EVERYTHING YOU WILL NEED TO KNOW ABOUT THE FEDERAL TORT CLAIMS ACT

Imagine you get hurt because a federal employee did something wrong, but you don’t know what you can do about it. They are employed by the government, so who do you even report to?

The Federal Tort Claims Act was passed in 1946 to allow the federal government to be sued in cases of wrongdoing. This means that federal employees are to be held responsible for any mistakes that result in injury to others.

Have you had to deal with this type of situation in the past? Are you currently recovering from the misdoings of a federal employee?

Keep reading to find out more about what you can do.

What is a Tort?

Simply put, a tort is a wrongful act that causes a claimant to suffer loss or harm in some way. It is a civil wrong and there are three types of torts that may cause this harm to other people. Each of them has distinct differences that help to tell them apart.

Intentional Tort

Intentional torts are when someone does something wrong to another person on purpose. Examples of this could be assault, false imprisonment, or fraud.

For the most part, this is when someone does something illegal and harmful with intent to harm.

Negligence Tort

Negligence torts occur when harm is inflicted upon another person due to failure to meet specific standards meant to keep everyone safe and happy.

These are typically due to carelessness and are actually the most common of the three types of torts.

Strict Liability Tort

Strict liability torts are a little different because they happen when responsibility for harm can be applied to someone or something without any evidence of it being their fault.

The harm has to be directly caused by the someone or something in order for the law to see the person as being the victim in these cases.

The Federal Tort Claims Act

Under the Federal Tort Claims Act, the government is self-insured and will recognize liability when a federal employee does something that results in injury to another person or their property.

If someone is injured or harmed in some way as a result of a federal employee’s actions, you may have the chance to file a claim against the government.

What Do You Need?

You have to be able to show that the federal employee was the one that harmed you or your property.

You also need to be able to prove that the employee was doing something within the realm of duties he or she is meant to be doing for the government when the harm happened.

Lastly, you will need to be able to demonstrate the employee acted wrongfully and this wrongdoing directly resulted in harm to you.

For instance, you may file a FTCA claim if you are a veteran being treated at a Veterans Administration and the doctor employed there misdiagnoses and, as a result, mistreats you.

Is This Like Any Other Lawsuit?

This type of tort claim is a little bit more challenging than a civil suit, because the FCTA is a really complex law.

It is always better to file the claim sooner rather than later in order to have the best chance of winning the case. A written claim must be filed within two years of your knowledge of the negligence or intent to harm.

Hiring an expert-level lawyer is going to be important at this stage. .source

Understanding Tort Law

Tort law can be split into three categories: negligent torts, intentional torts, and strict liability torts.

• Negligent torts are harms done to people through the failure of another to exercise a certain level of care, usually defined as a reasonable standard of care. Accidents are a standard example of negligent torts.
• Intentional torts are harms that have been caused by the willful misconduct of another, such as assault, fraud, and theft.
• Strict liability torts, unlike negligence and intentional torts, are not concerned with the culpability of the person doing the harm. Instead, such cases focus on the act itself. If someone or some entity commits a certain act—for example, producing a defective product—that person or company is responsible for the damage done, regardless of the level of care exercised or their intentions.

Examples of Tort Law

A Liability Case

In February 2016, a self-driving car made by Google crashed into a bus in Mountain View, Calif. The car sensed a group of sandbags positioned around a storm drain and swerved into another lane to avoid them, slamming into the side of a public transit bus. This was the first reported case of a self-driving car causing an accident, not just being a part of one.

According to liability tort law, drivers can seek compensation from a manufacturer for a faulty part of a car, usually an airbag or a tire. However, this liability tort now extends to self-driving cars, and Google and others in the nascent self-driving vehicle business could be found liable for the damages.1

A Negligence Case

Amy Williams filed a negligence lawsuit against Quest Diagnostics and its subsidiary Athena Diagnostics for the wrongful death of her two-year-old son, Christian Millare.

In 2007, Athena Diagnostics misclassified a mutation in Millare’s gene. The plaintiff argued that the misclassification led the child’s doctors to use the wrong treatment for his symptoms. The mutation directly resulted in his seizure and death in 2008.

In 2018, 11 years after the child’s death, the South Carolina Supreme Court ruled that a genetic testing lab could be classified as a healthcare provider under state law.2

An Intentional Tort Case

An example of an intentional tort is the ruling between the website Gawker and pro wrestler Hulk Hogan on March 18, 2016.

Hogan was awarded $140 million in damages since it was deemed that Gawker intentionally invaded his privacy in order to obtain video evidence of a private act. source

What to Know About Tort Laws in California

In California, those who believe that they have been harmed by another person, company or government agency may pursue civil litigation. A civil case may also be referred to as a tort case, and unlike a criminal proceeding, no one will go to jail after a ruling is made in the matter. Instead, the defendant will likely be ordered to provide compensation to the plaintiff to help that person recover any financial losses incurred because of the defendant’s negligent behavior.

California Law Recognizes Three Different Types of Torts

In California, a tort may be classified as an intentional tort, a negligent tort or a strict liability case. An intentional tort takes place when the defendant engages in an act that he or she knew was wrong. Let’s say that the defendant in a personal injury case saw you walking on the side of the road. Upon seeing you, that person decided to hit you with his or her car despite knowing that doing so would be a violation of his or her duty of care.

A negligent tort occurs when a person unintentionally engages in an act that would constitute negligence on his or her behalf. Let’s say that the driver of the car that hit you did so while driving too fast for road conditions. Although that person should have known that driving above the posted speed limit was risky, there was no actual intent to cause you harm.

In a strict liability case, it doesn’t matter what the defendant’s intentions were. As long as it can be shown that another party’s actions caused you to incur a financial loss, you will likely obtain a favorable outcome in court. Strict liability laws often apply in cases involving vicious animals or defective products.

