Camp v. State

• Decision Date: 01 September 2010
• Docket Number: No. B209176.,B209176.
• Court: California Court of Appeals Court of Appeals
• Parties: Melissa CAMP, Plaintiff, Respondent and Cross-Appellant, v. STATE of California, et al., Defendants, Appellants and Cross-Respondents.

184 Cal.App.4th 967

109 Cal.Rptr.3d 676

Melissa CAMP, Plaintiff, Respondent and Cross-Appellant,

v.STATE of California, et al., Defendants, Appellants and Cross-Respondents.

No. B209176.

Court of Appeal, Second District, Division 6, California.

May 18, 2010.

Rehearing Denied June 9, 2010.

Review Denied Sept. 1, 2010.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James M. Schiavenza, Supervising Deputy Attorney General, Mark A. Bown, Deputy Attorney General, and Barbara A. Noble, for Appellants.

Thomas G. Stolpman and Donna Silver; Stolpman, Krissman, Elber & Silver, Long Beach, for Respondent.

YEGAN, Acting P.J. Police routinely respond to emergencies, but they do not have a "legal duty" to do so. By that, we mean that an officer's failure to respond to a request for assistance will not result in tort liability for the officer even if a member of the public is injured by the officer's failure to act, i.e., his or her nonfeasance. If they do respond and their affirmative acts negligently cause harm to a person in need of assistance, their misfeasance may create a special relationship and result in tort liability As we shall explain, this tragic case involves an officer's nonfeasance that did not alter the risk of harm to the person in need. Based upon California Supreme Court precedent, there is no basis for tort liability.

Melissa Camp, Lori Baker and Ray Medina, in various stages of intoxication, were passengers in Ryan Funk's car when he drove it off a country road near Santa Maria. The car rolled over and came to rest, upright, in a dirt field. Funk was also intoxicated at the time. When California Highway Patrol (CHP) Officers Frank Lewis and Steven Koenig arrived to investigate the accident, Camp was laying on the ground near the car. Baker and Medina were sitting in the front seat. Funk was standing near the road. Lewis asked each of the three passengers several times whether they were injured and needed an ambulance. Baker and Medina said they were not injured. More importantly, each time Lewis asked Camp if she was injured or wanted an ambulance, she denied she was injured and declined the ambulance. Lewis did not call for one. A friend arrived to drive the passengers home. Medina picked Camp up off the ground and carried her to the friend's car. Within a few hours, Camp was hospitalized with severe spinal cord injuries. She now suffers from paraplegia

Camp sued the State of California and Officer Lewis, on the theory that her paraplegia was caused not by Funk's driving under the influence of alcohol, but by Lewis' negligence. A jury awarded Camp $2,690,608 in damages. The State and Lewis appeal. They contend that Lewis owed no duty to Camp, they are immune from liability under various provisions of the Health & Safety Code and the Government Code, and that Lewis did not breach any duty or proximately cause Camp's injuries. Camp cross-appeals, contending the trial court erred when it apportioned 70 percent of the fault for her injuries to the drunk driver. We conclude that Lewis owed no duty to Camp. Accordingly, we reverse the judgment and direct the trial court to enter judgment in favor of the State and Lewis. We need not and do not reach other contentions or the cross appeal.

[109 Cal.Rptr.3d 679, 184 Cal.App.4th 971]

Facts

Funk, Medina, Baker and Camp went out drinking together one night after work. When the bar closed at 2:00 a.m., they agreed that Funk would drive them all home in his car, even though he was intoxicated.¹ Camp sat in the back seat, behind the driver. As Funk sped along a back road, he missed a curve. The car went off the road, hit an embankment and rolled completely over before coming to rest, upright, in a dirt field. Funk and Baker were not injured. Medina suffered only a slight head wound. Although not apparent at the scene, Camp sustained a highly unstable burst fracture of the 11th thoracic vertebra, with the immediate loss of all three columns of bone support that protect the spinal cord.

Funk, Medina and Baker all got out of the car. Funk used Medina's cell phone to call 911 and his father. During his 911 call, Funk can be heard asking his passengers if they are all right and then assuring the dispatcher that, "Everyone's okay." Baker called her boyfriend, Marcelino Morales, to come pick them up. She said nothing to Morales about Camp being injured.

