Filed 9/3/14 Lucero v. County of Kern CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

FLORENCIO LUCERO et al.,
                                                                                           F066704
         Plaintiffs and Respondents,
                                                                              (Super. Ct. No. CV-273050)
                   v.

COUNTY OF KERN et al.,                                                                   OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
         Theresa A. Goldner, County Counsel, Mark L. Nations and Andrew C. Thomson,
Deputy County Counsel; Pollak, Vida & Fisher, Michael M. Pollak and Daniel P. Barer
for Defendants and Appellants.
         Law Office of Michael J. Curls, Michael J. Curls and Nichelle D. Jones for
Plaintiffs and Respondents.
                                                        -ooOoo-
       On December 18, 2010, Jose Lucero ingested a large quantity of meth-
amphetamine and began to engage in bizarre behaviors, including hallucinating and
repeatedly calling 911 about imagined events. The Kern County Sheriff’s Department
sent deputies to investigate the 911 calls and to check on the welfare of the caller. Jose1
lived with his parents, Florencio and Lilia Lucero, along with his brother, Esteban
Lucero, at his parents’ home in Rosamond, California (the Lucero house). When the
deputies arrived, Jose continued to make 911 calls, uttered threatening remarks to the
deputies and held his parents from behind to apparently use them as human shields. The
deputies decided that Jose would have to be brought into custody. According to the
deputies’ testimony, Jose was uncooperative and resisted arrest. In their efforts to
restrain and handcuff Jose, the deputies tried several tactics, including the use of tasers,
pepper spray and batons, but, as described by the deputies at trial, Jose seemed
impervious to these techniques and continued to resist. During the deputies’ struggle
with Jose, Jose’s parents were in a position to observe what transpired. Once the deputies
were finally able to handcuff Jose, he was taken to a waiting ambulance outside. At that
point, Jose’s respiration and pulse dropped to critically low levels. The paramedics were
unable to reverse the symptoms and minutes later Jose died.
       Subsequently, Jose’s parents (plaintiffs or parents) filed suit against the several
deputies involved (i.e., Deputy Daniel Willis, Deputy Ryan Greer, Deputy Angelo
Gonzalez and Deputy Jonathan Juden; the deputies) and Kern County2 (collectively
defendants) alleging causes of action for (i) wrongful death premised on negligence and
(ii) negligent infliction of emotional distress. The case was tried before a jury, which


1      For convenience, we may refer to members of the Lucero family by their first names. No
disrespect is intended.
2      The parties sometimes referred to Kern County as the Kern County Sheriff’s Department.
These are a single public entity, which we shall refer to as Kern County.



                                              2.
found in plaintiffs’ favor on all the issues delineated on the special verdict form. The
jury awarded damages to plaintiffs on both causes of action. After the jury was
discharged and judgment was entered on the verdict, defendants moved for a new trial on
the ground that the special verdict form was fatally defective. Defendants asserted that
the special verdict form (i) failed to give the jury an opportunity to decide whether Jose
was comparatively at fault in causing plaintiffs’ damages and to apportion fault
accordingly and (ii) erroneously permitted the jury to find that Kern County was liable
based on a theory of nonstatutory, direct negligence. Plaintiffs opposed the motion,
arguing that defendants intentionally tried the case using an “all or nothing” strategy and,
having failed, should not be given a do-over. Plaintiffs further argued that any alleged
defects in the special verdict form should have been brought to the trial court’s attention
prior to discharge of the jury, when there was still an opportunity to make corrections.
The trial court denied the motion for a new trial. Defendants have appealed, reiterating
the contentions made in their new trial motion. For reasons explained below, we will
affirm the judgment of the trial court.
                                 SUMMARY OF FACTS
Circumstances Preceding the Incident
       Because of past incidents in which Jose had resisted law enforcement officers and
displayed assaultive behavior, the Kern County Sheriff’s Department placed a “hazard”
status on the Lucero house, which served as a warning to deputies and required the
dispatcher to send at least two units to that location in response to a call. The deputies
knew of this “hazard” status when they responded to the situation at the Lucero house on
December 18, 2010.
       The deputies were also aware of a few of the particular encounters that Jose had
with law enforcement officers prior to December 18, 2010. For example, Deputy Willis
had to deal with Jose on about 20 to 30 occasions. On most of those occasions, Jose was
publicly intoxicated but remained cordial. Deputy Juden once came to the Lucero house

                                             3.
in response to a violent fight between Jose and his brother, which episode resulted in
Deputy Juden having to handcuff Jose. In 2007, another deputy, Deputy Perry,3
responded to a complaint by Florencio that Jose had assaulted him. When Deputy Perry
confronted Jose and attempted to arrest him, Jose forcibly resisted and fought Deputy
Perry. During that altercation, Jose threatened to take Deputy Perry’s baton and beat him
with it, he was not affected by pepper spray and he displayed remarkable strength in an
all-out struggle that did not end until another deputy arrived to provide assistance. All of
the deputies had heard of this 2007 incident.
       Jose had served several jail sentences, with his total jail time consisting of about
four years. According to Florencio, while Jose was in jail he sustained a head injury.
Afterwards, Jose was not the same mentally. Esteban similarly noted that approximately
two years prior to the subject incident, Jose’s personality had changed. Before that,
Esteban could always tell if Jose was on drugs. After this change in personality, it
became more difficult for Esteban to tell if Jose was on drugs. Jose remained isolated
and in his “own little world,” and he was strangely obsessed by the movie “Halloween.”
       In November 2010, Jose was released from jail and returned to live with his family
at the Lucero house. His parole agent was John Flory. The day before the subject
incident, Flory and other officers conducted a parole search at the Lucero house. Flory
did not find anything out of the ordinary. At that time, Jose was cooperative and did not
appear to be under the influence of drugs. In the garage, Flory did find a digital scale and
an empty bag that might have contained methamphetamine remnants, but he could not tie
those items to Jose.
       Jose was a fairly large man, at approximately 5 feet 11 inches in height, and
weighing between 270 and 290 pounds. On the date of the incident, Jose was 34 years
old.

