Bratt v. City and County of San Francisco

• Decision Date: 11 July 1975
• Citation: 50 Cal.App.3d 550,123 Cal.Rptr. 774
• Parties: Jonathan C. BRATT, etc., et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, et al., Defendants and Respondents. Civ. 34745.
• Court: California Court of Appeals Court of Appeals

Page 774

123 Cal.Rptr. 774

50 Cal.App.3d 550

Jonathan C. BRATT, etc., et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, et al., Defendants and Respondents.

Civ. 34745.

Court of Appeal, First District, Division 4, California.

July 11, 1975.

Garry, Dreyfus, McTernan, Brotsky, Herndon & Pesonen, San Francisco, for plaintiffs-appellants.

Thomas M. O'Connor, City Atty., George P. Agnost, Deputy City Atty., Thomas X. Schiff, Ex Officio Deputy City Atty., San Francisco, for defendants-respondents.

THE COURT: ^*

Plaintiffs filed a complaint against defendant City and County of San Francisco seeking damages for personal injury to two persons and for the wrongful death of two others. The appeal is from a judgment of nonsuit.

Two police officers stopped their car behind a white Cadillac automobile which was doubled-parked on Fillmore Street in San Francisco. The occupants of the double-parked vehicle appeared startled and nervous, and a third passenger hurriedly entered the car.

As the officers approached on foot, the double-parked vehicle moved off rapidly. The police returned to their car and gave chase. The officers recalled teletypes describing certain suspects of recent armed robberies. One robbery had reportedly been committed by three Negro men driving a white Cadillac; the occupants of the car in the present case were Negro.

The police pursued the fleeing vehicle over major city streets, through residential and commercial areas, with the patrol car's red light and siren operating. The Cadillac travelled at as high speed as possible, weaving dangerously through traffic; the police reached a maximum speed of 45 miles per hour, but were able to keep within sight of the fugitives as the police car was more maneuverable in making turns. The route of the chase was congested in some areas with vehicular and pedestrian traffic, and the Cadillac once ran up on the sidewalk to avoid cars, narrowly missing pedestrians. The police requested the assistance of other patrol cars in order to set up a roadblock for the fleeing car.

The pursuit climaxed in a collision between the Cadillac and another vehicle. Appellants seek damages in this action for personal injuries and wrongful deaths which occurred in the collision.

Appellants contend that the police officers acted arbitrarily in deciding to exercise the privilege, contained in Vehicle Code sections 21055--21056, ¹ which allows drivers of emergency vehicles to disregard ordinary rules of the road in urgent situations; that this abuse proximately caused the accident; and that the judgment of nonsuit was error.

If the accident occurred as a consequence of any police conduct, that conduct would be the decision to pursue the fleeing vehicle; there was no evidence that the accident was caused by the violation of any specific traffic regulation mentioned in section 21055. The decision to pursue is protected by Vehicle Code section 17004, which precludes liability for injuries resulting from the operation of an emergency vehicle 'in the immediate pursuit of an actual or suspected violator of the law . . .' The decision to pursue was a discretionary act additionally protected by Government Code section 820.2. ² (See McCarthy v. Frost (1973) 33 Cal.App.3d 872, 109 Cal.Rptr. 470, and Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 43 Cal.Rptr. 294.)

McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, is to be distinguished. In McCorkle, while defendant's police officer investigated an automobile accident, he directed a pedestrian, plaintiff, in such a way that plaintiff was struck by a car. The policeman's allegedly negligent investigation was held not discretionary and therefore not covered by the immunity afforded by section 820.2 of the Government Code. The Supreme Court said that the policeman 'would have been immune if plaintiff's injury had been the Result of his (the policeman's) exercise of discretion. . . . It was not: it resulted from his negligence after the discretion, if any, had been exercised. Because the essential requirement of section 820.2--a causal connection between the exercise of discretion and the injury--did not exist, the statutory immunity does not apply.' (McCorkle v. City of Los Angeles, supra, at pp. 261--262, 74 Cal.Rptr. at 396, 449 P.2d at 460.) In the present case, negligence was alleged in the police officers' decision to give high speed chase rather than in the officers' execution of that decision.

Appellants concede that Pagels v. City and County of San Francisco (1955) 135 Cal.App.2d 152, 286 P.2d 877, and Draper v. City of Los Angeles (1949) 91 Cal.App.2d 315, 205 P.2d 46, are square holdings against them. These cases involved dismissals of actions (Pagels: nonsuit; Draper: judgment notwithstanding the verdict) against municipalities for damages sustained when a vehicle being hotly pursued by police collided with a victim's vehicle. The judgments of dismissal were affirmed in both cases.

These results were based upon (1) the obligation of the police to apprehend the fleeing driver ('the officers were under no duty to allow him to make a leisurely escape' Draper, supra, at p. 319, 205 P.2d at p. 48); and (2) the absence of a duty owed to plaintiffs to protect them from the fleeing driver ('They (the police) owed no duty to plaintiffs except to operate their own car with due care and they fulfilled this duty' Ibid.). (The results of these cases are in line with the majority of jurisdictions that have considered the question. See 83 A.L.R.2d 452.)

Appellant urge this court to reject the California precedents and be guided instead by Myers v. Town of Harrison (2d Cir. 1971) 438 F.2d 293. In Myers, the police pursued a fleeing driver over wet and narrow roads in a residential area at speeds up to 100 miles per hour. The pursuit ended in a collision at a police road-block between the fleeing car and that of another driver, the plaintiff, who was killed by the impact. The United States Court of Appeals affirmed a judgment determining that the police were liable for damages sustained by the plaintiff in the collision. As appellants indicate, the defendants were held to be liable in Myers despite the existence of a statute, similar to Vehicle Code sections 21055--21056, according to the police a privilege to exceed limits in emergency situations. The court reasoned as follows:

the only question before this court is whether there was sufficient evidence on this question to allow it to be submitted to the jury. Speeds of up to 100 miles per hour on wet and narrow roads, through a residential section, in pursuit of a traffic violator might well be said to create an unreasonable risk to public safety and there was expert testimony that pursuit in these circumstances does not constitute 'common and accepted good police practices.' (Myers, supra, at p. 296.)

But this court will not create a conflict in the California decisions by disregarding precedents which are concededly applicable and are consistent with the...