Reenders v. City of Ontario

• Decision Date: 13 April 1977
• Court: California Court of Appeals Court of Appeals
• Parties: Linda Karen REENDERS, an incompetent, by Cornelis Reenders, her guardian, Plaintiff and Appellant, v. The CITY OF ONTARIO, etc., et al., Defendants and Respondents. Civ. 15825.

Page 736

137 Cal.Rptr. 736

68 Cal.App.3d 1045

Linda Karen REENDERS, an incompetent, by Cornelis Reenders, her guardian, Plaintiff and Appellant, v. The CITY OF ONTARIO, etc., et al., Defendants and Respondents.

Civ. 15825.

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

April 13, 1977.

Hearing Denied June 9, 1977.

Anderson & Taves, John D. Taves, Upland, Herbert Hafif and Stephen L. Odgers, Claremont, for plaintiff and appellant

Thompson & Colegate and Robert C. Coppo, Riverside, for City of Ontario.

OPINION

KAUFMAN, Associate Justice.

The trial court granted defendant City of Ontario (hereinafter 'City') summary judgment, and plaintiff appeals. She seeks a reexamination of the liability of a municipality for injuries sustained when a vehicle being hotly pursued by police collides with the victim's vehicle. We reexamine Draper v. City of Los Angeles, 91 Cal.App.2d 315, 205 P.2d 46 and Pagels v. City & County of S.F., 135 Cal.App.2d 152, 286 P.2d 877, in the light of currently accepted negligence analysis and find their results sound as respects the case at bench. Accordingly, we affirm the summary judgment in favor of City.

Facts

On August 31, 1973, at about 6:20 p.m., plaintiff was operating an automobile in the City of Ontario southbound on Mountain Avenue and was crossing the intersection of Mountain Avenue and Mission Boulevard with a green light when she was struck by a motorcycle driven by Daniel Scarsella through a red light. Scarsella was killed and plaintiff suffered severe permanent injuries.

At the time of the collision Scarsella was being pursued by Ontario City Police officers in several police vehicles on which the standard warning devices (oscillating red and white light and siren) had been activated. At the time the collision occurred, however, none of the officers who were in pursuit were within sight of the scene of the accidnet. The details of the commencement and continuation of the police pursuit are as follows.

At about 6:10 p.m. Officer Cypher received a radio dispatch advising that there was a reckless driver operating a motorcycle up and down the 200 block of I Street at a high rate of speed. He responded to the call and met with the complaining witness, Ms. Allen, who lived at 207 West I Street. Ms. Allen informed Officer Cypher that all afternoon a man had been drinking in the driveway of the residence located across the street. ¹ She thought two men were involved. She stated they were driving up and down the street racing a motorcycle. She stated that one of the men, later identified as Scarsella, drove the motorcycle down the driveway of her residence and crashed through a gate at the rear yard. She started walking down to the driveway to where he was, and he turned the motorcycle around and attempted to run her over as he came out of the driveway.

As Officer Cypher was speaking with Ms. Allen, the motorcycle appeared being driven by Scarsella down I Street at a high rate of speed. Ms. Allen shouted, 'That's him. That's the one.' As Scarsella approached, Officer Cypher signaled for him to stop, but he failed to do so. Cypher immediately went to his police unit and put out a radio call advising that the suspect motorcycle rider was wanted for assault with a deadly weapon and for misdemeanor hit and run driving and was heading south on Euclid from I Street. Although Officer Cypher started to follow Scarsella in his police vehicle, he did not initiate pursuit because of congested traffic conditions and because Scarsella had traveled too far by the time Cypher got started.

In following Scarsella, Cypher merely operated his vehicle so as to keep pace with other traffic. He observed Scarsella run the red light at I Street and Euclid Avenue and reported this traffic violation on his radio. He observed Scarsella continuing to travel at a high rate of speed, weaving in and out of traffic, passing other southbound vehicles. He then observed Scarsella run the red light at G Street and observed another police vehicle, driven by Officer Carosa, activate its red light and commence pursuit of Scarsella.

Officer Carosa first observed Scarsella traveling southbound on Euclid near G Street at a speed in excess of the posted limit. Carosa had heard Officer Cypher's radio report. When he observed Scarsella's conduct he activated his oscillating red and white light and siren and commenced pursuit. He broadcast Scarsella's location as the pursuit continued south on Euclid Avenue.

