Duarte v. City of San Jose

• Decision Date: 02 January 1980
• Citation: 161 Cal.Rptr. 140,100 Cal.App.3d 648
• Parties: Edward DUARTE, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Respondents. Civ. 44644.
• Court: California Court of Appeals Court of Appeals

Page 140

161 Cal.Rptr. 140

100 Cal.App.3d 648

Edward DUARTE, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Respondents.

Civ. 44644.

Court of Appeal, First District, Division 3, California.

Jan. 2, 1980.

Hearing Denied March 13, 1980.

Thorne, Clopton & Herz, San Jose, for plaintiff and appellant.

Robert J. Logan, City Atty., Mary Jo Levinger, Deputy City Atty., San Jose, for defendants and respondents.

SCOTT, Associate Justice.

Plaintiff Edward Duarte appeals from summary judgment in favor of defendants City of San Jose and three San Jose police officers, Christopher Green, Richard Daulton, and Victor Cardozo.

In this case we must determine whether a public entity may be held liable pursuant to Vehicle Code section 17001 for injury caused by a public employee's negligent operation of a motor vehicle, notwithstanding Government Code section 845.8, subdivision (b), which immunizes public entities and employees from liability for injury caused by an escaping arrested person. We must also determine whether a police officer's duty to operate his police vehicle with due care encompasses a duty to third persons such as plaintiff not to leave that vehicle unattended under circumstances which invite theft and flight.

On April 25, 1975, Officer Green stopped a vehicle for speeding and concluded that its driver was intoxicated. After conducting sobriety tests, he arrested that driver, Ernest Villalovos, for drunk driving. He handcuffed Villalovos and placed him in the rear of his police car. Villalovos complained that the cuffs were painful. As Villalovos had been cooperative, and appeared "all but incapacitated by intoxication," the officer removed the cuffs. Officer Green then pushed down both locks of the vehicle, placed it in "Park," and went to help another officer move Villalovos' car. Villalovos got out of the back seat of the police car, walked around to the driver's seat, got in, and sped off. At least two other police cars pursued him at speeds up to 65 miles per hour. They lost sight of him briefly, then found the stolen police car stopped on a parking strip against a fence. The car had struck and seriously injured Duarte, who was mowing the lawn in his front year.

Duarte brought this action for personal injuries against the City of San Jose, three police officers, and Villalovos, in which he alleged in part that the officers were negligent both in leaving Villalovos unattended in the police car, and in the conduct of the chase.

The City of San Jose and the three officers moved for summary judgment on alternative grounds: 1) both the city and the police officers were immune from liability; and 2) neither city nor officers owed plaintiff a duty under the circumstances. The trial court's memorandum of decision suggests that it relied on both grounds; that memorandum cites Government Code section 845.8, subdivision (b) and County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 105 Cal.Rptr. 374, 503 P.2d 1382, which relate to governmental immunity, and Reenders v. City of Ontario (1977) 68 Cal.App.3d 1045, 137 Cal.Rptr. 736, which holds that police have no duty not to pursue a lawbreaker.

Duarte contends that neither the police nor the city were immune, that the police owed him a duty of care, and that summary judgment was improper because questions of fact remain as to breach of that duty and proximate cause.

I. City of San Jose's Statutory Liability

We first consider appellant's contention that the respondents are not immune.

A. Tort Claims Act

In California all government tort liability must be based on statute. (Gov.Code, § 815; see Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240.) Government Code section 810 et seq., referred to as the California Tort Claims Act of 1963, generally define the liabilities and immunities of public entities and public employees. While the Act is the principal source of such liabilities, other statutory sources exist. (Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) § 5.7, and 1969 Supp.)

Government Code section 815.2, subdivision (a) provides that a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment, if the act or omission would give rise to a cause of action against that employee. The liability of a public employee is subject to numerous statutory limitations, among them section 820.2, which immunizes the employee from injury resulting from an act which was the result of the exercise of discretion vested in him. In contrast, certain "ministerial" acts of public employees are unprotected. (Johnson v. State of California (1968) 69 Cal.2d 782, 793, 73 Cal.Rptr. 240, 447 P.2d 352.)

