Posey v. State
| Decision Date | 28 October 1985 |
| Citation | 173 Cal.App.3d 835,219 Cal.Rptr. 534 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 173 Cal.App.3d 835 173 Cal.App.3d 835 Mary Ann POSEY, Plaintiff, Appellant and Respondent, v. STATE of California, Defendant, Respondent and Appellant. A024640. |
Michaud, Weber & De Vries, Michael C. Weber, Daniel G. Herns, Cupertino, for plaintiff, appellant and respondent.
John K. Van de Kamp, Atty. Gen., Tyler B. Pon, Deputy Atty. Gen., San Francisco, for defendant, respondent and appellant.
Under the facts of this case we decide that the failure of California Highway Patrol (CHP) officers to stop and inspect or to stop and remove a vehicle parked alongside the traveled roadway does not create a basis for liability on the part of the CHP, and thereby the State of California (State), in that there is neither a mandatory duty nor a special relationship which obligates these officers to do the aforesaid acts.
Mary Ann Posey (Posey), appeals from the judgment of dismissal entered upon the trial court's sustaining of a demurrer to the second amended complaint without leave to amend.
Pursuant to the court's order sustaining the demurrer and allowing the State to recover all allowable costs, the State filed a memorandum of costs and disbursements. Thereafter, Posey filed a motion to tax costs which was granted. State appeals from the trial court's order granting Posey's motion to tax costs.
As we are reviewing a judgment entered pursuant to an order sustaining a demurrer, we accept the material facts as set forth in the complaint as true. (Schneider v. Union Oil Co. (1970) 6 Cal.App.3d 987, 990, 86 Cal.Rptr. 315.)
On December 7, 1979, at approximately 11:30 a.m., a 1966 Chrysler was parked on Highway 280 in San Jose, near the Winchester Boulevard entrance. The car was parked off the traveled roadway but on the shoulder next to the far right lane.
CHP officers drove past the 1966 Chrysler as they patrolled Highway 280 but failed to stop and inspect the vehicle or remove the vehicle. California Highway Patrol General Order (HPGO) No. 100.58 provides:
At approximately 12:45 a.m. on December 8, 1979, Posey was a passenger in a 1974 Mercury which collided with the 1966 Chrysler. As a result of the collision, Posey suffered physical and emotional injuries.
Posey alleges that the State of California, through its agents and employees, certain CHP officers, is liable for her injuries in that HPGO No. 100.58 created a mandatory duty on the part of the CHP officers to stop and inspect and to remove the 1966 Chrysler and that the failure to perform this duty constituted negligence. The State successfully demurred to Posey's second amended complaint on the ground that it fails to state a cause of action. Posey argues on appeal that a cause of action is stated as the CHP's failure to inspect and failure to remove the parked vehicle created liability pursuant to Government Code section 815.6.
Preliminarily we note that on appeal from an order sustaining a demurrer, an appellate court is required to construe the complaint liberally to determine whether, assuming the facts pleaded to be true, a cause of action has been stated. (Jones v. Oxnard School District (1969) 270 Cal.App.2d 587, 590, 75 Cal.Rptr. 836.)
In the instant case we are presented with the threshold question of whether, under the circumstances of this case, the State owes a duty of due care to Posey. We must consider whether a cause of action is stated on the theory alleged by Posey, i.e., that the CHP owes her a mandatory duty by virtue of HPGO No. 100.58. We must also consider whether a cause of action is stated on the theory that because of a special relationship between the parties, the State owed a duty of due care to Posey.
(Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137, citing Rest.2d Torts, § 314; 4 Witkin, Summary of Cal. Law. (8th ed. 1974) Torts, § 554, p. 2821, emphasis added.) Nor does one owe a duty to control the conduct of another or to warn those endangered by such conduct absent a special relationship between the defendant and the plaintiff or defendant and a third person which relationship imposes a duty on the defendant. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894, citing Rest.2d Torts (1965) § 315; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 751-752, 167 Cal.Rptr. 70, 614 P.2d 728.)
