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Court of Appeal, Second District, Division 5, California.

Jose L. CLEMENTE, an incompetent, by Eloisa Clemente, his guardian ad litem, Plaintiffs and Respondents, v. STATE of California, Arthur E. Loxsom, Defendants and Appellants.

Civ. 65833.

Decided: August 24, 1983

John K. Van De Kamp, Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Robert H. Francis, Mark A. Weinstein and Laura Lee Gold, Deputy Attys. Gen., for defendants and appellants. Manuel Hidalgo, Los Angeles, for plaintiffs and respondents.

Plaintiff, Jose L. Clemente, an incompetent person (by his guardian ad litem, Eloisa Clemente) brought a negligence action for damages against the State of California and Arthur E. Loxsom, a California Highway Patrolman.   A demurrer to the third amended complaint was sustained without leave to amend and a judgment of dismissal was entered.   Plaintiff appealed and the Court of Appeal reversed the judgment of dismissal, holding that “a special relationship” exists between a California Highway Patrol officer involved and a “completely disabled and apparently incompetent” person who was “completely dependent” on said officer following a traffic accident.  (Clemente v. State of California, 101 Cal.App.3d 374, 380, 161 Cal.Rptr. 799.)

Thereafter, a fourth amended complaint was filed, and defendants filed an answer thereto.   Following a jury trial, a verdict was returned in favor of plaintiff in the amount of $2,150,000.21.

Defendants now appeal contending (1) that Clemente v. State of California, supra, was incorrectly decided and should be “reversed”;  (2) that the trial court erred in giving and in failing to give certain jury instructions;  (3) that in order to recover damages for the negligent loss or destruction of a chose in action, plaintiff must be able to establish its value;  (4) that plaintiff's counsel committed misconduct during closing argument;  (5) that the court improperly instructed the jury with regard to the proper measure of damages;  (6) that evidence of plaintiff's alien status was improperly excluded;  (7) that the trial court committed prejudicial error by ignoring the res judicata effect of a prior Workers' Compensation Appeals Board (WCAB) finding;  and (8) that assuming the trial court's ruling regarding the res judicata effect of the WCAB finding, the court erred in refusing to allow the WCAB opinion and order denying reconsideration and the findings and award into evidence.

On January 27, 1975, Officer Arthur Loxsom was returning to the CHP office to pick up his partner before continuing patrol.   Suddenly, a motorist sounded his horn and pointed to an area where a number of persons were congregated near the crosswalk on 8th Street.   The officer stopped his vehicle west of the crosswalk, and noticed a man either picking up or pushing a motorcycle in the middle of the street.   A van was stopped in the intersection.   He also saw the injured man (plaintiff) “kneeling and crawling” in the crosswalk in an attempt to reach the safety of the sidewalk.   With the assistance of some people, plaintiff got to his feet and walked or limped off the street and sat on a nearby wall.   The officer did not speak to him or ascertain if he needed first aid.   However, he advised his dispatcher to call an ambulance and requested an LAPD unit.   From his observations, he did not believe the victim to be “seriously injured.”   He noticed plaintiff was making the motion of refusing an ambulance and was told that he was in fact refusing an ambulance.   The officer did not get the names of the parties involved or the names of witnesses or make a written report documenting it on Highway Patrol forms because he felt he was not responsible for accidents which occur on city streets within the city limits of Los Angeles.

The driver of the van told the officer that plaintiff had stepped off the curb and walked into the path of the van.   The driver stopped to allow plaintiff to cross the street, and then plaintiff “walked right in front of the path of the motorcycle, because he couldn't see him because my van blindsighted him.”

Thereafter, feeling that the scene had “stabilized” in that the police and ambulance had been notified, Officer Loxsom left the scene to pick up his partner as per his orders prior to coming upon the accident scene.

Sometime after the officer left, but prior to the arrival of the LAPD, the motorcycle driver left the scene of the accident and was never located.   His disappearance has prevented plaintiff from effectively suing him for damages for the serious injuries sustained in the accident.

When the ambulance arrived, plaintiff complained of severe pain in his lower right leg and the attendant noted in his report, “possible fracture, compound.”   The attendant also noted that plaintiff's nose was bleeding.   According to witnesses, when the paramedics put the splint on the plaintiff, he lapsed into a coma.   Just prior thereto, plaintiff was “vague,” “spaced out,” his eyes were “a bit glassed over,” and he “didn't seem to be aware of what was going on around him.”

Plaintiff remained in a coma at the Los Angeles County General Hospital until April 9, 1975.   From April to November 1975, he was at Rancho Los Amigos Hospital undergoing rehabilitation.

Dr. Anselen testified that as a result of the accident, plaintiff sustained extensive brain damage;  that he is now completely paralyzed and incontinent and is totally dependent on others for aid in all activities of daily living;  that he needs a speech therapist, a physical therapist, an internist, a urologist and a neurologist or psychiatrist.

Prior to the accident in May 1974, plaintiff fell off a roof during the course of his employment and suffered a skull fracture;  however, according to expert testimony, his injuries were characterized as “mild to slight.”   There had been no change in plaintiff's behavior, his “social skills were intact,” and at the time of the second accident, he had been “99 percent cured.”   However, because he needed a cranioplasty before returning to work, the Workers' Compensation Appeals Board rated plaintiff 100 percent disabled.   Additionally, plaintiff had been advised that he should wear a protective helmet until the cranioplasty was performed.   Dr. Anselen testified that although plaintiff was not wearing such a helmet at the time of the second accident, his injuries were not intensified;  that the helmet is used mainly to protect “for falling stones or missiles” and does not protect against head injuries caused by falling.

