McCarthy v. Frost

• Decision Date: 07 August 1973
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy M. McCARTHY et al., Plaintiffs and Appellants, v. L. A. FROST et al. Defendants and Respondents. Civ. 40918.

Page 470

109 Cal.Rptr. 470

33 Cal.App.3d 872

Dorothy M. McCARTHY et al., Plaintiffs and Appellants, v. L. A. FROST et al. Defendants and Respondents.

Civ. 40918.

Court of Appeal, Second District, Division 2, California.

Aug. 7, 1973.

Hearing Denied Oct. 3, 1973.

West & Girardi, Los Angeles, and Beaudet & Orr, Lancaster, for appellants.

Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., Howard Lee Halm and Joseph M. O'Heron, Deputy Attys. Gen., for respondents.

FLEMING, Associate Justice.

In an action for wrongful death plaintiffs McCarthy appeal a partial judgment on the pleadings in favor of defendants Frost, Howenstine, Winkleman, Jacobs, and the State of California.

The amended complaint states that plaintiffs are the wife and minor children of decedent William McCarthy. Defendants are highway patrolmen employed by the State of California. At 6:00 p.m. on 24 February 1969 McCarthy was driving a 1966 Jaguar eastbound on Highway 101 near Sheffield Drive in Santa Barbara County. Then: 'At all times and at such time and place defendants negligently and carelessly failed to discover William Joseph McCarthy, the decedent; and failed to search for him or his vehicle, failed to find him, failed to summon medical aid, failed to administer first aid, failed to remove him from his vehicle, prevented others from finding him and prevented others from rendering medical aid, and defendants so negligently and carelessly conducted themselves as to proximately cause the death of William Joseph McCarthy, deceased, as hereinabove alleged.' As a result, plaintiffs suffered damages in excess of $1,000,000. ¹

On motion for judgment on the pleadings, as on general demurrer, the question is whether the complaint states a cause of action. (Maxon v. Security Ins. Co., 214 Cal.App.2d 603, 610, 29 Cal.Rptr. 586.) ² We agree with the trial court's conclusion that the complaint does not state a cause of action because it does not set forth a legal duty owed by defendants to decedent or plaintiffs.

Plaintiffs contend Vehicle Code section 2412 imposes a duty on defendants for the benefit of decedent. That section states: 'All members of the California Highway Patrol may investigate accidents resulting in personal injuries or death and gather evidence for the purpose of prosecuting the person or persons guilty of any violation of the law contributing to the happening of such accident.' In response to this contention we observe, first, that the three causes of action do not allege that there was an accident. ³ Second, even if we assume there was an accident, section 2412 creates only the Right of highway patrolmen to investigate accidents, not a Duty. Vehicle Code section 15 states that the word May in the Vehicle Code is permissive and the word Shall is mandatory. The statement in 36 Opinions of the Attorney General 198 that under section 2412 highway patrolmen 'have the authority and the duty to investigate vehicle accidents' relates to the division of power between the highway patrol and the sheriff in investigating accidents on private property and is not persuasive authority on the question of breach of legal duty for purposes of tort liability.'

But, plaintiffs contend, even if defendants had no duty to investigate, once they undertook to conduct an accident investigation they fell under a duty to investigate with reasonable care. Assuming the validity of this proposition and again assuming the occurrence of an accident, nevertheless the complaint does not charge these defendants with negligently conducting an accident investigation but with failing to search for decedent or his vehicle. Defendants could not negligently perform an act they had not undertaken to perform, and to that extent plaintiffs' pleading is defective on its face.

Regardless of pleading niceties, however, we believe defendants are immune from liability under the facts set forth. Government Code section 820.2 provides: 'Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.' A decision to arrest, or to take some protective action less drastic than arrest, is an exercise of discretion for which a peace officer may not be held liable in tort. (Michenfelder v. City of Torrance, 28 Cal.App.3d 202, 206--207, 104 Cal.Rptr. 501.) We think the decision of a peace officer to investigate or not investigate involves a comparable exercise of discretion; and that, consequently, the highway patrolmen's failure to investigate, if such failure occurred, is an omission for which they are protected against liability by section 820.2.

The cricical element tin those cases that have attached liability to a public employee's discretionary acts has been the presence of a special relationship between employee and plaintiff that justified...