KNOTT v. STATE

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Court of Appeal, Fourth District, Division 1, California.

John Samuel KNOTT, as Administrator, etc., Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

No. D014677.

Decided: March 15, 1994

Monaghan & Strauss, Michael H. Crosby and Brian D. Monaghan, San Diego, Forrest A. Hainline, III, Washington, DC, for plaintiff and appellant. Daniel E. Lungren, Atty. Gen., Marvin Goldsmith, Sr. Asst. Atty. Gen., Luis R. Vargas, Supervising Deputy Atty. Gen., and Karen M. Walter, Deputy Atty. Gen., for defendants and respondents.

On December 27, 1986, defendant Craig Alan Peyer killed 20–year–old Cara Knott (Cara) while Peyer was on duty as a California Highway Patrol (CHP) officer.   We affirmed Peyer's conviction for first degree premeditated murder.

John Samuel Knott, Cara's father and the administrator of her estate, subsequently brought a wrongful death action against the State of California (the State) and Peyer.   As against the State, Knott alleged negligent supervision and liability based on the respondeat superior doctrine.   During trial the court ruled Peyer was not acting within the scope of his employment when he killed Cara and therefore the State could not be held vicariously liable.   On a special verdict, the jury found against Knott on the negligent supervision cause of action.   The court took judicial notice of Peyer's criminal conviction and instructed the jury Peyer was liable as a matter of law.   The jury awarded Knott $7.5 million in compensatory damages as against Peyer.

Knott appeals, contending the jury's finding the State did not negligently supervise Peyer was unsupported by the evidence and the court erred in finding the State was not liable on the basis of the respondeat superior doctrine.   For the reasons explained below, we reject Knott's arguments with respect to the negligent supervision cause of action.   We find, however, the court erred in ruling as a matter of law the State could not be held vicariously liable for Peyer's acts.   We therefore reverse the judgment.

I.

NEGLIGENT SUPERVISION CAUSE OF ACTIONA.Sufficiency of the Evidence

 In reviewing Knott's contention there was insufficient evidence to support the jury's finding there was no negligence, we examine the facts in the light most favorable to the judgment.  (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.)   All conflicts must be resolved in favor of the State and all legitimate inferences indulged in to uphold the verdict.1  (Ibid.)

1.

 Facts Relevant To Negligence Cause of Action Circumstances of Cara's Death 2

On December 27, 1986, at about 8:30 p.m. Cara drove her Volkswagen southbound on the Interstate 15 freeway (I–15) from her boyfriend's house in Escondido to her parents' house in El Cajon.   Peyer was the CHP officer assigned to patrol the I–15 between Escondido and San Diego.   Peyer ordered Cara to exit the freeway at the Mercy Road exit and drive to the bottom of the offramp, which was very dark and isolated.   Peyer killed Cara shortly thereafter by strangling her and then throwing her off a nearby bridge.   Cara's vehicle was found the next morning at the bottom of the Mercy Road exit offramp.

Peyer's Pattern of Stopping Women at the Mercy Road Offramp

Knott presented evidence at trial showing that during the six months before Cara's murder Peyer stopped over twenty-four women on the freeway at nighttime, required them to drive down the Mercy Road offramp (even if this meant the women had to back up along the freeway against traffic in order to do so), and then engaged them in long conversations (frequently lasting over thirty minutes) about personal matters.   By contrast, when Peyer stopped men, the stops took place on the freeway and lasted less than 10 minutes.

CHP's Knowledge of Peyer's Mercy Road Offramp Traffic Stops

In the month before Cara's murder, two people 3 telephoned the CHP to report Peyer's conduct in making nighttime traffic stops at the bottom of the Mercy Road exit offramp.

On November 26, 1986, Perry Kurtz spoke with CHP operations officer Daniel Mark about an incident which occurred two days earlier.   Kurtz told Mark that while her 23–year–old daughter was driving southbound on I–15, an officer (later identified as Peyer) turned on his red light and directed her to exit the freeway at the Mercy Road offramp.   Kurtz said she objected that the officer took “a young girl” such as her daughter off the freeway into a “dark ․ and ․ very isolated area.”   Kurtz said the officer seemed concerned about a problem with her daughter's headlights because it could cause a problem in the summertime when “trucks lose their ․ [¶] ․ treads.”   Kurtz said, “Now that's strange because here it is November, and he's concerned about summertime.”   Kurtz further explained that the officer asked her daughter to get out of the car to look at her headlights and then told her to turn off her headlights.   Kurtz said, “There again, it made it even darker, having the lights turned out.   This doesn't seem like normal procedure to me.   And what I'm checking with you ․ is to see if this is standard operating procedure.”   When Mark responded by stating that officers had the discretion to require persons to exit the freeway because of the danger from other vehicles, Kurtz said, “It's one thing to be on the shoulder.   It's another thing to go down onto the exit ramp, onto a dark, isolated area.”   Mark ended the conversation by stating that “we'll find out who the officer was on the beat that night.   We'll get back to you.”

Two days later Sergeant John McDonald, one of Peyer's supervisors, called Perry Kurtz.   Kurtz made clear that during Peyer's encounter with her daughter Peyer acted as a “gentleman” and in a professional and courteous manner.   Kurtz told McDonald, however, she was “concerned about” and “didn't like” her daughter being taken down the Mercy Road exit.   Sergeant McDonald responded that Peyer “was right” and did a “good job” and that making traffic stops off the freeway “is standard operating procedure.”   McDonald explained “it's in the interest of safety that the procedure is such as it is.”   When McDonald asked Kurtz if she wanted to file a complaint, she responded:  “No.   I'm complaining, but I don't think it's necessary.”

Shortly thereafter, during an officer debriefing, McDonald commended Peyer for his conduct in ordering Kurtz's daughter to exit the freeway at the Mercy Road offramp because of the potential danger of stopping the vehicle on the freeway.

