Lines v. California Highway Patrol
Filed
1/23/13 Greyhound Lines v. California
Highway Patrol CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
GREYHOUND LINES, INC.,
Cross-complainant
and Appellant,
v.
DEPARTMENT OF THE CALIFORNIA
HIGHWAY PATROL,
Cross-defendant
and Respondent.
F063590
(Super.
Ct. No. 10CECG03185)
APPEAL from
a judgment of the Superior Court of
County. Donald S. Black, Judge.
LaFollette,
Johnson, DeHaas, Fesler & Ames, Alfred W. Gerisch, Jr., Mark M. Williams
and David J. Ozeran for Cross-complainant and Appellant.
Kamala D.
Harris, Attorney General, Steven M. Gevercer, Assistant Attorney General,
Alberto González, James W. Walter and Robert L. Collins, Deputy Attorneys
General, for Cross-defendant and Respondent.
-ooOoo-
This case
arises out of an early morning collision between a Greyhound bus and a disabled
Sport Utility Vehicle (SUV) on State Route 99 (SR 99). The SUV had been involved in a one vehicle
accident approximately three minutes earlier and had come to rest on its side
blocking at least one lane. The bus
collision resulted in the deaths of three bus passengers and the three
occupants of the SUV.
In the aftermath of this collision,
appellant, Greyhound Lines, Inc. (Greyhound), was sued for damages based on its
alleged negligence. In response, Greyhound cross-complained
against various cross-defendants including respondent, California Highway
Patrol (CHP). Greyhound alleged that CHP
was negligent in that, upon being alerted to the first accident by passing
motorists, the CHP 911 operator failed to enter the code for lane blockage and
thus the CHP response was unnecessarily delayed.
The trial court sustained CHP’s
demurrer without leave to amend and dismissed Greyhound’s cross-complaint as
against CHP. Greyhound argues the trial
court erred because CHP owed a duty of care to the bus passengers based on the
911 operator’s assurances to the 911 callers that CHP was on the way. According to Greyhound, the CHP operator lulled
the callers into a false sense of security and dissuaded them from rendering
further assistance.
The trial court’s ruling was
correct. Law enforcement personnel,
including CHP officers, have no duty to come to the aid of another unless a
special relationship exists between the injured party and the officers. Such a special relationship arises if an
officer’s affirmative act creates the peril, or contributes to, increases, or
changes the risk that otherwise exists.
Here, no special relationship existed between CHP and the injured bus
passengers. Accordingly, the judgment
will be affirmed.
BACKGROUND
Since this appeal follows the
sustaining of a demurrer, we take as true all well pleaded factual allegations
of the cross-complaint. (
190 Cal.App.3d 1070, 1074 (Sullivan).)
In the early morning, the SUV
struck the center divider on SR 99 near the McKinley Avenue off-ramp in
Fresno. This collision left the SUV on
its side blocking either the number 1 or the number 2 lane. The SUV’s headlights and taillights were out
and its dark undercarriage was facing on-coming traffic.
At 2:14 a.m., a truck driver
reported this collision to a CHP 911 operator as a vehicle roll-over accident
that was blocking traffic lanes of SR 99.
A second motorist also called 911 and told the CHP 911 operator that “he
saw in his rear view mirror that ‘a car just turned over north-bound 99’ and
that he did not know if any other motorist struck the overturned vehicle.†The 911 operator responded, “Okay … We’ll go
ahead and put this out.â€
The CHP 911 operator inputted some
of this information into the computer aided dispatch system. However, the operator did not include that
the disabled SUV was blocking traffic lanes despite such lane blockage being
one of the CHP’s highest priorities. Due
to this input error, the call was assigned to a CHP unit that was at the Fresno
jail rather than the unit that was located at Belmont and SR 99, one off-ramp
away from the incident.
At 2:17 a.m., a call to the CHP 911
operator reported that a Greyhound bus had collided with a car and that the
accident vehicles were off the road near the McKinley off-ramp. At approximately 2:20 a.m., the CHP
dispatcher requested that any available CHP unit respond.
This accident spawned complaints
for personal injury and wrongful death
filed by aggrieved bus passengers.
Greyhound and its driver were named as defendants based on alleged
negligence.
Greyhound filed a cross-complaint
against the estate of the driver of the SUV, the owner of the SUV, the
California Department of Transportation (Caltrans), and CHP. As against CHP, Greyhound alleged that the
CHP 911 operators negligently and recklessly failed to include the crucial lane
blockage information in the original accident description. Greyhound further alleged that this omission
was a proximate cause of the bus collision because it resulted in an
unreasonable delay in CHP’s response to the emergency.