3      Deputy Perry was not involved in the present case and is not a party.



                                               4.
Methamphetamine Ingestion by Jose on December 18, 2010
       Within a few hours before the events that led to Jose’s arrest on December 18,
2010, Jose ingested a toxic amount of the most powerful form of methamphetamine
available. It was the opinion of Lawrence Borgsdorf, M.D., a pharmacist expert, that the
methamphetamine was responsible for Jose’s bizarre behavior that day. According to
Dr. Borgsdorf, the ingested methamphetamine would be expected to result in
hallucinations, paranoia, psychotic behavior, restlessness, extreme agitation, violent
behavior, and desensitivity to pain.
The Deputies Investigate Jose’s 911 Calls
       On the afternoon of December 18, 2010, Jose began making a series of calls to
911 from the telephone at the Lucero house. He told the 911 operator that a friend who
“lives in Lancaster” and is “a Deputy” “shot her husband.” After reporting this, Jose
hung up. Jose then called back and said he was a “snitch” and that his “sister,” who was
“getting beat up in Lancaster,” was “tired of corruption.” Jose also repeatedly mentioned
a person named “Lucy”4 as though he was speaking directly to her, even though no one
named Lucy was present with him or on the telephone call. Jose made various other
unintelligible statements.
       Deputies Greer and Willis were both dispatched to the Lucero house in order to
check on Jose’s welfare. The deputies were advised by the dispatcher there was a
“hazard” on the house; thus, two units were dispatched to that location. Another deputy,
Deputy Gonzalez, heard the call and “put himself [e]n route” to the Lucero house to
provide further assistance.
       Deputies Greer and Willis arrived at the same time, in separate vehicles. They
proceeded to the front door of the Lucero house and knocked, and Florencio opened the

4     Since there was no one at the Lucero house by that name, Jose’s conversations with a
“Lucy” during his calls to 911 operators were apparently hallucinations.



                                              5.
door. The deputies explained why they were there and entered the home. Following up
on the 911 calls, the deputies asked what was wrong. Jose was present in the living room
with the deputies, and the deputies noticed he appeared to be agitated, sweating and
rambling. Jose asked the deputies why they were not in Lancaster. He then turned and
went down the hallway to his bedroom. Deputy Greer yelled down the hallway to Jose,
asking him to come out of the bedroom so that they could try to help him, but there was
no response. The deputies then went outside to talk about the situation, walking to the
front sidewalk. Esteban came outside with them and informed the deputies that Jose’s
mental condition was getting worse. The deputies told Esteban about various community
mental health resources that were available. At that point, since nothing was going on at
the house, the deputies were ready to leave. While the deputies were still outside the
house talking to Esteban, Deputy Gonzalez arrived.
       At about the same time, Jose dialed several more 911 calls from his bedroom. He
identified himself to the 911 operator as an agent of Flory’s and a “snitch,” demanded to
know if the Lancaster problem of “corruption” had been handled, threatened to “peg[]”
the 911 operator, and told the operator, “What you need to do is die, okay.” Jose then
told the 911 operator that his mother was next to him in the bedroom and that his brother
(i.e., Esteban) had just hit their mother. Jose asked the operator why the deputies had not
arrested Esteban. The dispatch operator promptly called Greer and Willis, informing
them that Jose accused Esteban of hitting their mother. Greer told dispatch, “that’s a
negative. We are outside with [Esteban].”
The Deputies’ Account of Jose’s Arrest
       The deputies’ account of what happened next substantially differed from the
account offered by Jose’s parents and brother. We shall first summarize the deputies’
testimony of the circumstances surrounding Jose’s arrest.
       While the three deputies were talking on the front sidewalk with Esteban, Jose
suddenly emerged from the front door of the house with his parents. Jose was one or two

                                            6.
feet outside the front door, and his mother was in front of him and was being held by him.
Jose had also grabbed his father. Jose yelled something to the deputies about them being
“corrupt” and that Esteban should have been arrested by now. It appeared to the deputies
that Jose’s mother and father were resisting Jose, trying to get away, and Jose was
attempting to tug them back into the house. Jose got back inside with his parents and
closed the door. The deputies were concerned about the parents’ safety and hurried to
reenter the house.
       When the deputies got inside, Jose was no longer holding his parents. Since the
parents were away from where Jose was, the deputies focused their attention on Jose.
Jose paced back and forth near the hallway and continued to mutter that he was a “snitch”
and was ending “corruption.” He repeatedly referred to or spoke to a “Lucy.” Deputy
Greer let dispatch know that Jose was continuing to exhibit bizarre, erratic behavior but
noted he appeared to be unarmed. The deputies could see Jose’s pupils were dilated, he
was sweating profusely, he spoke rapidly and he had a blank stare. They feared he might
be under the influence of PCP. Jose went through the hallway to the bedroom and
returned holding a ballpoint pen, which he claimed was how he communicated with
Flory. He held up the pen, his arm upraised, clicking the pen repeatedly, while
approaching very close to Deputy Greer. Greer feared that Jose might stab him, but he
was also afraid of escalating the situation. Deputy Willis urged Jose to give him the pen,
and Jose lowered it and walked into the kitchen.
       Jose looked at the pen under the stove light, then returned to the living room and
went over to the couch, with a coffee table between him and his parents. From there,
Jose made additional calls to 911. While the line was open, he said to the deputies,
“They’re going to have to shoot you. Just like, just like she shot that officer there in
Lancaster.” Deputy Willis believed Jose was saying he was going to shoot him (Willis).
Deputy Willis informed Jose that if he continued to make 911 calls, he would be arrested.



                                              7.
When Jose proceeded to call 911 again, Deputy Willis told Jose that he was under arrest
and instructed him to put the phone down.
        Jose then jumped over the coffee table, went over to Lilia and held her in front of
him. It appeared to the deputies that Jose was using her as a human shield. Lilia was
struggling to pull away from him. The phone was still in Jose’s hand, and the open line
recorded Jose saying, “Why, why am I holding my mom? ‘Cause I’m scared officer.”
Deputy Greer was able to pull Lilia away from Jose. At that moment, Jose quickly
moved to where Florencio was sitting and held him in place from behind the chair.
Florencio managed to push Jose’s hand away and stand up. Jose grabbed an object that
was on the table, but Florencio knocked it out of his hand. Jose then picked up a long,
“aim-a-flame” lighter and threw it at Deputy Willis, striking him in the chest.
        Deputy Greer called dispatch to alert them that the deputies were engaged in a
“148” with Jose, meaning that Jose was resisting arrest and that back-up assistance was
requested. Deputy Juden received the call while on duty at the Rosamond substation. He
immediately started driving to the Lucero house, which was approximately four miles
away.
        Jose next picked up the metal chair on which his father had been sitting. This
action prompted the deputies to draw and deploy their tasers at Jose. Specifically,
Deputies Gonzalez and Willis fired their tasers at Jose as soon as Greer was able to pull
Florencio out of the way. Normally, if a taser is successfully deployed, the electric
current or load will cause the person to be momentarily incapacitated or immobilized (his
or her muscles will tense up and become rigid) and the person will fall over. Jose merely
backed up and went down on one knee in what seemed to be a controlled motion; he was
not incapacitated by the tasers. It appeared that either the tasers did not put Jose under an
electric load or were ineffective. Several times, Deputy Greer ordered Jose to get down
or “prone out,” but Jose did not comply. Instead, Jose proceeded to grab the wires
attached to the taser darts and pull.

