Thomas v. City of Richmond

• Citation: 892 P.2d 1185,9 Cal.4th 1154,40 Cal.Rptr.2d 442
• Decision Date: 01 May 1995
• Docket Number: No. S038958,S038958
• Court: United States State Supreme Court (California)
• Parties: , 892 P.2d 1185 Pele THOMAS, Plaintiff and Appellant, v. CITY OF RICHMOND et al., Defendants and Respondents.

Page 442

40 Cal.Rptr.2d 442

9 Cal.4th 1154, 892 P.2d 1185

Pele THOMAS, Plaintiff and Appellant, v. CITY OF RICHMOND et al., Defendants and Respondents.

No. S038958.

Supreme Court of California,

In Bank.

May 1, 1995.

Beatrice Taines and Gail A. Fritschle, Walnut Creek, for plaintiff and appellant.

Gerald A. Clausen, San Francisco, as amicus curiae on behalf of plaintiff and appellant.

Gibbons, Lees & Edrington, Gibson, Lees & Conley, Peter P. Edrington, A Byrne Conley and Peter A. Urhausen, Walnut Creek, for defendants and respondents.

Jayne W. Williams, City Atty. (Oakland), Randolph W. Hall, Asst. City Atty., Todd A. Boley, Mayer, Deputy City Atty., Coble & Palmer, Martin J. Mayer, Paul R. Coble, Long Beach, as amici curiae on behalf of defendants and respondents.

ARABIAN, Justice.

Police officers give chase to a suspect fleeing on foot who ignores the command to halt. He is struck by a squad car in pursuit. Is the public entity that employed the officers immune from liability under Government Code section 845.8 for any ensuing injury? We conclude that section does not provide immunity for liability created by Vehicle Code section 17001, and accordingly affirm the Court of Appeal.

FACTS

On the evening of September 4, 1990, Richmond police officers responded to a report of two men with shotguns or rifles at the Thomas sued the City of Richmond (Richmond) and the officer who drove the vehicle that hit him. The superior court granted summary judgment in favor of both defendants, finding them immune from liability for Thomas's injuries under Government Code section 845.8 and Vehicle Code section 17004. Thomas appealed.

                [892 P.2d 1186] corner of Sixth Street and Pennsylvania Avenue in Richmond.  Plaintiff Pele Thomas and a friend were standing at that same corner.  Upon seeing the police, Thomas and the friend fled despite a police order to "halt, stop."   Thomas did not appear to be carrying either a rifle or a shotgun.  A chase ensued.  For Thomas, the chase ended when one of the pursuing police vehicles hit him in the street, rendering him a quadriplegic
                

The Court of Appeal agreed that the individual officer was immune, but reversed as to Richmond. After reviewing the applicable statutes, it concluded that a city is not immune if its police officers act negligently or intentionally use excessive force while pursuing a fleeing suspect. Because there were triable issues of fact as to these questions, the court held, summary judgment should have been denied.

We granted Richmond's petition to review whether "a city [is] immune from liability pursuant to Government Code section 845.8 for injuries arising from an auto accident between a pursuing police car and the fleeing suspect."

DISCUSSION

A. Background

The tort liability of public entities in California is governed by statute. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809, 205 Cal.Rptr. 842, 685 P.2d 1193.) "Except as otherwise provided by statute: [p](a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov.Code, § 815.) "Government Code section 810 et seq., referred to as the California Tort Claims Act of 1963, generally define the liabilities and immunities of public entities and public employees. While the act is the principal source of such liabilities, other statutory sources exist." (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 653, 161 Cal.Rptr. 140.)

One statutory source outside the California Tort Claims Act of 1963 (hereafter Tort Claims Act) is Vehicle Code section 17001, which provides: "A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment." Thomas relies on this provision as a "statute" imposing liability on a "public entity." (See Gov.Code, § 815.)

The superior court and Court of Appeal both found the individual officer immune from liability under Vehicle Code section 17004, which provides: "A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call." Thomas does not dispute this conclusion, and it is not now before us. We decide only whether the public entity, Richmond, is also immune.

A public entity, as the employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable. (Gov.Code, § 815.2, subd. (a); Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-210, 285 Cal.Rptr. 99, 814 P.2d 1341.) This case presents the reverse question, whether the public entity can be liable even though the individual employee is immune. In general, the answer is no. "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Gov.Code, § 815.2, subd. (b), italics added.) There are, however, statutory exceptions.

In Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 148 Cal.Rptr. 361, 582

                [892 P.2d 1187] P.2d 952, two police officers, in separate vehicles, were pursuing a suspected felon at high speed.  One of the police vehicles hit a third party's pickup truck.  An occupant of the truck sued.  We held that the officers were immune from liability under Vehicle Code section 17004.  (21 Cal.3d at p. 883, 148 Cal.Rptr. 361, 582 P.2d 952.)   However, we rejected the claim that Government Code section 815.2, subdivision (b), similarly immunized the county.  We found that public entity liability was "otherwise provided by statute," namely Vehicle Code section 17001.  (Brummett v. County of Sacramento, supra, 21 Cal.3d at pp. 883-885, 148 Cal.Rptr. 361, 582 P.2d 952.)
                

Because of our holding in Brummett v. County of Sacramento, supra, 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952, Richmond does not rely on Government Code section 815.2 as providing immunity. Rather, it relies on the different immunity contained in Government Code section 845.8 (hereafter sometimes section 845.8), which was not before us in Brummett. As relevant here, section 845.8 provides: "Neither a public entity nor a public employee is liable for: [p] ... [p](b) Any injury caused by: [p] ... [p](2) An escaping or escaped arrested person; or [p](3) A person resisting arrest." ¹

Although section 845.8 expressly refers only to an "escaping or escaped arrested person" and a "person resisting arrest " (italics added), we have held that it also applies to a person, like Thomas, who is merely being detained. (Kisbey v. State of California (1984) 36 Cal.3d 415, 418-419, 204 Cal.Rptr. 428, 682 P.2d 1093.) Thomas does not challenge this holding or argue that it does not apply to an attempted detention. But he makes two arguments why that statute does not apply to this case: (1) the immunity it grants, like the immunity of Government Code section 815.2, subdivision (b), is subject to the public entity liability imposed by Vehicle Code section 17001; and (2) his injuries were not "caused by" him within the meaning of section 845.8, subdivision (b). We agree with the first argument and, therefore, find it unnecessary to consider the second.

B. Vehicle Code section 17001 and Government Code section 845.8

Vehicle Code section 17001 is not a general liability statute, but one that specifically imposes liability upon a "public entity." (See Gov.Code, § 815.) Government Code section 845.8 and Vehicle Code section 17001 do not expressly state how each affects the other.

Three Court of Appeal decisions have concluded that the liability of Vehicle Code section 17001 prevails over the immunity of Government Code section 845.8. In the first, Duarte v. City of San Jose, supra, 100 Cal.App.3d 648, 161 Cal.Rptr. 140, a police officer arrested a driver who appeared intoxicated, and placed him in the back of a police vehicle. The officer initially handcuffed the driver, but removed the handcuffs when the driver complained they were painful. When the officer got out of the police vehicle to help move the driver's car, the driver got into the driver's seat of the police vehicle and sped away. At least two other police cars gave chase and the intoxicated driver hit and seriously injured the plaintiff in the plaintiff's front yard. The Court of Appeal found that despite section 845.8, the City of San Jose could be held liable under Vehicle Code section 17001 for the negligence of its officers. (100 Cal.App.3d at pp. 656-657, 161 Cal.Rptr. 140.) Such negligence, the court held, could be predicated on either "the officers' conduct of the chase" or the failure to adequately restrain the driver in the first place. (Id. at p. 657, 161 Cal.Rptr. 140.)

In both the second and third cases, the police chased a driver who hit an innocent third party plaintiff. These decisions held The rationale of Duarte v. City of San Jose, supra, 100 Cal.App.3d 648, 161 Cal.Rptr. 140, was summarized in City of San Jose v. Superior Court, supra, 166 Cal.App.3d at page 699, 212 Cal.Rptr. 661: "We ... acknowledged the apparent conflict between the seemingly absolute grant of immunity provided to public entities and their employees by section 845.8 of the [Government Code] and the equally unconditional public entity liability imposed by Vehicle Code section 17001. We pointed out that the purpose of Vehicle Code section 17001, which is to hold a public entity financially accountable for its employees' torts committed with a...