Minch v. California Highway Patrol

• Decision Date: 22 June 2006
• Docket Number: No. C050338.,C050338.
• Citation: 140 Cal.App.4th 895,44 Cal.Rptr.3d 846
• Court: California Court of Appeals Court of Appeals
• Parties: Troy MINCH, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

44 Cal.Rptr.3d 846

140 Cal.App.4th 895

Troy MINCH, Plaintiff and Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant and Respondent.

No. C050338.

Court of Appeal, Third District.

June 22, 2006.

Altemus & Wagner and Darryl L. Wagner, Redding, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Darryl L. Doke and Jill Buttram Scally, Deputy Attorneys General, for Defendant and Respondent.

SCOTLAND, P.J.

While plaintiff Troy Minch, a tow truck operator, was working at the scene of a traffic accident, a passing motorist lost control of his vehicle and hit plaintiff. Severely harmed, plaintiff brought a personal injury action against the California Highway Patrol (CHP), alleging that CHP officers at the scene were negligent in "failing to properly monitor and/or regulate traffic within the vicinity of the [accident scene]." Finding the officers had no duty of care as to plaintiff, the trial court entered summary judgment in favor of the CHP. Plaintiff appeals.

We agree with the trial court. As we will explain, undisputed evidence demonstrates the CHP officers did not have a duty of care toward plaintiff because they did not create or increase the risk of harm that led to plaintiff's injuries, and the circumstances did not establish a special relationship between the officers and plaintiff such that the officers would have had a duty to protect him. We also reject his claim that the provisions of the CHP Officer Safety Manual establish the officers owed plaintiff a duty in tort. Although the manual would be admissible evidence on the question of breach of duty, if a duty of care existed, the manual was not formally adopted as a regulation. Thus, it does not have the force of law and its provisions do not establish a duty of care on the part of CHP officers. Accordingly, we shall affirm the judgment.

FACTS

Since this is an appeal from the entry of summary judgment, we independently examine the record to determine whether triable issues of fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In doing so, we view the evidence in a light most favorable to plaintiff, the losing party. (Id. at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) Viewed in that light, the record presents the following facts:

On January 12, 2003, the driver of a Volkswagen Jetta was involved in a single car accident on San Benito Avenue in Tehama County. San Benito Avenue is a two-lane road with a double yellow line in the center and solid white fog lines separating the traffic lanes from the shoulder. To the north of the accident site, the road is straight such that southbound traffic would have a clear view of the site. To the south of the accident site, the road curves such that northbound traffic would be coming around a curve shortly before the accident site.

The accident occurred around mid-day. It had been cloudy and raining, and the road was wet. CHP Officer Tim Larios and his supervisor, Acting Sergeant Vincent Zambrana, responded to the scene. They observed the Jetta upside down in a ditch next to the southbound lane of the road. Larios advised CHP dispatch that a tow truck was needed.

Plaintiff, an employee of J & L Towing, was notified by his employer to respond to the scene. At the scene, the CHP officers did not give directions to plaintiff regarding the extraction of the Jetta from the ditch; rather, plaintiff relied on his own knowledge and experience. While he worked, plaintiff turned on the overhead amber beacons, flashing emergency lights, and headlights of the tow truck. He used his tow truck to roll the Jetta over and extract it from the ditch. He hooked the Jetta to the tow truck and drove 15 to 20 feet forward onto the shoulder of the road. He parked the tow truck facing southbound with its driver-side wheels resting on the solid white fog line. The officers did not direct plaintiff to remain at the scene and did not direct him where to park. After the Jetta was successfully extracted, Sergeant Zambrana left the scene and Officer Larios remained.

After speaking with the owner of the Jetta about insurance and other things, plaintiff went to the cab of the tow truck to get his receipt book. He approached the truck on the driver's side, i.e., traffic side. Although plaintiff had been taught to stay on the non-traffic side of the truck for safety purposes, he explained that he approached on the traffic side because the passenger door had automatically locked and he had forgotten to unlock it.

