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California County Not Liable for Misconduct of Jail Guard Not Acting within Scope of Employment

On April 3, 2013, the California Court of Appeal held that a county is not liable for damages arising out of the misconduct of one of its jail guards when such misconduct is deemed to be “purely personal” and thus not within the scope of the guard’s employment.

In February 2005, Paul and Felicia Perry were injured in a car accident involving a vehicle owned by Alejandro Vital, who was then employed as a veteran jail guard by Fresno County. After the Perrys filed a personal injury suit against Vital, he became obligated to pay their medical bills resulting from the accident because his insurance company refused to cover those expenses.

Vital then embarked on a scheme designed to intimidate the Perrys into dropping their lawsuit. He accessed information about “dangerous inmates” through the jail’s computer system, then sent them racially inflammatory and insulting letters in Paul Perry’s name using his return address, hoping they would provoke the prisoners to retaliate against the Perrys.

Vital also wrote an anonymous letter to Fresno High School officials, accusing Perry, a coach, of once molesting a basketball player at the school.

An investigation led to Vital’s eventual admission that he wrote the letters to the jail prisoners and to Fresno High School, as well as insulting letters to members of a street gang who, in response, said they would “do a drive-by” at the home of Paul Perry’s 70-year-old mother.

Vital was fired by the county and criminally charged with identity theft, extortion and attempting to dissuade a witness from testifying. He entered a no contest plea to three felony counts and was sentenced in November 2006 to one year in jail. In court, he explained his actions by saying, “I just lost my mind.”

The Perrys filed suit against Fresno County on the theory that under the doctrine of respondeat superior, an employer is liable for the torts of its employees when those torts are committed within the scope of their employment.

The trial court granted the county’s motion for summary judgment, finding that Vital’s actions were not within the scope of his duties as a jail guard.

The Court of Appeal affirmed, holding that although Vital’s position at the jail gave him access to the information he needed to carry out his scheme, the act of writing and mailing fraudulent letters was “purely personal” and not within the scope of his employment. Thus, the county could not be held vicariously liable for his actions. See: Perry v. County of Fresno, 215 Cal.App.4th 94, 155 Cal.Rptr.3d 219 (Cal. App. 5th Dist. 2013), rehearing denied, review denied.

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