LA County Groin Kick Suit Results in No Liability

The Second Appellate District of the California Court of Appeals has upheld a trial court ruling that a Los Angeles County fire captain who kicked one of his firefighters in the groin while demonstrating a self-defense move is not liable for the harm the resulted. The facts of the case are quite involved and go back to 2011.

On February 17, 2011, firefighter – paramedic Joshua Tibbett engaged a hostile individual while on a medical run. During his next shift on February 19, 2011, his officer, Captain Gary Marshall, attempted to show him a defensive move involving the use of a clipboard to screen the vision of an aggressor. Captain Marshall asked Tibbett to play the role of the aggressor. According to Tibbett, Captain Marshall use a piece of paper to simulate a clipboard to screen his vision and then kicked him hard in the groin.

According to Captain Marshall, Tibbett moved aggressively toward him and was inadvertently kneed in the groin. As a result, Tibbett required two surgeries, one of which was to removal his left testicle, and he was rendered sterile.

Tibbett sued the county and Captain Marshall alleging battery, negligence, sexual battery, strict liability, intentional infliction of emotional distress, and breach of contract. In 2017, a Los Angeles County Superior Court jury concluded that Captain Marshall did not intend to harm Tibbett, resulting in a judgment in favor of the defense. The underlying basis for the judgment was a topic we have discussed here on numerous occasions: workers comp exclusivity. Workers compensation is generally considered to be the exclusive remedy for workplace injuries. Employees are generally prohibited from suing their employer, supervisors, and/or co-workers in tort for work related injuries.

Like most states, California recognizes an exception to workers comp exclusivity for intentional acts. Because the jury determined that Captain Marshall did not act intentionally, the trial court ruled Tibbett was prohibited from recovering any additional damages from either the County or Captain Marshall beyond his workers comp benefits.  

Tibbett filed an appeal, primarily alleging procedural errors during the course trial. The Court of Appeals rejected each of Tibbett’s arguments finding no errors in the trial court’s handling of the case. Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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