Azcona v. Tibbs

• Citation: 12 Cal.Rptr. 232,190 Cal.App.2d 425
• Parties: Bernice R. AZCONA, Robert M. Azcona, and Becky L. Tully, Plaintiffs and Appellants, v. Victor Vernon TIBBS, Sheriff, County of Monterey, State of California, Wilfred Ward, Defendants and Respondents. Civ. 19520.
• Decision Date: 23 March 1961
• Court: California Court of Appeals Court of Appeals

Page 232

12 Cal.Rptr. 232

190 Cal.App.2d 425

Bernice R. AZCONA, Robert M. Azcona, and Becky L. Tully, Plaintiffs and Appellants, v. Victor Vernon TIBBS, Sheriff, County of Monterey, State of California, Wilfred Ward, Defendants and Respondents.

Civ. 19520.

District Court of Appeal, First District, Division 2, California.

March 23, 1961.

Hearing Denied May 16, 1961.

Jack Miller, San Francisco, for appellants. Brandt Nicholson, San Francisco, of counsel.

Hoge, Fenton, Jones & Appel, by Robert O. Angle, Monterey, for respondents.

SHOEMAKER, Justice.

This is an appeal by plaintiffs from a judgment of dismissal entered upon the sustaining of a demurrer without leave to amend interposed by defendants to plaintiffs' first amended complaint.

Plaintiffs, the surviving wife and children, brought this action against Sheriff Tibbs of Monterey County and his deputy Ward, to recover damages for the wrongful death of Alfred M. Azcona. The complaint is cast in three counts, one based on the public officer's liability act (Gov.Code, § 1953), one based on negligence alleged with particularity, and the last based on negligence alleged generally. The parties agree that the particularly alleged facts give the complete story and the foundation for the several causes of action alleged that portion of the complaint is as follows:

'1. On November 17, 1958, three (3) prisoners, Moore, Banalez and Sato, of the California State Prison at Soledad, California, were delivered to the custody of defendant Tibbs by said prison;

'2. On November 18, 1958, said prisoners were brought to the courtroom of Department 2 of the Superior Court of said County for arraignment, still in the custody of defendant Tibbs, and, more specifically, in the physical custody of defendant Ward, Bailiff of said Court, to whom defendant Tibbs had previously delegated the duty of maintaining and securing said prisoners' custody;

'3. To enable said prisoners to confer privately with their court-appointed attorney defendant Ward left them unguarded with their attorney in the jury room adjacent to said courtroom with the door closed, which said jury room was located on the third floor of the building, and had unbarred windows. While in said jury room said prisoners overpowered their attorney with the aid of a knife possessed by one of them, through the negligence of said defendant Ward in failing to adequately inspect said prisoners or otherwise to guard against such possession, and escaped through a window negligently left unlocked, to the street below by means of an electric cord negligently left in said jury room;

'4. Within approximately two hours of their escape from said jury room, two of the aforesaid prisoners, Moore and Sato, commandeered the automobile of the deceased Alfred M. Azcona in King City, California, and forced him to drive them off; and during the course of their drive, one of said prisoners took control of the automobile from said deceased and, driving the car at an excessive rate of speed, caused it to run off the road and crash;

'5. In the course of the aforesaid crash said deceased was injured, and, within approximately three hours, died as a direct and proximate result of said crash and, thereby, as a direct and proximate result of the failure of defendants Tibbs and Ward to exercise due care, as aforesaid.'

The demurrer to each court was both general and special. However, the appellants argue their position solely on the propriety of the general demurrer, so the only question involved on this appeal is whether the appellants have stated facts sufficient to constitute a cause of action.

It is clear from a consideration of the factual basis of this action that the answer to our question lies in a determination of whether or not the conduct of the defendants was a proximate cause of the death of Alfred Azcona.

General tort law provides that an injured person cannot recover for damages caused him unless the negligent conduct upon which he bases his claim is a proximate cause of the damage of which he complains; in actions under Government Code, § 1953, the statute specifically provides there can be no liability on the part of the officer unless '(a) The injury sustained was the direct and proximate result of such defective or dangerous condition.' Ordinarily proximate cause is a question of fact, but where, as here, the facts are undisputed, and only one conclusion may be drawn from them, it becomes one of law. Rosa v. Pacific Gas & Elec. Co., 1955, 133 Cal.App.2d 672, 674, 284 P.2d 844, ...