Rose v. County of Pulmas

• Decision Date: 08 March 1984
• Citation: 152 Cal.App.3d 999,199 Cal.Rptr. 842
• Parties: Velma Irene ROSE et al., Plaintiffs and Appellants, v. COUNTY OF PLUMAS et al., Defendants and Respondents. Civ. 22740.
• Court: California Court of Appeals Court of Appeals

Page 842

199 Cal.Rptr. 842

152 Cal.App.3d 999

Velma Irene ROSE et al., Plaintiffs and Appellants, v. COUNTY OF PLUMAS et al., Defendants and Respondents.

Civ. 22740.

Court of Appeal, Third District, California.

March 8, 1984.

As Modified March 12, 1984.

William J. Hooy, Concord, and Ron Lane, Oakland, for plaintiffs and appellants.

Peters, Fuller, Rush, Schooling & Carter, and James Farnsworth, Chico, for defendants and respondents.

COUZENS, Associate Justice. ^*

Plaintiffs Noel and Velma Rose, husband and wife, appeal from a judgment of dismissal entered in favor of defendants County of Plumas, Sheriff S. Douglas Thomas, and Deputy Sheriffs J. Shaver and R.E. Day (county) after county's general demurrer to plaintiffs' first amended complaint was sustained without leave to amend. We shall reverse the judgment.

FACTS

According to plaintiffs' first amended complaint, ¹ on June 18, 1981, plaintiffs Noel and Velma Rose were customers of the Plumas Club, a bar in Plumas County, and "were relaxing and enjoying the companionship of other patrons ...." Therein ensued a "siz[e]able commotion" between Evie Cardell and Jennifer Hampton, "persons of known violent and vicious propensities," which "threatened the safety, quiet and repose" of plaintiffs and the other guests. While assisting the bartender in evicting the combatants, alleges the complaint, Mr. Rose received extensive personal injuries, all of which resulted in permanent disability. The first cause of action seeks to impose liability on the bar for failure to properly operate the premises; the second cause of action seeks damages for assault and battery from the two women. These causes of action are not the subject of this appeal.

The third cause of action seeks to establish the liability of the county through the failure of Deputies Shaver and Day to render aid to plaintiff. The complaint states: ² "A special relationship existed between plaintiff NOEL ROSE and defendants SHAVER and DAY in that on June 18, 1981, defendants SHAVER and DAY were dispatched by the PLUMAS Sheriff's Department to investigate a disturbance at THE PLUMAS CLUB; that they undertook an investigation and in the course of that investigation they became aware that plaintiff NOEL ROSE had sustained severe injuries as the result of a criminal assault and battery by defendants CARDELL and HAMPTON; that plaintiff NOEL ROSE lay injured and bleeding at the scene at the rea[r] of THE PLUMAS CLUB and in need of emergency treatment; that no ambulance or other emergency team had arrived to administer to plaintiff NOEL ROSE's then needs; and that there was evidence at the scene which might be lost. This special relationship gave rise to a duty of care on the part of defendants SHAVER and DAY to take steps to provide for plaintiff NOEL ROSE's emergency care and thereby shield him from unreasonable risk of further harm and to secure the scene to prevent loss of valuable evidence." Concluding, the complaint alleges: "Despite this special relationship and duty of care, defendants SHAVER and DAY, and each of them, negligently, recklessly and willfully conducted their investigation and ignored their responsibilities to plaintiff NOEL ROSE, abandoning him and failing both to provide emergency aid and to secure evidence at the scene."

The fourth cause of action alleges that investigating officers were under a mandatory duty to provide for plaintiff's emergency care and to secure the scene to prevent loss of valuable evidence. (Gov.Code, § 815.6.) In the fifth cause of action, based upon the same theories of liability set forth in the other causes of action, plaintiff wife seeks damages as conservator for her husband and for loss of consortium.