Appellant contends that the police officers' actions here were negligent ministerial acts for which they may be held liable, and for which the city may be held vicariously liable. However, Government Code section 845.8, subdivision (b) provides in pertinent part that neither a public entity nor a public employee is liable for an injury caused by an escaping prisoner, an escaping or escaped arrested person, or a person resisting arrest. ¹ The immunity provided by section 845.8, subdivision (b) is absolute in that it encompasses both discretionary and ministerial acts or omissions of public entities and public employees. (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 485, 105 Cal.Rptr. 374, 503 P.2d 1382.) Therefore, both the City of San Jose and its officers are immune from any liability imposed by the Tort Claims Act.

B. The Vehicle Code

Relying on Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952, appellant then contends that respondent City of San Jose can be held liable pursuant to Vehicle Code section 17001, which 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."

In Brummett two patrol officers, driving in high speed pursuit of a suspected felon, hit a vehicle in an intersection while traveling in excess of 80 m.p.h. The injured victim brought an action against both the officers and the County of Sacramento. The court first stated that the individual officers were exempt from liability pursuant to Vehicle Code section 17004, which immunizes a public employee in immediate pursuit of an actual or suspected violator of the law. The court then acknowledged Government Code section 815.2, subdivision (b): "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.) Emphasizing the underscored language, the court held that consistent with section 815.2, subdivision (b), and notwithstanding the officers' immunity, the city could be held liable for the officers' negligence pursuant to Vehicle Code section 17001. The court reversed summary judgment, stating that whether the officers exercised the due care of a reasonable, prudent emergency driver under the circumstances was a question of fact for the jury. (Brummett, supra, 21 Cal.3d at p. 886, 148 Cal.Rptr. 361, 582 P.2d 952.)

While Brummett clarified one aspect of Vehicle Code liability and Tort Claims Act immunity, it does not resolve the problem presented here. In Brummett the drivers of the vehicles which struck the victim were the police, not escaping arrestees; therefore, the relationship between the liability of public entities for torts involving the operation of motor vehicles and their immunity from liability for injury caused by an escaping arrestee was not involved.

Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651, 148 Cal.Rptr. 68, decided two weeks before Brummett, is factually closer to this case. In Gibson, two police cars pursued a vehicle which had run a red light. At times during the chase the fleeing auto sped in excess of 100 m.p.h.; the police cars followed. The fleeing vehicle crashed into another car, killing at least one person. A wrongful death action was brought against the City of Pasadena, alleging the police officers were negligent in their pursuit. The trial court sustained the city's demurrer, and dismissed. Foreshadowing Brummett, the Gibson court reversed, and held the city could be held liable pursuant to Vehicle Code section 17001 if the officers were negligent, and that their negligence was a question for the trier of fact. While the vehicle which collided with the decedent's was driven by the fleeing lawbreaker, not the police, there was no reference by the court to any Government Code section 845.8 immunity. On the contrary, the court stated that the city was not protected by "Any specific statutory grants of immunity." (83 Cal.App.3d at p. 659, 148 Cal.Rptr. at p. 72, emphasis added.) However, as the court did not expressly discuss section 845.8, and as it may be that the statute was simply overlooked, we cannot regard Gibson as definitive authority for appellant's contention.

To resolve this issue, we first look to the language of the Tort Claims Act itself. We note that Government Code section 815, subdivision (b) provides that the liability "Established by this part (commencing with Section 814) is subject to Any immunity of the public entity provided by statute, including this part . . ." (Emphasis added.) No similarly explicit language declares that the liabilities imposed Outside the Tort Claims Act are subject to Any immunity established by the Act. The commentator Van Alstyne has suggested two resolutions to problems resulting from that lack of specificity. The first approach, which has since been used by the Brummett court, is to look to the introductory clause of Government Code section...