Assault by a Public Employee: What Changes

As our assault and battery practice page explains, an attacker is responsible for the harm they cause. When the attacker works for a city, county, school district or transit agency, or the attack happens at a public school, park, library, jail or station, the Government Claims Act adds rules that do not apply to private defendants. The most important is time: a claim that would have two years against a private business can be lost in six months against a public one.

This guide explains when a public entity answers for an employee's attack, what happens when someone else attacks you on public property, and the claim process that must come first.

What happens, step by step?

Identify the public entity. A school district, a transit district, a city and a county are each separate entities, and the claim must go to the right one.
Present a written claim within six months. A claim for death or personal injury must be presented no later than six months after the cause of action accrues, usually the day of the attack (Government Code 911.2). For the County of Sonoma, claims go to the Clerk of the Board of Supervisors, 575 Administration Drive, Suite 100A, Santa Rosa.
Wait for the entity to act. Our guide on how to file an injury claim against a city, county or the State explains what the claim must say and the 45 days the entity has to respond.
If you missed six months, apply for a late claim. An application for leave to present a late claim must be made within a reasonable time, no later than one year after the cause of action accrued, and must state the reason for the delay (Government Code 911.4).
Sue on time after a rejection. If the entity sends written notice of rejection, the lawsuit must be filed within six months after the notice is delivered or mailed; if no written notice is given, within two years (Government Code 945.6).
Name the employee too, if appropriate. A public employee is liable for injury caused by their act to the same extent as a private person (Government Code 820), but that claim is barred if the claim against the employer is barred (Government Code 950.2).

How do the rules compare with a private defendant?

Issue	Private business or person	Public entity
First deadline	Lawsuit within 2 years (Code of Civil Procedure 335.1)	Written claim within 6 months (Government Code 911.2)
Missed the first deadline	Generally barred	Late-claim application within a reasonable time, no later than 1 year (Government Code 911.4)
Lawsuit after a written rejection	Not applicable	Within 6 months of the notice (Government Code 945.6)
Responsibility for an employee's attack	Employer liable for acts within the scope of employment (Civil Code 2338; CACI 3720)	Entity liable for acts within the scope of employment (Government Code 815.2)
Punitive damages	Possible on clear and convincing proof (Civil Code 3294)	Not available against the entity (Government Code 818)
Not enough security or police	Possible negligent security claim (CACI 1005)	No liability for failing to provide sufficient police protection (Government Code 845)
Claim against the employee personally	Ordinary rules	Barred if the claim against the entity is barred (Government Code 950.2)

When is a public entity responsible for its employee's attack?

Government Code 815.2(a) makes a public entity liable for injury proximately caused by its employee's act within the scope of employment, if the act would give rise to a claim against the employee. The scope of employment test is the same one used for private employers (CACI 3720). A decision the Judicial Council quotes under CACI 3722 says an employee's "willful, malicious and even criminal torts may fall within the scope of his or her employment," but another quoted decision requires a "causal nexus" to the employee's work.

Police officers have a separate instruction. Under CACI 3721, an officer's conduct is within the scope of employment if it occurs while the officer is on duty, while exercising authority as a peace officer, and results from the use of that authority. Decisions the Judicial Council quotes there limit that rule to on-duty police officers; one says it does not extend to any other form of employment, including firefighting. For other public employees, such as school staff, a decision quoted under CACI 3722 notes that courts have rarely held an employee's sexual assault of a third party to be within the scope of employment.

Even when an attack is outside the scope of employment, the entity may still answer for its own employees' negligent supervision. A decision quoted under CACI 426, involving a school district, says negligence is established if "a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards." Our guide on when an employer is responsible for its employee's attack explains these two routes in detail.

What if someone else attacked me at a public place?

This is where public property differs most from private property. Government Code 845 says neither a public entity nor its employee is liable for failing to establish a police department or provide police protection, or for failing to provide sufficient police protection. A negligent security claim of the kind a private bar or landlord may face, described in our guide on when a business is responsible for an assault on its property, is usually much harder against a public entity.