What to Know About Reckless Misconduct Cases

If a person acts in a reckless manner, he or she may face additional penalties in a civil case. Reckless activity occurs when an individual engages in acts that have a wanton disregard for a person’s life. As a general rule, it is considered to be a cross between an intentional tort and a negligent tort. However, typically, reckless behavior is seen as more severe than negligent behavior.

It’s possible for a defendant to face a reckless misconduct charge even if he or she didn’t intend to cause a specific amount of property damage or a specific type of injury. For example, a person may have acted in a reckless manner by driving 65 miles per hour through a residential street. Despite that, it doesn’t mean that the defendant intended to run you over or drive a car through your house.

How Do You Prove Negligence Occurred?

To obtain a financial award in any type of civil case, you’ll need to prove that the defendant acted in a negligent manner. To do this, you will first need to show that the defendant violated his or her duty of care in allowing your injuries to happen.

In a car accident case, you may be able to establish that by showing that he or she was driving while impaired or was operating an improperly maintained vehicle when the crash occurred. In a premises liability case, you might be able to use witness statements or security camera footage to establish that a hazard wasn’t dealt with properly.

After establishing that a duty of care was violated, you must show that the defendant’s actions were the proximate cause of your injuries. This is why it’s generally in your best interest to seek treatment immediately following any type of accident.

By doing so, you can establish a stronger link between a defendant’s actions and your injuries. Otherwise, it may be possible for that person to assert that a back injury occurred years ago at work or that your pain was caused by some other condition that you have failed to treat.

Finally, you’ll need to show that the defendant’s actions resulted in some sort of financial loss. For instance, if you went to the hospital after a car accident, you would likely be charged for services rendered. Presenting the bill that you received into evidence would generally be enough to satisfy this requirement.

What Types of Damages Might You Be Entitled To?

California tort laws allow you to collect a variety of damages based on the facts of your case. For instance, if you have to go to the hospital, you will likely be able to recover the cost of prior, current or future treatment. If you were forced to miss work, you’ll likely be able to recoup any wages that were lost, and in the event that you can’t go back to work, a settlement will likely include lost future earnings.

If you have to refurbish your home or car to make them easier to use, the defendant in your case may have to pay to make that happen. The defendant may also need to pay to repair or replace any items that were damaged or lost as a result of that person’s negligence.

Finally, you may be entitled to reimbursement for the cost of in-home care or any other costs that are somehow related to a defendant’s irresponsible behavior. In the event that your case goes to trial, it’s possible that the defendant may appeal an unfavorable jury verdict.

If that happens, interest will likely accumulate on the balance of any award that a jury says that you’re entitled to. In some cases, appeals take years to resolve, which means that the final amount that you’re paid may be significantly higher than what you were initially awarded.

Your personal injury attorney may be able to provide more information about the types of compensation that you may receive in your case. An attorney may also be able to talk more about the steps involved in calculating the size of your award.

How Long Do You Have to File a Lawsuit?

Under California tort laws, you have two years from the date of a negligent action to file a personal injury lawsuit. California law does generally toll the statute of limitations clock for a number of reasons. For instance, if you were under the age of 18 when you were hurt, you’ll typically have two years from your 18th birthday to take legal action.

If you are incapacitated, mentally deficient or incarcerated after an accident occurs, the statute of limitations tolls until your situation changes. For example, if you’re in a coma for three years after being hit in the head by the defendant in your case, you would have two years after emerging from it to file a lawsuit. Of course, this assumes that you have the mental capacity to do so on your own.

This clock may also toll if you aren’t immediately sure that you were hurt as the result of a defendant’s actions. It isn’t uncommon for symptoms of a concussion, internal bleed or other injuries to take days or weeks to present themselves. In such a scenario, you’ll be given two years from the date that a reasonable person would have figured out how they were injured.

It’s worth noting that you may have significantly less time to take legal action against a government agency. Under the California Tort Claims Act, you must generally provide up to six months advance notice before filing a lawsuit. A personal injury attorney may be able to provide more information about your rights as it relates to taking such a step.

If you are hurt for any reason through no fault of your own, it may be in your best interest to hire a personal injury attorney. source

California Tort Claims Act – How to Sue The Government

The California Tort Claims Act (CTCA) is a law enacted by the California Legislature with the intent to protect the state government from liability in certain personal injury cases. The law states that, generally, “a public entity is not liable for an injury” caused by that public entity or any of its employees. This is known as “sovereign immunity.”

However, the law has numerous exceptions that provide injury victims with a limited opportunity to bring a claim and seek monetary damages.

In most California Tort Claim Act claims, proper notice of a claim must be filed within six months of the injury or accident.

The Act allows the government to be held liable in limited circumstances. These provisions include premises liability where the government had notice of the dangerous condition, or where the government is vicariously liable for the negligence of an employee.

If you are successful in your claim against the government, you can be awarded financial compensation for your injuries. Compensatory damages in a personal injury lawsuit can include:

• Medical bills,
• Loss of income,
• Property damage, and
• Pain & suffering.

1. What is the California Tort Claims Act?

If a government agency, employee, or the government itself is responsible for your injuries, there are very specific requirements you must follow in order to file a personal injury lawsuit against the government. Under the California Tort Claims Act, you are required to give notice to the government within a set period of time or you lose your opportunity to seek money damages from the party that injured you.

However, the law also carves out certain limited exceptions that allow the State of California to face liability. For those limited exceptions, a very strict filing claim procedure is in place which must be strictly followed for an injury victim to recover damages.

