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A New Standard Could Lead to Huge Verdicts in Police Misconduct Cases

By: Charles Bolcom

California cities and counties soon could face larger and more expensive verdicts for police misconduct after the California Supreme Court recently allowed plaintiffs to collect their entire economic and non-economic (pain and suffering) damages from a single defendant whose intentional actions were a substantial factor in causing plaintiff’s injuries. 

In B.B. v. County of Los Angeles, 10 Cal.5th 1, 2020 WL 4578991 (Cal. 2020), the California Supreme Court ruled that a county defendant, who acted intentionally in causing plaintiff’s harm, could not use the plaintiff’s comparative fault or the fault of others to reduce its liability for non-economic damages – a dramatic change in joint and several liability under California law.  Up to this point, even with intentional conduct that had been a substantial factor in causing plaintiff’s damages, a defendant would have to pay only its individual share of plaintiff’s non-economic damages (pain and suffering) as found by the jury.  See Cal. Civ. Code §1431.2(a).  

The Court determined that traditional principles of several liability no longer apply when a party is found to have acted intentionally in causing plaintiff’s harm.  It held joint and several liability does not allow “a reduction in the liability of intentional tortfeasors for non-economic damages based on the extent to which the negligence of other actors – including the plaintiffs, any codefendants, injured parties, and nonparties – contributed to the injuries in question.”  As a result, the Supreme Court reinstated an $8 million verdict against Los Angeles County in a case where the deceased had significant fault in causing the harm.

Consequently, cities and counties potentially will pay greater damages for the intentional acts of their employees – especially police officers accused of using excessive force that causes injury during an arrest.  In B.B., Los Angeles County deputies were accused of excessive force in arresting Darren Burley, who was growling and foaming at the mouth when a woman alleged she had just been assaulted by him.  When police tried to make the arrest, Burley resisted, causing several officers to become involved.  

Deputy David Aviles put one knee on the back of Burley’s head near the neck and the other knee in the center of Burley’s back.  Eventually, once Burley was cuffed, Deputy Aviles released him but, when paramedics arrived, they found Burley still cuffed and face down on the pavement, with no pulse and with a different deputy pressing a knee into the small of his back.  Burley never regained consciousness and died ten days later. 

The jury found Burley 40 percent responsible, several deputies collectively 40 percent responsible, and Deputy Aviles 20 responsible and liable for the intentional tort of battery.  The trial court rendered judgment holding Deputy Aviles liable for 100 percent of the plaintiff’s economic and non-economic damages. 

The Court of Appeals reversed, holding that the County was liable only for $3.2 million, based in part on the county’s individual share of pain and suffering.  But, for the reasons stated above, the California Supreme Court restored the original verdict of $8 million against the County in its opinion issued August 10, 2020.  In the future, plaintiff’s attorneys likely will use this decision to accuse police officers of acting intentionally when an arrest has led to personal injury or death, thereby increasing a city or county’s potential liability.


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