Other routes can remain. Staff who were supervising students or residents may have been negligent in that supervision, making the entity liable through Government Code 815.2. And a physical defect in the property itself, such as broken lighting or a gate that does not lock, can raise the separate rules on what makes public property legally dangerous.

Can I sue the employee personally?

Yes. A public employee is liable for injury caused by their act or omission to the same extent as a private person, subject to the immunities in the statutes (Government Code 820). But a claim against the employee for acts in the scope of employment is barred if a claim against the entity is barred for missing the claim deadlines (Government Code 950.2), so the six-month claim protects both.

If the entity defends the employee at the employee's written request, it generally must pay a judgment or agreed settlement for acts within the scope of employment, but not the punitive damages part, unless its governing body decides otherwise under the limited conditions in the statute (Government Code 825).

What changes the answer?

You are facing criminal charges from the same incident. A person charged with a crime may not sue a peace officer or the officer's employer over conduct relating to the charge while it is pending in superior court; the lawsuit deadline is paused, but the six-month claim is not (Government Code 945.3).

The injured person is a child. The six-month claim rule still applies to minors, with special rules for late claims; see how injury claims work for children.

The attacker was a contractor, not an employee. A private security company or contractor working for the entity is judged as a private employer, so the two-year rule and punitive damages may apply to that company (Code of Civil Procedure 335.1; Civil Code 3294).

A State agency was involved. Claims against the State go to the Department of General Services' Government Claims Program, as our guide on filing claims against a city, county or the State explains.

The attacker cannot pay and the entity is not liable. Restitution and the Victim Compensation Board may still help; see who else can pay when the attacker cannot.

What could this look like? An example

For example, imagine a 15-year-old who is beaten in a locker room at a public high school in Sonoma County by two students, during a class period when the room was supposed to be supervised. Other students had warned a coach about threats the week before.

The school district is not liable simply because it did not have enough security (Government Code 845). But the coach's failure to act on specific warnings may be negligent supervision by a district employee within the scope of employment (Government Code 815.2; CACI 426). The family presents a written claim to the district within six months of the attack (Government Code 911.2). The district sends a written rejection on day 40, so the lawsuit must be filed within six months of that notice (Government Code 945.6). The students who attacked him can be sued too. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make with public entity assault claims?

Waiting on the criminal case and missing the six-month claim.
Sending the claim to the city when a separate school or transit district runs the place.
Assuming the employee can be sued later even if the claim against the entity was missed (Government Code 950.2).
Asking for punitive damages from the entity, which the law does not allow (Government Code 818).
Losing track of the six-month lawsuit deadline after a written rejection.

What should I do this week?

Write down the date of the attack and the date six months later.
List every public entity that ran the place or employed the attacker.
Get each entity's claim form and gather the police report number, photos and medical records.
Ask in writing that video and incident reports be kept; our guide on what to do in the first week after an assault lists what to request.
Check our Sonoma County page for local claims offices. For Marin, see our Marin County page.
Put both six-month dates on your calendar using our guide to California personal injury deadlines.

Frequently asked questions

Does the six-month rule apply to an assault by a police officer?

Yes. A claim for injury against a public entity must be presented within six months (Government Code 911.2), and the claim requirement applies even while criminal charges against you are pending (Government Code 945.3).

Can I sue a public school for a fight between students?

Possibly, if a district employee's negligent supervision within the scope of employment caused the injury (Government Code 815.2). The district is not liable just for having too little security (Government Code 845).

Can I get punitive damages against a city?

No. A public entity is not liable for punitive damages (Government Code 818). They may be available against an individual attacker.

Who pays if the employee is sued personally?

If the entity defends the employee at their written request for acts within the scope of employment, the entity generally pays the judgment or agreed settlement, except punitive damages (Government Code 825).

What if I missed the six months?

Apply to the entity for leave to present a late claim within a reasonable time, no later than one year, stating the reason for the delay (Government Code 911.4).

Where is the lawsuit filed?

Usually in the superior court of the county where the attack happened; see what to expect at Sonoma County Superior Court in an injury case.

If you were assaulted by a public employee or at a public facility, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation before the six-month claim deadline passes.

Assaulted by a public employee or at a public facility: what is different?