Zeilman v. County of Kern

• Decision Date: 06 June 1985
• Citation: 214 Cal.Rptr. 746,168 Cal.App.3d 1174
• Parties: Donna ZEILMAN, Plaintiff and Appellant, v. COUNTY OF KERN, Defendant and Respondent. Civ. F003490.
• Court: California Court of Appeals Court of Appeals

Page 746

214 Cal.Rptr. 746

168 Cal.App.3d 1174

Donna ZEILMAN, Plaintiff and Appellant, v. COUNTY OF KERN, Defendant and Respondent.

Civ. F003490.

Court of Appeal, Fifth District, California.

June 6, 1985.

[168 Cal.App.3d 1176] V.P. Di Giorgio, Bakersfield, for plaintiff and appellant.

Borton, Petrini & Conron and Daniel L. Ferguson, Bakersfield, for defendant and respondent.

OPINION

HAMLIN, Associate Justice.

Plaintiff, Donna Zeilman, appeals from an order granting summary judgment in favor of defendant and dismissing her complaint for damages for personal injuries suffered when she fell in the county jail facility where she was being booked. ¹ The trial court granted summary judgment based on defendant's claim of governmental immunity under Government Code sections 844 and 844.6 ² because plaintiff was a prisoner at the time of injury.

On appeal, plaintiff urges that the trial court erred in granting summary judgment because there were factual issues as to (1) her status as a prisoner at the time of her injury and (2) defendant's breach of its duty to provide her immediate medical care pursuant to section 845.6. We agree and reverse the judgment.

THE FACTS

Pursuant to a warrant, plaintiff was arrested in her office on January 12, 1980, for grand theft. At that time she was suffering from an injury to her leg incurred while skiing. Her injury was disabling to the point that it was necessary for her to use crutches to walk.

The arresting officers took plaintiff to the Kern County jail for booking. She remained standing in the busy booking area throughout the booking procedure. When the booking deputy finished with her and pointed to a chair, plaintiff attempted to walk to it with the aid of her crutches. She slipped and fell before she reached the chair.

The declarations of booking deputy Martha Overfield and Sergeant Stephen McCollum submitted by defendant in support of its motion for summary judgment establish that completion of an arrest and booking report is part of the booking procedure. This booking report includes information about the suspect and the arrest. After completion it becomes an official permanent record of the arrest maintained at the jail. A blank sample of this form was filed with the Overfield declaration, and this sample shows a space on the form for fingerprints and instructions regarding photographing. Overfield declared that she had completed the property inventory and the arrest and booking report at the time she told plaintiff to sit down.

With respect to plaintiff's claim that jail personnel had failed to provide her with necessary immediate medical care, defendant submitted excerpts from plaintiff's deposition, indicating she never asked for any assistance in reaching the chair to which she had been directed.

In opposition to defendant's motion for summary judgment, plaintiff's attorney submitted a declaration stating that he arrived at the jail during the booking procedure and could observe his client being booked, in an "aggitated [sic ], emotional and weakened condition which was easily apparent to him and any other person in his vicinity." Plaintiff's counsel had already obtained a signed "OR release" for plaintiff, and he was told this would be honored as an order of the court after the booking process was completed. Counsel then waited some 20 to 30 minutes while the booking process continued.

DISCUSSION

I. Summary Judgment Was Not Proper Because There Was a Triable Issue of Fact as to Plaintiff's Status as a Prisoner at the Time of the Injury.

Code of Civil Procedure section 437c provides in pertinent part: "(c) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law...."

The general rules of summary judgment procedure are summarized in Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 440-441, 186 Cal.Rptr. 357:

"The rules of summary judgment procedure are well established and, so far as pertinent here, may be concisely stated. A judgment granting a summary judgment motion is appealable. (Code Civ.Proc., § 437c; Bank of America v. Superior Court (1970) 4 Cal.App.3d 435 .) 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. [Citations omitted.]' (Stationers Corp. v. Dun & Bradstreet Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; ...)"