Ten percent of plaintiff's present condition, was ascribed to the first accident on May 24, 1974, and 90 percent to the injuries suffered as a result of being hit by the motorcycle.

Officer Loxsom testified that he was empowered to investigate any accident in the State of California;  that he was trained that the reason for his arriving at a scene and protecting the scene was to preserve evidence which might otherwise be lost;  and that upon arriving upon an accident he should render first aid, if necessary, and that as soon as possible, he is supposed to identify the people involved in the accidents.

According to expert testimony, Officer Loxsom had the power to act upon the scene of plaintiff's accident under the broad authority of the Vehicle Code and that he should have followed certain basic steps upon arrival at the scene of the accident, namely, (1) look to the well-being of the victim;  (2) get the names of witnesses;  (3) secure the safety of the scene;  and (4) locate the drivers involved and locate any witnesses.

According to the California Highway Patrol Accident Investigation Manual (AI Manual) (Exh. No. 8), the guide for the conduct of a highway patrolman, an officer should impartially record the facts so that in any future civil action an unbiased, intelligent and completely factual record will be available.   It is also the function of the officer to preserve evidence.   It states that “[a] logical first step is to locate and question the drivers and witnesses.   This is done by making a quick preliminary check to see that all drivers are present, then attempting to locate witnesses.   The investigator should get the operation license of each driver, determine which vehicle each was driving, and then look for persons who might have seen the accident.”   While the manual makes a distinction between “attending” and “investigating” an accident, attending at the very least requires that the identification of the drivers and their license numbers be obtained.

Appellant now argues that “Clemente v. State of California was incorrectly decided” and that this court should reverse the decision.   In Clemente, the court held that the complaint properly alleged a special relationship and a duty arising therefrom between the patrol officer and plaintiff because “․ the completely disabled and apparently incompetent plaintiff was ․ completely dependent on Officer Loxsom following the traffic accident.”   (101 Cal.App.3d at p. 379, 161 Cal.Rptr. 799.)

Recently, our Supreme Court in Williams v. State of California, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, specifically disapproved the holding in Clemente 1 and concluded that “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 [citations omitted].”  (34 Cal.3d at p. 24, 192 Cal.Rptr. 233, 664 P.2d 137.)   The court could not agree with Clemente's analysis of special relationship as requiring simply “dependence” by the plaintiff on the officer, and it noted that in Clemente it was not alleged that the officer's investigation caused plaintiff not to undertake one of his own, i.e. that plaintiff did not detrimentally rely on the officer.   Clearly, under Williams the allegations in Clemente were insufficient to create a duty on the part of the police officer.  (Id., at p. 26, 192 Cal.Rptr. 233, 664 P.2d 137.)

The court stated that only when a police officer voluntarily assumes a duty to protect, thereby inducing reliance by a specific prospective plaintiff, a special relationship may arise and the officer is then held to the same standard of care as a private person.  (See Mann v. State of California, 70 Cal.App.3d 773, 778–780, 139 Cal.Rptr. 82.)

In discussing the four factors necessary to establish a duty of care the court stated:  “The officers did not create the peril in which plaintiff found herself;  they took no affirmative action which contributed to, increased or changed the risk which would have otherwise existed;  there is no indication that they voluntarily assumed any responsibility to protect plaintiff's prospects for recovery by civil litigation;  and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance of the plaintiff on the officer's conduct, statements made by them which induced a false sense of security and thereby worsened her position.”   (34 Cal.3d at pp. 27–28, 192 Cal.Rptr. 233, 664 P.2d 137.)

In the present case, even after a full trial on the merits, no more than mere “dependence” was established.   Officer Loxsom's conduct had no impact on Clemente.   The damage was complete prior to the arrival of the officer on the scene, and plaintiff failed to produce any proof of conduct or statements by the officer upon which Clemente relied to his detriment.

In Williams, the court reversed the judgment of dismissal and allowed plaintiff to file an amended complaint, stating, “In her first and only pleading the facts of her encounter with the officer are alleged in the most general, partly conclusory terms.   Presumably they can be fleshed out and—knowing nothing more about the case—it would be presumptuous for us to assume that plaintiff can never state a cause of action.”  (34 Cal.3d at p. 28, 192 Cal.Rptr. 233, 664 P.2d 137.)

In contrast, plaintiff in the present case has filed four amended complaints, had a jury trial on the merits, and has still been unable to establish any of the required elements necessary to establish a duty of care owed by defendant State.   Clearly, further action would be futile.

The judgment is reversed and the trial court is directed to enter judgment for defendants State of California and Arthur E. Loxsom in conformance with this opinion.


1.   In footnote 9, on page 28, 192 Cal.Rptr. 233, 664 P.2d 137 of Williams the court states, “To the extent that Clemente v. State of California, supra, 101 Cal.App.3d 374, 161 Cal.Rptr. 799, is inconsistent with our views, it is disapproved.”

HASTINGS, Associate Justice.

STEPHENS, Acting P.J., and ASHBY, J., concur.

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