1.1 What is sovereign immunity?

Sovereign immunity is a legal concept created centuries ago in England, which protected the King from any lawsuit which caused damages to others. Over the many years since that time, the concept has been adopted by every state in various forms to protect public entities from lawsuits for injuries caused by them or their employees.¹

In most states, the sovereign immunity statutes carve out specific exceptions to the law by which a plaintiff can still sue the government or another public entity. These exceptions are usually governed by a strict procedure that must be followed.

1.2 What claims are covered under the California Tort Claims Act?

Under the California Tort Claims Act, all claims for civil liability or “money damages” are covered, meaning that cases that are covered may include:

• Car accidents;
• Bus accidents;
• Burn injuries;
• Slip and fall accidents;
• Medical negligence;
• Nuisance;
• Sports injuries at school;
• Breach of contract; and
• Intentional torts, like assault & battery.

Lawsuits against teachers and school districts in California generally proceed by way of the CTCA.

1.3 What types of claims are not permitted under the California Tort Claims Act?

The Act generally does not allow claims for almost any other reason, except those above. These include:

• Injuries caused by the failure to pass a regulation, ordinance, or law;
• Injuries caused by the California National Guard;
• Injuries caused by failure to enforce a specific law;
• An injury caused by an issuance or failure to issue any permit, license, certificate, or other governmental authorization;
• Any injury caused by a failure to inspect any property which the government itself does not own;
• Injuries caused by any misrepresentation; or
• Damages as a result of reporting identifying information of convicted drug offenders to local schools.

Moreover, punitive damages are generally not allowed in a claim against the government. These types of damages are rarely awarded in a personal injury claim, and may require a showing of recklessness, fraud, or intentional harm. However, these types of damages are specifically excluded from liability under the law.

Additionally, any claim which is not “for money or damages” cannot be filed under the California Tort Claims Act.

Example: Janet is a contractor who has agreed to build a shed for a customer by the end of next week. She goes through the paperwork for the necessary building permit and submits it but the permit is denied. Janet is unable to fulfill her contract, and is sued as a result. She cannot sue the government under the CTCA for denying her permit, even though that denial was the ultimate cause of her damages.

2. When can the government be held responsible for my injuries?

Under the Act, the government can be held legally responsible for personal injury damages in certain situations. These situations include:

• The negligent acts of employees,
• The negligent acts of independent contractors,
• Premises liability for dangerous conditions on government property, and
• When damages are caused by the public entities’ failure to carry out a duty imposed by law.

The entity responsible in a California Tort Claims Act claim is generally the government entity or agency responsible for the employee, property, or carrying out a duty. The CTCA applies to state, county, and local government agencies and departments, including city or municipality agencies.

2.1 When can the government be liable for acts of its employees?

A government entity or agency is responsible for any negligent acts committed by its employees, if:

• The employee was acting within the scope of his or her employment; or
• The employee was carrying out some government function.²

If a government employee is the cause of a person’s personal injury damages, the victim should file a claim under the California Tort Claims Act against the agency or entity that employs that negligent employee. The Act does not provide for a lawsuit against the employee personally but generally only against the employer.

2.2 When can the government be liable for the acts of independent contractors?

The government may be held responsible for the negligent acts of its independent contractors when:

• The independent contractor was acting within the scope of its assignment or agreed upon duties; or
• The independent contractor was carrying out a government function for which it had authority.

The same rules apply under the Act for independent contractors as they do for employees. Again, the independent contractor may not be sued individually under the California Tort Claims Act but instead the lawsuit must be against the government itself.

2.3 When can the government be liable for failure to carry out a legal duty?

If a law imposes a particular duty upon a government entity or agency, and that entity or agency fails to fulfill that legal duty, the government can be held liable for injuries caused as a result under the California Tort Claims Act.

Example: If a government agency is responsible for ensuring that roads are kept in a safe manner, and the agency negligently fails to correct a large pothole it has known about for months, a person injured by the unsafe road condition may be able to sue the agency for damages under the Act.

Note, however, that many government officials acting in their discretionary capacity are protected by qualified immunity.

2.4. Who is responsible for accidents that happen on government property?

When the government owns or controls the property, the government may be liable for injuries caused by any hazardous condition on the property. However, premises liability claims against public entities have a different standard.

In a premises liability claim against the government, the plaintiff has to show:

1. The property was in a dangerous condition at the time of the injury;
2. The injury was proximately caused by the dangerous condition;
3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and either:
   1. The danger was created by a negligent or wrongful act of a public employee, or
   2. The public entity had actual or constructive notice of the dangerous condition and enough time to correct or protect against the dangerous condition.³⁴

To establish notice, the dangerous condition may have existed for a period of time and was obvious enough that the government entity should have discovered the condition and its dangerous character.⁵

3. How do I file a claim under the California Tort Claims Act?

To file a claim against the State of California, a county government, or a municipal government agency, the injury victim must give notice of his or her claim.⁶ This may include filing a report or sending a letter which may suffice as notice, so long as it contains all of the necessary requirements. However, many agencies and municipalities have claim forms that individuals can fill out to provide notice of the claim.

An attorney at the Shouse Law Group can ensure you meet all of the filing requirements, including making sure you file your claim in within the appropriate time limit. Failure to properly file a claim or filing the claim too late could mean your claim will be denied.

3.1 What information does my claim have to include?

The person seeking to file a lawsuit against the government agency or entity must file a claim which includes the following information:

• The name and postal office address of the claimant.
• The post office address to which the person presenting the claim desires notices to be sent.
• The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
• A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
• The name or names of the public employee or employees causing the injury, damage, or loss, if known.
• The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. ⁷

Failure to include all of the necessary information can invalidate your claim. If a proper claim is not filed within the time period set forth by law, the claim may be denied.