The trial court sustained CHP’s
demurrer to the cross-complaint without leave to amend. The court concluded that: (1) the CHP 911 operators did not breach a
mandatory duty; (2) Greyhound failed to allege a special relationship that
created a duty of care; (3) CHP is immune from liability to provide police
protection services under Government Code section 845; and (4) CHP 911
operators have qualified immunity from liability for providing necessary
emergency services under Health and Safety Code section 1799.107.
DISCUSSION
CHP argues
that the judgment dismissing it from the cross-complaint is not appealable
because Caltrans is still a party to this action. According to CHP, both it and Caltrans are
departments within the Business, Transportation and Housing Agency of the State
of California, and as departments within the same agency, are not separate
entities for purposes of a judgment in this matter. Therefore, CHP asserts, this appeal violates
the one final judgment rule. CHP
acknowledges that state agencies may be treated as separate entities (
122 Cal.App.4th 1060, 1076-1080 (Lockyer))
but argues that, because CHP and Caltrans are departments within one agency,
they are the same entity for purposes of this judgment.
However,
the fact that CHP and Caltrans are departments within one agency does not
deprive them of their separate identities.
As noted by the court in Lockyer,
“[e]ach agency or department of the
state is established as a separate entity, under various state laws or
constitutional provisions.†(
1078, italics added.) CHP and Caltrans
are governed by different statutory schemes and have different organizations,
powers and duties.
The Department of the California
Highway Patrol is under the control of a commissioner appointed by the
governor. (Veh. Code, §§ 2100,
2107.) The commissioner has the duty to
assume and discharge all responsibilities and carry out all purposes of this
department. (§ 2108.) These purposes include enforcing laws
regulating the operation of vehicles and the use of the highways, investigating
traffic accidents, protecting state property, and providing physical security
for constitutional officers and legislators.
(§ 2400.) In order to carry
out these duties, the commissioner may make and enforce such rules and
regulations as may be necessary.
(§ 2402.) CHP maintains
possession and control of both its records and its real and personal
property. (§ 2104.)
The purpose of Caltrans is to
“provide adequate, safe, and efficient transportation facilities and services
for the movement of people and goods at reasonable cost.†(Gov. Code, § 14000, subd. (c).) Through Caltrans, the state’s goal is to
encourage and stimulate the development of mass transportation, implement and
maintain a state highway system, assist in the development of an air
transportation system, develop a rail passenger network, and encourage research
and development of transportation technology.
(§ 14000.5.) Caltrans is
under the control of a director, who is appointed by the governor, and has the
power and duty to carry out the purposes of Caltrans. (§§ 14002, 14003, 14005.) Thus, in the ordinary course of their duties,
CHP and Caltrans are distinct and separate government entities. (Cf. Lockyer,
supra, 122 Cal.App.4th at p. 1078.)
Further, the allegations against
these two departments are completely different.
As discussed, above, Greyhound alleges that the CHP operators
negligently failed to include the lane blockage information in the original
dispatch. As against Caltrans, Greyhound
alleges that SR 99 was in a dangerous condition. Although the state is ultimately responsible
for any torts committed by its departments, following this dismissal, there are
no issues left regarding CHP. This
situation is analogous to a case where a person is a party to an action in
multiple capacities. When a judgment
determines the rights of the party in one capacity but not another, that
judgment may be final even though the action is still pending with respect to
the rights of the party in a different capacity. (First
Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468, 474.)
Moreover, the two departments have
conducted themselves as separate parties.
Each party is represented by its own counsel and each filed a separate
responsive pleading to the cross-complaint.
In this matter, CHP and Caltrans
are separate parties. The dismissal of
the cross-complaint against CHP is a final adverse adjudication of Greyhound’s
rights against a distinct party.
Therefore, this order is appealable.
(Kantor v. Housing Authority (1992)
8 Cal.App.4th 424, 429.)
care.
In
analyzing the propriety of the trial court’s ruling, our first inquiry is
whether, under general principles of tort law, CHP owed a duty of care to the
bus passengers. (Williams v. State of California (1983) 34 Cal.3d 18, 22-23 (
law. (Sullivan, supra, 190 Cal.App.3d at p. 1075.) The question of whether CHP is statutorily
immune from liability does not arise unless it is determined that CHP owed a
duty of care to the bus passengers and thus would be liable in the absence of
such immunity. (Williams, supra, 34 Cal.3d at p. 22.)