                                             8.
       A melee ensued in which Jose struggled for several minutes with the deputies.
Jose was able to kick at the deputies from a crab-like position—what the deputies
characterized as a mixed martial arts fighting stance. He pushed with his arms and also
tried to grab the deputies legs. Jose’s continued resistance prompted the deputies to
continue to use their tasers, batons, and pepper spray on him. These methods were not
stopping Jose’s ability to resist. During the struggle, Jose squeezed Deputy Willis’s
hand, breaking one of Willis’s bones.
       While the deputies were engaged in this struggle with Jose, a neighbor, Harold
Smizer, suddenly walked into the room. Deputies Greer and Willis drew their guns on
Smizer, fearing a new threat. When Smizer was identified as a neighbor and one of
Esteban’s friends, the deputies ordered him out of the house. Greer and Willis
reholstered their weapons and returned to their efforts to restrain Jose.
       By the time Deputy Juden arrived at the scene in response to the “148” call, Jose
was in the center of the room, standing up, with Deputies Greer, Willis and Gonzalez
positioned around him. Deputy Greer was hunched over and looked totally exhausted.
Deputy Gonzalez appeared to be affected by the pepper spray. Deputy Willis had a
panicked look on his face and was using his baton but Jose was deflecting the baton
blows or attempting to grab the baton. Upon entering the room, Deputy Juden could
immediately smell and feel the effects of pepper spray in the air. Deputy Juden was so
taken aback by what he saw that he shouted something to the effect of “what [do you]
need me to do” to assist in Jose’s arrest. One of the deputies replied that he should use
his taser. Deputy Juden then deployed his taser on Jose. He retriggered the taser several
times to cause additional five-second periods or “cycles” of electrical load. Deputy
Juden’s taser deployment was effective and it gave the deputies an opportunity to get Jose
down to the ground and, after a further struggle, put handcuffs on him.
       Jose was then taken out to the waiting paramedics for treatment. After Jose was
placed in the ambulance, he suffered low respiration and pulse. The paramedics

                                             9.
administered CPR and other life support, but could not reverse his symptoms. Soon
thereafter, Jose died.
The Luceros’ Account of Jose’s Arrest
       The Luceros’ account of the events surrounding Jose’s arrest will now be
summarized.
       Esteban testified that after he spoke with the deputies on the sidewalk for several
minutes and explained to them that Jose was not well mentally, the deputies indicated
they were going to leave. Esteban walked back into the house. Jose and his parents had
remained inside the whole time. Soon after Esteban went back inside, the deputies
reentered the house. Esteban did not know why the deputies reentered. The deputies
began to question Jose further about his 911 calls. Jose hid behind his mother and
“hugged her” while the deputies asked him what was going on. Then something
happened that changed the officers’ demeanors. Jose made a statement “to the effect of
‘I’ll shoot you.’” As soon as Jose said that, Deputy Willis said, “What, you threatened
me? You threaten me? Is that what you are doing, threatening me?” At that point, Jose
backed away and went behind his father and hugged him. Jose had his hands over his
father gently; it was not a headlock. The deputies drew their tasers and Esteban said,
“‘Don’t shoot my Dad.’” When Florencio was able to pull away from Jose, the deputies
then fired their tasers at Jose. Jose fell back and went to the ground, and then the
deputies began to hit him hard with batons, “wailing on him” with “home run blows” of
the batons. Jose was on his back in a fetal position. Each deputy hit Jose about 50 times.
Lilia was so hysterical that Esteban thought she would have a heart attack. Because it
was so horrible to watch and because of the pepper spray, he took Lilia and went out
momentarily, but Lilia went back in. Jose was not kicking or hitting anyone. Finally,
Jose was handcuffed and taken to the ambulance.
       The testimony of Florencio and Lilia was similar to that of Esteban, but much
more general and abbreviated. In short, their perception was that the deputies beat up

                                            10.
their son, who had mental issues and needed help, and their son died. Since their
accounts of events corresponded to Esteban’s, we do not repeat them here. We note that
in Florencio’s testimony, he included the fact that when he and Lilia went outside during
part of the struggle, they could still see what was happening through the living room
window.
       Smizer, the neighbor, also briefly testified regarding what he saw at the moment
he walked into the room during the melee. He said that Jose was in a fetal position down
on the floor, not moving, while the deputies were repeatedly hitting him with batons.
Testimony Regarding Cause of Death
       The defendants’ medical expert, Charles Wetli, M.D., concluded that Jose died
from “excited delirium due to methamphetamine toxicity.” Dr. Wetli explained that the
large dose of methamphetamine ingested by Jose resulted in hallucinations, aggressive
behavior, increased body temperature, imperviousness to pain and fatigue, and an intense
period of exertion. This state of excited delirium activated by the methamphetamine
caused major surges in substances in the bloodstream affecting the heart, such as lactic
acid, adrenalin and potassium. Once Jose was eventually restrained and there was a
calming-down period, the sudden buildup of lactic acid, adrenalin and potassium was
enough to stop his heart. In cases such as this, it is typical for cardiac arrest to set in
shortly after the subject is restrained or calms down following an intense struggle.
       Plaintiffs’ medical expert, David Posey, M.D., agreed that the methamphetamine
ingestion significantly contributed to Jose’s death. However, Dr. Posey’s opinion was
that Jose’s death resulted from multiple factors. That is, he opined that Jose’s death was
caused by methamphetamine intoxication complicated by an acute psychotic break, with
an aftermath of blunt force trauma, electrical trauma, and pepper spray. In other words,
Dr. Posey believed the trauma caused by the baton blows, the taser electrical shocks and
the pepper spray were contributing factors in Jose’s death, together with the
methamphetamine.