3.2 What is a “limited case?”

If your claim exceeds $10,000, you may not be required to indicate the amount you seek in your claim, but you are required to indicate whether the claim is a “limited civil case.” A civil case is a “limited civil case” if the plaintiff is seeking less than $25,000, not including costs and reasonable attorney fees, and the plaintiff is not asking for any of the following:

• A permanent injunction: A court order which commands the government agency or entity to or prevents it from taking the complained of action or activity;
• An action which seeks a determination of title to real property;
• Enforcement of any order under the Family Code; or
• An action for declaratory relief: A case that asks the court to state and establish the rights and other legal obligations of the parties involved, but does not actually order enforcement.

It is important to discuss your case with an experienced attorney before filing a claim. Many injury victims under-value their case or do not take into account all their damages. Even minor injuries can require follow-up care or continuing medical treatment. Not asking for enough to fully compensate you for your injuries could leave you paying out of pocket for something that wasn’t your fault.

3.3 Do I have to file a lawsuit if I filed a claim?

If you file a proper notice of claim, you may not have to immediately file a lawsuit. By filing a claim, an injured victim leaves open the option of filing the later lawsuit. However, the party may not be required to follow through with the lawsuit if the government agency agrees to pay the claim.

Example: Carlos was injured as a result of a broken staircase while in a municipal building. Carlos and his attorney file a claim with all of the necessary information and within the time limit. Later, Carlos realizes that he does not want to go through with the lawsuit. He is not required to under the law, but he kept his options open by filing his claim.

4. What are the time limits for bringing a claim?

The act sets forth very strict guidelines for filing a claim against a government entity or agency. Failure to follow these strict guidelines may result in the dismissal of any late claim. This means that an otherwise proper lawsuit for which a plaintiff could receive damages may be invalidated because it was outside of the strict, and often short, time period in which to file.

Most personal injury claims have a limited time to file a claim. However, the statute of limitations, or time allowed to file a claim against government entities is generally shorter than claims against private parties.

A notice must be filed within six months for claims that concern:

• Personal injury,
• Wrongful death,
• Damage to personal property, or
• Damage to crops.

The notice must be filed within six months of the date of the injury. In very limited circumstances, the six-month period may not begin to run until the plaintiff first discovers (or should have discovered) the injury. For example, in a medical negligence case, the victim may not be aware of an accident or injury until weeks or months later. ⁸

Claims which relate to all other causes must be brought within one year of the injury. These actions would include, but are not limited to:

• Breach of contract actions;
• Damage to real property; or
• Declaratory judgment actions not subject to a six-month limitation.

It is critical that the claim is filed within the appropriate time limit to protect the lawsuit from being dismissed.

4.1 Can I file a late claim?

Late claims without a qualifying reason will generally be denied. However, a late claim may sometimes be accepted when the claimant files their claim along with an “application for late filing.” There are four valid reasons for being late in filing a claim:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Minority (claimant was a minor under the age of 18 during the entire six-month period);
3. Mental or physical incapacity; or
4. Death of a claimant.⁹

Filing a late claim is subject to further strict requirements, but with the help of an experienced personal injury attorney your chances of successfully filing your late claim may increase significantly.

5. What happens after I file my claim?

Once your claim is filed, the public agency generally has 45 days in which to respond or take action. This time is extended somewhat depending on if the claim is mailed and from where the claim is mailed.

There are 5 possible outcomes after a claim is filed:

1. The entity fails to respond within the appropriate time period. This means that the claim is deemed rejected.
2. The entity may approve the claim in whole or in part. The entity may offer a compromise to the claim, which may constitute a settlement of the whole case.
3. The entity may reject the claim.
4. The entity may state the claim does not have sufficient information. The claim can be amended within the time period set by law to fill in that missing information.
5. The entity may return the claim for being untimely.

6. What do I do if my claim is rejected?

If the claim is rejected, a claimant can file suit in state court against the government. To do so, a claimant files a petition with the Superior Court asking to be relieved from the claims requirement. ¹⁰

If the original claim was rejected in whole or in part by the government entity by some form of notice from that entity, the claimant has only six months to file the petition with the court.

If the original claim was rejected because the governmental entity failed to respond to the notice, the time in which to file the petition is two years from the date of rejection.

6.1 What if the court grants my petition?

If the court grants the petition to proceed without the claim requirement, the claimant must file his or her lawsuit within 30 days. Failure to file suit within this time period can result in the inability to ever file the suit again. ¹¹

6.2 What if the court denies my petition?

If the court denies the petition to proceed without the claim requirement, the order denying the petition may be appealed. Your California personal injury attorney can file the appeal on your behalf. If successful on appeal, you will be able to file your case against the government. source

Legal References

Helpful articles involving Torts

How to File a complaint of Police or Government Misconduct?

$uing for Misconduct – Know More of Your Right$

California Attorney Misconduct Law – Suing your attorney

“Civility” Oath Rule Adopted by Supreme Court

Police Misconduct in California – How to Bring a Lawsuit

Section 1983 Lawsuit   How to Bring a Civil Rights Claim

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Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

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Tort Claims – Claim for Damage, Injury, or Death

• Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

• California – California Tort Claims Act – California Tort Claim Form Here or here from us

• Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

The City of Los Angeles appeals from a judgment of the Ventura County Superior Court
imposing liability on the City in the amount of $45,000 for damages

DEVON A. McCORKLE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

COUNSEL

Roger Arnebergh, City Attorney, Bourke Jones and John A. Daly, Assistant City Attorneys, and Nowland C. Hong, Deputy City Attorney, for Defendant and Appellant.

Heily & Blase and Edward L. Lascher for Plaintiff and Respondent.

Edward I. Pollock, Robert E. Cartwright, Theodore A. Horn, Leo M. O’Connor and Leonard Sacks as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

TOBRINER, J.

