Dunston v. State of California

Opinion

WALLIN, J.

—Deborah Dunston appeals from the order denying her petition for relief from the claim filing requirements of the Government Code and from the order denying her petition for reconsideration.

I

Dunston alleges she and her father were exposed to toxic fumes released by a chemical spill in San Clemente on October 27, 1981. The chemical spill occurred when a truck which had previously transported toxic waste was washed down prior to decontamination. The San Clemente Fire Department responded to complaints about the noxious fumes by sandbagging a nearby storm drain to prevent the waste from flowing into the ocean and by notifying the United States Coast Guard, the Environmental Protection Agency and other governmental agencies. The immediate area was barricaded and the north beach in San Clemente was closed for several hours.

Immediately following the spill, city and county officials announced it had not been hazardous to the population. However, Dunston developed a mild illness, and, three days later, her father died.

Dunston believed the spill caused her father’s death, and she retained an attorney within a few weeks to pursue any cause of action she might have. However, she alleges she did not file claims against any public entities within the 100-day period mandated by Government Code section 911.2,

1

because she lacked proof of her claims against them. Autopsy and pathology reports indicated Mr. Dunston had died of natural causes; several months later, various state and county agencies confirmed the spill had not been dangerous to human health; and the investigations of Dunston’s own attorneys did not reveal negligence on the part of any governmental agency. Dunston filed a complaint for wrongful death and personal injuries against nongovernmental entities on August 30, 1982.

[82]

In August and September of 1982, after the 100-day claims period had run, Dunston’s mother consulted with a respiratory disease expert, who informed her that a prior pathology report was incorrect when it stated Dunston’s father had not died from exposure to toxic fumes. Dunston’s mother then contacted an Environmental Protection Agency official, who investigated the files of the California Department of Health Services. Based on his review, the investigator concluded appropriate tests had not been conducted at the waste excavation site, and where testing had been conducted, potentially hazardous levels of toxic contaminants were documented. His conclusions were contrary to assertions by state, county and local agencies in various newspaper articles that the odors generated by the chemical spill were caused by harmless gases, were not dangerous to health and did not present a toxic hazard situation to the population.