Kisbey v. State of California

• Decision Date: 12 July 1984
• Docket Number: S.F. 24556
• Citation: 682 P.2d 1093,204 Cal.Rptr. 428,36 Cal.3d 415
• Court: California Supreme Court
• Parties: , 682 P.2d 1093 Mark W. KISBEY, Plaintiff and Appellant, v. The STATE of California et al., Defendants and Respondents.

Page 428

204 Cal.Rptr. 428

36 Cal.3d 415, 682 P.2d 1093

Mark W. KISBEY, Plaintiff and Appellant, v. The STATE of California et al., Defendants and Respondents.

S.F. 24556.

Supreme Court of California,

In Bank.

July 12, 1984.

Rehearing Denied Aug. 9, 1984.

Hoberg, Finger, Brown, Cox & Molligan, David W. Moyer, San Francisco, for plaintiff and appellant.

George Agnost, City Atty., San Francisco, for City and County.

Dennis G. Fry, Deputy Atty. Gen., San Francisco, for State of Cal.

Gordon & Rees, Stuart M. Gordon, Cesari, Werner & Moriarty, San Francisco, for Miguel et al.

KAUS, Justice.

Plaintiff Mark W. Kisbey appeals three judgments in his personal injury action: (1) a judgment of nonsuit in favor of the City and County of San Francisco (hereafter city); (2) a summary judgment in favor of defendant liquor stores and bars; and (3) a summary judgment in favor of defendant State of California. We granted a hearing mainly to determine whether a city, whose police officers stop a motorist but fail to detain him, is subject to liability to third persons injured by the motorist's ensuing negligent driving while trying to escape. We conclude that it is not.

I

San Francisco Police Officers Thelan and Camilleri testified that on July 11, 1973, about 10:30 p.m., they responded to an official police broadcast which indicated that a "serious disturbance, possibly a felony with chains," had taken place at a Texaco station at Stanyan and Geary. As the officers arrived at the station, a dark Ford left the premises without lights and entered the intersection against a red light. After confirming through a witness that the departing vehicle had been "involved" in the disturbance, the officers followed it west on Geary. The Ford, still without lights, was weaving through traffic. The officers reached the Ford at Fourth Avenue and, using lights and siren, were successful in stopping it as it turned right onto Fifth Avenue. They parked about a car's length behind the Ford and radioed police dispatch, indicating that a stop had been made. Both officers got out of their vehicle to investigate; their intention was to question the occupants of the Ford and to cite the driver for traffic violations. They did not know the exact nature of the occupants' involvement in the altercation at the station; they did not even know if the occupants were aggressors or victims. ¹ The Ford's motor kept running. As the officers reached the front of the police car, the Ford started rapidly and fled the scene, leaving 12 feet of skid marks. About 7 to 10 seconds later, at the next intersection (Fifth and Clement), some 600 feet distant, the fleeing car, driven at a speed of 60 to 70 miles an hour, collided broadside with the vehicle in which plaintiff was riding. Lynch, the driver, was arrested for violations of the Vehicle Code. He was intoxicated.

The thrust of the plaintiff's case against the city was that the failure of the officers to detain and immobilize Lynch at Fifth and Geary breached a duty of care to plaintiff. It was argued that the officers did not follow the guidelines and procedures contained in the police department manual with respect to vehicle stops. ² The trial court, however, granted the city's motion for nonsuit.

II

The issues with respect to the city are whether the officers owed a duty of care to plaintiff and, if so, whether the city is immune from liability.

In Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-203, 185 Cal.Rptr. 252, 649 P.2d 894, we held that in cases posing these two questions, logic suggests that unless the first is answered in the affirmative, the second does not even arise. Nevertheless, since in this case our views on the issue of duty are highly diversified, but we are in general agreement that the officers' conduct, if negligent, was immunized by the Government Code, we base our affirmance of the judgment in favor of the city on the latter ground--suggesting, perhaps, that the life of the law is not logic, but expedience. ³

III

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. Plaintiff contends that the police officers' actions here were negligent ministerial acts for which the city may be held vicariously liable. The city, of course, denies negligence, and claims that the officers' acts were discretionary.