                                              11.
Experts on Police Practices and Use of Force
       Joseph Callanan, the police practices expert retained by defendants, went through
the deputies’ account of the encounter with Jose step-by-step. Callanan concluded that at
each point in the encounter, the deputies acted reasonably and in a manner that
corresponded with good and reasonable police practices under all of the circumstances.
       Plaintiffs’ expert, Ron Martinelli, faulted the deputies in several respects in the
manner of their response to what he characterized as more of a “medical” emergency
involving Jose’s obvious mental disorder and/or drug issues. Martinelli opined that the
deputies should not have agitated Jose by unnecessarily “compress[ing]” Jose’s time and
space, but instead should have talked to Jose and sought the help of his parents and
brother to convince Jose that they wanted to help him. Additionally, Martinelli believed
the deputies should have swarmed Jose (seized him en masse) much earlier in the
struggle, such as at the time of the first taser deployment. As for the tasers, Martinelli
testified that based on taser download reports, the deputies fired and/or cycled their tasers
multiple times, including 17 times by Deputy Gonzales, seven times by Deputy Willis, in
addition to the taser deployment by Deputy Juden. Finally, and most importantly,
Martinelli’s opinion was that the deputies’ multiple firing of tasers, repeated baton blows,
and use of pepper spray, constituted unreasonable and excessive force against Jose under
all of the circumstances.
       Martinelli also opined that “the Kern County Sheriff’s Department was negligent
in the training provided to the involved deputies in the areas of use of force,” including in
regard to “[t]he electronic control weapons[,] impact weapon, the arrest and control
techniques and chemical agents and … dealing with people with mental disorders.” The
deputies were examined by counsel concerning their training in these areas. Callanan
found no deficiency in the deputies’ training.




                                             12.
                               PROCEDURAL HISTORY
Pleadings and Trial Motions
       The Pleadings
       In 2011, plaintiffs filed their complaint against Kern County (including the Kern
County Sheriff’s Department) and against Deputies Willis, Greer, Gonzalez and Juden.
The complaint included multiple causes of action, including wrongful death and negligent
infliction of emotional distress. In their answers to the complaint, defendants asserted
among their affirmative defenses the comparative fault of Jose and plaintiffs. In addition,
Kern County asserted the affirmative defense of governmental immunity based on the
fact that liability of a public entity must be founded on statute.
       Motions in Limine
       Prior to the start of trial, defendants filed motions in limine requesting the trial
court to exclude evidence and argument that Kern County was directly negligent for
either general negligence or for negligent training. The motions were based on the fact
that, except as provided by statute, public entities are immune from liability. The trial
court denied the motions.
       Nonsuit Motion
       On November 5, 2012, defendants filed a motion for nonsuit at or near the end of
the trial, reiterating their earlier arguments that public entities are immune from liability
except as permitted by statute. Defendants asked the trial court to grant a nonsuit as to
the causes of action premised on the direct negligence of Kern County for alleged
negligent training. The trial court again rejected defendants’ arguments and denied that
portion of the motion. However, nonsuit was granted on a number of other causes of
action as well as on the claim for punitive damages, leaving only plaintiffs’ claims for
wrongful death and negligent infliction of emotional distress to go to the jury.




                                              13.
       Directed Verdict as to Affirmative Defense
       On November 5, 2012, in a discussion between counsel and the trial court relating
to jury instructions, defendants’ counsel asked the trial court to include a particular
instruction on the potential comparative fault of plaintiffs (Florencio and Lilia) as to their
claim for negligent infliction of emotional distress, since at the time of Jose’s arrest,
plaintiffs allegedly disregarded or disobeyed the deputies’ directives to leave the area.
Not only did the trial court disagree with giving such an instruction, but it also invited
plaintiffs’ counsel to make an immediate oral motion for a directed verdict so as to
eliminate from the case any defense that Florencio and Lilia were comparatively at fault
in witnessing what happened to their son. Plaintiffs’ counsel did so, and the trial court
granted it. This was, in essence, a directed verdict that Florencio and Lilia were not
comparatively at fault for having witnessed events. We note this ruling related only to
plaintiffs’ (i.e., Florence and Lilia) potential comparative fault; it had nothing to do with
the jury’s ability to consider Jose’s comparative fault.
Jury Instructions and Special Verdict Form
       One of the jury instructions given by the trial court was an instruction on
comparative fault. The written form of the jury instruction utilized by the trial court
indicated that the instruction was given “on Court’s Motion.” The comparative fault
instruction informed the jury that defendants were claiming that “the fault of Jose Lucero
also contributed to Lilia Lucero and Florencio Lucero’s harm.” The instruction explained
that to succeed on this claim, defendants would have to prove that (1) Jose was at fault
and (2) that the fault of Jose was a substantial factor in causing plaintiffs’ harm. The
instruction went on to state: “If you find that the fault of more than one person including
Daniel Willis, Ryan Greer, Angelo Gonzalez and/or Jonathon Juden and Jose Lucero
were substantial factors in causing Lilia Lucero and Florencio Lucero’s harm, you must
then decide how much responsibility each has by assigning percentages of responsibility
to each person listed on the verdict form. The percentages must total 100 percent.”

                                             14.
Although the trial court read this instruction, neither attorney referred to it in oral
argument or otherwise asked the jury to apportion fault. The jury failed to assign
percentages of fault as required by the instruction.
       The case went to the jury based on a special verdict form. The special verdict
form framed the particular issues that the jury was being called upon to decide. It stated
as follows:

           “1.  Were the KERN COUNTY SHERIFF’S DEPARTMENT,
       DANIEL WILLIS, RYAN GREER, ANGELO GONZALEZ and/or
       JONATHAN JUDEN negligent?

              “_____ Yes _____ No

             “If your answer to question 1 is yes, then answer question 2. If you
       answered no, have the presiding juror sign and date the verdict form.

