Clemente v. State of California

• Decision Date: 28 October 1985
• Citation: 707 P.2d 818,40 Cal.3d 202,219 Cal.Rptr. 445
• Court: California Supreme Court
• Parties: , 707 P.2d 818 Jose L. CLEMENTE, an Incompetent Person, etc., Plaintiff and Respondent, v. The STATE of California et al., Defendants and Appellants. L.A. 31832

Page 445

219 Cal.Rptr. 445

40 Cal.3d 202, 707 P.2d 818

Jose L. CLEMENTE, an Incompetent Person, etc., Plaintiff and Respondent, v. The STATE of California et al., Defendants and Appellants.

L.A. 31832.

Supreme Court of California

Oct. 28, 1985.

As Modified Jan. 23, 1986.

Manuel Hidalgo, Los Angeles, for plaintiff and respondent.

Mark Weinstein, Los Angeles, for defendants and appellants.

BROUSSARD, Justice.

This case presents a unique cause of action as well as a somewhat complicated procedural history. Plaintiff Jose Clemente was severely injured when he was struck by a motorcycle while attempting to cross a street. The motorcyclist was never apprehended. Clemente brought suit against the State of California and Highway Patrol Officer Arthur Loxsom, alleging that Loxsom was negligent in failing to ascertain the identity of the motorcyclist.

After the trial court sustained defendants' demurrer to the complaint, the Court of Appeal reversed and remanded, holding that plaintiff could state a cause of action against Loxsom and the state. (Clemente v. State of California (1980) 101 Cal.App.3d 374, 379-380, 161 Cal.Rptr. 799, hereinafter Clemente I.) After amending his complaint in conformity with Clemente I, plaintiff proceeded to trial and obtained a $2,150,000.21 judgment. Defendants appeal.

I. FACTS

On January 27, 1975, plaintiff was struck by a motorcycle while attempting to cross at an intersection. Officer Arthur Loxsom of the California Highway Patrol was on his way to freeway patrol when he was hailed by a passing motorist and directed to the scene of the accident. When Loxsom arrived at the scene, plaintiff was attempting to crawl out of the crosswalk and onto the sidewalk. He was being assisted by a group of bystanders. A man was pushing a motorcycle out of the street. Loxsom turned on his flashers in order to indicate that an accident had occurred. Several people came up to him in order to tell him how the accident had happened. He called an ambulance and the Los Angeles Police Department (LAPD). He may have also directed traffic around the intersection.

The motorcyclist, along with a van driver who had been in the lane next to the motorcycle, also approached Loxsom. The van driver told Loxsom that he had stopped to allow plaintiff to cross but that the motorcyclist had not done so and had struck him. The motorcyclist admitted that he had hit plaintiff, explaining that he had not seen him. He asked Loxsom what he should do with the motorcycle, and Loxsom directed him to move it out of the street and place it near the curb. Loxsom told the motorcyclist not to leave the scene and to await the arrival of LAPD. Loxsom left before either the ambulance or LAPD arrived. He did not obtain the name or license of the motorcyclist or the license number of the motorcycle. He also did not get any identification from the van driver. The motorcyclist and the van driver left before LAPD arrived. Despite later efforts they were never found.

Loxsom never spoke to plaintiff or examined him to ascertain whether he was seriously injured. By the time he was taken to the hospital plaintiff had lapsed into a coma and was in critical condition. He suffered severe brain damage, and is paralyzed, unable to speak, incontinent and must depend upon others to attend to his daily needs.

II. LAW OF THE CASE

Defendants contend that Clemente I was erroneously decided relying upon our subsequent decision in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 and other decisions and that Loxsom did not owe a duty to plaintiff to exercise due care in his investigation. We have concluded that the decision in Clemente I is law of the case, establishing Loxsom's duty to exercise due care.