Two weeks later, Peyer stopped Donna Ziegler while she was driving her Volkswagen on I–15 at about 8:45 p.m.   Peyer ordered Ziegler to drive down the Mercy Road offramp.   Donna's husband, Sigurd Ziegler, was also in the car but was reclined low in the passenger seat.   Peyer wrote Donna Ziegler a ticket for speeding.   Peyer was very abrupt and quickly departed, even before determining the Zieglers had safely left the area.   The next day Sigurd Ziegler spoke with CHP operations officer Robert Smith to complain about the location of Peyer's traffic stop.   Ziegler told Smith he was “concern[ed] ․ with the procedure by which we were pulled down at Mercy Road, which appeared to ․ put whoever he would pull down there ․ in great discomfort and ․ I was outraged by that.”   Smith responded that it was within an officer's discretion to require motorists to exit the freeway to give them tickets.   Smith “tr[ied] to reassure [Ziegler] that basically ․ the officer is in charge, and he wouldn't put himself in a situation where he could get hurt or you, the violator, could possibly get hurt either.”   Smith interpreted Ziegler's call as an inquiry as to the CHP policy on stopping motorists and “got the impression that [Ziegler] didn't want to follow up further.”   Smith therefore did not consider the phone call as a complaint or notify anyone about the call.

CHP Policy Concerning Stopping Motorists Off the Freeway

Several witnesses testified a CHP officer in December 1986 had the discretion to make a nighttime traffic stop of a lone woman at the bottom of the Mercy Road offramp, even though it was very dark and isolated.   The state's expert witness, Thomas Reddin, a former chief-of-police of the Los Angeles Police Department, explained a stop at such location was an “accepted practice” and did “not violate the [CHP] policy.”   Reddin said officers were given the discretion to make stops off the freeway for safety reasons.   CHP officers had been killed or injured by passing motorists while the officer was making a traffic stop on a freeway shoulder.   In addition, when a traffic stop is made on the freeway, an officer's “attention might stray from the violator” because of his concern about the cars on the freeway.   Based on his examination of the area on the freeway near the Mercy Road offramp, Reddin testified this was not a safe area to stop a vehicle.   Reddin further opined that under the circumstances Sergeant McDonald's response to Kurtz was correct and McDonald's conduct in commending Peyer for his conduct with respect to Kurtz's daughter was appropriate.

Peyer's Training and Reputation Before the Killing

Peyer had worked as a CHP officer for 13 years.   Peyer's performance reports were “very good” and reflected “outstanding” activity.   Peyer had a reputation as a very productive, efficient, effective, trustworthy, and professional officer.   Peyer was known as an officer who always responded quickly to radio calls and was considered “a very aggressive hard-working officer․  He covered his beat very thoroughly, assisted other officers frequently.”   Peyer's supervisors received positive feedback from the public about Peyer's work and had selected him for several additional responsibilities, including to act as the officer in charge when a sergeant was unavailable, receive emergency medical technical training, and serve as a public affairs officer.

The Jury's Findings

The special verdict form required the jury to respond to two questions concerning the State's alleged negligence:  (1) “Were any of Officer Peyer's supervisors negligent?” and (2) “Did Officer Peyer's supervisors or any C.H.P. personnel charged with the responsibility for taking calls from the public know, or should they have known, in the exercise of reasonable care, that Officer Peyer presented a danger to unjustifiably cause harm to a member of the public?”   The jury answered “no” to both questions.   Based on these negative responses and pursuant to the instructions on the form, the jury did not respond to questions concerning causation.

2.

 Substantial Evidence Supported The Jury Verdict

 To establish the State was negligent Knott was required to show the CHP knew or should have known Peyer presented a danger to unjustifiably cause harm to a member of the public.  (See Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855, 19 Cal.Rptr.2d 671.)4

 Knott contends the State should have known Peyer presented a danger to motorists based on the Kurtz and Ziegler phone calls.   Viewing the record in the light most favorable to the State, the evidence established that one of Peyer's supervisors (Sergeant McDonald) and two operations officers, received information about Peyer stopping motorists at the bottom of the Mercy Road offramp at night.   Neither Kurtz nor Ziegler suggested that Peyer acted inappropriately toward women or had a propensity to become violent.   The evidence further showed that pursuant to established CHP policy Peyer had the discretion to conduct the stops at the bottom of the Mercy Road offramp because of safety considerations.   The jury was thus entitled to conclude that the telephone calls would not have put a reasonable supervisor on notice that Peyer presented a danger to the public.

Knott alternatively faults the State for failing to require CHP supervisors to spend more time out in the field supervising the traffic officers.   The evidence, however, shows that Peyer's supervisors did spend substantial time conducting on-site supervision, including responding to reports of injuries or major accidents, observing in the field how the patrol officers performed, riding with the patrol officers, and monitoring the dispatch radio.   Equally important, expert witness Reddin opined that a random patrol by a sergeant was not the most effective means of supervising traffic officers.   According to Reddin, Peyer's supervisors had an “extremely remote” possibility during a regular patrol of discovering one of Peyer's inappropriate stops.

Knott further argues the State was negligent as a matter of law for failing to characterize the Kurtz and Ziegler phone calls as complaints and failing to follow appropriate procedures for recording such complaints.   However, the fact CHP personnel may have violated complaint procedures or even been unaware of such procedures, does not in and of itself establish negligence.   As the jury was instructed, to show the CHP was negligent, Knott was required to prove the CHP knew or had reason to know Peyer posed a risk of harm.   Thus, even assuming the phone calls constituted complaints, the relevant issue is whether such complaints would have put a reasonable supervisor on notice that Peyer presented a danger to the public.   While in hindsight it may appear that the phone calls should have alerted someone to Peyer's dangerous tendencies, given Peyer's exemplary record and the rule that an officer had the discretion to require a vehicle to exit at the Mercy Road offramp, a jury could legitimately conclude that such complaints would not have provided the CHP with notice of Peyer's dangerous tendencies.

