Brummett v. County of Sacramento

• Decision Date: 24 August 1978
• Citation: 582 P.2d 952,21 Cal.3d 880,148 Cal.Rptr. 361
• Parties: , 582 P.2d 952, 4 A.L.R.4th 858 Kenneth L. BRUMMETT et al., Plaintiffs and Appellants, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents. S. F. 23738
• Court: California Supreme Court

Page 361

148 Cal.Rptr. 361

21 Cal.3d 880, 582 P.2d 952, 4 A.L.R.4th 858

Kenneth L. BRUMMETT et al., Plaintiffs and Appellants, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents.

S. F. 23738.

Supreme Court of California

Aug. 24, 1978.

Gordon, Holstein & Ropers, Riverside, Gordon, Weltin, Holstein & Ropers, William C. Gordon, Riverside, Allan I. Shatkin, San Francisco, Mark Ropers and Rita C. Grobman, San Francisco, for plaintiffs and appellants.

Memering, Stumbos, DeMers & Ford, Memering, Stumbos, De Mers, Ford & Norris, John J. Roman, Roberta Lee Franklin and Suzanne M. Trimble, Sacramento, for defendants and respondents.

MANUEL, Justice.

Plaintiffs appeal the decision of the trial court granting summary judgments in favor of defendants in consolidated personal injury actions. We affirm dismissal of the complaint against the individual defendants, but reverse the summary judgment granted to defendant County of Sacramento (County).

The individual defendants are two police officers who, while acting within the scope of their employment, were driving separate police vehicles in high speed pursuit of a suspected felon. Deputy Boyd had been alerted by radio that a bank robbery had occurred and that the armed suspect was believed to be driving in his vicinity. Deputy Erwin joined the pursuit in response to an assistance request.

Both patrol cars hit a vehicle in the intersection of the Power Inn and Elder Creek Roads, and Deputy Boyd's car careened into plaintiffs' pickup truck which was in the left turn lane adjacent to the northbound lanes of Power Inn Road. Estimates of the speeds of the cars involved in the chase indicated the suspect's automobile was traveling at 80-90 miles per hour when it approached the intersection. Deputy Erwin later stated that he was uncertain of the speed of his own patrol car, but doubted that it exceeded 80 miles per hour. Deputy Boyd thought he was going 90 miles per hour at his highest rate of speed during the pursuit. Both officers had previously been involved in high-speed vehicle chases without incident and both had received formal training in emergency driving techniques.

Before discovery was completed, defendants' motions for summary judgment were granted on the grounds that the officers were immunized from liability as public employees acting in the line of duty, and that the County was therefore derivatively immune.

Section 17004 of the Vehicle Code provides: "A public employee is not liable for civil damages on account of personal injury to . . . any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call Or when in the immediate pursuit of an actual or suspected violator of the law, . . ." (Emphasis added.) Since at the time of the accident, Deputies Boyd and Erwin were in their patrol cars ¹ in active pursuit of a suspected bank robber, under this section of the Vehicle Code they were immunized from liability, and the complaint was properly dismissed against them.

Defendant County argues that since the individual defendants were immune, being peace officers lawfully pursuing a suspect, it cannot be liable because Government Code section 815.2, subdivision (b) provides derivative immunity for the public entity employer of an immune employee. Defendant County's assertion of nonliability is in error. Government Code section 815.2, subdivision (b) states: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Emphasis added.) The question, therefore, is whether liability is "otherwise provided by statute." It must be answered in the affirmative. Vehicle Code section 17001 makes a public entity liable for its employee's negligence in the operation of a motor vehicle. That section provides: "A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment."

The Law Revision Commission comments to sections 17001 and 17004 indicate that these sections in article 1 of chapter 1 of the Civil Liability Division of the Vehicle Code, are in their present alignment as a result of the commission's recommendations made while that body was studying government tort liability. (See Cal.Law Revision Com. coms. to Veh.Code, §§ 17001 to 17004. 66A West's Ann.Veh.Code (1971 ed.) pp. 91, 101, 103.) Unquestionably, the Legislature understood the interrelationship between the liability of the public entity contained in section 17001, and the exemption of the employee from liability contained in section 17004, when it drafted Government Code section 815.2. (Cf. Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 397, 184 P.2d 323.) ²

