Hernandez v. Kwph Enterprises

• Decision Date: 26 February 2004
• Docket Number: No. F042018.,F042018.
• Citation: 116 Cal.App.4th 170,10 Cal.Rptr.3d 137
• Court: California Court of Appeals Court of Appeals
• Parties: Carlos HERNANDEZ, Individually and as Administrator, etc., et al., Plaintiffs and Appellants, v. KWPH ENTERPRISES et al., Defendants and Respondents.

10 Cal.Rptr.3d 137

116 Cal.App.4th 170

Carlos HERNANDEZ, Individually and as Administrator, etc., et al., Plaintiffs and Appellants, v. KWPH ENTERPRISES et al., Defendants and Respondents.

No. F042018.

Court of Appeal, Fifth District.

February 26, 2004.

Law Offices of Federico C. Sayre, Federico C. Sayre, Kent M. Henderson, Rex Hwang and Daniel H. Cargnelutti, Santa Ana, for Plaintiffs and Appellants.

Law Offices of Cornwell & Sample, Stephen R. Cornwell and Rene Turner Sample for Defendants and Respondents.

OPINION

DAWSON, J.

We hold in this case that emergency medical technicians (EMT's) had no legal duty to prevent their voluntary charge from leaving their ambulance, despite their belief or suspicion that she was mentally unbalanced. Thus respondent EMT's and their employer, KWPH Enterprises, doing business as American Ambulance, are not liable for the death of Mrs. Morena Hernandez, which occurred when she was struck by a motor vehicle after leaving the ambulance. We affirm the trial court's grant of summary judgment to respondents. Viewed in the light most favorable to appellants, the evidence is as follows.

FACTS

Morena Hernandez had been acting strangely for four days prior to her death. She believed someone had placed a spell on her, that she was being followed, that she was bewitched. She suspected the food she was given had been poisoned. On November 2, 1997, her husband (appellant Carlos Hernandez) and one of her brothers took Mrs. Hernandez to the emergency room at White Memorial Medical Center in Los Angeles, hoping that the hospital would admit and treat her. The physician who saw Mrs. Hernandez did not admit her but did prescribe a medication, Ativan.

Mr. Hernandez and his wife's brothers believed it would be best for the couple to retire temporarily to the tranquil environment of the home of a brother in Mendota, California. Leaving their child (appellant Michael Hernandez) with other relatives in Los Angeles, Mr. and Mrs. Hernandez traveled to Mendota. They arrived at approximately midnight and soon attempted sleep. Mrs. Hernandez, however, was not deterred from her strange behavior. She roused her husband, complaining that "[t]hey're coming. They're going to find us here," and "I feel ill. I want to go to a hospital.... Let's go see a doctor."

Mr. and Mrs. Hernandez left the brother's home on foot. At approximately 2:00 a.m., sheriff's deputy Thomas Lawson, who had been summoned by the family, found Mr. and Mrs. Hernandez walking down a street two or three blocks from the brother's home.

Deputy Lawson spoke to Mrs. Hernandez, whom he found articulate and calm. Despite that, he did evaluate Mrs. Hernandez's mental status pursuant to Welfare and Institutions Code section 5150 (section 5150) to determine whether she was able to care for herself and whether she presented a danger to herself or to others. He decided not to detain her.¹

Mrs. Hernandez told Deputy Lawson that she and her husband would like to go to a "nice hospital" to speak with a psychiatrist and, though he did not detain, Deputy Lawson did summon an ambulance. It took 10 to 20 minutes for the ambulance to arrive, during which time Mrs. Hernandez spoke to Deputy Lawson about her religion. Mr. Hernandez was quiet during much of this conversation as he spoke little English and Lawson, little Spanish.

When the ambulance arrived, manned by respondents Michael Kallsen and Brent Jensen, there was further discussion about Mrs. Hernandez's mental status. When Deputy Lawson explained to Kallsen and Jensen that he was not detaining Mrs. Hernandez, they pointed out that the transport to a hospital under those circumstances would be voluntary and could be terminated at the option of Mr. and Mrs. Hernandez. They asked Mr. and Mrs. Hernandez whether they wanted to go, to which they received positive response.

Kallsen and Jensen believed they were transporting both Mr. and Mrs. Hernandez to the hospital. While en route, Jensen filled out pay bills for both. He also noted on his records that Mrs. Hernandez reported "poss[ible] ingestion/poisoning by family" and that "EMS [the ambulance team] feels pt [patient] 5150, but FSO [sheriff's deputy] does not." Respondents took Mr. and Mrs. Hernandez to Madera Community Hospital rather than to a closer facility in Dos Palos because both psychiatric staff and blood tests for poisoning would be available there.