The City of Los Angeles appeals from a judgment of the Ventura County Superior Court imposing liability on the City in the amount of $45,000 for damages incurred by the plaintiff in a highway accident.

We granted a hearing in this court after decision by the Court of Appeal, First Appellate District, Division Four, because of a conflict among the various Courts of Appeal as to the proper interpretation and application of Government Code section 820.2 (governmental immunity for discretionary acts of public employees) in the light of Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457], and Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224 [11 Cal.Rptr. 97, 359 P.2d 465]. fn. 1

Subsequent to our granting of a hearing in the instant case, we decided the case of Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352]. Johnson resolved the conflicting decisions of the Courts of Appeal and formulated a definitive rationale for the application of Government Code section 820.2.

After a thorough examination of the present case, we conclude [70 Cal.2d 255] that the Court of Appeal has correctly resolved the governmental immunity question by applying the rationale subsequently embraced by this court in Johnson. Furthermore, in our judgment, the Court of Appeal has correctly decided the other issues pertinent to the proper disposition of this case. Accordingly, the opinion of the Court of Appeal, authored by Justice Rattigan and concurred in by Presiding Justice Devine and by Justice Christian, is adopted (with minor alterations) as and for the opinion of this court. The opinion (with appropriate deletions and additions as indicated) is as follows: fn. 2

Plaintiff sued several defendants for damages incurred in two separate highway accidents. The jury’s verdict was in his favor and against the City of Los Angeles alone. [ ]

In the first accident, plaintiff’s automobile collided with a vehicle driven by Edgar D. Phillips. Shortly thereafter Michael A. Lombardo, an officer of the Los Angeles Police Department, arrived at the scene and commenced to investigate the collision. The second accident occurred when plaintiff, while on foot with Lombardo during the investigation, was struck by an automobile operated by Sam C. Wells.

The accidents occurred on October 2, 1962.plaintiff commenced the action on May 22, 1963, alleging that negligence on the part of Phillips, Lombardo and Wells had proximately caused certain injuries and damages. The original complaint named as defendants these three, each by his true name, and “Does I through VIII, inclusive.” The City was not named as a defendant, but was referred to by name in the complaint as Lombardo’s employer and as the recipient of a verified claim for damages in which plaintiff asserted Lombardo’s negligence. (This claim is not involved on the appeal.)

Defendants Wells, Lombardo and Phillips were served with summons, and with the original complaint, immediately; the City was not. Wells and Phillips answered the complaint. Lombardo filed general and special demurrers which, on July 11, 1963, were sustained with leave to amend within 15 days. [70 Cal.2d 256]

The complaint was not amended until December, when plaintiff obtained from the trial court an ex parte order permitting the filing of a first amended complaint naming the City as defendant “Doe I.” This was on December 20, 1963. The first amended complaint was filed, and an alias summons addressed to the City was issued, on the same day. When both were served on the City, it moved to quash the service upon the ground that the trial court lacked jurisdiction of the City’s person. fn. [3]

At the same time, defendant Lombardo moved for an order dismissing the action as against him, upon the ground (Code Civ. Proc., § 581, subd. 3) that the original complaint had not been amended within 15 days after–and as permitted in–the order of July 11, 1963, sustaining his demurrers. Lombardo also moved to strike the first amended complaint because he had not been given notice of plaintiff’s application for the order permitting the pleading to be filed.

The trial court granted Lombardo’s motion to dismiss and ruled that his motion to strike was thereby rendered moot. The City’s motion to quash was denied. The City did not seek appellate review of the order of denial, but filed an answer to the first amended complaint. The answer alleged as an affirmative defense that plaintiff had been contributorily negligent.

The case went to trial against the City, Wells and Phillips as defendants. During the trial, plaintiff settled with Phillips and dismissed the action as to him. The jury’s verdict was in favor of Wells, but for plaintiff and against the City in the amount of $45,000.

[1] Appealing from the judgment, the City first contends that the trial court erred in denying its motion to quash service of summons upon it as a “fictitious defendant.” (See footnote [3], ante.) Plaintiff responds that the order may not be challenged on the appeal because the City did not seek appellate review, pursuant to Code of Civil Procedure section 416.3, fn. [4] when the order was entered. [70 Cal.2d 257]

Plaintiff’s position must be sustained. As indicated by authoritative sources published both before and after the enactment of section 416.3 in 1955, the Legislature intended (1) that the section would provide [a] method of obtaining appellate review of the order here in question, and (2) that the availability of the interlocutory appellate remedy would, accordingly, preclude review of the order upon appeal from a judgment entered after trial on the merits. (Report of State Bar Committee on administration of Justice (1954) 29 State Bar J. 224, 227 [-228]; Legislative Note (1955) 43 Cal.L.Rev. 695 [-] 699; Comment (1955) 29 So.Cal.L.Rev. 94, [98-101].)

Before section 416.3 was enacted, moreover, the rule was that the unsuccessful moving party waived his jurisdictional objection entirely if he made a general appearance after his motion was denied. (Jardine v. Superior Court (1931) 213 Cal. 301, 304 [2 P.2d 756, 79 A.L.R. 291]; Remsberg v. Hackney Manufacturing Co. (1917) 174 Cal. 799, 801 [164 P. 792]; see 1 Witkin, Cal. Procedure (1954) Jurisdiction, § 80, p. 349.) Section 416.3 was intended to forestall this consequence by permitting the moving party to defer a general [70 Cal.2d 258] appearance while pursuing the interlocutory appellate remedy (Hartford v. Superior Court (1956) 47 Cal.2d 447, 452 [304 P.2d 1]; see 1 Witkin, supra, § 81A [1967 Supp., pp. 162-164]) [brackets in the original Court of Appeal opinion], but the section does not relieve him of the consequence if he makes the appearance. (See Hartford v. Superior Court, supra [, 47 Cal.2d 447, 452].)