Indeed, 20 years prior to the enactment of section 815.2 in the Tort Claims Act, this court noted in Raynor v. City of Arcata (1938) 11 Cal.2d 113, 118-120, 77 P.2d 1054, that the predecessors to sections 17001 and 17004 were signed into law on the same day, and were to be read together with each provision to be given full effect. We held therein that Vehicle Code section 400 (later § 17001) imposed liability upon a public employer even though under Vehicle Code section 401 (later § 17004) the public employee might be immune. (Id., pp. 118-119, 77 P.2d 1054.) It was further observed that ". . . in the situation before us the exemption of the employee does not rest on an adjudication of his (the employee's) freedom from negligence, but on the statutory declaration that he should be free from personal liability for his negligent acts." (Id., p. 121, 77 P.2d, p. 1059.) These precursor statutes also have been treated as consents to sue as well as the basis for the establishment of liability. (Brindamour v. Murray (1936) 7 Cal.2d 73, 78, 59 P.2d 1009.)

Government Code section 815.2 was adopted in this statutory and decision context and was enacted at the same time as Government Code section 815. (Stats.1963, ch. 1681, § 1, p. 3268.) The Senate Judiciary Committee in the note to section 815 commented: ". . . In the following (portion) of this division there are many sections (e. g., §§ 815.5-815.8) providing for the liability of governmental entities under specified conditions. In other codes there are a few provisions providing for the liability of governmental entities, e. g., Vehicle Code section 17001, et seq. . . ." (2 Sen.J. (1963 Reg.Sess.) pp. 1886-1887.) Although section 815.2 is generally an exemption provision, the same committee did state, in its comment to the section, that: "The exception appears in subdivision (b) because under certain circumstances it appears to be desirable to provide by statute that a public entity is liable even when the employee is immune. . . ." (2 Sen.J. (1963 Reg.Sess.) pp. 1887-1888.) ³ Thus, the Legislature extended governmental liability while it sustained employee immunity. ⁴

We conclude, therefore, that section 17004 defined only a limited immunity, i. e., an employee immunity, and that section 17001 "otherwise" provides for public entity liability. Vehicle Code section 17001, therefore, is cognizable under the exception of section 815.2, subdivision (b).

On this showing, the County is not immunized simply because Deputies Erwin and Boyd were immune. Vehicle Code section 17001 provided for entity liability and the trial court erred in granting the County summary judgment on the grounds of statutory immunity. In so ruling, it failed to consider whether Deputies Boyd and Erwin were negligent so as to create liability on the part of the county. Had the court properly applied the law, it would have assessed whether there were triable issues of fact and may have ultimately denied the County summary judgment.

Although it is clear on the record before us that the deputies were lawfully engaged in ". . . the immediate pursuit of an actual or suspected (law) violator, . . ." plaintiffs claim correctly that the law does not permit the police to drive with impunity from the moment they activate their sirens and flashing lights. (Peerless Laundry Serv. v. City of Los Angeles (1952) 109 Cal.App.2d 703, 707, 241 P.2d 269.) Section 21055 of the Vehicle Code sets out a minimum standard of due care when it states that the drivers of authorized emergency vehicles are exempt if ". . . the vehicle sounds a siren . . . and . . . displays a lighted red lamp . . . as a warning to other drivers . . . ." ⁵ Vehicle Code section 21056, however, provides that "Section 21055 does not relieve the driver of a vehicle from the duty to drive with due regard for the safety of all persons using the highway . . . ." Accordingly, section 17004 relieves Deputies Boyd and Erwin of liability since they were in immediate pursuit with the sirens and flashers on so as to satisfy section 21055. Yet for the County to avoid liability, Boyd and Erwin must have acted with due care as required by section 21056. The cases defining this standard state that an exempt driver must observe that degree of care imposed by common law to immunize his public entity employer from liability under Vehicle Code section 17001. In Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 47, 22 Cal.Rptr. 866, 372 P.2d 906, it was held that such driver, operating his vehicle in the line of duty, must nonetheless drive in such a manner as would not impose upon others an unreasonable risk of harm. The court said "The question to be asked is what would a reasonable, prudent emergency driver do under all of the circumstances, including that of emergency." (Id., at p. 51, 22 Cal.Rptr., at p. 876, 372 P.2d, at p. 916.)

There is uncontradicted evidence in the record indicating that Deputies Boyd and Erwin were traveling between 80 and 100 miles per...