Mann v. State of California

CourtCalifornia Court of Appeals
Citation70 Cal.App.3d 773,139 Cal.Rptr. 82
Decision Date16 June 1977
PartiesRobert Wyant MANN, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent. Civ. 48894.
Ollestad & Freedman, Alan L. Freedman and Norman T. Ollestad, Santa Monica, for plaintiff and appellant

Evelle J. Younger, Atty. Gen., and Robert H. Francis, Deputy Atty. Gen., for defendant and respondent.

COBEY, Associate Justice.

Plaintiff, Robert Wyant Mann, appeals from a judgment on a directed verdict in his personal injury action in favor of defendant, State of California. The fundamental question presented is whether liability may attach to the State by reason of a state traffic officer, after investigation by him, leaving motorists in a dangerous situation on a freeway where some were subsequently killed and others injured as a result of another motorist's negligence. We hold that such liability may attach.

FACTS

The pertinent facts are these. 1 On December 24, 1971, about 11:30 a.m., state traffic officer Harvey Lane (then a probationary officer with the California Highway Patrol), on patrol in his fully equipped and distinctively marked patrol car, saw two cars stranded in the speed-change lane of the San Bernardino Freeway, under the Archibald Avenue over-crossing. He pulled his vehicle in behind them, turned on his rearward flashing amber light, and tried to get the forward car started. In doing so he stood in the speed-change lane himself and failed to instruct the occupants of the stalled cars and other interested motorists such as plaintiff, some of whom had gotten out of their cars, to get back into them and to avoid standing between the stalled cars. A few minutes after a tow truck operator appeared at the scene, the officer left to resume his normal patrol without advising any of those present that he was leaving. 2 His departure left the stranded cars unprotected by the rearward flashing amber light of his patrol car. He also failed to put out upon the freeway any protective flares and did not wait for the two truck, also equipped with a rearward amber flashing light to assume the protective position his patrol car was vacating. In acting in this manner, Lane violated several guidelines of the California Highway Patrol designed to enhance the safety of motorists on freeways. 3

A few minutes after the officer left, a 15 year old car, driven by an 81 year old driver, blind in his right eye, sideswiped one of the two cars and struck the people around them. He thought that he was in the slow lane of the freeway rather than in the speed-change lane running between an on-ramp and an off-ramp. At the time of the accident, it was raining hard, the pavement of the roadway was slick, and visibility was limited.

In granting the motion for the directed verdict, the trial court stated that it concluded as a matter of law from the evidence that the Sole cause of the accident was the negligence of the partially blind driver. The record does not support such a conclusion. The evidence did not foreclose a finding that if proper protection had been provided the collision would not have occurred. Anyone legally responsible for the victims of the accident being in their exposed position could therefore have been found to have contributed in a substantial way to the causation of the accident. (See Vesely v. Sager, 5 Cal.3d 153, 163--164, 95 Cal.Rptr. 623, 486 P.2d 151; Schwartz v. Helms Bakery Limited, 67 Cal.2d 232, 241--242, 60 Cal.Rptr. 510, 430 P.2d 68.) The jury could also have found that the independent intervening negligent conduct of The State denies liability for several reasons. The first of these is that Officer Lane's investigation of the plight of the stranded motorists prior to the accident was a discretionary act, and under Government Code section 820.2 a public employee is not liable for injuries resulting from an act or omission involving the exercise of discretion. Officer Lane's decision regarding whether to investigate or not may have been a discretionary decision 4 (see McCarthy v. Frost, 33 Cal.App.3d 872, 875, 109 Cal.Rptr. 470), but once he decided to investigate, any negligence on his part in his ministerial performance of the investigation was clearly beyond the protection of the statutory discretionary immunity. (See McCorkle v. City of Los Angeles, 70 Cal.2d 252, 261--262, 74 Cal.Rptr. 389, 449 P.2d 453; Sava v. Fuller, 249 Cal.App.2d 281, 291, 57 Cal.Rptr. 312; Tarasoff v. Regents of University of California, 17 Cal.3d 425, 445, 131 Cal.Rptr. 14, 551 P.2d 334.)

the partially blind driver was reasonably foreseeable by Officer Lane. It would not in that event have been a superseding cause, but merely the immediate cause of plaintiff's injuries. (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, p. 2910; Rest.2d Torts (1965) §§ 447, 449, pp. 478, 482.)