 Where substantial evidence supports a jury's finding, we have no power to alter the verdict because we may have decided differently.   Unlike the jury, we were not at the trial and did not have the opportunity to observe the demeanor and credibility of the witnesses.   The jury apparently chose to accept the State's evidence that its methods of supervising Peyer were reasonable and there was no basis upon which a reasonable supervisor could have predicted or anticipated Peyer's criminal behavior.   The principle governing our review is not whether there is contrary evidence which would support a different result.   Consequently we are unpersuaded by Knott's emphasis of evidence in his favor or his challenging the weight of the State's evidence.   Based upon our review of the entire record, there is sufficient evidence to support the jury's findings that the State was not negligent in supervising Peyer.

B.

Judicial Estoppel and Collateral Estoppel

Knott alternatively argues we should ignore the evidence presented at trial and conclude Knott prevailed on his negligence claim as a matter of law based on facts stated in this court's opinion affirming Peyer's criminal conviction and based on arguments made by the Attorney General in responding to Peyer's criminal appeal.   For support of this position, Knott relies on the doctrines of collateral estoppel and judicial estoppel.

 A party asserting collateral estoppel has the burden of proving the issue necessarily decided in the prior adjudication is identical with the issue presented in the later action.  (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 607, 25 Cal.Rptr. 559, 375 P.2d 439.)   The doctrine of judicial estoppel likewise precludes a party from asserting inconsistent positions and applies only where the position taken in the first proceeding is so “clearly inconsistent” with the position taken in the subsequent case “that one necessarily excludes the other.”  (See Coleman v. Southern Pacific Co. (1956) 141 Cal.App.2d 121, 128, 296 P.2d 386.)

 The negligence issues—whether the State acted below the standard of care in supervising Peyer and whether the State knew or should have known that Peyer presented a danger to the public—were not considered or necessarily decided in Peyer's criminal case.   Thus, collateral estoppel is inapplicable.   Knott's reliance on the judicial estoppel doctrine is likewise misplaced because the arguments made by the Attorney General during Peyer's criminal trial and appeal arose in a completely different context from here and therefore it would be inequitable to hold the Attorney General bound by such assertions.   Moreover, we question whether it would be good public policy for the State to be concerned that the manner in which it chooses to prosecute its criminal cases could substantially affect whether it will later be found liable in a civil proceeding.   We further note Knott did not assert collateral or judicial estoppel as a basis for excluding evidence or limiting argument during the trial.

We conclude the doctrines of collateral estoppel and judicial estoppel did not preclude litigation of the negligence issues in this case.

C.

Alleged Instructional and Verdict Form Errors

The Knotts contend the court made several instructional errors.

 First, without citing any legal authority, Knott maintains the trial court erred in refusing to instruct the jury on negligence per se as contained in CALJIC No. 3.45.   CALJIC No. 3.45 is derived from Evidence Code section 669, subdivision (a), which provides under certain circumstances a party is presumed to be negligent if he violates a “statute, ordinance, or regulation of a public entity.”   The court correctly refused to give this instruction because there was no evidence at trial that the CHP violated a statute, ordinance or regulation.   Knott asserted only that the CHP was negligent for failing to comply with its internal guidelines.   The failure to comply with such guidelines does not establish negligence per se within the meaning of Evidence Code section 669, subdivision (a).  (See Evid.Code, § 669.1;  McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 6, 269 Cal.Rptr. 196.)

 We also reject Knott's unsupported argument the court erred in refusing to give his requested instruction entitled “Constructive Knowledge.”   Based on other instructions, the jury was told the State was negligent if it knew or should have known that Peyer presented danger to the public.   Moreover, the instruction merely served to highlight the evidence upon which Knott relied to establish the State should have known of Peyer's dangerous tendencies.   A court is not obligated to give repetitive instructions or highlight a party's evidence.  (See Johns v. Ward (1959) 170 Cal.App.2d 780, 789, 339 P.2d 926.)

Knott further contends the court erred in responding to the jury's inquiries concerning the verdict form.5  During deliberations, the jury sent a note to the court asking whether “Officer Robert Smith [ ] should be considered a supervisor for purposes of responding to [Q]uestion # 1 submitted to us.”   Over the State's objections, the court instructed the jury that “Officer Smith's status is a question of fact for determination by the jury ․ for purposes of Question Number One.”   The next day, the jury asked a second question:  “[Can] the term ‘supervisor’ [ ] be replaced with ‘C.H.P. personnel’ in the verdict form?”   The court responded by adding Question No. 3–A to the verdict form which read:  “Was the conduct of any CHP personnel charged with the responsibility of taking calls from the public a legal cause of Cara Knott's death?”   Knott's counsel stated he had “no objection” to the verdict form as modified by the court.

 Knott's counsel's acquiescence in the court's modification of the verdict form constitutes a waiver of Knott's right to complain about the modification.   Further, the jury's inquiries did not pertain to Question No. 2, since that question encompassed the conduct of CHP supervisors and other CHP personnel.   The jury's negative response to Question No. 2 was sufficient to support a finding that the State was not negligent.   Thus, there was no prejudicial error.

II.

