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Estate of Ursua v. Alameda County Medical Center


November 4, 2004



On August 31, 2004, plaintiffs filed their first amended complaint ("complaint") against defendants Alameda County Medical Center ("Medical Center"), Alameda County, Renee Pavon, and ABC Security Service, Inc. ("ABC"), alleging five separate causes of action.*fn1 Before me are motions to dismiss filed by each defendant.

On the evening of November 18, 2003, Renee Pavon was admitted to John George Psychiatric Pavilion ("John George") and held pursuant to California Welfare and Institutions Code § 5150.*fn2 Compl. ¶32. She appeared to be aggressive and disoriented. Id. at ¶33. The following afternoon, a Medical Center supervisor assigned Dr. Erlinda Ursua, a physician employed by the Medical Center, to conduct a physical examination of Pavon and to obtain her history. Id. at ¶¶16,35. Dr. Ursua reviewed Pavon's chart and escorted her, alone, to an isolated examination room in Unit C of the facility. Id. at ¶¶28,36-37,39. In the examination room, Pavon physically assaulted Dr. Ursua, left her on the floor, and took the forms containing her medical history and physical examination files. Id. at ¶39. While staff saw Pavon emerge from the room with the files, no one made an effort to determine why Pavon was in the restricted area without a staff member or how she got files. Id. at ¶40. Approximately one and one-half hours later, a custodian entered the examination room and found Dr. Ursua unconscious on the floor. Id. at ¶43. Attempts to resuscitate her were unsuccessful and she was pronounced dead at the scene. Id. Dr. Ursua's family filed this lawsuit. Plaintiffs allege that Alameda County owned John George, the Medical Center operated the facility, and ABC provided security based on a contract with the County, the Medical Center, and John George. Id. at ¶¶19,44. Each defendant now moves to dismiss.

Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff need only provide "a short and plain statement of the claim" giving the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957); Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). A motion to dismiss will be denied unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle her to relief. Conley, 355 U.S. at 45-46; Parks Sch. of Bus. Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). On a motion to dismiss, the court accepts as true all allegations of the complaint and views them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

Plaintiffs assert two claims against the Medical Center under 42 U.S.C. § 1983. In particular, plaintiffs allege that the practices, policies and procedures of the Medical Center deprived Dr. Ursua and plaintiffs of their Fourteenth Amendment right to substantive due process. In its motion to dismiss, the Medical Center relies on Collins v. City of Harker Heights, 503 U.S. 115 (1992). In City of Harker Heights, the Court held that "the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace." Id. at 130. However, the Court also noted that the plaintiff had merely alleged an unsafe work environment, and had not alleged any affirmative act on behalf of the city, such as a supervisor instructing the decedent to enter a work area knowing there was a significant risk of injury. Id. at 125-26. Following City of Harker Heights, the Ninth Circuit held that a plaintiff may properly state a claim under the Due Process Clause where the state engaged in affirmative conduct which placed the plaintiff in danger. See L.W. v. Grubbs ("Grubbs I"), 974 F.2d 119, 121 (9th Cir. 1992); Munger v. City of Glasgow Police Dept., 277 F.3d 1082, 1086 (9th Cir. 2000).

Plaintiffs allege that Dr. Ursua's supervisor, in conjunction with the policies in place at the Medical Center, affirmatively placed plaintiff in danger. In particular, plaintiffs allege that the Medical Center had knowledge of prior attacks by patients, and had received complaints from its employees. Compl. ¶25. The State of California's Division Occupational Safety and Health ("OSHA") had previously issued two citations with regard to John George. Id. at ¶27. One of the citations stated that "employees are suffering injuries from violent patients who assault employees" and directed the facility to adopt certain safety policies and procedures including installing video surveillance equipment, increasing the number and qualifications of security personnel, and prohibiting staff from attending to patients alone. Id.

The complaint also alleges that the Medical Center knew of the violent propensities of Pavon, who had been admitted to John George based on an assault of another individual and had injured a patient during her stay at the facility. Id. at ¶¶33,35. Despite this knowledge, plaintiffs allege that a supervisor knowingly assigned Dr. Ursua to examine Pavon in an isolated examination room without any staff assistance. ¶37. Accepting these allegations as true, the complaint states a claim under Grubbs, 974 F.2d 119.

Plaintiffs have also adequately pled that the Medical Center "consciously disregarded" the dangers to staff, and exercised "deliberate indifference to the obvious dangers confronting Dr. Ursua" by assigning her to examine Pavon. Compl. ¶¶35,54. To establish section 1983 liability against a state official for injury to an employee, the plaintiff must show that the defendant acted with deliberate indifference in subjecting the plaintiff to a known or obvious danger. L.W. v. Grubbs ("Grubbs II"), 92 F.3d 894, 900 (9th Cir. 1996); see also Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997). The complaint alleges that the Medical Center was aware of the danger presented to its staff by violent psychiatric patients such as Pavon, and that it failed to correct its procedures or provide for greater security and safety within its examination rooms. Compl. ¶¶29-31. The complaint further alleges that the Medical Center knew of Pavon's dangerous propensities and acted with deliberate indifference by assigning Dr. Ursua to examine her alone in an isolated examination room. Id. at ¶¶33-35. These allegations adequately plead the type of deliberate indifference asserted by the plaintiff in Grubbs. For the foregoing reasons, the motion of the Medical Center to dismiss plaintiffs' first and second causes of action is DENIED.