This rule that one owes no duty to come to the aid of another is equally applicable to law enforcement personnel in their conduct of routine traffic investigations. (Williams v. State of California, supra, 34 Cal.3d at p. 24, 192 Cal.Rptr. 233, 664 P.2d 137.) A special relationship does not exist between members of the CHP and the motoring public generally. (Ibid.) However, when the State, through its agents, voluntarily assumes a protective duty toward a particular member of the public, and undertakes action on behalf of that individual, reliance is induced and the State is held to the same standard of care as a private person or organization. (Ibid.; see also Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 943, 41 Cal.Rptr. 508.)
In the case at bench, the alleged misconduct is the failure of the CHP officers to either stop and inspect or to stop and remove the vehicle parked adjacent to the roadway. Where the purported injury is a result of an omission, or nonfeasance, the State may be held liable for the negligent omission if a special relationship existed between the State's employee and the plaintiff. (Bonds v. State of California ex rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 314, 318, 187 Cal.Rptr. 792, citing Mann v. State of California (1977) 70 Cal.App.3d 773, 779, 139 Cal.Rptr. 82; see also Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 159, 144 Cal.Rptr. 794.)
The cases that have found a special relationship to exist have involved situations of the dependency or reliance by the plaintiff upon the defendant, or some conduct on the part of the defendant that either created or changed the risk to a known person.
In Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82, CHP officers came to the assistance of stranded motorists whose care were stopped in the speed change lane of a freeway. The officers parked their car directly behind the stalled cars and turned on their flashing amber light. The motorists were standing in between the stalled cars. The CHP officers then called a tow truck for the motorists. Only a few minutes after the tow truck arrived, and without advising the motorists of their departure, the officers left the stranded motorists and resumed their patrol. The officers also failed to put out protective flares on the freeway before leaving the motorists. (Id., at pp. 776-777, 139 Cal.Rptr. 82.)
A few minutes later the motorists were injured when a passing car struck one of the stalled cars. (Id., at p. 777, 139 Cal.Rptr. 82.) The plaintiff was one of the injured motorists.
The Court of Appeal ruled that liability may attach to the State for the officers' negligent omissions because a special relationship had been created between the plaintiff and the officers when the officers stopped to investigate the plight of the motorists and apprised themselves of the foreseeable danger to the motorists by passing traffic. This special relationship imposes a duty upon the highway patrolmen to protect these specific persons from this specific foreseeable risk of harm about which they were informed. (Id., at p. 780, 139 Cal.Rptr. 82.) "While no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally" under the set of facts presented in Mann, a special relationship will arise which may attach liability to the defendant patrolmen if they fail to exercise ordinary care to protect the motorists. (Ibid.) The holding in Mann has been characterized as a "simple application of the 'good Samaritan' doctrine," i.e., the duty of care that attaches to one who volunteers assistance. (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 208, 185 Cal.Rptr. 252, 649 P.2d 894.)
In Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, the Court of Appeal, delineating one exception to the special relationship rule, held a county may be held liable for its employees' negligent omissions.
The facts alleged in Morgan were that the Yuba County Sheriff and some of his deputies arrested one Mr. Ashby upon the decedent's complaint. The individual had threatened the life of plaintiffs' decedent. The sheriff and the deputies fully cognizant of these threats, promised to warn the decedent immediately upon Mr. Ashby's release on bail. The decedent was never warned and as a result she was killed by Mr. Ashby. (Id., at pp. 940-941, 41 Cal.Rptr. 508.)
After setting out the general rule that " 'in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another' " the Court of Appeal stated that one exception to the rule is when there has been...
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Ellis v. Office of S.F. Sheriff
...motorist and third parties." (Id. at p. 21.) The second case that Ellis cites was vacated upon a grant of rehearing. (Posey v. State of California (1985) 173 Cal.App.3d 835). In the subsequent opinion, Posey v. State of California (1986) 180 Cal.App.3d 836, the Court of Appeal affirmed a ju......