LIABILITY BASED ON THE RESPONDEAT SUPERIOR DOCTRINE

After judgment was entered in this case, the California Supreme Court held a public entity could be held liable under the doctrine of respondeat superior for the misconduct of an on-duty police officer who “misus [ed] his official authority, [by] rap[ing] a woman whom he ․ detained.”   (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 207, 285 Cal.Rptr. 99, 814 P.2d 1341.)6  Relying on Mary M., Knott contends (1) the court erred in refusing to permit the respondeat superior issue to be decided by the jury;  and (2) on the record before us the State was vicariously liable as a matter of law.   The State counters that Mary M. is inapplicable here because Peyer committed first degree murder rather than a sexual assault.   It alternatively argues the facts before us establish that it should prevail as a matter of law or at the very least the case should be remanded for a jury trial on the vicarious liability issue.

In resolving these contentions, we consider first whether the court erred in finding as a matter of law the State could not be vicariously liable for Peyer's criminal misconduct.   As explained below, we decide the court erred in making such determination.   We next determine the effect of the court's error.   As set forth more fully below, we conclude it is necessary to remand the case for further proceedings because neither party was given the opportunity to develop a factual record on the issue of respondeat superior.

A.

In examining the State's argument that Mary M. is distinguishable, we briefly review the basis of the Supreme Court's holding.   In Mary M., an on-duty police officer stopped a woman for suspected drunk driving.   After she pleaded with the officer not to take her to jail, the officer ordered her to get in the police car.   He then drove her home and raped her.   Based on these facts, the jury found at the time of the rape the officer was “ ‘acting within the scope of his employment.’ ”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 208, 285 Cal.Rptr. 99, 814 P.2d 1341.)   The City appealed, arguing the officer's rape was so divorced from his work that as a matter of law it was outside the scope of his employment.   The Supreme Court expressly rejected the argument, explaining the question of whether the officer acted within the scope of his employment was one properly left for the jury's determination.  (Id. at p. 214, 285 Cal.Rptr. 99, 814 P.2d 1341.)

 In reaching its conclusion, Mary M. reiterated the familiar principle that the doctrine of respondeat superior applies when “ ‘ “the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.  [Citation.]” ' ”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209, 285 Cal.Rptr. 99, 814 P.2d 1341, quoting Perez v. Von Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968, 227 Cal.Rptr. 106, 719 P.2d 676, citing Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619, 124 Cal.Rptr. 143.)   If the tort bears such relationship to the enterprise, “conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment.  [Citations.]  So may acts that do not benefit the employer [citation] or are willful or malicious in nature [citations].”   (Ibid.)

Mary M. additionally explained the respondeat superior doctrine “ ‘is a rule of policy, a deliberate allocation of a risk’ ” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 208, 285 Cal.Rptr. 99, 814 P.2d 1341, quoting Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959, 88 Cal.Rptr. 188, 471 P.2d 988) and should be imposed when justified by three policy considerations:  (1) preventing recurrence of the tortious conduct;  (2) giving greater assurance of compensation to the victim;  and (3) ensuring that the victim's losses will be equitably borne by the beneficiaries of the enterprise.  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 211, 214–216, 285 Cal.Rptr. 99, 814 P.2d 1341.)   The court specifically found each of these policy objectives supported the imposition of vicarious liability when an on-duty police officer commits a rape by misusing official authority.

Mary M. further made clear that its determination a public entity may be held responsible for a police officer's criminal misconduct was strongly influenced by its view of law enforcement's unique role in society.   Unlike other types of employees, police officers are entrusted with enormous power and control over citizens' lives.7  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 206–207, 218, fn. 11, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Given this power, “it is neither startling nor unexpected that on occasion an officer will misuse [his or her] authority by engaging in assaultive conduct.”  (Id. at p. 217, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Because society entrusts officers to enforce its laws and ensure the safety of its members and permits each police officer to act with the authority of the state, it is appropriate that a public employer be held accountable for the actions of a police officer who abuses his or her power.  (Id. at p. 221, 285 Cal.Rptr. 99, 814 P.2d 1341.)

 Applying the foregoing principles and viewing the facts in the light most favorable to Knott, the policies supporting the imposition of liability for an officer's sexual assault apply with equal force in the situation before us.   As in Mary M., Peyer allegedly committed the criminal offense by misusing his official authority during a traffic stop.   According to the complaint, Peyer detained Cara when he was on duty, in uniform, and armed.   Peyer allegedly accomplished his crime solely by taking advantage of his authority and control as a law enforcement officer.

Moreover, the underlying justifications for the respondeat superior doctrine would be served by imposing vicarious liability.   With respect to the first policy objective, the imposition of liability would have the beneficial effect of encouraging the CHP to adopt measures to prevent similar criminal misconduct.   As in Mary M. there is no evidence such preventative measures would be likely to “impair the effectiveness of law enforcement activities.”   (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 214, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Additionally, with respect to the second policy objective, there are substantial benefits in assuring compensation for victims of police assaults regardless whether the conduct involved a sexual offense or other form of physical violence.

In applying the third policy objective, the appropriateness of spreading the cost of the tortious conduct, Mary M. likewise emphasized not the nature of the assault, but rather the fact that society has granted police officers “extraordinary power and authority” and therefore that the cost resulting from misuse of that power should be borne by the community.  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 216–217, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Here, assuming Knott's allegations are true, Peyer's criminal conduct flowed directly from Peyer's abuse of his authority as a traffic officer and therefore, as in Mary M., it is appropriate that the cost resulting from such misuse should be borne by the public.

Given the applicability of the three policy objectives, we reject the State's argument that respondeat superior should not be imposed because the jury found the CHP had no specific knowledge that Peyer presented a danger to the public.   As Mary M. made clear, “[t]he precise circumstances of the assault need not be anticipated, so long as the risk is one that is reasonably foreseeable.   Sexual assaults by police officers are fortunately uncommon;  nevertheless, the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement, and thus liability for such acts may appropriately be imposed on the employing public entity.”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 217, fn. omitted, 285 Cal.Rptr. 99, 814 P.2d 1341.)

