Dillenbeck v. City of Los Angeles

• Decision Date: 28 October 1968
• Citation: 72 Cal.Rptr. 321,69 Cal.2d 472,446 P.2d 129
• Court: California Supreme Court
• Parties: , 446 P.2d 129 Margaret H. DILLENBECK et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents. L.A. 29544.

Page 321

72 Cal.Rptr. 321

69 Cal.2d 472, 446 P.2d 129

Margaret H. DILLENBECK et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

L.A. 29544.

Supreme Court of California In Bank.

Oct. 28, 1968.

Getz, Aikens & Manning, and George E. Leaver, Los Angeles, for plaintiffs and appellants.

Roger Arnebergh, City Atty., Bourke Jones and John A. Daly, Asst. City Attys., for defendants and respondents.

TOBRINER, Justice.

The plaintiffs, the wife and son of Arthur O. Dillenbeck, deceased, brought this action against the City of Los Angeles for the wrongful death of Dillenbeck arising out of a collision between his vehicle and a police car operated by Officer Abraham Weber in the course of his employment with the Los Angeles Police Department.

The accident in question occurred on January 22, 1962, at approximately 2 p.m., at the intersection of Wilshire Boulevard and Hobart Avenue, a business area in the City of Los Angeles. The decedent operated a 1961 Oldsmobile in a northerly direction on Hobart Avenue. Officer Weber, responding to a police radio broadcast ordering all units to proceed to the site of a suspected bank robbery, drove east on Wilshire Boulevard with both the red lights and the siren on his vehicle activated and operating. As a result of injuries sustained from the collision, Dillenbeck died on January 24, 1962.

Rain fell steadily at the time of the accident; the streets were wet. The windows of the Dillenbeck vehicle were closed; the windshield wipers were operating; the car radio was playing at a normal volume.

A number of witnesses testified that at the time of the accident the traffic control light at the intersection showed green for Dillenbeck and red for Weber. Officer Weber stated that he had not noticed the color of the traffic signal. The defense produced no evidence to the effect that the light was green for Weber.

Several eyewitnesses testifying for plaintiffs estimated Weber's speed at between 40 and 60 miles per hour. Weber stated, however, that he drove his vehicle, both through the intersections and otherwise, at a constant speed of 30 miles per hour. The city produced witnesses whose estimates agreed with the officer's statement. The posted speed limit on Wilshire is 35 miles per hour.

A large office building stands on the southwest corner of the intersection of Hobart and Wilshire. Officer Weber testified that this building, together with vehicles and pedestrians, partially obstructed his view of the southern portion of Hobart Avenue, from which decedent emerged.

The jury returned a verdict in favor of the city and against the plaintiffs by a 10 to 2 vote. After the entrance of judgment on the verdict and the denial of a motion for new trial, plaintiffs brought this appeal.

The sole dispute on appeal centers on the trial judge's refusal to allow plaintiffs to make use of either various 'Daily Training Bulletins' (hereinafter bulletins) of the Los Angeles Police Department or of former Police Chief Parker's foreword to these bulletins explaining their general limitation to 'those things which the officer must know, or should know, to be able to do a professional job.' In particular, plaintiffs attempted to introduce into evidence bulletins Nos. 51, 52, 53, 54, 55, and 56, all of which set out how an officer should operate a motor vehicle under emergency conditions.

We shall explain why we have concluded that some of the proffered bulletins should have been admitted into evidence on the basis of the theories advanced by plaintiffs. ¹ In the first place, plaintiffs offered the bulletins as substantive proof that Weber, who allegedly did not comply with some of the instructions contained in the bulletins, drove negligently in colliding with decedent's car. In the second instance, in an effort to show that Weber acted carelessly, plaintiffs attempted to cross-examine Weber as to his knowledge of both instructions and factual statements in the bulletins, such as the effect of buildings, rain, and closed windows, that relate to audibility of the siren. Finally, addressing themselves to the question whether decedent was contributorily negligent in proceeding across Wilshire when Weber's siren was in operation, plaintiffs offered the bulletins into evidence as proof of facts tending to suggest that decedent might well not have heard the siren. The trial judge prohibited use of the bulletins on any of the three theories; we believe that in so ruling the court erred.