We find it unnecessary to embroil ourselves in the "discretionary/ministerial" dichotomy which has dominated the application of Government Code section 820.2 (see Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, and cases that followed) for, in our view, the officers and the city are immune under a specific immunity statute, section 845.8 of the Government Code, which has been interpreted as providing for an "absolute" immunity--one which applies to ministerial as well as discretionary acts. (Sacramento County v. Superior Court (1972) 8 Cal.3d 479, 481-484, 105 Cal.Rptr. 374, 503 P.2d 1382.)

Subdivision (b) of section 845.8, as originally enacted (Stats.1963, ch. 1681, § 1, p. 3279), provided merely that neither a public entity nor a public employee was liable for "any injury caused by an escaping or escaped prisoner." In Ne Casek v. City of Los Angeles, supra, 233 Cal.App.2d 131, 43 Cal.Rptr. 294, the police had arrested two persons whom they handcuffed to each other. They tried to escape, colliding with the plaintiff as they ran down the public sidewalk. Doubtful that the term "prisoner" included a person merely under arrest, the court refrained from relying on section 845.8 but, instead, applied the discretionary immunity provided by section 820.2.

A few years later subdivision (b) was amended (Stats.1970, ch. 1099, § 8, p. 958) and now provides, as relevant: "Neither a public entity nor a public employee is liable for: ... (b) Any injury caused by: (1) An escaping or escaped prisoner; (2) An escaping or escaped arrested person; or (3) A person resisting arrest." Comments of the California Law Revision Commission explain that the intent of the Legislature was to "extend the immunity to include persons resisting or escaping from arrest."

It seems clear that the purpose of the broadening amendment to subdivision (b) was to immunize public entities and employees from the entire spectrum of potential injuries caused by persons actually or about to be deprived of their freedom who take physical measures of one kind or another to avoid the constraint or to escape from it. It would plainly violate the legislative intent if particular words of the statute--such as "arrest" or "resisting"--were given such technical meanings that a case fell between the cracks of the immunity because, for example, the police had not intended a full arrest--as distinguished from a temporary detention--when the subject fled, or because at the time of the escape the process had not reached the point of physical control over the suspect.

We therefore conclude that this case falls squarely within the purview of the 1970 amendment to subdivision (b) of section 845.8.

IV

Plaintiff also appeals summary judgments in favor of various liquor stores and bars and the State of California. The Court of Appeal addressed and rejected claims of error with respect to those judgments when the case was before it, no additional arguments have been presented to this court, and for the reasons stated in the opinion of the Court of Appeal, we conclude that the contentions relating to the summary judgments lack merit. (See People v. Ford (1981) 30 Cal.3d 209, 215, 178 Cal.Rptr. 196, 635 P.2d 1176.)

Accordingly, the judgment of nonsuit in favor of the city and the summary judgments in favor of the other defendants are affirmed.

MOSK, BROUSSARD, REYNOSO, HOLMDAHL ^* and LOW, JJ.,* concur.

BIRD, Chief Justice, dissenting.

I respectfully dissent.

It is not disputed that the respondent officers had no intention of arresting the suspect whose negligent driving caused appellant's injuries. Nevertheless, the majority maintain that the respondents are immune from liability under a statute that provides immunity for injuries caused by "... [a] person resisting arrest." (Gov.Code, § 845.8, subd. (b)(3).) ¹

The majority have ignored the well-established principle that "[u]nless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail." (Ramos v. County of Madera (1971) 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 484 P.2d 93.)

I.

Contrary to Justice Kaus' opinion in this case, I would recommend to him for consideration one of his former opinions. I adhere to the wise principle, so aptly enunciated by my colleague in a previous opinion, that the question of duty logically precedes that of immunity. (See maj. opn., ante, at p. 430 of 204 Cal.Rptr. at p. 1095 of 682 P.2d; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202, 185 Cal.Rptr. 252, 649 P.2d 894.)

Though the question of duty must be determined case-by-case, the analysis must be governed by the general rule that all persons are required to use ordinary care to prevent others from being injured as a result of their conduct. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36, citing Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36, 286 P.2d 21.) The primary consideration in establishing a duty is the foreseeability of the risk: "The obligation turns on whether 'the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the actor.' " (Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912.)

The record before us belies the respondents' claim that the risk of...