The county filed a general demurrer to the first amended complaint alleging plaintiffs had not amended their complaint so as to state facts sufficient to establish a "special relationship" upon which the defendants might be held liable. The trial court sustained the demurrer without leave to amend and, by its judgment entered on February 4, 1983, dismissed plaintiffs' action against all of the county defendants. ³

DISCUSSION

I

The primary issue on appeal is whether police officers have an affirmative duty to render emergency aid to an injured person found at the scene of an investigation. ⁴ The essence of plaintiffs' argument is simply that once the police undertake an investigation, and during the course of that investigation they discover a person wholly "dependent" upon them for emergency aid, they are then under a duty to render that aid. We disagree.

We find the recent decision in Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137 dispositive. There, plaintiff was seriously injured when a piece of heated brake drum from a passing truck was propelled through the windshield of the automobile in which she was riding, striking her in the face. She sued the state, alleging negligence in the form of nonfeasance--failure of the highway patrol officers who investigated the accident to examine the brake drum part to determine if it was still hot, to identify other witnesses at the scene of the accident, or to attempt any investigation or pursuit of the owner or operator of the truck whose brake pad broke and caused plaintiff's injuries. Plaintiff alleged that the failure to properly investigate the accident destroyed her opportunity to obtain compensation from the unidentified person who injured her.

The Williams court could not find the "special relationship" between plaintiff and the state necessary to create the tort duty of the police to act. The court emphasized the need to show that the actions of the police either increased the risk of harm to plaintiff or caused him to rely thereon to his detriment. "[I]t is settled that the rules concerning the duty--or lack thereof--to come to the aid of another are applicable to law enforcement personnel in carrying out routine traffic investigations. Thus, the state highway patrol has the right, but not the duty, to investigate accidents [citations] or to come to the aid of stranded motorists [citation]. Nevertheless, although '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' [citation], when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization. [Citations.]" (Emphasis added.) (Id., at p. 24, 192 Cal.Rptr. 233, 664 P.2d 137.)

Nothing in the complaint even suggests that plaintiffs in any sense relied on the police for medical aid. Plaintiff's injuries were sustained prior to the arrival of the police; they did not cause them. The officers did not undertake any affirmative action which contributed to, increased or changed the risk which otherwise already existed. (Id., at p. 23, 192 Cal.Rptr. 233, 664 P.2d 137.) No express or implied promises were made by the officers indicating they would render aid. Nothing in the complaint suggests that plaintiff or anyone else held the subjective belief that emergency aid would be rendered by the officers. The pleading merely states that plaintiff was injured and in need of emergency care, but did not get it. In no sense can a "special relationship" be inferred from such a bald assertion. (See State of California v. Superior Court (1984) (150 Cal.App.3d 848, 862, 197 Cal.Rptr. 914.)

Nor does it avail plaintiffs that Mr. Rose was in a position of "dependency." Certain courts appear to have found a special relationship where the claimant was unusually dependent upon the police officer for assistance. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 207, 185 Cal.Rptr. 252, 649 P.2d 894; Mann v. State of California (1977) 70 Cal.App.3d 773, 780, 139 Cal.Rptr. 82.) Each of these cases, however, must be interpreted in light of Williams and with a full appreciation of their factual context. In Davidson, for example, plaintiff was stabbed in a public laundromat at a time when, unbeknown to her, the premises were under police surveillance. The court found no duty to act, even though the police failed to warn plaintiff after observing their suspect enter the premises. " 'Absent an indication that the police had induced decedent's reliance on a promise, express or implied, that they would provide her with protection, it must be concluded that no special relationship existed and that appellant has not stated a cause of action.' " (Emphasis added.) (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 206, 185 Cal.Rptr. 252, 649 P.2d 894, quoting with approval from Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5.) Accordingly, allegations of dependency alone are insufficient to state a cause of action.

All of the cases relied upon by plaintiffs are distinguishable either by the element of reliance or by the fact that defendant's actions in some manner increased the risk of harm to plaintiff. ⁵ In Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82, for example, highway patrolmen, coming to the aid of stranded motorists, placed their car with flashing lights behind two other cars stalled on the freeway. After calling for a tow truck, the officers withdrew without warning; they did not wait for the tow truck to line up behind the stalled cars or provide alternative protection using flares. Moments later, one of the stalled cars was hit, causing injury to the persons standing nearby. In reviewing Mann, the Supreme Court noted that "the officers' conduct contributed to, increased, and changed the risk which would have otherwise existed. They stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of...