In the present case the City answered plaintiff’s first amended complaint and went to trial on the merits. So doing, it appeared generally, waived its jurisdictional objection, and therefore cannot assert the objection on this appeal. (Jardine v. Superior Court, supra [, 213 Cal. 301, 304]; Remsberg v. Hackney Manufacturing Co., supra [, 174 Cal. 799, 801]; 1 Witkin, Cal. Procedure (1954) Jurisdiction, § 80, p. 349.)

[2] The City, arguing to the contrary, first relies upon the language of section 956. [This section provides for review on appeal of certain intermediate rulings and orders. fn. [5] Regardless of whether the denial of a motion to quash service of summons is such a ruling or order, section 956 does not alter the rule that a general appearance constitutes a waiver of the jurisdictional objection.]

The City also relies upon two decisions which have indicated that an order denying a motion to quash service of summons–as distinguished from an order granting such motion–may be reviewed on appeal from a subsequent judgment. (Kneeland v. Ethicon Suture Laboratories (1952) 113 Cal.App.2d 335 [248 P.2d 447]; Saroff v. Saroff (1944) 66 Cal.App.2d, 330 [152 P.2d 353].) [These decisions both refer to cases in which the objecting defendant does not enter a general appearance. [3] We agree that a defendant may reserve his jurisdictional objection on appeal if, after the denial of his motion to quash, he makes no general appearance but suffers a default judgment. The defendant in the present case, however, proceeded to defend on the merits and cannot avoid the fact of its waiver of the jurisdictional objection.]

The City’s additional contentions on appeal require a review of the evidence, which follows.

The collision between plaintiff’s and Phillips’ automobile occurred at about 7:45 p.m., in the intersection of Pacific [70 Cal.2d 259] Coast Highway and two side streets.plaintiff received a forehead laceration (apparently a minor injury) in the Phillips accident.pacific Coast Highway runs north and south at the intersection, which is within the incorporated limits of the City of Los Angeles. Officer Lombardo arrived at the scene, driving a police car, shortly after 8 p.m. He testified that he was “called to the scene”; although he did not elaborate, it may be fairly inferred that he had been dispatched there by a police radio call received in his car.

The Phillips vehicle had been removed from the intersection when Officer Lombardo arrived.plaintiff’s automobile was removed shortly thereafter. Lombardo first talked to Phillips, who told him where the point of impact between the two cars had been. He then discussed the accident with plaintiff.

When Lombardo talked to plaintiff, the two were standing at a corner of the intersection. The hour was dark, but the intersection was well lighted. Plaintiff pointed to the area where the automobiles had collided in the intersection. Because Lombardo could see no physical evidence from where they were standing, he walked into the vehicle lanes of the intersection. Plaintiff followed him.

Plaintiff testified that Lombardo had said “Come show me the skids,” or “Come show me the point of impact,” and that plaintiff had followed him as instructed. Lombardo denied making such statement before walking into the street, but testified that, after he had reached the center of the intersection and had observed that plaintiff was following him, he asked plaintiff to show him the skidmarks. He also testified that he did not tell plaintiff to return to the corner.

Officer Hyde, a Los Angeles police officer who investigated the second accident, testified that police officers use flares “when it is necessary to protect property in an intersection” or “when it is necessary to protect people from personal injuries when you are in an intersection.” Officer Lombardo had flares in his police car, but did not use them at the scene of the Phillips accident; he testified that he usually set flares out “when there are vehicles stranded in the intersection to be protected and to protect the other motorists from striking those vehicles.”

Traffic in the intersection was controlled by conventional electric signals. Officer Lombardo could not and did not interrupt the sequence of the signals. The signal for Pacific Coast Highway traffic was red when he walked into the intersection, [70 Cal.2d 260] but apparently changed to green while he and plaintiff were in it.

Officer Lombardo carried a bright flashlight, which he used to signal automobiles approaching the intersection and to look for skidmarks on the pavement within it. He and plaintiff reached a point in the approximate center of the intersection. Lombardo was aware at this point that northbound automobiles were approaching on Pacific Coast Highway from the south. One of these was driven by defendant Wells.

Lombardo and plaintiff were standing close together, both facing northerly and away from Wells, when the latter’s car entered the intersection and struck plaintiff. Wells testified that he approached and entered the intersection on a green light, but saw neither plaintiff nor Lombardo and was unaware of the presence of either, until the impact.plaintiff was severely injured in this accident.

Discretionary Immunity

[4a] The City contends that Officer Lombardo was immune from liability, for his act or omission during the investigation of the Phillips accident, under the provisions of Government Code section 820.2; fn. [6] and that, this being so, the City is immune, as his employer, under subdivision (b) of section 815.2. fn. [7] The argument rests upon the premise that Lombardo had no duty to investigate the accident, but undertook to do so in the exercise of “discretion vested in him.”

Whether or not a public employee is immune from liability under section 820.2 depends in many cases upon whether the act in question was “discretionary” or “ministerial,” respectively. (Muskopf v. Corning Hospital Dist. [, supra,] 55 Cal.2d 211, 220; Lipman v. Brisbane Elementary School Dist. [, supra,] 55 Cal.2d 224, 229.) For this reason, contentions such as the City makes here have frequently required judicial determination of the category into which the particular act [70 Cal.2d 261] falls: i.e., whether it was ministerial because it amounted “only to an obedience to orders, or the performance of a duty in which the officer is left no choice of his own,” or discretionary because it required “personal deliberation, decision and judgment.” (Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 942-943 [41 Cal.Rptr. 508] (quoting Prosser, Torts (3d ed. [1964]) p. 1015); see Widdows v. Koch (1968) 263 Cal.App.2d 228, 239 [69 Cal.Rptr. 464]; Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 134 [43 Cal.Rptr. 294]; see, generally, Van Alstyne, California Government Tort Liability (Cont. Ed. Bar 1964) §§ 5.51-5.57, pp. 157-165.)