At the outset we note, as both parties apparently agree, that Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 22 Cal.Rptr. 866, 372 P.2d 906, sets for the standard of care governing the operation of emergency vehicles. In that case involving the collision of two fire trucks in the process of responding to an emergency alarm, we stated, in discussing the liability of the employer of a driver of an emergency vehicle in the light of the exemptions of Vehicle Code section 454 (now section 21055): 'We can attribute to the legislative intent, in addition to the requirement of an adequate warning to others using the highway, the further requirement that the driver of an emergency vehicle exercise that degree of care which, under all the circumstances, would not impose upon others an unreasonable risk of harm. In short the statute exempts the employer of such a driver from liability for negligence attributable to his failure to comply with specified statutory provisions, but it does not in any manner purport to exempt the employer from liability due to negligence attributable to the driver's failure to maintain that standard of care imposed by the common law.' (P. 47, 22 Cal.Rptr. p. 873, 372 P.2d p. 913.)

In Torres we concluded: '(I)t is manifest that as to such conduct not specifically exempt from the imposition of liability, the degree of care lawfully imposed upon the agents or the employees of a municipality is that care consistent with the exercise of ordinary prudence in all the prevailing circumstances, including those circumstances manifest at the time of an emergency call. The question to be asked is what would a reasonable, prudent emergency driver do under all of the circumstances, including that of the emergency.' (Italics added.) (58 Cal.2d 35, 51, 22 Cal.Rptr. 866, 876, 372 P.2d 906, 916.) (See generally, Morrison, Negligent Operation of a Police Vehicle (1967) 16 Clev.-Mar.L.Rev. 442.)

The instant controversy thus does not turn on the controlling standard of care: the Torres case sets the standard. Rather, the present case involves the extent to which plaintiffs can utilize the directives and statements of facts in the police department's bulletins to assist the jury in applying the Torres standard.

1. The bulletins should have been admitted upon the grounds (a) that they constituted evidence of the standard of due care applicable to the course of conduct of Officer Weber, and (b) that the officer's failure to follow the safety rules promulgated by his employer constituted evidence of his engligence.

In the leading case of Powell v. Pacific Electric Ry. Co. (1950) 35 Cal.2d 40, 216 P.2d 448, an action for damages arising out of a collision at a railroad crossing, this court held that the trial court properly allowed into evidence a train-operating rule requiring motormen to reduce their speed 'a sufficient distance in advance' of a highway crossing to allow the train 'to coast on approach to crossing, to enable full braking power being obtained in emergencies.'

In Powell we stated: 'The rule was properly admitted in evidence as bearing on the standard of care respondent thought appropriate to insure the safety of others at its track crossings.' (35 Cal.2d at p. 46, 216 P.2d at p. 452; see also Beal v. Blumenfeld Theatres, Inc. (1960) 177 Cal.App.2d 192, 194, 2 Cal.Rptr. 110; Davis v. Johnson (1954) 128 Cal.App.2d 466, 472, 275 P.2d 563; cf. James & Sigerson, Particularizing Standards of Conduct in Negligence Trials (1952) 5 Vand.L.Rev. 697, 710-- 712; 2 Wigmore, Evidence (3d ed. 1940) § 282; Witkin, Cal. Evidence (2d ed. 1966) pp. 483--484; Note (1956) 50 A.L.R.2d 16.) The safety rules of an employer are thus admissible as evidence that due care requires the course of conduct prescribed in the rule. Such rules implicitly represent an informed judgment as to the feasibility of certain precautions without undue frustration of the goals of the particular enterprise. Accordingly, they may well be extremely useful to the trier of fact, who, applying the amorphous standard of 'due care,' must strike a fair balance between the reduction of the risk to the public and the assurance of an effective use of an emergency vehicle.

Introduced for the purpose of particularizing the standard of care, such safety rules theoretically constitute hearsay: an attempt to prove the truth of the matter implicitly asserted--that due care requires certain conduct. (Evid.Code, § 1200; cf. James & Sigerson, Particularizing Standards of Conduct in Negligence Trials, supra, 5 Vand.L.Rev. 697, 712.) They are admissible, however, as an implied admission of a party opponent. (Evid.Code, § 1220; Herrera v. Southern Pacific Co. (1957) 155 Cal.App.2d 781, 788, 318 P.2d 784; Witkin, Cal. Evidence, supra, pp. 483--484, and cases cited therein; cf. Smellie v. Southern Pacific Co. (1933) 128 Cal.App. 567, 583, 18 P.2d 97, 19 P.2d 982 (in denying a hearing, the Supreme Court withheld approval of the District Court of Appeal's rejection of an admissions theory).) ²

Applying this will established legal doctrine of admissibility to the instant case, we conclude that the bulletins at issue contain at least two safety rules of the Los Angeles Police Department that relate to the instant factual situation and hence should have been introduced into evidence.

First, bulletin No. 53 states: 'An officer is seldom, if ever, justified in travelling at a speed greater than the district speed. Certain...