While unjustified assaults, including murder, by law enforcement officers are likewise “fortunately uncommon,” we would be ignoring reality to say such assaults were not also a reasonably foreseeable risk, particularly given the fact that officers are armed and trained to use deadly force.  (See Graham v. Sauk Prairie Police Com'n. (7th Cir.1990) 915 F.2d 1085.)   During trial Peyer's supervisor admitted that he was “certainly” aware that in the past on-duty CHP officers had committed felonies.   The risk of intentional assaultive conduct, including murder, by a police officer is broadly incidental to the enterprise of law enforcement.

The State asserts several additional reasons why Mary M. should not apply here and why imposing respondeat superior liability for a first degree murder of a law enforcement officer is too broad.   It admits, however, these arguments are identical to those asserted by Justice Baxter in his concurring opinion in Mary M. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 224–244, 285 Cal.Rptr. 99, 814 P.2d 1341 (conc. opn. of Baxter, J.).)   The Supreme Court majority expressly rejected the position advanced by Justice Baxter.   Thus, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, we are compelled to reject the State's arguments.

Based on Mary M., we decide the trial court erred in concluding as a matter of law the State could not be held vicariously liable for Peyer's first degree murder.8

B.

In assessing the effect of the trial court's error, we examine the procedural context in which the court ruled on the issue.

1.

Before trial began, the State moved for judgment on the pleadings.   The court denied the motion on the basis Knott adequately pled a negligent supervision cause of action.   With respect to liability on the basis of respondeat superior, the court said it was inclined to rule that Peyer's commission of a first degree premeditated murder precluded the imposition of vicarious liability.   The court said, however, it was not going to “finally rule” on the vicarious liability issue “until I've heard the facts.”

At the conclusion of the evidence and outside the presence of the jury, the court and counsel discussed proposed jury instructions.   At the end of the discussion, Knott's counsel raised the issue of liability based on the respondeat superior doctrine, stating:

“[M]oving to another issue, there's also the issue of our putting before the court, so we have a complete record, the evidence of respondeat superior.   Now I wanted ․ to argue that, but I also think the issue of putting the evidence before the court—it was contemplated at one point that we were going to put the appellate opinion [affirming Peyer's criminal conviction] before the court and deem between us that the facts stated therein are stipulated to for purposes of laying a foundation for that, but I don't believe we've really had the opportunity to lay—I'm seeing some nodding of the head indicating that's not correct, but I don't think that we've had the opportunity to lay before the court the facts that would give rise to respondeat superior.   I know the court made several attempts or statements during the [trial] that you wanted us to have that opportunity, but I think we didn't.   Where we got hung up was that attempt by us to reach a stipulation in the waning moments of the trial, and I think that maybe if we went off the record for a minute, counsel and I could work that out.”  (Italics added.)

The court responded by stating that it would allow counsel time to assert legal arguments as to why respondeat superior should apply and suggested the parties “take a short recess, so you can figure out how to protect your record factually as to any additional facts you want to put before us.”   Shortly thereafter, the court adjourned for the day.

The next morning the court asked Knott's counsel whether he was prepared to argue the respondeat superior issue.   Counsel responded he was so prepared, but suggested the argument be postponed until after closing statements.   The following colloquy then occurred:

“Mr. Monaghan [Knott's counsel]:  You had stated pretty clearly throughout the trial your position on this matter.   And my experience with you is that we're probably not going to get a major change a minute before the argument, so—but we would like to make a record of it, so maybe we could do that after the jury goes out.

“The Court:  All right.

“․

“Mr. Monaghan:  And actually, what will happen, if the court does change [its] mind, it's still within the parameters of the argument because—

“The Court:  Exactly.

“Mr. Monaghan:  —The verdict form is such that we could deal with it quite easily.   The same would be true with our offer of proof, your honor.

“The Court:  All right.   Very well.  [¶] Why don't we call the jury in and defer your argument again․”

After closing arguments, the court instructed the jury that “Insofar as the State is concerned, liability depends on a finding of negligence.”

Outside the presence of the jury, Knott's counsel later presented its position why the State should be held vicariously liable for Peyer's conduct.   During the argument, counsel acknowledged “we were going to present an offer of proof and, frankly, we didn't get to do it today because of the scramble for closing argument, but there would have been testimony ․ [that Cara] was a very safety conscious person ․ a person who would not have gone down to where she was killed if [Peyer] were not a police officer.” 9

The court concluded that even assuming the facts in the light most favorable to Knott and that the murder occurred as a result of Peyer's abuse of his law enforcement authority, it did not believe the State could be held vicariously liable, relying on John R. v. Oakland Unified School Dist., supra, 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948.   The court thus ruled Peyer's premeditated murder fell outside the scope of his employment as a matter of law.

2.

 The question whether an officer who commits criminal misconduct was acting within the scope of his employment is one of fact for the jury to determine.  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 220–222, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Based on the foregoing record, it appears clear that neither party was provided (or took) the opportunity to develop a factual record on the issue of whether Peyer acted within the scope of employment when he murdered Cara.   While it was undisputed at trial that Peyer murdered Cara and it was assumed for purposes of the negligent supervision cause of action that Peyer killed Cara during a traffic stop, there was no evidence proffered at the trial as to the circumstances of the killing.   As underscored above, at the conclusion of the evidence, Knott's counsel admitted he did not have “the opportunity to lay before the court the facts that would give rise to respondeat superior.”   Moreover, while counsel planned to present an offer of proof, he did not “get to it ․ because of the scramble for closing argument.”

 Knott nonetheless argues even if there was an insufficient factual record established at trial, this court's appellate opinion affirming Peyer's criminal conviction establishes the circumstances of Peyer's murder and therefore that Peyer was acting within the scope of his employment when he killed Cara.   Based on statements contained in our opinion, Knott argues it has been conclusively established that Peyer directed Cara to exit the freeway at the Mercy Road offramp, that Cara would not have stopped at this dark and isolated location absent the fact that she was ordered to do so by an on-duty CHP officer, and that during the ensuing traffic stop she was killed by Peyer to eliminate the possibility his pattern of aberrant behavior would be revealed to the CHP.