CHP officers responded to the reported noninjury accident and saw Funk walking around near the road. Medina and Baker were sitting in the front seat of the car. Camp was lying on the ground near the car. No one saw Camp get out of the car. No one remembered helping her out and no one, including Camp, knew how she moved from the back seat to the ground. No one saw blood on Camp or noticed whether her clothes were ripped or stained. No one was aware of the extent of Camp's injuries and none of the car's occupants thought Camp was seriously injured.

Funk testified that, before the CHP officers arrived, he "leaned down over [Camp] and asked if she was okay. [¶] ... She was moaning a little bit, and I asked her if she hurt, and she just told me 'everywhere.' " Funk did not see Camp move from the spot where she was laying, except that she was "moving her legs, wiggling them back and forth."

Medina testified that Camp was laying on her side, just a few inches from the car. He heard Camp moaning, but did not hear her speak. When the CHP officer asked Camp questions, Medina only heard her respond by moaning. Medina did not see Camp move.

Baker testified that Camp was lying flat on her back, five to ten feet from the car. She overheard the CHP officer asking Camp questions. Camp's onlyresponse was to moan. Baker nevertheless estimated that the conversation lasted about five minutes. She testified that she saw glass and other debris in Camp's hair but not any blood.

The CHP officers agreed that Koenig would take primary responsibility for the DUI investigation and the driver, while Lewis checked on the car and the passengers, and gathered information about the accident. Lewis is a certified Emergency Medical Responder and has training in evaluating whether persons involved in an accident require medical assistance. As he walked toward the car, Lewis saw two people sitting in the front seat, and one person laying on the ground near the car. Lewis called out, asking if anyone was hurt. At least two people answered, "No." He asked, "Does anyone want an ambulance?"Again, at least two voices answered, "No."

When Lewis reached the car, he could see that there was damage to the car's roof and that no one could sit in the back seat. He shone his flashlight on Camp, who was laying on the ground. When he got to her head, he bent over her and asked if she was hurt. She responded, "No." He asked whether she wanted an ambulance and she said, "No." Lewis told Camp that he needed to get her identifying information and take a statement from her. He spoke with her for three to five minutes. She was cooperative and gave him all of the information he asked for. While they were talking, Camp raised her head, looked at Lewis and then brushed her hair out of her face and behind one ear. Camp did not moan, complain of back pain or complain that she lost feeling in her legs. There was no evidence of physical injury apparent to Lewis.

Lewis also interviewed Medina and Baker who were seated in the car's two front seats. Neither passenger voiced any concern about Camp or asked Lewis to summon an ambulance for her. Lewis went back to speak to Camp. He again asked her whether she was hurt and if she wanted an ambulance. Camp answered "No." Lewis did not see Camp move or sit up during the 15 minutes that he was at the car interviewing her and the other passengers. He knew that she had been drinking alcohol but described her speech as clear and her eyes as appearing to focus when he was speaking to her. Lewis did not ask Camp to sit up or to move. He "didn't have a reason to. She said she wasn't hurt." The parties stipulated that Lewis "concluded that [Camp] had not been injured and did not need medical assistance." After Lewis finished interviewing the passengers, he went back to the patrol car to share his notes with Koenig.

Baker's boyfriend, Morales, arrived to drive the passengers home. Lewis walked back across the field toward the car, to tell the passengers their ridehad arrived. Medina testified that, when Lewis reached the car, he ordered them to leave and told them that they could be arrested for being drunk in public if they did not. Lewis denied ordering the passengers to leave or threatening them with arrest. He testified that, as he approached the car, he could see Baker walking toward Morales and Medina searching for something on the front seat and floorboard of the car. Lewis used his flashlight to illuminate the area for Medina, and then looked back in the other direction, to check on Baker and Morales. When he turned around again, Lewis saw Camp "on her feet with her arms around Mr. Medina's neck." She was leaning against Medina who then "reached down underneath and picked her up." Lewis did not see Camp stand up, nor did he see her move her legs. As Medina was carrying Camp back to Morales' car, Lewis, for the fifth time, asked her if she was hurt and if she wanted an ambulance. Camp answered "No" to both questions. Medina put Camp in Morales' car and the group left.

Medina testified that he carried Camp to Morales' car because, "I wasn't going to let no one get a drunk in public." When asked whether Lewis told him to carry Camp, Medina responded, "No I did it all myself." He carried Camp because she couldn't walk. Medina believed he had asked Camp to get up and then decided to carry her because she was unable to do so. He did not tell Officer Lewis that he thought Camp was injured because, "I didn't believe it." Medina explained that he was drunk at the...