              2.  Was the KERN COUNTY SHERIFF’S DEPARTMENT’S,
       DANIEL WILLIS’[S], RYAN GREER’S, ANGELO GONZALEZ’[S]
       and/or JONATHAN JUDEN’s negligence a substantial factor in causing
       harm to FLORENCIO LUCERO and LILIA LUCERO?

              “_____ Yes _____ No

             “If your answer to question 2 is yes, then answer question 3. If you
       answered no, have your presiding juror sign and date the verdict form.

               “3.   Were LILIA LUCERO and FLORENCIO LUCERO present
       at the scene of the injury when it occurred, and aware that JOSE LUCERO
       was being injured?

              “_____ Yes _____ No

             “If your answer to question 3 is yes, then answer question 4. If you
       answered no, proceed to question 6.

              “4.   Did LILIA LUCERO and FLORENCIO LUCERO suffer
       serious emotional distress?

              “____ Yes      _____ No

             “If your answer to question 4 is yes, then answer question 5. If you
       answered no, proceed to question 6.

                                              15.
           “5.   Was the conduct [of] THE KERN COUNTY SHERIFF’S
       DEPARTMENT, DANIEL WILLIS, RYAN GREER, ANGELO
       GONZALEZ, JOHNATHAN JUDEN a substantial factor in causing LILIA
       LUCERO and FLORENCIO LUCERO’s serious emotional distress[?]

              “_____ Yes _____ No

              “After you answer question 5, then answer question 6.

           “6.  Did the KERN COUNTY SHERIFF’S DEPARTMENT,
       DANIEL WILLIS, RYAN GREER, ANGELO GONZALEZ and
       JOHNATHAN JUDEN negligently cause the death of JOSE LUCERO?

              “_____ Yes _____ No

              “If your answer to question 6 is yes, then answer question 7 a. and b.
       and if you answered questions 1, 2, 3, 4, and 5 yes, answer question 7 c., d.,
       e. and f. If you answered questions 1, 2, 3, 4 or 5 no; and answered
       question 6 no, have your presiding juror sign and date the verdict form.

            “[7.] What are LILIA LUCERO and FLORENCIO LUCERO’S
       damages?

       “Wrongful Death

             “a.     The loss of JOSE R. LUCERO’S love, companionship,
       comfort, care, assistance, protection, affection, society and moral support,
       from December 18, 2010 to the present:             $__________

              “b.    The loss of JOSE R. LUCERO’S love, companionship,
       comfort, care, assistance, protection, affection, society and moral support
       from today forward:                                $__________

       “Negligent Infliction of Emotional Distress

              “c.    Past Pain and Suffering for FLORENCIO LUCERO: $__________

              “d.    Past Pain and Suffering for LILIA LUCERO: $__________

              “e.    Future Pain and Suffering for FLORENCIO LUCERO: $__________

              “f.    Future Pain and Suffering for LILIA LUCERO: $ __________”
       As is evident from the above special verdict form, all defendants were lumped
together without distinguishing the grounds for liability of the individual defendants (the


                                            16.
deputies) and the public entity defendant (Kern County).5 Moreover, the special verdict
form did not provide the jury any opportunity to decide whether, or the extent to which,
Jose may have been comparatively at fault. No place or line on the form addressed that
issue. In short, the special verdict form did not ask the jury to apportion fault in any
manner or provide a place for doing so.
       Although defendants, through their counsel, thoroughly reviewed the special
verdict form, defendants did not object to the special verdict form or assert that it was
defective. Defendants did not make any objection or otherwise point out to the trial court
that the special verdict form failed to include any means for the jury to apportion fault.
Defendants concede they made no express objection to the special verdict form until the
time that their new trial motion was filed, which was several weeks after the jury had
been discharged and the judgment on the verdict entered.6
Jury Deliberations and the Verdict
       During jury deliberations, the jury sent a written question to the trial court. The
question asked: “Can we please have further clarification for question #5 regarding
‘substantial factor[?]’ Do we as a jury … can we take into account Jose Lucero’s actions
as well[?]” The trial court responded to the question by referring the jury to the
instructions relating to the meaning of substantial factor, and stating “you may take into
account Jose Lucero’s actions.”




5       For this reason, it appears that the special verdict form allowed the jury to conclude that
Kern County was one of the negligent actors (i.e., directly negligent). At the same time, no
specific instruction was given to the jury on vicarious liability (or respondeat superior liability)
of Kern County.
6       Defendants note that they submitted a proposed alternative version of the special verdict
form to the trial court. Defendants’ proposed special verdict form did not include questions
relating to whether Kern County was negligent. However, defendants concede that even their
proposed special verdict form failed to contain questions about Jose’s comparative fault.



                                                 17.
       The jury returned a verdict in plaintiffs’ favor. The jury responded in the
affirmative to each of the questions on the special verdict form and then set forth the
amount of damages awarded to plaintiffs. A total of $2.5 million was awarded to
plaintiffs under the wrongful death cause of action and a total of $2 million was awarded
under the negligent infliction of emotional distress cause of action, for a total damage
award of $4.5 million. The above verdict was read on November 6, 2012, and the jury
was discharged. On November 7, 2012, judgment was entered on the special verdict.
Motion for New Trial
       Defendants moved for a new trial, claiming that the special verdict form was
fatally defective for two reasons: First, it failed to allow the jury to decide whether or not
Jose was comparatively at fault and to apportion fault. Second, it allowed the jury to
premise liability against Kern County based on a theory of direct, nonstatutory
negligence in violation of the principle that liability against a public entity must be based
on statute. The motion for new trial also asserted that the trial court should not have
granted a directed verdict as to defendants’ asserted defense that plaintiffs were
themselves comparatively at fault.
       The trial court denied defendants’ motion for new trial. The trial court noted,
among other things, that defendants did not request a modification to the special verdict
form regarding Jose’s comparative fault, which failure was consistent with the manner in
which defendants tried the case. That is, defendants presented the case in an “all or
nothing” manner. As to the public entity liability issue, the trial court found it disturbing
that defendants had presented the case to the jury as though the deputies and Kern County
were “one,” but “now” sought to separate out their liability.
       Defendants filed a timely notice of appeal from the judgment.