To establish the State is collaterally estopped from relitigating the events of Cara's murder, Knott must show the alleged circumstances of Karen's death were “necessarily determined” in the criminal case.  (Brake v. Beech Aircraft Corp. (1986) 184 Cal.App.3d 930, 943, 229 Cal.Rptr. 336;  Miller v. Superior Court (1985) 168 Cal.App.3d 376, 381, 214 Cal.Rptr. 125.)   At the criminal trial, the jury's responsibility was to determine whether Peyer was the perpetrator and, if so, whether the killing was premeditated.   The jury did not necessarily have to determine what precisely happened between the time Cara left her boyfriend's house and the time she was killed in order to resolve these questions.   It is possible, for example, that the jury concluded that regardless how Cara arrived at the bottom of the Mercy Road offramp, Peyer was the one who killed her, based on physical evidence linking Peyer to Cara and based on Peyer's conduct after the killing.   Moreover, statements contained in the appellate opinion reflected the facts in the light most favorable to the judgment.   This is not equivalent to a statement of the facts necessarily determined by the jury.   While the evidence may strongly suggest that Peyer ordered Cara to exit the freeway and that the killing occurred during the ensuing traffic stop, the State should be given the opportunity to present evidence or argue reasonable inferences to the contrary.

We therefore remand the case for a retrial on the issue of the State's liability for Peyer's conduct based on the respondeat superior doctrine.   Whether the question can be resolved by the court or requires a determination by a finder of fact depends on the evidence and arguments presented by the parties and therefore is not before us at this time.   We note that Mary M. made clear that the question whether a wrongdoing police officer acted within the scope of his employment is generally a factual question for the jury's determination.  (See Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 220–221, 285 Cal.Rptr. 99, 814 P.2d 1341.)  Mary M. qualified this general rule, however, by recognizing that the issue “becomes a question of law ․ when ‘the facts are undisputed and no conflicting inferences are possible.’  [Citation]” (Id. at p. 213, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Thus, if after the parties are provided the opportunity below to present facts and arguments, there is no dispute as to the material facts and only one reasonable inference is possible, the trial court may resolve the issue as a matter of law.  (See Graham v. Sauk Prairie Police Com'n., supra, 915 F.2d at pp. 1095–1096, [trial court properly granted summary judgment finding police officer was acting within the scope of his employment when he killed unarmed suspect because “the only reasonable inferences that can be drawn from the undisputed facts lead to the conclusion that [the officer] was acting within the scope of employment”].)

III

SCOPE OF RETRIAL

We next turn to consider the issue whether we should order a limited retrial only on the liability question or whether the State is entitled to a retrial on the liability and the damage issues.   The State argues it should be permitted to relitigate the damage issue.   Knott counters that the State is bound by the jury's award of $7.5 million in compensatory damages as against Peyer.

A.

 In a wrongful death action, the survivors are entitled to recover an amount which will compensate them for the losses suffered because of the individual's death.10  (See Vecchione v. Carlin, supra, 111 Cal.App.3d at p. 357, 168 Cal.Rptr. 571.)   While a jury has broad discretion to consider various factors in awarding such damages (Code Civ.Proc., § 377.61), the focus must necessarily be on the loss to the plaintiffs.   The nature or character of the defendant is not a relevant consideration in awarding compensatory damages.

Consistent with these principles, Knott presented witnesses and documentary evidence of Cara's relationship with her parents and the losses suffered by the Knott family as a result of Cara's death.   The State was provided the opportunity to cross-examine these witnesses, proffer opposing evidence witnesses, and challenge the documentary evidence.   The State was further given the opportunity to argue the damages issue during closing statements.   The special verdict form asked the jury to find the amount of damages, without specifying the defendant to which the damages related.11  However, because the jury found the State was not negligent, the jury's damage award was entered only against Peyer.

Based on this record it would appear the State has already had its “day in court” on the damages issue.   On closer examination, however, we conclude it would be unfair to limit a retrial on the liability issue.  (See Baxter v. Phillips (1970) 4 Cal.App.3d 610, 617, 84 Cal.Rptr. 609 [“an appellate court will not grant a new trial as to limited issues when an injustice might result”].)

At trial the State litigated the damages issue solely in the context of defending the negligent supervision cause of action.   Thus, the State's potential liability for damages was severely limited pursuant to Proposition 51.12  (See Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14.)   Proposition 51 provides in a wrongful death action a defendant is liable for noneconomic damages only in direct proportion to its fault.  (Civ.Code, § 1431.2, subd. (a).)  Given Cara's young age and the absence of an employment record, the damages allegedly suffered by the Knotts consisted primarily of noneconomic damages, e.g., the loss of the society and companionship of their daughter.  (See Civ.Code, § 1431.2, subd. (b)(2).) 13  Since Peyer acted intentionally and was clearly the primary wrongdoer, it is reasonable to assume the jury would have found Peyer should bear most if not all of the blame for Cara's death.  (See Weidenfeller v. Star & Garter, supra, 1 Cal.App.4th at p. 8, 2 Cal.Rptr.2d 14 [finding the jury acted appropriately in “apportion[ing] most of the fault to the individual who actually pulled the trigger”].)

