Williams v. State of California

• Citation: 192 Cal.Rptr. 233,664 P.2d 137,34 Cal.3d 18
• Decision Date: 13 June 1983
• Docket Number: S.F. 24343
• Court: United States State Supreme Court (California)
• Parties: , 664 P.2d 137 Della WILLIAMS, Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent

Page 233

192 Cal.Rptr. 233

34 Cal.3d 18, 664 P.2d 137

Della WILLIAMS, Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent.

S.F. 24343.

Supreme Court of California

June 13, 1983.

As Modified June 15, 1983.

Trezza, Ithurburn & Steidlmayer and Eugene J. Davis, Yuba City, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Michael Franchetti, Chief Deputy Atty. Gen., Willard A. Shank, Chief Asst. Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Seward L. Andrews, Jr., Bruce J. Braverman and Stephen J. Egan, Deputy Attys. Gen., for defendant and respondent.

KAUS, Justice.

I

The issue is whether the mere fact that a highway patrolman comes to the aid of an injured or stranded motorist creates an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties. We find that stopping to aid a motorist does not, in itself, create a special relationship which would give rise to such a duty.

According to plaintiff's complaint, she was a passenger in an automobile on a bridge crossing the American River in Sacramento when a piece of a heated brake drum from a passing truck was propelled through the windshield and struck her in the face before coming to rest on the rear seat of the automobile. The complaint also alleges: "At such time and place, defendants, STATE OF CALIFORNIA, DOE ONE, DOE TWO, DOE THREE, DOE FOUR and DOE FIVE, and each of them, arrived within minutes of the accident and assumed the responsibility of investigating the accident, and the accident of two other vehicles which were damaged and stopped at the scene to determine causes thereof, and said defendants so negligently and carelessly investigated the accident as to virtually destroy any opportunity on plaintiff's part to obtain compensation for the severe injuries and damages she suffered from any other defendants or any other persons who concurred in causing them. Included amongst said acts of negligence was the failure to investigate the brake drum part to determine it was still hot, failure to identify other witnesses at the scene or even the other motorists damaged by brake drums, and failure to attempt any investigation or pursuit of the owner or operator of the truck whose brake drum broke and caused plaintiff's injuries." ¹

The state moved for judgment on the pleadings on grounds the police function in investigation of accidents is immune under specific immunity statutes (Gov.Code, §§ 818.2, 821, 845, 846) and under general governmental immunity for discretionary acts (§§ 820.2, 820.25). The trial court granted the motion, finding the state immune under sections 820.2 and 820.25 and refusing to apply what it called the "special relationship exception" to statutory immunity. ²

II

Once again the immunity cart has been placed before the duty horse. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894.) We said in Davidson (pp. 201-202, 185 Cal.Rptr. 252, 649 P.2d 894): "Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. This logical sequence of inquiry was overlooked in dicta in at least three Court of Appeal cases: Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332; McCarthy v. Frost (1973) 33 Cal.App.3d 872, 109 Cal.Rptr. 470. The fallacy was exposed in Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 704, 141 Cal.Rptr. 189, where Justice Reynoso, writing for the Court of Appeal, arrayed the subjects of the inquiry in proper order: 'The parties assume that if we conclude the alleged facts establish as a matter of law the existence of a "special relationship" (a relationship giving rise to the county's duty to act prudently, and appellants' justifiable reliance thereon) we will obviate the need to consider whether respondents are immune from liability under sovereign immunity principles. Implicit in this exception theory is the assumption the "special relationship" creates an affirmative governmental responsibility which when breached gives rise to governmental liability notwithstanding the discretionary (immunized) character of the tortious act.' The Whitcombe court disagreed, correctly explaining that the question of ' "duty" [to which the special relationship concept pertains] is only a threshold issue, beyond which remain the immunity barriers ....' (73 Cal.App.3d at p. 706 .)"

In Davidson we referred to Professor Van Alstyne's summary of the problem in California Government Tort Liability Practice (Cont.Ed.Bar 1980) section 2.65: "Some of the cases represent an unnecessary effort to categorize the acts or omissions in question as immune discretionary functions, when the same result could be reached on the ground that the facts fail to show the existence of any duty owed to plaintiff or any negligence on the part of the police officers. See, e.g., McCarthy v. Frost, supra; Bratt v. San Francisco [ (1975) 50 Cal.App.3d 550, 123 Cal.Rptr. 774]. Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any 'special relationship' between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. See, e.g., Mikialian v. Los Angeles (1978) 79 CA3d 150, 144 CR 794 (no duty of police to place flares for protection of tow truck operator); J.A. Meyers & Co. v. Los Angeles County Probation Dep't (1978) 78 CA3d 309, 144 CR 186 (no duty of probation officers to disclose criminal record of probationer to prospective employer)."

III

Accordingly, we turn first to the question of duty under general principles of tort law. As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. (Rest.2d Torts, § 314; 4 Witkin, Summary of Cal.Law (8th ed.) Torts, § 554, p. 2821.) Also pertinent to our discussion is the role of the volunteer who, having no initial duty to do so, undertakes to come to the aid of another--the "good Samaritan." He is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. (Rest.2d Torts, § 323.)

Application of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. To an extent, the concepts are muddied by widely held misconceptions concerning the duty owed by police to individual members of the general public. ³

In spite of the fact that our tax dollars support police functions, it 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 (Veh.Code, § 2412; ⁴ Winkelman v. City of Sunnyvale (1976) 59 Cal.App.3d 509, 511, 130 Cal.Rptr. 690; McCarthy v. Frost (1973) 33 Cal.App.3d 872, 876, 109 Cal.Rptr. 470) or to come to the aid of stranded motorists (Mann v. State of California (1977) 70 Cal.App.3d 773, 778, 139 Cal.Rptr. 82). 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" (Mann, supra, 70 Cal.App.3d at p. 780, 139 Cal.Rptr. 82), 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. (Hartzler, supra, 46 Cal.App.3d at p. 10, 120 Cal.Rptr. 5; Mann, supra, 70 Cal.App.3d at p. 780, 139 Cal.Rptr. 82.)

The breach of duty may be an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car. The negligence may also constitute an omission or failure to act, as in Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, where a deputy sheriff promised to warn a decedent if a prisoner, who had made threats on her life, was released. The county was held liable when the sheriff failed to warn.

Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. (Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5 [police failed to respond to a plea made 45 minutes before the homicide]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332 [police radio dispatcher delayed 10 minutes after alert before broadcasting burglary in progress]; McCarthy v. Frost, supra, 33 Cal.App.3d 872, 109 Cal.Rptr. 470 [complaint alleged decedent was driving on a state highway at a particular time and place, highway patrol negligently failed to find him, and death was caused by failure to receive timely medical aid; held state and patrolman not liable].)

This does not mean that a promise and reliance thereon are indispensable elements of a special relationship. Such a relationship has also been found when...