                                             18.
                                         DISCUSSION
I.     Standard of Review
       We review the correctness of the special verdict form de novo. (Taylor v. Nabors
Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242 (Taylor); Saxena v. Goffney (2008)
159 Cal.App.4th 316, 325.) “‘When a special verdict is involved as here, a reviewing
court does not imply findings in favor of the prevailing party. [Citations.] This rule
stems from the nature of a special verdict and its “‘recognized pitfalls,’” namely, that it
requires the jury to resolve all of the controverted issues in the case .… [Citations.]’
[Citation.]” (Taylor, supra, at p. 1242.)
       If defects in a special verdict form were likely to have prejudicially misled the
jury, the error will ordinarily require a reversal of the judgment. (Scott v. County of Los
Angeles (1994) 27 Cal.App.4th 125, 151-153 [special verdict form in the nature of jury
instructions; same rules apply].)7 Additionally, reversal may be warranted if the special
verdict form omitted an essential element of the cause of action. (Behr v. Redmond
(2011) 193 Cal.App.4th 517, 531-532 (Behr); Saxena v. Goffney, supra, 159 Cal.App.4th
at p. 325 [“A special verdict is ‘fatally defective’ if it does not allow the jury to resolve
every controverted issue.”].) At the same time, a party’s claim that the special verdict
form was defective is subject to the usual rules of waiver and forfeiture (Behr, supra, at
p. 530; Taylor, supra, 222 Cal.App.4th at p. 1242), and also to a harmless error analysis
(Taylor, supra, at p. 1244).




7       “Among the factors which are considered in assessing the prejudice of an erroneous or
misleading jury instruction are (1) the degree of conflict in the evidence on critical issues,
(2) whether the jury requested a rereading or clarification of the erroneous instruction, (3) the
effect of other instructions in remedying the error and (4) the closeness of the jury’s verdict.
[Citations.]” (Scott v. County of Los Angeles, supra, 27 Cal.App.4th at p. 152.)



                                                19.
II.    The Direct Liability Issue
       A public entity is not liable for an injury “[e]xcept as otherwise provided by
statute.” (Gov. Code, § 815, subd. (a).)8 “In other words, direct tort liability of public
entities must be based on a specific statute declaring them to be liable, or at least creating
some specific duty of care, and not on the general tort provisions of Civil Code
section 1714. Otherwise, the general rule of immunity for public entities would be
largely eroded by the routine application of general tort principles. [Citations.]”
(Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183
(Eastburn).) The intent of the California Tort Claims Act (§ 900 et seq.; Tort Claims
Act) is to confine the potential for governmental liability to rigidly delineated
circumstances set forth by statute. (Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1127 (Zelig).) Accordingly, public entities cannot be found liable for nonstatutory,
common law negligence. (Eastburn, supra, at p. 1183.)
       While direct tort liability of a public entity must be based on a statute,
section 815.2, subdivision (a), provides a basis for vicarious liability. Section 815.2,
subdivision (a), states that “[a] public entity is liable for injury proximately caused by an
act or omission of an employee of the public entity within the scope of his employment,”
provided that the act or omission would have given rise to a cause of action against the
employee. (Ibid.) Thus, this section creates respondeat superior liability on the part of a
public entity. (Zelig, supra, 27 Cal.4th at p. 1127.)
       Although respondeat superior liability of a public entity is provided by
section 815.2, subdivision (a), the distinction must be maintained that a public entity is
not directly liable for its own negligence, except as specified by statute. “The Tort
Claims Act draws a clear distinction between the liability of a public entity based on its
own conduct, and the liability arising from the conduct of a public employee.” (Zelig,

8      Unless otherwise indicated, all further statutory references are to the Government Code.



                                              20.
supra, 27 Cal.4th at p. 1127.) As explained by our Supreme Court in Zelig: “Although
the Act provides that a public employee generally is liable for an injury caused by his or
her act or omission ‘to the same extent as a private person’ (Gov. Code, § 820, subd. (a))
and that, when the act or omission of the public employee occurs in the scope of
employment the public entity will be vicariously liable for the injury (Gov. Code,
§ 815.2), the Act contains no provision similarly providing that a public entity generally
is liable for its own conduct or omission to the same extent as a private person or entity.
Rather, the Act provides that a public entity is not liable for an injury ‘[e]xcept as
otherwise provided by statute .…’ (Gov. Code, § 815.) Certain statutes do provide
expressly for public entity liability in circumstances that are somewhat parallel to the
potential liability of private individuals and entities but, as past cases have explained,
‘“[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits
against governmental entities, but to confine potential governmental liability to rigidly
delineated circumstances .…”’ [Citation.]” (Id. at pp. 1127-1128.)
       No statute imposes direct liability on a public entity for its generic negligence in
regard to hiring, supervision or training of its employees. (de Villers v. County of San
Diego (2007) 156 Cal.App.4th 238, 252-256 [no direct liability for negligent hiring and
supervision]; Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1113-1114
(Munoz) [no direct liability for negligent training of police officers regarding use of
force], disapproved on other grounds in Hayes v. County of San Diego (2013) 57 Cal.4th
622, 639, fn. 1.) In Munoz, the jury specifically found that the public entity, i.e., the city,
was 45 percent at fault and the individual police officer was 50 percent at fault. The
city’s fault was premised on its alleged direct negligence in failing to adequately train and
supervise its police officers. (Munoz, supra, at pp. 1082-1083.) The Court of Appeal
held that the portion of the verdict based on the city’s direct negligence liability could not
stand: “[W]e reverse that portion of the jury’s verdict against Union City based on its
direct negligence under authority of our Supreme Court’s recent decision in Eastburn[,

                                              21.
supra,] 31 Cal.4th 1175 …, because the direct negligence theory advanced by
respondents was not grounded on a violation of a statutory duty by the public entity (Gov.
Code, § 815).” (Id. at p. 1082; see Hilts v. County of Solano (1968) 265 Cal.App.2d 161,
171 [“a verdict against a county must be overturned if it is erroneously based on a
[nonstatutory] negligence theory”].)9
       In the present case, when plaintiffs’ case went to the jury, no statutory causes of
action remained. The only claims presented to the jury were based on common law
negligence for wrongful death and negligent infliction of emotional distress. In
connection with these two causes of action premised on common-law negligence, the
special verdict form not only included Kern County (referred to as the Kern County
Sheriff’s Department) among the several defendants, but asked the jury to decide whether
or not such defendants (including Kern County) were negligent actors in causing Jose’s
death and plaintiffs’ emotional distress. Although some of the questions on the special
verdict form referred to the several defendants (including Kern County) using an “and/or”
format, other questions used only the word “and.” The jury answered all of the questions
in the affirmative.
       On this record, defendants’ appeal argues that to the extent a portion of the
liability may have been erroneously premised on a theory of direct (nonstatutory)
negligence on the part of Kern County, reversible error occurred and a new trial should
be ordered. Plaintiffs respond that defendants waived or forfeited the issue by failure to


9        A negligent supervision or negligent training cause of action might be available as a form
of vicarious liability in a proper case, if it focused on the public entity’s individual administrators
and supervisory employees, and on whether those particular employees owed and breached
duties of care to the plaintiff. Such a theory of liability would not “depend on blurring the line
between direct and vicarious liability or on an assumption that a public entity’s negligence
liability is inherently vicarious.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 875.) Rather, such a theory (if proven) could make the entity liable under a
vicarious liability theory encompassed by section 815.2.