Officer Gulley had heard a radio broadcast indicating that Scarsella was traveling south on Euclid Avenue at a high rate of speed. At approximately Holt and Euclid, Officer Gulley observed the motorcycle proceeding south on Euclid at a speed well in excess of the posted limit. He engaged his oscillating red and white light and siren and commenced pursuit. Scarsella turned west onto Mission Boulevard and proceeded at a high rate of speed, weaving in and out of traffic in an unsafe and dangerous manner.

Officer Scraggs, who was stopped at the intersection of San Antonio and Mission, observed the motorcycle pass him traveling west on Mission at an estimated speed of 80 to 100 miles per hour. Officer Gulley was observed in pursuit some seconds behind, traveling between 65 and 75 miles per hour and accelerating. Several seconds later Officer Carosa passed by at about 65 to 75 miles per hour. Officer Scraggs then joined the pursuit.

As pursuit continued, the motorcycle disappeared into traffic and the police officers were thereby prevented from further observation of its progress. When Officer Gulley and, then, Officer Carosa arrived at the intersection of Mission and Mountain, they observed that the motorcycle had collided with the vehicle driven by plaintiff.

The chase spanned 31 intersections and, at some points at least, the traffic was heavy.

Contentions, Discussion and Disposition

In support of the summary judgment, City contends that the governmental immunity statutes (e.g., Gov.Code, §§ 815.2, 820.2 and Veh.Code, § 17004) provide it immunity from liability and that, in any event, under the facts, City was not negligent as a matter of law. On the immunity issue City places considerable reliance on Bratt v. City and County of San Francisco, 50 Cal.App.3d 550, 123 Cal.Rptr. 774. On its nonnegligence theory, City relies on Draper v. City of Los Angeles, supra, 91 Cal.App.2d 315, 205 P.2d 46, and Pagels v. City & County of S.F., supra, 135 Cal.App.2d 152, 286 P.2d 877, as well as Bratt.

On the question of immunity, plaintiff makes several arguments including that Bratt is not controlling because it failed to consider Vehicle Code section 17001 and that, taking that statute into consideration, City is not statutorily immune. As to City's lack of negligence as a matter of law, plaintiff argues that Draper and Pagels are outmoded and incorrect for several reasons. First, they were decided before the enactment of Vehicle Code section 17001. Secondly, their analysis of the problem in terms of proximate cause is now discredited; that under currently accepted proximate cause doctrine the existence of proximate cause is not precluded as a matter of law; that proper analysis should revolve around whether City owed a legal duty to plaintiff to refrain from pursuing Scarsella; that the existence of such a duty is a matter of public policy and that a public policy mandating a holding that such a duty exists is now legislatively established by Vehicle Code section 17001.

While plaintiff's analytical approach to the problem is basically correct, several of her arguments are unsound, and we conclude that City breached no duty owing to plaintiff and, therefore, was not negligent. Accordingly, we have no need to resolve the immunity question.

Draper and Pagels and Vehicle Code Section 17001

Plaintiff's argument that Draper and Pagels are outmoded because decided before the adoption of Vehicle Code section 17001 is without merit. It is true that Draper was decided in 1949 and Pagels in 1955 prior to the adoption of Vehicle Code section 17001 in 1959 (Stats.1959, ch. 3, p. 1653, § 17001). But section 17001 was derived from former Vehicle Code section 400 enacted in 1935 (Stats.1935, ch. 27, p. 152), and so far as the problem with which we are concerned in the present case, the provisions of present Vehicle Code section 17001 are substantially the same as those of former section 400. ² Thus, the substance of present Vehicle Code section 17001 was already part of the statutory law when Draper and Pagels were decided.

Analysis: Proximate Cause and Duty

Relying on Vesely v. Sager, 5 Cal.3d 153, 163--164, 95 Cal.Rptr. 623, 486 P.2d 151, plaintiff urges that the concept of proximate cause has been modernized and narrowed. In this, plaintiff is correct. It is now generally recognized that, in terms of proximate cause, an actor is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of the actor's negligent conduct. (Vesely v. Sager, supra.) 'Moreover, 'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby. '' (Vesely v. Sager, supra, 5 Cal.3d at p. 164, 95 Cal.Rptr. at p. 630, 486 P.2d at p. 158, and authorities there cited.) Thus, in the case at bench and in Draper and Pagels if it was foreseeable that the motorist pursued by the police would flee in a reckless and hazardous manner, the fact that he did so would not relieve the City from liability on the ground of a lack of proximate cause if the City was otherwise liable for negligence.

Plaintiff is mistaken, however, in her analysis of the Draper and Pagels cases to the extent she has concluded they were decided on the basis of proximate cause. As correctly...