[5] However, classification of the act of a public employee as “discretionary” will not produce immunity under section 820.2 if the injury to another results, not from the employee’s exercise of “discretion vested in him” to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so. ([Johnson v. State of California, supra, 69 Cal.2d 782, 796- 797;] Sava v. Fuller [, supra,] 249 Cal.App.2d 281, 285-291.)

[4b] Accordingly, if we were to accept the City’s premise that Officer Lombardo exercised his discretion in undertaking his investigation of the Phillips accident, fn. [8] section 820.2 did not clothe him with immunity from the consequences of his negligence in conducting it. He would have been immune if plaintiff’s injury had been the result of his–Lombardo’s–exercise of discretion. (See [Johnson v. State of California, supra, 69 Cal.2d 782, 794 & fn. 8;] Sava v. Fuller, supra, [70 Cal.2d 262] 249 Cal.App.2d 281, 285.) It was not: it resulted from his negligence after the discretion, if any, had been exercised. Because the essential requirement of section 820.2–a causal connection between the exercise of discretion and the injury–did not exist, the statutory immunity does not apply.

Since Lombardo was not immune from liability under section 820.2, the City (1) is not immune under subdivision (b) of section 815.2 and (2) is liable under subdivision (a) thereof. (See section 815.2, quoted in footnote [7], ante.)

Jury Instructions

At plaintiff’s request, the trial court gave the jury these two instructions:

“[Plaintiff’s instruction No. 4] You are instructed that a police officer has the duty to investigate a traffic accident resulting in personal injury and to gather evidence relating thereto.

“* * *

“[Plaintiff’s instruction No. 7] You are instructed that it is unlawful for a person to wilfully fail or refuse to comply with any lawful order, signal or direction of any traffic officer.”

[6] The City contends that giving plaintiff’s instruction No. 4 was error because it misstated the law and necessarily misled the jury. Whether or not it accurately stated the law, however, we are not persuaded that the instruction was prejudicial. [ ] [B]ecause the instruction depicted Lombardo’s action in investigating the accident to have been in discharge of duty, it tended to favor him–and the City–by making him out to be something other than a capricious intermeddler in doing so. If the instruction was erroneous as the City contends, it was not prejudicial so as to require reversal. (Cal. Const., art. VI, § 4 1/2; see id [as amended in 1966], art. VI, § 13.) [Brackets in the original Court of Appeal opinion.]

[7] As to plaintiff’s instruction No. 7, the City correctly points out that it recites a portion of Vehicle Code section 2800. fn. [9] The City asserts that the trial court therefore erred in giving it (1) because Officer Lombardo was not a “traffic officer” as that term is defined in Vehicle Code section 625, fn. [10] and (2) because Vehicle Code section 2800 applies [70 Cal.2d 263] only to the “direction of traffic” and not to the verbal instruction (attributed to Lombardo by plaintiff) that plaintiff accompany an officer into the area of an accident under investigation.

It is undisputed that Lombardo was a “peace officer” (Pen. Code, § 817), and that he was on duty as such when he was investigating the Phillips accident. Apart from the question whether he was acting ministerially or at his discretion, he was acting: and his “main purpose” was to enforce the provisions of division 10 (§§ 20000-20016) of the Vehicle Code, which relates to the reporting of traffic accidents and, inferentially at least, to their investigation. He was, therefore, a “traffic officer” within the meaning of Vehicle Code section 625.

We do not concur in the City’s narrow interpretation of Vehicle Code section 2800. Had the section been intended to require that only nonverbal instructions should be obeyed, the words “order” and “direction” would be superfluous. We [might] conclude that either of these terms included the verbal instruction which, according to plaintiff’s testimony, Lombardo gave him in the present case. [We need not reach this question, however, because] the City’s argument ignores the testimony that Officer Lombardo used his flashlight to signal motorists approaching the intersection. The instruction was therefore relevant to the jury’s assessment of the conduct of Wells–one of these motorists–if the jurors had concluded that he saw, but did not heed, the flashlight signals. The trial court, therefore, did not err in giving the instruction. fn. [11] [70 Cal.2d 264]

Contributory Negligence

The City urges that, according to the evidence, plaintiff was contributorily negligent as a matter of law in walking into the intersection with Officer Lombardo. The point is without merit. (See Anthony v. Hobbie (1945) 25 Cal.2d 814, 818 [-819] [155 P.2d 826]; Markewych v. Altshules (1967) [255 Cal.App.2d 642, 645-647 (63 Cal.Rptr. 335)].)

The judgment is affirmed.

Traynor, C. J., McComb, J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

­FN 1. Compare Sava v. Fuller (1967) 249 Cal.App.2d 281 [57 Cal.Rptr. 312], with Glickman v. Glasner (1964) 230 Cal.App.2d 120 [40 Cal.Rptr. 719].

­FN 2. Brackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor’s added parallel citations) are, unless otherwise indicated, used to denote insertions or additions, with or without deletions, by this court. In employing this use of brackets we adhere to a method of adoption employed by us in the past. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 517 & fn. 3 [67 Cal.Rptr. 761, 439 P.2d 889]; Simmons v. Civil Service Emp. Ins. Co. (1962) 57 Cal.2d 381, 383 & fn. 1 [19 Cal.Rptr. 662, 369 P.2d 262]; People v. Lyons (1956) 47 Cal.2d 311, 314 & fn. 1 [303 P.2d 329].

