MARTIN, ET AL. v. STATE OF CALIFORNIA, ET AL.

LAW AND MOTION CALENDAR APRIL 17, 2026

2. MARTIN, ET AL. v. STATE OF CALIFORNIA, ET AL., 25CV2199

Demurrer

The Plaintiffs are husband and wife; the wife was seriously injured, including

traumatic brain injury, when she hit a pothole while riding a scooter on public property,

which the Complaint alleges was a dangerous condition. The husband has included a

claim for loss of consortium based on his wife’s injuries. Defendant is a public agency

whose liability is governed by the California Tort Claims Act. (Gov. Code, §§ 810–996.6.)

Defendant demurs to the husband’s loss of consortium claim on the grounds that there is no statute within the Tort Claims Act that authorizes an action against a public agency

for loss of consortium.

1. Legal Principles

A demurrer tests the sufficiency of a complaint by raising questions of law. (Rader

Co. v. Stone (1986) 178 Cal.App.3d 10, 20.) In determining the merits of a demurrer, all

material facts pleaded in the complaint and those that arise by reasonable implication,

but not conclusions of fact or law, are deemed admitted by the demurring party. (Moore

v. Conliffe (1994) 7 Cal.4th 634, 638; Interinsurance Exchange v. Narula (1995) 33

Cal.App.4th 1140, 1143.) The complaint must be construed liberally by drawing

reasonable inferences from the facts pleaded. (Flynn v. Higham (1983) 149 Cal.App.3d

677, 679.)

2.

Discussion

Government Code section 835 describes a public agency’s liability for dangerous

conditions on public property: “Except as provided by statute, a public entity is liable for

injury caused by a dangerous condition of its property if the plaintiff establishes that the

property was in a dangerous condition at the time of the injury, that the injury was

proximately caused by the dangerous condition, that the dangerous condition created a

reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within

LAW AND MOTION CALENDAR APRIL 17, 2026

the scope of his employment created the dangerous condition; or (b) The public entity

had actual or constructive notice of the dangerous condition under Government Code

section 835.2 a sufficient time prior to the injury to have taken measures to protect

against the dangerous condition.

Thus, the public agency’s liability requires 1) an injury 2) proximately caused by 3) a

condition that was either created by a negligent act or omission of an employee or of

which the agency had either constructive or actual notice, and 4) that the type of injury

incurred was foreseeable. Given that the statute itself defines the parameters of a duty by the public agency toward people using public property, the requirements of the

statute restate the basic principles of a negligence claim: 1) the existence of a duty, 2) a

breach of that duty [by creating or failing to remedy a known dangerous condition],

3) injury to the plaintiff caused by the defendant’s breach, and 4) actual damages.

(Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567; Metcalf v. County of San

Joaquin (2008) 42 Cal.4th 1121, 1139 [“In sum, we conclude that negligence under

section 835, subdivision (a), is established under ordinary tort principles concerning the

reasonableness of a defendant’s conduct in light of the foreseeable risk of harm.”].)

There is no dispute that the wife’s injuries come within the statute because she is

the person who, according to the allegations of the Complaint, sustained actual injuries

proximately caused by her direct encounter with the dangerous condition. Defendant

argues that there is no statute that authorizes a derivative action against a public agency for the husband’s loss of consortium. The question then, is whether a loss of consortium

claim is an injury that is a “reasonably foreseeable risk” resulting from a dangerous

condition of public property. The definition of dangerous condition found in

Government Code section 830, combined with the traditional requirement codified in

Government Code section 835, subdivision (a)—that the public entity’s creation of the

dangerous condition must have been unreasonable—reflects an ordinary negligence standard. (See Lugtu v. Cal. Highway Patrol (2001) 26 Cal.4th 703, 716 [“Under general

LAW AND MOTION CALENDAR APRIL 17, 2026

negligence principles, ... a person ordinarily is obligated to exercise due care in his or her

own actions so as not to create an unreasonable risk of injury to others, and this legal

duty generally is owed to the class of persons who it is reasonably foreseeable may be

injured as the result of the actor’s conduct” (italics added)]; Zelig v. County of Los

Angeles (2002) 27 Cal.4th 1112, 1128; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156; Civ.

