Martinez v. Cahill

California Court of Appeal May 7, 1963 No. Civ. 20440Published

Before: Draper

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Holding. The court held that the mayor was not personally liable for the alleged negligence of jailers because he lacked the charter-granted authority to suspend or remove them. However, the court reversed the dismissal of the deputy chief, granting the plaintiff leave to amend the complaint to allege that the deputy chief possessed specific delegated authority over the assignment of jailers.

Issues

Whether the mayor is personally liable for the negligence of jailers when he lacks the charter authority to suspend or remove them.
Whether the deputy chief of police is personally liable for the negligence of jailers absent specific allegations of delegated authority.
Whether the trial court abused its discretion in denying the plaintiff leave to amend the complaint.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“Plaintiff cannot state a cause of action against the mayor or the deputy chief merely for the negligent act or omissions of city employees serving under such officer”

“There remains no ground for holding the mayor personally liable, and the demurrer was properly sustained as to him.”

“We conclude that he should have been granted leave to amend”

DRAPER, P. J.

Asserting that he was beaten by a cellmate in jail, plaintiff seeks damages for serious injuries allegedly suffered. Joined as defendants with the fellow prisoner are a number of officials of the City and County of San Francisco. Demurrers of defendants Christopher and Cahill, the mayor and deputy chief of police, were sustained without leave to amend. Judgment followed, and plaintiff appeals.

It is alleged that: defendant mayor and deputy chief had the power to “appoint, discipline and remove” policemen; those in charge of the jail were incompetent “to provide protection to persons in their custody”; defendant officers knew or should have known of this incompeteney; they nevertheless failed to suspend or remove the jailers; and plaintiff’s injuries were proximately caused by the fact that the alleged incompetents remained on duty at the time of plaintiff’s injury. He also alleges that the “system and procedure of incarceration was negligent and dangerous” to inmates.

Plaintiff cannot state a cause of action against the mayor or the deputy chief merely for the negligent act or omissions of city employees serving under such officer (Gov. Code, § 1953.6). Rather, the liability of such officer must be found in his personal fault. Here there is no suggestion that the mayor or the deputy chief personally participated in or in any way encouraged the acts complained of. Plaintiff contends only that the demurring officers were personally at fault because they knew the jailers to be incompetent and,

[825]

having the power to remove or suspend them, nonetheless failed to exercise that power

(Fernelius

Pierce,

22 Cal.2d 226 [138 P.2d 12]).

The mayor, however, cannot be held on this theory. The Charter of the City and County of San Francisco (Stats. 1931, ch. 56, p. 2973 et seq.), grants the power of removal or suspension only to the police commission (§ 155). Although the commission members are appointed by the mayor, they serve for four-year terms (§35). Thus the mayor does not have the power to remove or suspend which was the basis for holding the city manager liable in

Martinez v. Cahill

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DRAPER, P. J.

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