 Since Proposition 51 does not apply when liability is based on the respondeat superior doctrine (see Miller v. Stouffer (1992) 9 Cal.App.4th 70, 85, 11 Cal.Rptr.2d 454), the State may have made certain tactical decisions it would not have made had it known it was potentially responsible on the basis of the respondeat superior doctrine.   It is possible, for example, the State made a legitimate choice not to focus on the damage question at the trial because of the minimal amount of damages for which it was potentially responsible.   Moreover, the State could have made a rational tactical decision not to put its energies into defending the case on the damages question because it felt confident it would prevail on the negligence issue.   Under such circumstances, it would be unfair to bind the State to the damages award in the first trial.

 An appellate court has the authority to order a retrial on a limited issue only if such retrial would “meet the requirements of substantial justice” (Wilke v. Crofton (1949) 34 Cal.2d 304, 310, 209 P.2d 790) and would not “amount to a denial of a fair trial.”  (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801, 197 P.2d 713;  Keogh v. Maulding (1942) 52 Cal.App.2d 17, 19, 125 P.2d 858.)   While Knott would be required to repeat his presentation of evidence in support of his claimed damages, he does not assert he would suffer any unfair prejudice resulting from a second trial.   On the other hand, as explained above, the State would be substantially prejudiced if we were to conclude it was bound by the amount of damages awarded against Peyer.   We thus conclude substantial justice requires that we provide the State the opportunity to relitigate the amount of the damages.  (See Clifford v. Ruocco (1952) 39 Cal.2d 327, 329, 246 P.2d 651 [“Where ․ the damages awarded are so grossly inadequate as to indicate a compromise on the issues of liability and damages, the case should be remanded for a retrial of both issues.”];  Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 5229–530, 67 P.2d 398 [holding fairness required that on remand the new trial should cover all the issues “[i]n view of [the] uncertainty and the fact that clearly something other than the evidence on the question of damages must have actuated the jury, or some of them in arriving at [the] verdict.”];   9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 643, pp. 625–626.)

B.

 It is well settled that an employer liable on the basis of the respondeat superior doctrine cannot be held responsible for damages greater than the damages awarded against the individual negligent employee.  (See Ponce v. Tractor Supply Co. (1972) 29 Cal.App.3d 500, 105 Cal.Rptr. 628;  Daniel v. Jones (1934) 140 Cal.App. 145, 147, 35 P.2d 198;  see also Annot. (1942) 141 A.L.R. 1164–1173.)   Thus, the $7.5 million verdict against Peyer “determines the upper limit” for a damage verdict against the State if it is found liable on the basis of respondeat superior.  (Ponce v. Tractor Supply Co., supra, 29 Cal.App.3d at p. 505, 105 Cal.Rptr. 628.)

 We recognize the possibility, however, the verdict against the State could be lower than the verdict against Peyer.   The potential for such inconsistency appears troubling given the nature of the State's derivative liability which arises solely based on Peyer's conduct.   Because an employer's liability is derivative, damage verdicts against a negligent employer and a vicariously liable employer are generally necessarily identical.14

 However, neither party has cited nor has our research disclosed any authority in this state absolutely precluding inconsistent verdicts as against an employee and a vicariously liable employer.15  In fact, the courts have recognized that in certain procedural contexts it is appropriate that an employer have the opportunity to seek a lower amount than the amount awarded against the employee.   For example, an employer liable under the respondeat superior doctrine is generally not bound by issues previously resolved against the employee based on the employee's default.  (See Ponce v. Tractor Supply Co., supra, 29 Cal.App.3d at p. 507, 105 Cal.Rptr. 628;  Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 852, 72 Cal.Rptr. 607;  Naudack v. Canini (1938) 29 Cal.App.2d 687, 85 P.2d 510.)   In such context the employer is entitled to relitigate the damages issue.   Although not explicitly stated, the reasoning underlying these decisions is that it would be unfair to bind an employer when the employer did not have the opportunity to actually litigate the damage question.   This situation is analogous to the circumstances here because, as discussed above, although the State was given the opportunity to litigate the damage issues it was not provided the chance to do so in the context of defending the case on a respondeat superior theory.   The State may not have had the full incentive to litigate the damages issue and the jury could have been influenced by extraneous matters.

Thus, we hold under the particular circumstances of this case it would be unfair to bind the State to the damage verdict against Peyer merely to prevent the possibility of inconsistent verdicts.

DISPOSITION

Judgment reversed and the matter remanded for further proceedings.   Respondent State to bear costs on appeal.

I concur in the court's opinion in all respects.   We are bound by the majority opinion in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341.   I write separately to voice my individual view, which nevertheless is surely shared by many other jurists in California, that Mary M. was wrongly decided and should be reconsidered.   Justice Baxter's concurring opinion in Mary M. outlines in great detail what the law of respondeat superior in terms of public liability should be, and there is no occasion for any present embellishment of it.   The continued existence of the Mary M. precedent imposes on public entities unwarranted exposure to liability, not in keeping with traditional concepts of respondeat superior, and contrary to the evident policy of the Legislature.   I urge the Supreme Court to reconsider the presently confusing batch of opinions on the subject, which would include not only Mary M. but also White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493 and John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948.

FOOTNOTES

1.   An appellant challenging the sufficiency of the evidence must set forth all facts supporting the judgment.  (See Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1424, fn. 4, 22 Cal.Rptr.2d 172.)   Although Knott has failed to comply with this rule, we decline to find he has waived his right to challenge the verdict on sufficiency of evidence grounds.   We will, however, address each of Knott's factual assertions only to the extent that such assertion is supported by the evidence viewed in the light most favorable to the State.  (Ibid.)

2.   The court instructed the jury that Peyer murdered Cara.   Although there was no evidence presented as to the circumstances of her death, during his opening statement Knott's counsel described the version of events set forth in the paragraph below.   The State did not challenge these facts and apparently assumed the truth of these circumstances for purposes of defending the negligent supervision claim.

3.   Knott presented evidence of three phone calls.   However, as to one of the calls, viewing the evidence in the light most favorable to the State, the record established that the CHP never received the call.