In Clemente I, the court concluded that plaintiff could state a cause of action for negligent breach of a duty to exercise due care in the conduct of the investigation undertaken by Loxsom. The court stated: "The injury plaintiff alleged in this third amended complaint was the virtual destruction of any opportunity on his part to obtain compensation for his physical injuries from the apparent tortfeasor, the motorcyclist, by reason of the officer's negligence in the conduct of his investigation of the traffic accident in failing to obtain the motorcyclist's identity. What is involved under these allegations is not the discretion of Officer Loxsom in deciding whether to investigate the traffic accident, pursuant to the discretionary authority vested in him by Vehicle Code section 2412 (see McCarthy v. Frost (1973) 33 Cal.App.3d 872, 874-857 ), but instead only his negligence in his conduct of the discretionary investigation. Neither the discretionary immunity of Government Code section 820.2, nor the more specific discretionary immunity of failure to enforce a statute (Gov.Code, §§ 821, 818.2) immunizes the officer and the state from the legal consequences of this negligence. (See McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261-262 [74 Cal.Rptr. 389, 449 P.2d 453].) Government, through its agents, is held to the same standard of care the law requires of private citizens in the performance of duties imposed or assumed. (See Sava v. Fuller (1967) 249 Cal.App.2d 281, 290 ; Gov.Code, § 815.2, subd. (a).)

"We think that possible liability of the officer and the state in this case is indicated by our reasoning in the aforementioned decision of this panel, Mann v. State of California [ (1977)] supra, 70 Cal.App.3d 773 . There, we said that the lack of police protection immunity granted by Government Code section 845, extends essentially only to protection against crime and to that resulting from budgetary neglect. It does not extend to negligence as such. (Id. at pp. 778-779 .) There, we also said that a special relationship in tort law obtained between the California highway patrol officer there involved and the stranded motorists by reason of their dependence on his expertise. (Id. at pp. 779-780 . ) Here, the completely disabled and apparently incompetent plaintiff was likewise completely dependent on Officer Loxsom following the traffic accident." (101 Cal.App.3d at pp. 379-380, 161 Cal.Rptr. 799.)

In People v. Shuey (1975) 13 Cal.3d 835, 841, 120 Cal.Rptr. 83, 533 P.2d 211, we explained the doctrine of the law of the case in this manner: " 'The doctrine of the law of the case is this: That where, upon an appeal, the supreme court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.'

"The principle applies to criminal as well as civil matters (People v. Durbin (1966) 64 Cal.2d 474, 477 [50 Cal.Rptr. 657, 413 P.2d 433]; Castiel v. Superior Court (1958) 162 Cal.App.2d 710 ), and to decisions of intermediate appellate courts as well as courts of last resort. 'Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case.' " (See also Price v. Civil Service Com. (1980) 26 Cal.3d 257, 267, fn. 5, 161 Cal.Rptr. 475, 604 P.2d 1365; Davies v. Krasna (1975) 14 Cal.3d 502, 507, 121 Cal.Rptr. 705, 535 P.2d 1161; Talley v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049.)

However, the doctrine of law of the case which has been recognized as being harsh is merely a rule of procedure and does not go to the power of the court. It will not be adhered to where its application will result in an unjust decision. (Di Genova v. State Board of Education (1962) 57 Cal.2d 167, 179, 18 Cal.Rptr. 369, 367 P.2d 865; Subsequent Injuries Fund v. Ind.Acc.Com. (1960) 53 Cal.2d 392, 395, 1 Cal.Rptr. 833, 348 P.2d 193.) The principal ground for making an exception to the doctrine of law of the case is an intervening or contemporaneous change in the law. (Davies v. Krasna, supra, 14 Cal.3d 502, 507, fn. 5, 121 Cal.Rptr. 705, 535 P.2d 1161; Anton v. San Antonio Community Hospital (1982) 132 Cal.App.3d 638, 647; Riemar v. Hart (1977) 73 Cal.App.3d 293, 296, 142 Cal.Rptr. 174.)

Defendants contend that the exception is applicable here claiming that an intervening change in the law has occurred. They rely on Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137.

In Williams, plaintiff was injured when a piece of a heated brake drum from a passing truck was propelled through her windshield. Highway patrolmen arrived within a few minutes of the accident. Plaintiff claimed that the patrolmen were negligent in failing to test for the heat of the object which struck her, to secure the names of witnesses, and to attempt investigation or pursuit of the owner or driver of the truck.

The court concluded that the complaint did not state a cause of action. It was pointed out that in the absence of a special relationship, a person who has not created a peril has no duty to come to the aid of another and that the State Highway Patrol has the right but not the duty to investigate accidents. It was also pointed out that cases had denied recovery for injuries caused by the failure of police personnel to respond to requests for assistance, to investigate properly or to investigate at all when the police had not induced reliance on a promise, express or implied, that they would provide protection. The court rejected Clemente I stating that the duty to obtain the motorcyclist's name as pleaded in that case was ...