Alameda County moves to dismiss plaintiffs' third cause of action for premises liability on the grounds that it fails to state a violation of section 835 of the California Government Code. Cal. Govt. Code § 835. Under section 835, a public entity may be held liable for an injury caused by a dangerous condition on its property. Cal. Govt. Code § 835. Section 830(a) defines a "dangerous condition" as "a condition of property that creates a substantial (as distinguished from minor, trial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." Cal. Govt. Code § 830(a). As a general rule, "whether a given set of circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion." Peterson v. San Francisco Comty. Coll. Dist., 36 Cal. 3d 799, 810 (1984).

"Liability under section 835 may be predicated upon a failure of the entity to provide adequate safeguards against a dangerous condition of which the entity had actual or constructive notice." Swaner v. City of Santa Monica, 150 Cal. App. 3d 789, 808 (1984). The unlawful conduct of a third party does not preclude a finding that the property was in a dangerous condition. Id. Where, as here, the physical condition of the property increases the risk of injury from a third party, the condition may be considered a dangerous condition under section 835. See Bonnano v. Cent. Contra Costa Transit Auth., 30 Cal. 4th 139, 154 (2003). "A defendant may not successfully defend that plaintiff's injuries were caused by the wrongful criminal act of a third party, where the very basis upon which the defendant is claimed to be negligent is that the defendant created a reasonably foreseeable risk of such third party conduct." Slapin v. Los Angeles Int'l Airport, 65 Cal. App. 3d 484, 490 (1976) (holding that plaintiff was entitled to prove that insufficient lighting in a parking lot created a substantial risk of criminal assault and thus constituted a dangerous condition under section 835).

Plaintiffs allege that the physical layout of John George and the location of the examination room created a reasonably foreseeable risk of assault by patients. Compl. ¶¶60-68. At the time of the incident, Alameda County owned the facility and had retained the responsibility to maintain the premises. Id. at ¶61. Despite a citation by OSHA directing the facility to install video surveillance equipment, Alameda County took no corrective action. Id. at ¶¶26-28,66. According to the complaint, the dangerous condition of John George allegedly caused Dr. Ursua's death. Id. at 46,68. While facts may eventually arise that demonstrate that the County is not liable, for purposes of a motion to dismiss, I find that plaintiffs have adequately alleged a cause of action under section 835.*fn3 For the foregoing reasons, the motion of Alameda County to dismiss or to strike plaintiffs' third cause of action is DENIED.

Alameda County also argues that plaintiffs may not assert a common law negligence claim against it. See Cal. Govt. Code § 815. Plaintiffs do not contest that a common law negligence claim may not proceed against the County. To the extent that plaintiffs have asserted a common law negligence claim against Alameda County, that claim is DISMISSED.

Finally, plaintiffs assert a cause of action against ABC for negligence. In its motion to dismiss, ABC argues that plaintiffs have pled themselves out of a claim against ABC by alleging specific facts with regard to the liability of the Medical Center and Alameda County. As best I understand it, ABC claims that it is inconsistent for plaintiffs to allege that the Medical Center's policies and practices required Dr. Ursua to examine Pavon alone in an isolated examination room, and to also claim that ABC is liable for Dr. Ursua's death. Plaintiffs' allegations are not necessarily inconsistent with ABC's liability, however, because the isolated location of examination room may have actually increased the foreseeability of an assault by a patient and the concomitant need for security. In any event, this does not appear to be inconsistent factual pleading, but rather the type of inconsistent pleading allowed under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(c)(2).

At the hearing, counsel for ABC also argued that plaintiffs have failed to allege that ABC's conduct caused Dr. Ursua's death. For purposes of a Rule 12(b)(6) motion, I find adequate plaintiffs' allegations that various acts or failures to act by ABC resulted in its failure to protect Dr. Ursua from the assault by Pavon. Compl. ¶¶60-61.

Finally, ABC contends that plaintiffs' third cause of action should be dismissed because no special relationship existed between ABC and Dr. Ursua such that ABC may be held liable for Dr. Ursua's injuries. Under California law, a special relationship may be contractually established. See Seo v. All-Makes Overhead Doors, 97 Cal. App. 4th 1193, 1203 (2002); see also Rest. 2d Torts § 324A. A security company may be held liable where its failure to act reasonably under the circumstances causes injury to those that it has contracted to protect. See Marois v. Royal Investigation and Patrol, Inc., 162 Cal. App. 3d 193, 199-200 (1984).

I find that plaintiffs have sufficiently alleged that a special relationship existed between ABC and Ursua.

According to the complaint, ABC entered into a contract with Alameda County, the Medical Center, and John George to provide security services. Compl. ¶44. Pursuant to the contract, ABC and its agents and employees "established a special relationship with the patients and staff at [John George] and assumed a duty to protect the patients and staff." Id. Dr. Ursua was employed by the Medical Center and worked at John George. Id. at ¶16.*fn4 As a result, plaintiffs have adequately alleged that the security company had a duty to protect her and that its failure to do so caused her injuries. For the foregoing reasons, the motion of ABC to dismiss plaintiffs' fifth cause of action is DENIED.

Defendants shall answer the First Amended Complaint by November 22, 2004.

Bernard Zimmerman United States Magistrate Judge

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