San Jose Fire Prevails in Wheel Chock Lawsuit

The California Court of Appeals has upheld a lower court ruling that a woman struck by a San Jose Fire Department wheel chock cannot recover because she failed to comply with the notice requirements of the California Government Claims Act.

Denice Escobedo was injured when she was struck by a wheel chock that was “ejected” by a SJFD truck. As explained in the decision:

  • [Escobedo] alleges that on April 27, 2021 she was hiking along Penitencia Creek Trail in Penitencia Creek County Park when she was struck and injured by a wheel chock ejected by a nearby San Jose Fire Department (SJFD) truck driven by an SJFD firefighter.
  • Penitencia Creek County Park is a “linear park . . . [incorporating] parklands and open space from a number of agencies including Santa Clara County, the City of San Jose and the Santa Clara Valley Water District.”
  • As a result of the impact, [Escobedo] sustained a hand fracture, broken right arm, and contusion in her lower back, buttocks, and hip area, causing her to experience pain and requiring several months’ medical leave of absence from work.

Escobedo filed claims with Santa Clara County and the State of California within the prescribed six-month time frame, neither of whom was responsible for the incident. She also sent the San Jose city attorney’s office a letter about her claim. However, she failed to file a claim with the city until February 28, 2022.

Under the Government Claims Act, tort claims must be filed with a municipality within the 6-month time frame unless the delay was due to “mistake, inadvertence, surprise, or excusable neglect.” The normal 6-month period was extended an additional 120-days due to the pandemic. Escobedo filed a petition with the city to file a late claim, which the city rejected. She then filed suit asking the court to grant her request due to mistake or excusable neglect.

Both the trial court and the court of appeals concurred that Escobedo lacked grounds to qualify for the exceptions. Quoting from the decision:

  • [Escobedo] has not shown that she exercised reasonable diligence but nonetheless was unable to identify the City and present claims to it before February 24, 2022.
  • The record contains no evidence of the efforts that [Escobedo] or her counsel undertook to identify the responsible public entity.
  • Instead, appellant simply asserts that her counsel “erroneously assumed” that the County operated the fire truck, employed the firefighters, and was responsible for the park where appellant’s injuries occurred.
  • That is insufficient.
  • Even more important, the evidence showed that [Escobedo] either was or should have been aware that the City owned the fire truck that injured her long before the February 24, 2022 deadline for presenting her claim to the City.
  • As the trial court noted, by October 27, 2021 appellant had a copy of the SJPD report that the identified the City as the owner of the fire truck, described the location of the incident as a “rural City park,” and used the acronym “SJFD,” for San Jose Fire Department, multiple times.
  • In addition, the County rejected [Escobedo]’s claim as not falling within its jurisdiction on December 6, 2021.
  • As a consequence, [Escobedo] should have known that her claim was against the City by December 6, 2021, and in fact she sent a demand letter to the City Attorney eight days later.
  • Thus, her failure to present her claim to a proper recipient for the City until February 28, 2022, four days after the deadline, cannot be attributed to any confusion over the identity of the proper defendant and, absent a showing of reasonable diligence in the investigation and pursuit of her claim, cannot be excused.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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