Bryant v. Glastetter
| Decision Date | 23 February 1995 |
| Docket Number | No. E011576,E011576 |
| Citation | 38 Cal.Rptr.2d 291,32 Cal.App.4th 770 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Carol Lorane BRYANT, et al., Plaintiffs and Appellants, v. Brenda GLASTETTER, Defendant and Respondent. |
The surviving wife and children of decedent Lester Bryant appeal from an order dismissing their wrongful death action against defendant Brenda Glastetter after the trial court sustained Glastetter's demurrer without leave to amend. Decedent was a tow truck driver who was struck and killed by a third party as he attempted to remove Glastetter's car from the side of the freeway. We affirm.
As they relate to the present appeal the facts of the case are not in dispute. In their complaint plaintiffs alleged that on March 9, 1991, defendant Brenda Glastetter was seen by two officers of the California Highway Patrol to be weaving in and out of traffic. The officers followed Glastetter for about five miles then effected a traffic stop on the narrow right shoulder of Interstate 215 as it runs through the City of Riverside. The officers conducted a series of field sobriety tests and placed Glastetter under arrest for driving under the influence of alcohol. The officers then called upon decedent to tow away Glastetter's vehicle.
Decedent arrived at the scene and was working to remove Glastetter's vehicle when he was struck and killed by a vehicle driven by Philip David Horn.
Plaintiffs, who are the surviving wife and children of decedent, filed a wrongful death action on November 20, 1991, against Philip David Horn; the two officers who had stopped Glastetter; the California Highway Patrol; the State of California; the California Department of Transportation; and Glastetter. Only defendant Glastetter is a party to this appeal.
The complaint alleged that Glastetter had a duty to avoid driving under the influence of alcohol; that she knew or should have known that driving under the influence of alcohol could lead to her arrest and impoundment of her vehicle, thereby affecting the safety of others including decedent at the scene of the traffic stop; and that the failure of Glastetter to avoid driving under the influence of alcohol was a proximate cause of the fatal injuries to decedent and the consequent harm to plaintiffs.
Glastetter filed a demurrer, arguing that she owed no duty to decedent as she was not involved in the accident that killed him and that all she had done was to place decedent in the customary position of risk created by the business of removing vehicles from the side of the road.
Glastetter further argued that as a matter of law her intoxication was not a proximate cause of decedent's death. In making that argument Glastetter relied on the decision in Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 130 Cal.Rptr. 125, in which negligent driving by a second intoxicated driver, who injured plaintiff police officer as he investigated an accident, was held to be an intervening cause which relieved the original intoxicated driver of liability for the officer's injuries. (Id., at p. 664, 130 Cal.Rptr. 125.)
Plaintiffs opposed the demurrer, citing the "rescuer" doctrine under which a person whose negligence creates a peril which necessitates a rescue is liable to those who are injured in the course of reasonable efforts to accomplish the rescue. Plaintiffs argued that decedent and Glastetter had such a relationship. Plaintiffs also cited "long established precedent" to argue that where an intervening act is reasonably foreseeable, the chain of causation is not broken and the original actor remains liable.
Following a brief hearing the trial court sustained the demurrer and granted plaintiffs 20 days to amend their complaint. In its order the court stated: "[T]he complaint fails to state a cause of action since no causation by this defendant has been pled; the existence of an independent intervening cause is clear on the face of the complaint."
Plaintiffs filed an amended complaint in which they alleged that Glastetter knew or should have known that driving under the influence of alcohol would necessitate the rescue of her person and her vehicle and that those who undertook the rescue foreseeably could be injured, and that "[b]y failing to avoid driving under the influence of alcohol, Defendant GLASTETTER ... was a proximate cause of the fatal injuries to the decedent...."
Glastetter again demurred and again argued that there was no special relationship between herself and decedent that would give rise to a special duty to act; and that the negligence of the driver who struck decedent was an intervening cause which relieved Glastetter of liability. Glastetter also contended that "decedent knew of the potential danger encountered by being a tow truck driver and voluntarily accepted this risk" and that under the doctrine of implied assumption of the risk Glastetter should not be held liable to plaintiffs. Glastetter argued that "decedent's very occupation exposed him to these particular risks of harm" and that plaintiffs could not therefore complain of Glastetter's negligence in creating the situation in which decedent's services were required.
Plaintiffs opposed the motion, arguing that decedent was a foreseeable rescuer to whom Glastetter was liable, and arguing also that assumption of the sort of risk faced by decedent was not truly voluntary because decedent depended upon his job as a tow truck operator to support his family and therefore was not free to refuse employment which carried with it a particular risk. Plaintiffs then argued that Glastetter's negligence was the proximate cause of the harm to plaintiffs as a matter of law, or at the very least the question of whether Glastetter's negligence caused decedent's death should be decided by a jury.
A brief hearing was held, after which the court made the following order: "The demurrer by defendant Glastetter to plaintiff[s'] first amended complaint is sustained without leave to amend on the basis that no actionable duty on the part of Glastetter has been alleged." (Boldface in original.) An order dismissing the action was entered and plaintiffs have appealed.
On appeal plaintiffs make four arguments in an attempt to persuade this court that the trial court erred in sustaining the demurrer as to defendant Glastetter. Plaintiffs argue: (1) Glastetter owed a duty of due care to decedent to avoid driving while under the influence of alcohol; (2) Glastetter owed a duty of due care to decedent by virtue of the rescuer's doctrine; (3) Glastetter was the legal and proximate cause of decedent's injuries; and (4) the issue of whether or not the negligence of Glastetter proximately caused decedent's injuries should be decided by a jury.
We conclude that under the facts before us Glastetter owed no duty to decedent to avoid the harm suffered by him and we therefore affirm dismissal of the complaint as to defendant Glastetter.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)
Only if we find as a matter of law that plaintiffs would be unable to state a cause of action against Glastetter should we affirm the judgment entered against plaintiffs.
In their complaint plaintiffs alleged negligence on the part of Glastetter. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207.)
In their brief on appeal plaintiffs argue that the trial court erred in finding as a matter of law that the complaint did not allege a duty owed by defendant to decedent. They further contend that their complaint has made a sufficient allegation of causation, or at the very least that the issue of causation should be presented to a jury. We have resolved this case on the question of duty owed by Glastetter to decedent, and we therefore need not reach the remaining issues.
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