4.   We reject the State's contention it owed no duty to Knott because Peyer did not express a threat to injure Cara before he killed her.  Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 and Thompson v. County of Alameda (1980) 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, relied upon by the State, are distinguishable because in those cases the victims were killed by an unrelated third party.   Where, as here, the perpetrator was a CHP officer, the state owed a duty to all foreseeable victims to reasonably supervise its law enforcement officers.  (See John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 451, 256 Cal.Rptr. 766, 769 P.2d 948;  Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th 1848, 19 Cal.Rptr.2d 671.)The State further argues as a public entity it is immune from liability on the basis of negligent supervision.   Because we find there was substantial evidence supporting the jury verdict the State was not negligent, it is unnecessary to consider this issue at this time.  (See Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at pp. 1855–1856, 19 Cal.Rptr.2d 671 [reserving the issue of public entity immunity for negligent supervision until the plaintiff has made the requisite factual showing of a negligent supervision claim].)

5.   The first three questions on the verdict form read:“QUESTION NO. 1:  Were any of Officer Peyer's supervisors negligent?“QUESTION NO. 2:  Did Officer Peyer's supervisors or any CHP personnel charged with the responsibility for taking calls from the public know, or should they have known, in the exercise of reasonable care, that Officer Peyer presented a danger to unjustifiably cause harm to a member of the public?“QUESTION NO. 3:  Was the negligence of any of Officer Peyer's supervisors a legal cause of Cara Knott's death?”

6.   At the time of trial the question whether a public entity could be held liable for the criminal misconduct of an on-duty police officer was unsettled.   The sole California appellate decision addressing the issue held a county could be held vicariously liable for the acts of a police officer who detained the plaintiff in the back of his patrol car and repeatedly threatened to rape and kill her.  (White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493.)   The Supreme Court, however, had declined to hold a school district vicariously liable for a teacher's sexual abuse of a student, even though the abuse occurred solely as a result of the teacher's official position.  (See John R. v. Oakland Unified School Dist., supra, 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948.)  John R. stated, “We need not and do not decide whether White itself was properly decided.”  (Id. at p. 452, 256 Cal.Rptr. 766, 769 P.2d 948.)   As explained below, the trial court here declined to follow White, believing John R. to be controlling, and held a public entity could not, as a matter of law, be vicariously liable for the conduct of a police officer who commits first degree premeditated murder.  (See infra, at p. 526.)

7.   At the outset of its opinion, the court observed:  “Police officers occupy a unique position of trust in our society.   They are responsible for enforcing the law and protecting society from criminal acts.   They are given the authority to detain and to arrest and, when necessary, to use deadly force.   As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a uniform, a badge, and a gun.   Those who challenge an officer's ․ proper exercise of authority or who obstruct [ ] the performance of an officer's duties [are] subject to criminal prosecution․ [¶] When law enforcement officers abuse their authority by committing crimes against members of the community, they violate the public trust.   This may seriously damage the relationship between the community and its sworn protectors, by eroding the community's confidence in the integrity of its police force.”  (Mary M. v. City of Los Angeles, supra 54 Cal.3d at pp. 206–207, 285 Cal.Rptr. 99, 814 P.2d 1341.)

8.   Our conclusion reflects our rejection of the State's argument that the court correctly ruled the State was not vicariously liable as a matter of law because the Knotts had the burden of proof to establish Peyer was acting within the scope of his employment and “the only living person who knows what happened between defendant Peyer and Cara Knott is defendant Peyer.”   While it is true there may be no direct evidence as to what precisely occurred on the night of Cara's murder, Knott is certainly entitled to prove his case through circumstantial evidence and inferences reasonably flowing from the evidence.

9.   Two days after the jury rendered its verdict, Knott submitted a five-page offer of proof relating to the circumstances surrounding Cara's death.   However, neither party was provided the opportunity to prove or disprove the facts asserted therein.

10.   This includes the value of (1) future pecuniary contributions;  (2) personal service, advice or training, and (3) the deceased's society and companionship.  (Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 357, 168 Cal.Rptr. 571.)

11.   The special verdict form asked:  “What is the monetary amount of damages you award to compensate Sam and Joyce Knott for the loss of their daughter Cara Knott?”   The jury responded, “$7,500,000.”

12.   Proposition 51 is the popular name for the Fair Responsibility Act of 1986 (Civ.Code, §§ 1431–1431.5), an initiative measure approved by California voters in 1986.   Although Proposition 51 is not retroactive, this action accrued on December 27, 1986, several months after the effective date of the initiative, June 4, 1986.  (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1192, 1193, fn. 2, 246 Cal.Rptr. 629, 753 P.2d 585.)

13.   Civil Code section 1431.2, subdivision (b)(2) defines “non-economic damages” to include “subjective, non-monetary losses” such as “loss of society and companionship.”

14.   See Mayhugh v. County of Orange (1983) 141 Cal.App.3d 763, 770, 190 Cal.Rptr. 537 (dis.opn. of McDaniel, J. [observing that generally “the liability of an employee and employer who are sued jointly in a respondeat superior case cannot be segregated, thus the amount of compensatory damages awarded against the employee determines the amount for which the employer is liable”] ).

15.   Courts in other jurisdictions have reached differing conclusions as to whether a party alleged to be liable on the basis of respondeat superior is entitled to retry the damage issue after a verdict has been rendered against the negligent employee.  (Compare McAndrew v. Mularchuk (1962) 38 N.J. 156, 183 A.2d 74 [holding employer bound by amount of verdict against employee] with Konick v. Berke, Moore Company (1969) 355 Mass. 463, 245 N.E.2d 750 [holding that judgment against employee does not bind the employer if held to be vicariously liable except as to establish an upper limit].)

NARES, Associate Justice.

KREMER, P.J., concurs.