The State also denies liability on the further ground of the statutory police protection immunity. Government Code section 845 provides that neither a public entity nor a public employee is liable for failure to provide police protection--either at all or in an insufficient amount. The protection that Officer Lane is claimed to have failed to provide to plaintiff in this case is protection of the safety of plaintiff from passing traffic. This is not police protection in the ordinary sense of the term--that is, protection against crime. It is instead merely protection in a particular situation against primarily the negligence of passing motorists. Furthermore, this failure on Officer Lane's part does not involve a lack of or insufficiency in police protection as such. Lane left the stranded motorists simply to resume his routine patrol.

This is not the type of failure of police protection that section 845 was intended to immunize. As the California Law Revision Commission, the originator of the section (which the Legislature did not change) has pointed out in its comment to the section and elsewhere, the section was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries in personal injury litigation. (See 4 Cal.Law Revision Com.Rep. (1963) pp. 827, 860.) In other words, essentially budgetary decisions of these officials were not to be subject to judicial review in tort litigation. 5 But what is charged here is not budgetary neglect but negligence by the officer in the performance of his investigation. Accordingly, the police protection immunity does not apply in this case.

There remains the question whether, immunity aside, Officer Lane was actionably negligent as a matter of general tort law. 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 entity within the scope of his employment, if the act or omission would, apart from the section If this be so, then Officer Lane and, through him, the State of California can be held liable for these negligent omissions only if a special relationship then obtained between him and plaintiff. We believe on the basis of the following rationale and on the record before us viewed most favorably for plaintiff that such a relationship could have been found in this case. The California Supreme Court, Prosser and the Restatement of Torts 2d all recognize that 'special relationship' is an expanding concept in tort law. (See Tarasoff v. Regents v. University of California, supra, 17 Cal.3d at p. 435, fn. 5, 131 Cal.Rptr. 14, 551 P.2d 334; Prosser, Law of Torts (4th ed. 1971) § 56, pp. 339--340; Rest.2d Torts (1965) § 314A, coms. a, b.) As the Restatement suggests, the law appears to be heading toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence. (Id. com. b; see also Fleming, Law of Torts (4th ed. 1971) 143.)

have given rise to a cause of action against the employee. The negligence charged against Officer...

To continue reading

Request your trial
125 cases
  • Shelton v. City of Westminster
    • United States
    • California Court of Appeals Court of Appeals
    • December 24, 1982
    ...on the cases of Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334; Mann v. State of California, 70 Cal.App.3d 773, 139 Cal.Rptr. 82; and Clemente v. State of California, 101 Cal.App.3d 374, 161 Cal.Rptr. 799, to support their cause of The facts a......
  • Whitcombe v. County of Yolo
    • United States
    • California Court of Appeals Court of Appeals
    • September 26, 1977
    ...If so, there is then the question whether defendants were negligent as a matter of general tort law. (See Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82.) Nevertheless, "duty" is only a threshold issue, beyond which remain the immunity barriers which may only be over......
  • Lopez v. Southern Cal. Rapid Transit Dist.
    • United States
    • California Supreme Court
    • December 31, 1985
    ...RTD for their safety gives rise to a special relationship between the parties in the case at bar. (Cf. Mann v. State of California (1977) 70 Cal.App.3d 773, 779-780, 139 Cal.Rptr. 82; Rest.2d Torts (1965) § 314A, coms. b, c; Fleming, Law of Torts (4th ed. 1971) p. 143.) [ ] [I] recognize th......
  • Regents of the Univ. of Cal. v. Superior Court of L. A. Cnty.
    • United States
    • California Supreme Court
    • March 22, 2018
    ...for protection. (See Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 283, 176 Cal.Rptr. 809 ( Baldwin ); Mann v. State of California (1977) 70 Cal.App.3d 773, 779-780, 139 Cal.Rptr. 82.) The Restatement authors observed over 50 years ago that the law has been "working slowly toward a recogniti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT