Neighbors Hurt at Double Murder Get Only Workers’ Comp

(CN) — A California appellate court ruled Monday that two Trinity County residents who were attacked when they unwittingly walked into a double homicide while checking on a neighbor at a deputy sheriff’s request are entitled only to worker’s compensation for their injuries.

The three-judge panel in the state’s Third Appellate District concluded that husband and wife James and Norma Gund were assisting in “active law enforcement” under Labor Code section 3366 when they investigated a 911 call the deputy said was likely related to bad weather despite knowing of potential criminal activity, barring their lawsuit for $10 million in damages.

“‘Active law enforcement’ under section 3366 means confronting the risks of dealing with the commission of crime or breach of the peace for the protection of the public. Any 911 call carries such risk, but particularly a 911 call for help of an uncertain nature,” Justice Harry Hull Jr. wrote for the panel.

“The deputy’s misrepresentations and omissions are irrelevant to our construction of the statute at issue here. All that matters is that plaintiffs knew they were responding to a 911 call, the nature of which was not certain.”

The Gunds, who did not work for the county, sued Trinity County and Sheriff’s Corporal Ron Whitman in 2011. They claimed that Whitman failed to disclose that the caller, Kristine Constantino, had whispered “help me” during the 911 call; that the California Highway Patrol dispatcher had refrained from calling back when the call was disconnected because it appeared that Constantino was in danger; and that no one answered when a county dispatcher called back.

Instead, the Gunds said, Whitman told them the 911 call was “probably no big deal,” leading them to believe the welfare check would be safe.

Whitman asked the Gunds to investigate the call because he was at the sheriff’s office two hours away from Constantino’s house in Kettenpom in Northern California, according to the lawsuit. Sparsely populated Trinity County is in extreme northwest California, separated from the Oregon line only by Siskiyou County, to the north.

The Gunds obliged, driving their truck a quarter mile to the house, at the end of the Kettenpom air strip. Norma Gund went into the house first, where a man with a knife who had apparently just murdered Constantino and her boyfriend held Gund down and cut her throat.

Hearing the commotion, James Gund entered the house, allowing Norma to flee in the couples’ truck. Despite having his throat cut and being Tasered and punched repeatedly, James also managed to escape.

The suspected killer, Tomas Pitagoras Gouverneur, died in a high-speed crash shortly after the murders while being pursued by police. Gouverneur and the two victims apparently knew one another. The motive for the murders is not known.

Trinity County Superior Court Judge Richard Scheuler granted summary judgment to the county and corporal, reasoning that responding to a 911 call is a law enforcement activity. He concluded that the Gunds’ only remedy was workers’ compensation, because Labor Code section 3366 mandates that a person engaged in active law enforcement service on a peace officer’s behalf is deemed a public employee entitled to workers’ compensation in the event they are injured or killed.

On appeal, the Gunds, argued that given Whitman’s misrepresentations, checking on a neighbor and checking on someone with a weather-related problem did not constitute active law enforcement.

But the appellate panel was not persuaded.

“Had the deputy responded to the 911 call, he clearly would have been engaged in active law enforcement, because any 911 call seeking unspecified help presents a risk of criminal activity,” Hull wrote for the panel. “Since the deputy would have been engaged in active law enforcement had he responded, plaintiffs were engaged in active law enforcement when they responded to the 911 call on his behalf — regardless of the deputy’s misrepresentations to plaintiffs.”

As the panel ruled that section 3366 barred the Gund’s lawsuit because they assisted in active law enforcement, it did not address arguments that the lawsuit was barred because the Gunds were employees based on their compliance with Whitman’s request for help.

Justices Cole Blease and Jonathan Renner joined the opinion.

Ben Mainzer with Zwerdling, Bragg & Mainzer in Eureka represented the Gunds, and John Whitefleet with Porter Scott in Sacramento represented Whitman and Trinity. Neither attorney could be reached for comment Monday evening.

A lawsuit the Gunds filed in federal court alleging violation of their civil rights has been stayed pending resolution of the state case.

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