                                                 22.
adequately raise it in the trial court. Finally, plaintiffs argue that the error, if any, was not
prejudicial.
       A.      Issue Not Forfeited
       On balance, we disagree with plaintiffs’ contention that defendants forfeited this
particular issue. Although defendants failed to specifically object to the special verdict
form on the ground that it improperly allowed the jury to decide Kern County’s direct
negligence, defendants did generally raise this issue in the trial court on a number of
occasions. Specifically, in addition to asserting the governmental immunity/section 815
defense in its responsive pleading, defendants raised this issue in both their motion in
limine and their nonsuit motion. Defendants also proposed an alternative to the special
verdict form that did not include Kern County. Yet, on each of these occasions, the trial
court rejected defendants’ position. In light of this background and in recognition of the
fact that governmental immunity is deemed jurisdictional in nature (see Inland Empire
Health Plan v. Superior Court (2003) 108 Cal.App.4th 588, 592), we conclude that
defendants have not forfeited the issue.
       B.      Error Was Harmless
       However, we agree with plaintiffs that the error was not prejudicial and did not
result in a miscarriage of justice. (Taylor, supra, 222 Cal.App.4th at p. 1244 [harmless
error analysis applies to defective special verdict form].) Pursuant to article VI,
section 13 of the California Constitution: “No judgment shall be set aside, or new trial
granted, in any cause, on the ground of misdirection of the jury, or of the improper
admission or rejection of evidence, or for any error as to any matter of pleading, or for
any error as to any matter of procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” Additionally, Code of Civil Procedure section 475
broadly provides as follows: “The court must, in every stage of any action, disregard any
error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the

                                              23.
opinion of said court, does not affect the substantial rights of the parties. No judgment,
decision, or decree shall be reversed or affected by reason of any error, ruling,
instruction, or defect, unless it shall appear from the record that such error, ruling,
instruction, or defect was prejudicial, and also that by reason of such error, ruling,
instruction, or defect, the said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been probable if such error,
ruling, instruction, or defect had not occurred or existed. There shall be no presumption
that error is prejudicial, or that injury was done if error is shown.” As the Court of
Appeal in Taylor recently held, “a defective special verdict form is subject to harmless
error analysis” under the above provisions of law, and thus the judgment in such cases
should be affirmed where the error is harmless and there is no miscarriage of justice.
(Taylor, supra, at pp. 1244-1245.)
       Here, as plaintiffs point out, there was substantial evidence of the deputies’
negligence in the use of force against Jose.10 Considering the outcome of the verdict, it is
obvious that the jury agreed with plaintiffs’ version of events and reached the conclusion
that the deputies used unreasonable and/or excessive force on Jose. Indeed, unless there
was such unreasonable (i.e., negligent) use of force, there could be no liability here
against any defendants in this case. Since the jury clearly found such negligence on the
part of the deputies, it follows that Kern County would be vicariously liable for the injury
caused by the deputies’ negligent acts or omissions in the scope of their employment
under section 815.2, subdivision (a).11 In light of this fact, there does not appear to be
any actual prejudice to Kern County.
10      This is so whether or not we would have reached the same conclusion as the jury did in
this case.
11     Although plaintiffs’ complaint does not have a separate cause of action for respondeat
superior liability, the complaint does allege the necessary facts for such liability, including the
deputies’ employment and the fact that their acts or omissions were in the scope of their
employment with Kern County.



                                                 24.
       This conclusion fairly corresponds to the unique manner in which the case was
presented to the jury—that is, no allocation or apportionment of fault was sought or
argued by either side at trial. In this sense, defendants were simply lumped together as a
whole, not unlike what might occur in connection with a respondeat superior liability
claim. Meanwhile, defendants could have, but did not, attempt to avoid the purported
problem concerning the special verdict form by objecting to it or otherwise informing the
trial court that there was a defect in the wording of the special verdict form to the extent
that it did not distinguish direct liability from the potential for vicarious liability. Not
only was this not done, but it is apparent from the record that defendants’ failure to ask
the jury to apportion fault (or to find comparative fault) was an outworking of
defendants’ deliberate “all or nothing” strategy at trial, which consistently maintained
that Jose alone was to blame for all that happened, not anyone else.12 Finally, we note
that here, unlike the situation described in Munoz, supra, 120 Cal.App.4th at pages 1082
to 1083, the jury did not make a specific finding that the public entity was a certain
percentage at fault in distinction to the proportionate fault of the individual police officer
involved. No such error in the particular terms or structure of the verdict needs to be
undone here.
       We lastly observe that even if the trial court had used the alternative version of the
special verdict form that was proposed by defendants (which removed Kern County from
the form itself), there is no reason to believe the outcome reached by the jury would be
any different in terms of its impact on the county. Ultimately, Kern County would still be



12     This “all or nothing” trial strategy was evident from defendants’ opening statement,
closing argument, the failure to ever seek or to argue apportionment at any time during the trial,
and the failure to request a modification of the special verdict form to include a line for the
apportionment of fault. At the time of the new trial motion, the trial court’s assessment of the
matter was the same—that is, the trial court recalled that defendants presented the case in an “all
or nothing” strategy, in which “decedent Jose was the sole cause of his own demise.”