­FN [3]. Although–as will appear–the validity of this motion is not before us on the appeal, we note that the City contended that Code of Civil Procedure section 474, under which it had been named as defendant “Doe I,” was inapplicable because, as shown by the allegations of the original complaint, plaintiff was not “ignorant of the name” of the City when the action was commenced (see, generally, Lipman v. Rice (1963) 213 Cal.App.2d 474 [28 Cal.Rptr. 800]; 1 Witkin, Cal. Procedure (1954) [Pleading, § 235, pp. 1210-1213]); that, accordingly, it had not been and did not become a party to the action; and that a motion to quash service of summons upon it was therefore proper. (Kline v. Beauchamp (1938) 29 Cal.App.2d 340, 342 [84 P.2d 194].)

­FN [4]. Section 416.3 must be read with section 416.1. In order and as pertinent, each provides as follows:

“416.1. Any defendant … upon whom service of summons has been made may serve and file, on or before the last day on which he is required to plead, or within such further time as the court may for good cause allow, a notice of motion to quash the service of summons, upon the ground of lack of jurisdiction of the court over him. … In the event of the service and filing of such motion, the time of the moving party to plead to the complaint … shall be extended, and no default may be entered against him, until the expiration of 15 days following service upon him of written notice of entry of an order of the court denying the motion. Upon good cause being shown, the court may extend the latter 15-day period for an additional period not exceeding 20 days. Neither an application to the court by [any] defendant … for an extension of time within which to plead, nor the granting of such extension nor entering into a stipulation of the parties for such extension, shall constitute a general appearance by said defendant. …

“416.3. If a motion of a defendant … to quash service of summons, as provided in section 416.1 … is denied by the court, he may, before pleading, and within 10 days of service upon him of written notice of the order of the court denying the motion, or within such additional time not exceeding 20 days as the court may allow, petition an appropriate appellate court for a writ of mandate directed to the court wherein the action … is pending requiring the entry of its order quashing the service of summons. If he shall thereupon serve upon the adverse party and file with the clerk of the latter court a notice that he has petitioned for such writ of mandate, his time to plead shall be extended, and no default may be entered against him, for a period of 10 days following written notice of the final judgment in the mandamus proceeding, which time for good cause may be extended by the court for an additional period of not to exceed 20 days.”

Until hereinafter indicated, all statutory references are to the Code of Civil Procedure.

­FN [5]. As pertinent here, the section provides as follows: “956. Upon an appeal from a judgment the court may review the verdict or decision, and any intermediate ruling, proceeding, order or decision which … necessarily affects the judgment, or which substantially affects the rights of a party. … The provisions of this section do not authorize the court to review any decision or order from which an appeal might have been taken.”

­FN [6]. Except where otherwise indicated, all statutory references hereinafter are to the Government Code. Section 820.2 states that “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

­FN [7]. Section 815.2 provides in full as follows: “815.2. (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

­FN [8]. Officer Hyde, who investigated the Wells accident, testified that he–Hyde–was “assigned to traffic investigation” as a Los Angeles police officer. Officer Lombardo testified that he–Lombardo–had investigated “a few hundred” such accidents, and had received formal police training in that field. Still, there was no evidence to the effect that Lombardo was under a duty to investigate the Phillips accident upon having been dispatched to the scene. Apparently, moreover, no State law explicitly imposed such duty upon him and, if a Los Angeles ordinance or police regulation did so, such has not been called to our attention. On the other hand, the City essentially contends that a city police officer dispatched to the scene of a traffic accident within the city’s limits is under no duty to investigate it when he arrives, and that he acts within his discretion if he does. This argument derives from an omission of proof in the present case, and it comports neither with reality nor with State laws which impose some accident-reporting duties upon citizens and city police departments, and which suggest others. (See, e.g., Veh. Code, §§ 625, 2407, 20001, [20002,] 20003, 20004, [] 20008, subd. (a).) Therefore, if we were to “accept” this premise as stated in the text, we would do so for purposes of argument and on the state of the record before us: we do not suggest that a city police officer is under no duty to investigate a traffic accident, nor that he is vested–or not–with discretion in the matter.

­FN [9]. “2800. It is unlawful to wilfully fail or refuse to comply with any lawful order, signal, or direction of any traffic officer or to refuse to submit to any lawful inspection under this code.”

­FN [10]. As pertinent, Vehicle Code section 625 provides that “A ‘traffic officer’ is any … peace officer [who] is on duty for the exclusive or main purpose of enforcing the provisions of Division 10 or 11 of this code.”

­FN [11]. The City argues, for the first time before the Supreme Court, that if we accept the conclusion that Officer Lombardo was a “traffic officer” within the meaning of Vehicle Code section 625, we are bound to hold that since, at Lombardo’s request, plaintiff pointed out the skidmarks on the highway, plaintiff was a “person engaged in assisting any peace officer in active law enforcement service at the request of such peace officer.” (Lab. Code, § 3366.)

Such assistance, argues the City, renders the plaintiff an employee of the City (Lab. Code, § 3366), and his exclusive remedy for the injuries suffered in the second accident falls under the workmen’s compensation provisions of the Labor Code. (Lab. Code, § 3601, subd. (a).)

We do not believe that plaintiff’s activity in the present case constituted “assisting any peace officer in active law enforcement service” within the scope of Labor Code section 3366. The legislative purpose of this section was to cover a person who assumes the functions and risks of a peace officer, and not one who merely informs a peace officer of facts within his own knowledge. (See, 4 Cal. Law Revision Com. Rep. (1963) pp. 1505-1507.)]

cited https://scocal.stanford.edu/opinion/mccorkle-v-city-los-angeles-27486