While plaintiff was approaching the cab of the tow truck, Officer Larios had positioned himself across the road and to the south of the accident site. Larios was using hand signals to warn northbound traffic to slow down as it came around the curve. Several northbound vehicles passed and heeded Larios's signals. Larios then saw two white pickup trucks approaching. The first truck was driven by Fidel Reyes. The second truck, being driven by Juvenal Garcia, was following Reyes, whom Garcia described as his uncle.

Reyes slowed down when he saw Officer Larios signal him to do so. Garcia, apparently inattentive, did not immediately slow down. When he noticed the brake lights on Reyes's truck, he hit his brakes hard, causing the wheels to lock, and turned to the left. The truck slid out of control. Larios yelled a warning to plaintiff, who nonetheless was hit by Garcia's truck, which slid across the road, struck the tow truck, knocked plaintiff to the ground, and came to rest against the Jetta. Plaintiff suffered severe personal injuries when he was struck.

Plaintiff filed a complaint for damages against the CHP, seeking recovery on theories of general negligence and a dangerous condition of public property.¹ He moved for summary adjudication, asking the trial court to hold that the CHP owed a duty of care and that no statutory immunity applied to the CHP. The CHP moved for summary judgment, or in the alternative summary adjudication, asserting that the CHP did not owe a duty of care, that the state did not own or control the roadway, and that the CHP is immune from liability pursuant to Government Code section 820.25.

The trial court denied plaintiff's motion for summary adjudication and granted the CHP's motion for summary judgment. With respect to the claim of general negligence, the court concluded that the CHP did not owe a duty of care to plaintiff. With respect to the claim of a dangerous condition of public property, the court concluded that the uncontroverted evidence established that San Benito Avenue was not owned, controlled, or maintained by the State on the date of the accident.

Plaintiff appeals, raising issues solely with respect to the claim of general negligence.

DISCUSSION

The well-known elements of a cause of action for negligence are duty, breach of duty, proximate cause, and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) The threshold element of the existence of duty is a question of law to be resolved by the court. (Ibid.) Duty "is not an immutable fact of nature `"but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."'" (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

A

The question of the duty of a law enforcement officer toward the public has been the subject of a number of judicial opinions.

In Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894 (hereafter Davidson), a man stabbed Yolanda Davidson while she was using a laundromat. At the time of the stabbing, police officers had the laundromat under surveillance for the purpose of preventing assaults and apprehending the perpetrator of three stabbings that had occurred there or at nearby laundromats. Thus, the officers knew Davidson was in the laundromat. When the officers saw the man enter and leave the laundromat several times, they believed that he was the likely perpetrator of at least one of the prior assaults. Nevertheless, the officers did not warn Davidson, and she eventually was stabbed inside the laundromat. (Id. at p. 201, 185 Cal.Rptr. 252, 649 P.2d 894.)

The Supreme Court concluded the officers had no duty to warn or to otherwise protect Davidson for the following reasons:

Ordinarily, a person does not have a duty to control the conduct of another or to warn those endangered by such conduct. (Davidson, supra, 32 Cal.3d at p. 203, 185 Cal.Rptr. 252, 649 P.2d 894.) However, such a duty may arise if (1) there is a special relationship between the person and a third party which imposes a duty upon the person to control the third party's conduct, or (2) there is a special relationship between the person and the injured party which gives the injured party a right to protection. (Ibid.)

With respect to the police officers' relationship with the man who stabbed Davidson, the officers' mere proximity to the assailant, even with knowledge of his "assaultive tendencies," did not establish a special relationship imposing a duty to control the assailant's conduct. (Davidson, supra, 32 Cal.3d at p. 205, 185 Cal.Rptr. 252, 649 P.2d 894.)

There also was no special relationship between the officers and the victim because the officers did not create the peril, their conduct did not change the risk to the victim that would have existed in their absence, and the victim was unaware of the officers' presence and did not rely upon them for protection. (Davidson, supra, 32 Cal.3d at p. 208, 185 Cal.Rptr. 252, 649 P.2d 894.) The court distinguished cases upon which the victim relied, noting that the defendants in those cases had created the risk or contributed to, increased, or changed the risk that would otherwise have existed. (Id. at pp. 207-208, 185 Cal.Rptr. 252, 649 P.2d 894.)

In Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137...