                                                25.
liable for the deputies’ negligent acts or omissions (i.e., unreasonable use of force) based
on the principles of respondeat superior liability (§ 815.2, subd. (a)).13
       In conclusion, we find the defect in the special verdict form relating to Kern
County’s potential for direct negligence liability to have been harmless error under all of
the circumstances, and it did not result in a miscarriage of justice. Accordingly, that
defect is not grounds for reversal.
III.   The Comparative Fault Issue
       Defendants also argue that the special verdict form was fatally defective because it
omitted a question on comparative fault and/or did not provide a place for the jury to
determine Jose’s comparative fault and to apportion fault accordingly. Plaintiffs argue
that this claim of error was waived or forfeited by defendants’ failure to adequately and
timely object below. We agree with plaintiffs.
       We find this claim of defect was forfeited for the following reasons. First,
defendants’ counsel had ample opportunity to review the special verdict form, and yet
failed to make any objection to the form or to point out that it should have included a
question for determining and apportioning comparative fault. Generally speaking, a
defendant seeking to assert a defense of comparative fault or apportionment of fault
should make sure the verdict form requests the jury to make such determinations. (Kitzig
v. Nordquist (2000) 81 Cal.App.4th 1384, 1398.) Second, when defendants submitted
their own proposed special verdict form to the trial court, it similarly failed to include any
means to apportion fault, which indicates that defendants invited the very error of which
they now complain. (See Transport Ins. Co v. TIG Ins. Co. (2012) 202 Cal.App.4th 984,


13     The fact that the trial court allowed the jury to hear some expert testimony to the effect
that Kern County was remiss in training its deputies did not result in any prejudice, because that
same evidence largely overlapped with, or was duplicative of, the expert’s testimony that
described the type of police practices that would be reasonable for the individual deputies to
employ under the circumstances.



                                                26.
1000 [noting rule that a party who requests, or acquiesces in, a particular form of a jury
instruction or special verdict form cannot appeal the giving of that instruction based on
doctrine of invited error]; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49
Cal.App.4th 1645, 1653 [same].)14
       Third, defendants failed to object before the jury was discharged, when there was
still an opportunity to cure the alleged error. It is well established that a party may be
deemed to have waived purported errors concerning a special verdict form by failure to
object before the court discharges the jury. (Taylor, supra, 222 Cal.App.4th at p. 1242;
Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131; Green v. Rancho
Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 696; Ateeq v. Najor (1993)
15 Cal.App.4th 1351, 1359.) “‘The obvious purpose for requiring an objection to a
defective verdict before a jury is discharged is to provide it an opportunity to cure the
defect by further deliberation. [Citation.]’ [Citation.] ‘The rule is designed to advance
efficiency and deter gamesmanship. [Citation.] ‘“‘“‘“If any other rule were to obtain,
the party would in most cases be careful to be silent as to his objections until it would be
too late to obviate them .…”’” [Citation.]’ (Fn. omitted; [citations].)” [Citation.]’
[Citation].” (Taylor, supra, 222 Cal.App.4th at p. 1242.)15 When the verdict was read in


14       We note that defendants’ failure to object and their failure to include a comparative fault
and/or apportionment request in their own proposed version of the special verdict form was
consistent with defendants’ apparent “all or nothing” strategy in trying this case. (See, ante,
fn. 12.)
15      The waiver rule, however, is not inflexible or automatic. (See Woodcock v. Fontana
Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 2 [noting exceptions to waiver].) At
least one appellate court declined to find forfeiture where the appellant raised the claim of error
by a motion for new trial. (All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1220.)
Other decisions have found waiver despite the fact the error was raised by a motion for new trial.
(Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 131 [waiver found even
though defect raised at new trial motion]; Stevens v. Owens-Corning Fiberglas Corp., supra, 49
Cal.App.4th at pp. 1653-1655 [jury instruction agreed to by the appellant; therefore, error was
invited—hence waived—despite raising it at new trial motion].)



                                                27.
the instant case, it was clear to all that the jury did not assign percentages of fault.
Defendants did not object at that time, when the error could readily have been cured by
sending the jury back for further deliberation.
       Based on the foregoing, we conclude under all of the circumstances that
defendants forfeited their claim of defect concerning the special verdict form relating to
the omission in said special verdict form of a request to apportion fault.
IV.    Directed Verdict as to Parents’ Bystander Negligence
       The trial court granted a directed verdict as to the affirmative defense alleged by
defendants that plaintiffs (i.e., Florencio and Lilia) were comparatively at fault in regard
to their bystander emotional distress claims. Defendants challenge the trial court’s ruling.
We conclude the trial court’s ruling was correct.
       We review a directed verdict de novo. (Brassinga v. City of Mountain View
(1998) 66 Cal.App.4th 195, 210 (Brassinga).) “[T]he power of the court to direct a
verdict is absolutely the same as the power of the court to grant a nonsuit.” (Estate of
Lances (1932) 216 Cal. 397, 400.) A motion for a directed verdict is in the nature of a
demurrer to the evidence, and is governed by practically the same rules, and concedes as
true the evidence on behalf of the adverse party, with all fair and reasonable inferences to
be deduced therefrom. (Brassinga, supra, 66 Cal.App.4th at p. 210.) “If substantial
evidence before the jury could have supported a finding that [the defendant] had
established its … defense, the trial court erred in granting a directed verdict. On the other
hand, if the record lacked substantial evidence supporting this defense, the directed
verdict was proper.” (Ibid.)
       Defendants’ assertion that plaintiffs were comparatively at fault in causing their
own emotional distress was based on the contention that plaintiffs were told by the
deputies to leave the room while Jose was being arrested. We agree with plaintiffs and
the trial court that there was no substantial evidence before the jury that plaintiffs were, in
any sense of the word, negligent or at fault in regard to their bystander emotional distress

                                              28.
claims. The evidence reflected that plaintiffs were able to perceive what was happening
to their son even when they went outside onto the porch. In any event, we fail to see how
plaintiffs’ parental conduct of continuing to observe how Jose was doing in light of the
traumatic and violent events surrounding his arrest could, in the mind of any reasonable
person, be deemed negligence on their parts. In conclusion, the trial court correctly
granted the directed verdict.
                                     DISPOSITION
       The judgment of the trial court is affirmed. Costs on appeal are awarded to
plaintiffs.


                                                               _____________________
                                                                              Kane, J.
WE CONCUR:


 _____________________
Gomes, Acting P.J.


 _____________________
Detjen, J.




                                            29.