Kallsen and Jensen did not notice either Mrs. or Mr. Hernandez to be agitated during the ride to Madera, which took approximately 25 minutes. Apparently, however, Mrs. Hernandez had developed the feeling that Kallsen and Jensen were going to confine or harm her in some way. Before they began the trip to Madera, she told her husband "[d]on't turn to look at them.... They're going to mess us both up." Mr. Hernandez did not inform Kallsen or Jensen of his wife's fear, though he did tell them she was "not well."

When they reached the hospital and Jensen opened the door of the ambulance, Mrs. Hernandez surprised even her husband by dashing away. When Mr. Hernandez attempted to follow, Kallsen and Jensen momentarily delayed his pursuit by putting their hands out to stop him. He remained behind his wife by one-half to one block's distance as the two proceeded on foot away from the hospital doors, across the grounds, onto a local roadway, and then onto Highway 99.

Neither Kallsen nor Jensen attempted to stop Mrs. Hernandez. Instead, they went inside the hospital to inform personnel what had occurred. Then they returned to the ambulance, tidied the interior, contacted their dispatch, and commenced a return to their station in Mendota. Leaving the hospital grounds, they saw both Mrs. and Mr. Hernandez walking from there onto a local road. Apparently concerned, they contacted the Madera Police Department. Moments later, when they saw Mr. and Mrs. Hernandez approach Highway 99, they contacted the California Highway Patrol.

Before officers arrived, Mrs. Hernandez made her way across one side of Highway 99, over the median barrier, and out into the roadway on the other side. She attempted to flag down one vehicle, without success, and was then hit and killed by another. Kallsen and Jensen grabbed Mr. Hernandez and put him into their ambulance until help arrived.

ANALYSIS

I. Standard of Review

A motion for summary judgment is an assertion by the moving party that no triable issues of fact exist and that the court should terminate the action without trial. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that the plaintiff's claims are without merit — that is, that there are no triable issues of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) In ruling on the motion, the court must resolve all doubts regarding the existence of triable issues of material fact in favor of the party opposing the motion, must consider all of the evidence, including inferences reasonably drawn from it, and must view the evidence in the light most favorable to the opposing party. (Ibid.)

On appeal, the court "determines de novo `whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law.'" (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 717, 70 Cal.Rptr.2d 531, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6, 130 Cal.Rptr.2d 662, 63 P.3d 220, quoting Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431.) The appellate court "must assume the role of the trial court and redetermine the merits of the motion" using the same standards required below. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 341, 54 Cal.Rptr.2d 772.) Our review, therefore, is limited, as was "the trial court's, to determining if `there is evidence requiring the fact-weighing procedures of a trial.'" (Pensinger v. Bowsmith, Inc., supra, at p. 717, 70 Cal.Rptr.2d 531, quoting Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 468, 52 Cal.Rptr.2d 678.)

II. The Trial Court Did Not Err in Granting Summary Judgment

Each of appellants' causes of action against respondents was based on Kallsen and Jensen's alleged negligence in failing to observe and supervise Mrs. Hernandez, failing to restrain her and prevent her from straying from their care, and failing to apprehend her once she had done so.² To prove their case, appellants were required to show that respondents owed Mrs. Hernandez a duty of care, which they breached by conduct falling below a defined standard of care, plus causation and damages. (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 344-345, 268 Cal.Rptr. 309.) Respondents assert and appellants agree that the negligence required to be shown was gross negligence, as Health and Safety Code section 1799.106 insulates EMT's from liability for ordinary negligence in the performance of their duties.³ (See Wright, at pp. 345-347, 268 Cal.Rptr. 309. See also Health & Saf.Code, § 1799.108.)

The question whether an applicable standard of care has been breached ordinarily is one of fact. (Compare Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 724, fn. 13, 110 Cal.Rptr.2d 528, 28 P.3d 249 with Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185, 7 Cal.Rptr.3d 552, 80 P.3d 656.) Where medical personnel are accused of negligence, generally there must be expert testimony regarding the standard of care. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, 35 Cal.Rptr.2d 685, 884 P.2d 142.) Here, both appellants and respondents submitted affidavits from experts — in both cases from emergency room physicians with significant experience in the subjects of emergency medical response and management of response teams.

Dr. Tucker James...