Code, § 1714; CACI No. 1001 [defining the basic duty of care in ordinary premises-

liability dangerous condition cases].)

Loss of consortium is one of a class of negligence-based torts pursuant to which a person who is closely related to an injured person can sustain a claim for their own

harms resulting from the third person’s injuries, such as negligent infliction of emotional

distress to a person who witnesses the injury of a close family member, or as in this

case, loss of consortium to a spouse who suffers from a loss of marital companionship

because of an injury to the other spouse. These are derivative causes of action that

depend on the necessity of an injury to another person. (Vanhooser v. Superior Court

(2012) 206 Cal.App.4th 921, 927–28.)

As to a claim for loss of consortium, such a claim at common law has four elements:

“(1) a valid and lawful marriage between the plaintiff and the person injured at the time

of the injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶] (3) loss of consortium

suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant’s

act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2, citing 4 Levy et al., Cal. Torts (2006) Loss of Consortium, § 56.02 [2], p. 56-4.) “A cause of action for loss of consortium

is, by its nature, dependent on the existence of a cause of action for tortious injury to a

spouse.” (Hahn v. Mirda, supra, at p. 746.)

There appears to be no directly applicable authority related to the Tort Claims Act,

but there is some relevant guidance in a California Supreme Court case addressing the

statutory limits of employer liability under the Workers’ Compensation statutes. In LeFiell Mfg. Co. v. Superior Court (2012) 55 Cal.4th 275, the Court considered whether a

LAW AND MOTION CALENDAR APRIL 17, 2026

wife could recover for loss of consortium for a husband’s injuries covered by Workers’

Compensation statutes. It noted that in general, Workers’ Compensation claims are

governed by the “exclusivity rule” that limits recovery to the worker only, and excludes

recovery by any other family member. (See Lab. Code, § 3600.) However, that case

involved a statutory exception for injuries caused by the lack of a “point of operation

guard” on a power press, in which case the applicable statute provided that the

employee could sue the employer for damages beyond the Workers’ Compensation

system, but that the employee’s dependents could not pursue such a claim unless the employee had died. (See Lab. Code, § 4558, subd. (b).) Thus, the spouse in that case

could not pursue a loss of consortium claim because the Legislature had expressly

excluded any cause of action brought by the employee’s dependents for any injury short

of death. The Court’s reasoning was based on the plain language of the statutes.

In this case, the plain language of the statute creates public agency liability where

“the dangerous condition created a reasonably foreseeable risk of the kind of injury

which was incurred.” It does not expressly address dependents or family members, it

only limits claims to “reasonably foreseeable risks.” In a public park, it is reasonably

foreseeable that a person might be accompanied by close family members, who, upon

witnessing the injury, might have a claim for negligent infliction of emotional distress. It

is also reasonably foreseeable that a member of the public injured on public property

might have a spouse who could prove their loss of consortium harm resulting from the person’s injuries. These causes of action, while derivative, are fundamentally rooted in

and are proximately caused by the public agency’s purported negligence. Government

Code section 835 authorizes claims based on public agency negligence, when it is

factually established. The Legislature could have limited this liability to prohibit claims

by dependents or family members of injured persons, but it did not.

LAW AND MOTION CALENDAR APRIL 17, 2026

TENTATIVE RULING # 2: DEFENDANT’S DEMURRER IS OVERRULED. NO HEARING ON

THIS MATTER WILL BE HELD (LEWIS v. SUPERIOR COURT (1999) 19 CAL.4TH 1232,

1247), UNLESS A NOTICE OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT

IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY

TELEPHONE TO THE COURT AT (530) 573-3042 BY 4:00 P.M. ON THE DAY THE

TENTATIVE RULING IS ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR

MUST BE MADE BY TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID NOTICE

MUST BE FILED PRIOR TO OR AT THE HEARING.