In the
absence of a special relationship, a person who has not created a peril has no
duty to come to the aid of another. (
40 Cal.3d 202, 212 (Clemente).) However, if a volunteer who, having no
initial duty to do so, undertakes to come to the aid of another, i.e., the
“good Samaritan,†he or she is under a duty to exercise due care in
performance. Such a volunteer is liable
if (1) his or her failure to exercise due care increases the risk of harm, or
(2) the harm is suffered because of the other’s reliance upon the
undertaking. (Williams, supra, 34 Cal.3d at p. 23.)
The rules
concerning the duty, or lack thereof, to come to the aid of another apply to
law enforcement personnel, including CHP.
(Williams, supra, 34 Cal.3d at
p. 24.) Accordingly, recovery for
failure of CHP to respond to requests for assistance, to investigate properly,
or to investigate at all will be denied unless CHP personnel induced reliance
based on a promise, express or implied, that they would provide
protection. (Clemente, supra, 40 Cal.3d at p. 212.)
Under the good Samaritan doctrine,
CHP may have a duty to members of the public to exercise due care when CHP
voluntarily assumes a protective duty toward a certain member of the public and
undertakes action on behalf of that member thereby inducing reliance, when an
express promise to warn of a danger has induced reliance, or when the actions
of CHP place a person in peril or increase the risk of harm. (Clemente,
supra, 40 Cal.3d at p. 213.) In
other words, to create a special relationship and a duty of care, there must be
evidence that CHP “‘made misrepresentations that induced a citizen’s
detrimental reliance [citation], placed a citizen in harm’s way [citations], or
lulled a citizen into a false sense of security and then withdrew essential
safety precautions.’†(
Cal.App.4th 967, 978.)
name="_ftnref1" title="">[1] Nonfeasance that leaves the citizen in
exactly the same position that he or she already occupied cannot support a
finding of duty of care. Affirmative
conduct or misfeasance on the part of CHP that induces reliance or changes the
risk of harm is required. (
Greyhound
argues that a special relationship was created between CHP and the bus
passengers when the CHP operators assured the 911 callers that emergency
assistance was on the way and then failed to properly input the dispatch codes. According to Greyhound, the 911 callers
relied on this promise and were therefore dissuaded from stopping and rendering
assistance on their own. Greyhound
asserts that if CHP had responded in a timely manner to the first accident, the
bus collision could have been prevented.
Greyhound’s
argument fails for several reasons.
First, Greyhound’s theory expands the special relationship exception
whereas California courts have made it plain that the special relationship rule
is not expansive but, rather, is narrow and is reserved for a very limited
class of unusual cases. (
Patrol (2006) 140 Cal.App.4th 895, 905.)
More importantly, CHP did not
either induce the bus passengers to rely on CHP to their detriment or increase
their risk of harm. The nonfeasance of
the CHP 911 operators, i.e., their failure to include the lane blockage
information in the dispatch, left the bus passengers in exactly the same
position they already occupied. Without
detrimental reliance by, or an increase in the risk of harm to, the bus
passengers, there is no special relationship.
Further, Greyhound’s claim that, in
the absence of the CHP operators’ assurances to the 911 callers, those callers
would have stopped and assisted on their own and prevented the bus collision is
replete with speculation and conjecture.
The 911 callers had no duty to come to the aid of the disabled SUV. (Williams,
supra, 34 Cal.3d at p. 23.)
Additionally, only three minutes separated the reports of the two
accidents. Greyhound’s speculative
scenario does not establish a special relationship between CHP and the bus
passengers. (Cf. Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588,
590-591.) If we were to accept
Greyhound’s argument and find a special relationship under these circumstances,
it would serve to make CHP virtually an insurer of safety on the highway
instead of an enforcer of the Vehicle Code.
(Bonds v. State of California ex
rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 314, 320.)
In sum, CHP did not undertake any
action that induced detrimental reliance on the part of the bus passengers,
placed the bus passengers in peril, or increased the bus passengers’ risk of
harm. Accordingly, there was no special relationship
between CHP and the bus passengers and thus CHP did not owe the bus passengers
a duty of care. Since we have determined
that there was no special relationship imposing a duty of care, we need not
reach the immunity issues. (
California (1986) 190 Cal.App.3d 361, 366.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
_____________________
LEVY, Acting P.J.
WE CONCUR:
_____________________
CORNELL, J.
_____________________
DETJEN, J.
name="_ftn1" title="">[1] Appellant’s
“Motion Requesting Judicial Notice†filed November 20, 2012, is granted.
