.
Therefore, the judgment is reversed and the matter remanded for a new trial.
On November 24, 2007, Harb completed a 12–hour shift at Kern Medical Center's neonatal intensive care unit. While driving home, Harb suffered a hemorrhagic stroke. A defense expert described the event as “an intracerebral hemorrhage into the substance of his brain.” 1
As a result of the hemorrhage, Harb drove his car over a curb and halfway onto the sidewalk. The impact with the curb twisted the right front wheel, bent the tire rims and caused the right front tire to go flat. A sales manager at a nearby used car dealership phoned 911 and reported the accident.
At 6:55 p.m., the 911 operators dispatched Bakersfield Police Officer Claudia Payne to the scene, advising her of a noninjury collision that involved a “possible driving-under-the-influence driver.” At 6:58 p.m., Officer Payne arrived at the scene by herself. Near the time Officer Payne arrived, Harb vomited, but she did not see it. Two other officers arrived about a minute later.
Officer Payne first spoke with the sales manager who had made the 911 call. The sales manager told her that Harb had exited the vehicle, urinated on the sidewalk, returned to the vehicle and appeared to be attempting to leave. The sale manager had spoken with Harb to delay him until the police arrived.
Officer Payne then spoke with Harb, saw a wet spot on his medical scrubs directly below his chin, noted he was disoriented and asked for his car keys. Harb refused her request and attempted to place the key in the ignition. Officer Payne opened the driver's door and, holding Harb by the arm, brought him around the back of the car to the curb. Officer Payne did not detect the odor of alcohol on Harb's breath and did not notice any redness or watering in his eyes.
Officer Payne directed Harb to sit on the curb behind his car and then sat down with him. A struggle developed when Officer Payne attempted to handcuff him. When Officers Galland and Arms arrived at the scene, Officer Galland saw the struggle and he and Officer Arms ran to assist Officer Payne in cuffing Harb's hand behind his back. It took all three officers to get the handcuffs on Harb. Officer Galland testified that he was not aware of Harb hitting his head during the struggle, but at some point noticed a small bump on the right side of Harb's head.
At 7:10 p.m., Officer Payne called for an ambulance. Four minutes later, Brian Dumont, a paramedic and employee of Hall Ambulance Service, Inc., arrived at the scene in an ambulance with Darcy Smith, an emergency medical technician (EMT), and Lori Thomas, a trainee.
Paramedic Dumont checked Harb's condition by testing his blood glucose and taking his blood pressure. Harb's blood glucose was within the normal range and his blood pressure was slightly high, which Dumont did not consider unusual under the circumstances. Dumont asked Harb questions and received responses that were confused. Consequently, Dumont described Harb as having an “[a]ltered level of consciousness.” Dumont also performed a Glasgow Coma Scale 2 test and gave Harb a score of 14 out of 15 possible points, deducting one point for Harb's speech.
Paramedic Dumont testified he saw the police conduct two alcohol breath tests on Harb at the scene and both tests results were 0.00. After the first test, a male officer said, “The machine must be wrong.” After the second test, one of the officers said that Harb was probably on drugs.
Exactly what happened after Paramedic Dumont completed his assessment of Harb is the subject of conflicting testimony. The police officers testified that Paramedic Dumont told them that “[t]here is nothing medically wrong with this guy” and then packed up his gear, rolled the gurney back into the ambulance, closed the doors and left.
In contrast, Paramedic Dumont testified he told the officers that the ambulance crew would be transporting Harb to Kern Medical Center, a male officer asked why, and Dumont told him it was because Harb needed to go to the hospital. Dumont testified he informed the officers that Harb was not drunk and he did not find anything to indicate Harb was on drugs; he then told the officers that Harb needed to be transported right away. Dumont testified that (1) Officer Payne told him that the police would transport Harb, (2) he asked Officer Payne if she was taking Harb to jail or to the hospital to be evaluated, and (3) Officer Payne told him that she would take Harb to the hospital.
At 7:24 p.m., the first ambulance left the scene without Harb.
At about 7:27 p.m., Detective Blaine Smith and Officer David Cox arrived at the scene. They were assigned to DUI's and Officer Payne had phoned Detective Smith to ask for assistance. Detective Smith spoke with Harb, trying to assess his condition. After doing his assessment, Detective Smith told the other officers,
Around the time Detective Smith arrived, Meghan Coffey, a registered nurse from Kern Medical Center who had worked with Harb that day, drove by the accident scene. She saw a man sitting on the curb with his hands handcuffed behind his back, his right shoe off, and vomit on his face and down his shirt. She recognized the man as Harb and stopped her car. She told a police officer that Harb had been working at the hospital all day and that she thought something was wrong. She spoke with Harb and asked the police...
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