On appeal, any factual conflicts are resolved in favor of the nonmoving party. (Chesney v. Gresham (1976) 64 Cal.App.3d 120, 134 Cal.Rptr. 238, cert. den. (1977) 432 U.S. 907, 97 S.Ct. 2952, 53 L.Ed.2d 1079.) Moreover, this court's review is limited to the facts before the trial judge at the time he ruled. ³ However, this court must independently determine the construction and effect of these facts as a matter of law. (Bonus-Bilt, Inc. v. United Grocers, Ltd., supra, 136 Cal.App.3d at p. 442, 186 Cal.Rptr. 357.)

The first ground on which defendant based its motion for summary judgment is the immunity afforded by section 844.6 which provides in pertinent part:

"(a) Notwithstanding any other provision of this part, except as provided in this section and in Section 814, 814.2, 845.4 and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for:

"(1) An injury proximately caused by any prisoner.

"(2) An injury to any prisoner.

"..."

"Prisoner" is defined in section 844: "As used in this chapter, 'prisoner' includes an inmate of a prison, jail or penal or correctional facility." Although the record contains no statement of the trial court's rationale in granting defendant's motion for summary judgment, to the extent defendant relied upon section 844.6, the trial court must necessarily have concluded that plaintiff was a prisoner as a matter of law, i.e., no triable issue of fact existed as to plaintiff's status.

Judicial construction of the definition of the word "prisoner" in section 844 is by no means unanimous. In Sahley v. County of San Diego (1977) 69 Cal.App.3d 347, 349, 138 Cal.Rptr. 34, the court summarized much of the applicable case law:

"A ' "prisoner" includes an inmate of a prison, jail or penal or correctional facility' (Gov.Code, § 844). The Legislative Committee comment on this section includes as prisoners persons in the custody of a law enforcement officer although undergoing medical treatment in a county hospital, those in work camps and those engaged in fire suppression; parolees are not. From case law, the deprivation of liberty by lawful process or some kind of involuntary restraint characterizes one's status as a prisoner or inmate (Patricia J. v. Rio Linda Union Sch. Dist. [ (1976) ] 61 Cal.App.3d 278, 283 ...; Jiminez v. County of Santa Cruz [ (1974) ] 42 Cal.App.3d 407, 410 ...; Larson v. City of Oakland [ (1971) ] 17 Cal.App.3d 91, 96 ...; Datil v. City of Los Angeles [ (1968) ] 263 Cal.App.2d 655, 658 ...). Thus, a person who has been booked is considered a prisoner (Datil v. City of Los Angeles, supra, 263 Cal.App.2d 655, 659 ) while persons who have been temporarily detained for investigation (Larson v. City of Oakland, supra, 17 Cal.App.3d 91, 97 ), juveniles who are wards of the court but in custody of their parents (Patricia J. v. Rio Linda Union Sch. Dist., supra, 61 Cal.App.3d 278, 287 ), and persons falsely imprisoned beyond the term of their prison sentences are not (Sullivan v. County of Los Angeles [ (1974) ] 12 Cal.3d 710, 715 [117 Cal.Rptr. 241, 527 P.2d 865] ...). Here, Sahley was a preconviction detainee awaiting trial; he had been booked and arraigned; he was a 'prisoner' for purposes of governmental immunity (see Datil v. City of Los Angeles, supra, 263 Cal.App.2d 655 ).

With respect to the definition provided in section 844, the court in Patricia J. v. Rio Linda Union Sch. Dist. (1976) 61 Cal.App.3d 278, 283, 132 Cal.Rptr. 211, stated "Appellate courts, since the adoption of that section, have struggled with its meaning; some have said the section is exhaustive and that the word 'prisoner' means only inmates of an institution under restraint [citation omitted], while others have sought to ascribe an expansive meaning to the section because of the use of the word 'includes.' [Citation omitted.]"

Indicative of this disparity are the opinions in Jiminez v. County of Santa Cruz (1974) 42 Cal.App.3d 407, 116 Cal.Rptr. 878 and Larson v. City of Oakland (1971) 17 Cal.App.3d 91, 94 Cal.Rptr. 466. The court in Jiminez stated in part, "Section 844, in defining 'prisoner,' uses the word 'includes,' indicating that the term 'prisoner' is to be broadly interpreted." (Jiminez, supra, 42 Cal.App.3d at p. 409, 116 Cal.Rptr. 878.) However, the court in Larson v. City of Oakland, supra, after reviewing rules of statutory construction, other definitions of the term "prisoner," and related statutes concluded, "...