The Court of Appeal ruled that a couple who were seriously injured while checking on a neighbor who had made a 911 call at the request of a deputy sheriff were assisting in “active law enforcement” at the time. Thus their exclusive remedy was under California Workers’ Compensation.

A Trinity County deputy sheriff phoned citizens James and Norma Gund — who do not work for the County — and asked them to go check on a neighbor who had called 911 for help likely related to inclement weather.

The Gunds unwittingly walked into a murder scene and were savagely attacked by the man who apparently had just murdered the neighbor and her boyfriend. The assailant fled.

The Gunds sued the County of Trinity and the deputy — Corporal Ron Whitman — for negligence and misrepresentation, alleging defendants created a special relationship with the Gunds and owed them a duty of care, which defendants breached by representing that the 911 call was likely weather-related and “probably no big deal” and by withholding information known to defendants suggesting a crime in progress — i.e., that the caller had whispered “help me,” that the California Highway Patrol (CHP) dispatcher refrained from calling back when the call was disconnected out of concern the caller was in danger, and that no one answered when the county dispatcher called.

Defendants filed a motion for summary judgment on the ground that plaintiffs’ exclusive remedy was workers’ compensation. The trial court adopted the defense theory and entered summary judgment and the Gunds appealed. The Court of Appeal affirmed the judgment in the published case of Gund v County of Trinity.

Where workers’ compensation is available, it is the exclusive remedy for work-related injury. (§ 3602.) Workers’ compensation is generally not available to persons “performing voluntary service for a public agency” who do not receive remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses. (§ 3352, subd. (a).) Section 3366 provides an exception for civilians assisting peace officers in “active law enforcement.”

Section 3366 provides that each person “engaged in the performance of active law enforcement service as part of the posse comitatus [power of the county] or power of the county [sic], and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division [workers’ compensation]. . . .”

Corporal Whitman would have been performing “active law enforcement service” if he himself had gone to the 911 caller’s home to check on her. Plaintiffs knew they were responding to a 911 call, and therefore they were assisting in active law enforcement.

“We conclude plaintiffs were engaged in assisting in active law enforcement at the deputy’s request, and their remedy was worker’s compensation under section 3366.”