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Nelson v. County of Los Angeles11/25/2003
CERTIFIED FOR PUBLICATION
On a summer night in 1998, Dwayne Nelson (an adult who had just been released from prison) stood in the middle of a busy intersection and fired a loaded gun into the air and at passing motorists. Someone called 911, and the Los Angeles County Sheriff's Department responded. Dwayne was handcuffed with his hands behind his back and placed in the back of a patrol car. He started thrashing about, and the deputies pulled him out of the car, laid the still-handcuffed Dwayne face-down on the ground, and executed a "total appendage restraint procedure" ("TARP"). By the time the deputies finished, Dwayne was unconscious. When they rolled him over, he was no longer breathing and the paramedics who came to the scene were unable to revive him. The entire episode was captured on videotape.
Dwayne's parents, Lottie Nelson and Wallace Nelson, sued the County of Los Angeles (and the Sheriff's Department and individual deputies, all of whom are included in our references to the County) for their son's allegedly wrongful death. The County answered, discovery ensued, and the case ultimately proceeded to trial. A jury found the County was negligent, that the County's negligence was the cause of Dwayne's death, and that 35 percent of the negligence was attributable to Dwayne's conduct. The jury awarded $2 million to the Nelsons, which was reduced by the 35 percent to $1,300,000. The County's motions for a new trial and for judgment notwithstanding the verdict were denied, as was a motion by the Nelsons for attorneys' fees. The County appeals and Mrs. Nelson has filed a cross-appeal.
We reject the County's challenge to the Nelsons' standing to prosecute this action, reject the County's contention that the Nelsons failed to prove causation, agree with the County that the damages awarded by the jury were excessive, reject Mrs. Nelson's claim that she was entitled to recover her attorney's fees on a private attorney general theory, and reject her contention that the government tort claim she filed for herself was sufficient to preserve a claim for damages by Dwayne's estate. We reverse the award of damages, remand for a new trial of that issue, and otherwise affirm the judgment.
DISCUSSION
I.
The County contends the judgment must be reversed because the Nelsons lacked standing to bring a wrongful death action. We disagree.
A.
During a pretrial conference, the County filed a "Request for Determination of Preliminary Fact" in which it asked the trial court to determine that the Nelsons lacked standing to prosecute this action because some of Dwayne's prison records refer to statements by him in which he said he had children. Although it is undisputed that the Nelsons were Dwayne's parents, and although no one else has ever asserted a claim to Dwayne's estate or to any relationship with him, the County's position was and is that the Nelsons had the affirmative obligation to prove that Dwayne was not survived by a spouse or child. The County said the issue had to be determined by the court before they could proceed to the merits of the Nelsons' wrongful death claim.
The trial court agreed, and a hearing was held at which the Nelsons (without objection) presented Mrs. Nelson's deposition testimony to establish that Dwayne (who was about 40 at the time of his death) never married and never had any children. To dispute that fact, the County presented some of Dwayne's prison records to show that he had at various times over a period of eight or ten years told prison employees that he had one, or sometimes two, or sometimes three children. In rebuttal the Nelsons presented conflicting prison record
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