BICKEL v. CITY OF DOWNEY

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Court of Appeal, Second District, Division 3, California.

William H. BICKEL, Plaintiff and Appellant, v. CITY OF DOWNEY, Defendant and Respondent.

B018987.

Decided: July 08, 1987

Rigg, Dean & Mower and Howard Franco, Jr., Santa Ana, for plaintiff and appellant. Burke, Williams & Sorensen, Thomas J. Feeley, S. Paul Bruguera and Carl K. Newton, City Atty., Los Angeles, for defendant and respondent.

Plaintiff and appellant William H. Bickel appeals from the summary judgment entered in favor of defendant and respondent City of Downey (“City”) in an action for damages sustained by plaintiff when his vehicle was struck by a vehicle that was being pursued by a City police unit.

PROCEDURAL HISTORY

Plaintiff sued the City and three of its police officers, alleging that on March 19, 1981, he was operating his Toyota pick-up truck eastbound on Imperial Highway at or near its intersection with Old River School Road in Downey, when his vehicle was struck by a Pontiac Grand Prix operated by Luis Arias, who was then being pursued by the officers traveling at high rates of speed in their police vehicles.   Plaintiff alleged that the officers “negligently, recklessly and carelessly pursued, forced and caused the said 1976 Grand Prix vehicle to proceed into the above described area proximately causing said 1976 Grand Prix vehicle to strike plaintiff's vehicle, and did thereby proximately cause the injuries and damages herein alleged.”

The individual police officers were voluntarily dismissed from the action.   (Veh. Code, § 17004.) 1

 The City's first motion for summary judgment, predicated on its claim of immunity pursuant to Government Code section 845.8, subdivision (b)(3), was denied.2  The City's second motion for summary judgment, predicated on its claim that it owed no duty to plaintiff in the circumstances of this case, was granted, and the judgment from which this appeal is taken was entered.

FACTS

While patrolling in his police vehicle at about 9:00 o'clock in the morning, Officer Michael Carney received a broadcast report of an armed robbery in progress.   Subsequent reports described the suspect, later identified as Arias, and his vehicle, as well as the direction in which the vehicle was traveling as Arias fled the robbery scene.   Officer Carney proceeded to the designated area, and positioned his police vehicle facing westbound but blocking the eastbound lane of Pellet.   When Arias, who was traveling eastbound on Pellet Street, reached the officer's vehicle, he swerved sharply to the left, jumped a curb, and skidded out into the intersection of Pellet and Old River School Road.

Almost immediately thereafter, Arias's vehicle struck and disabled a police unit driven by Officer Timothy Morey, who had also responded to the broadcast and was positioned on Old River School Road in an attempt to block the suspect's flight.   After also striking a power pole, Arias traveled southbound on Old River School Road, crossing Firestone at approximately 50 miles per hour, with Officer Carney following at a slightly lesser speed and with his red lights and siren activated.

Arias proceeded toward the intersection of Old River School Road and Stewart & Gray, weaving across all lanes of traffic to pass other cars, and passing through the intersection at approximately 80 miles per hour.   He continued at speeds of 80–95 miles per hour through the next intersection, at Quill, and on to Imperial, where his vehicle ran a red light and struck plaintiff's pickup truck.

Officer Carney slowed down to 60–70 miles per hour each time he reached an intersection, and then increased his speed to catch up with the suspect.   He was five to six car lengths behind Arias's car when the accident occurred.   On impact, plaintiff was thrown from his vehicle, and ultimately came to rest about 71 feet from it.   He sustained major head injuries.

Following impact, the Arias's vehicle jumped another curb and traveled across a grassy area on the southwest corner.   Arias jumped from the vehicle while it was still moving, and ran back toward Old River School Road.   Officer Carney followed in his patrol car, and ran into Arias when the latter pointed a gun at him.   Arias was subdued and arrested shortly thereafter.

According to the officers, the pursuit of approximately three miles was accomplished in approximately three minutes on a sunny morning.   It began in an area of apartment buildings;  a school and then a golf course were located south of Stewart & Gray;  a county hospital, a gas station, condominiums and a vacant lot were located at the intersection where the accident occurred.   There was no traffic from Pellet to Firestone;  traffic was medium from Firestone to Stewart & Gray, light to Quill, and nonexistent thereafter, until plaintiff's vehicle appeared in the final intersection.

In accordance with departmental policy, only two vehicles traveled “Code 3”, i.e., with their lights and sirens activated so as to except them from the requirements of the Vehicle Code.   Officer Carney testified that his maximum speed during the pursuit was 90 miles per hour, which he considered a safe speed in the absence of traffic or major intersections.   Departmental policy dictates that pursuing officers exercise care for their own safety and that of others at all times.   Pursuits are evaluated at their inception by a superior officer at the police station who, after being informed of the circumstances, is empowered to terminate the chase.

The present pursuit was found to have been properly conducted at a subsequent departmental critique.   Officer Carney received a letter of commendation for his part in it.

DISCUSSION

Vehicle Code section 17001 provides:  “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.”

In Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952, two police officers were driving separate police vehicles in high speed pursuit of a suspected armed bank robber, when both patrol cars hit a vehicle in an intersection and one careened into the plaintiff's vehicle.   The suspect's vehicle, and those of the officers, were traveling at 80–100 miles per hour during the pursuit.  (Id., at p. 886, 148 Cal.Rptr. 361, 582 P.2d 952.)   Our Supreme Court reversed the summary judgment granted to defendant County of Sacramento because the trial court failed to consider whether the officers were negligent so as to create liability on the part of the county.   The court stated:  “Although it is clear on the record before us that the deputies were lawfully engaged in ‘․ the immediate pursuit of a suspected [law] violator, ․’ plaintiffs claim correctly that the law does not permit the police to drive with impunity from the moment they activate their sirens and flashing lights.  [Citation.]  Section 21055 of the Vehicle Code sets out a minimum standard of due care when it states that the drivers of authorized emergency vehicles are exempt if ‘․ the vehicle sounds a siren ․ and ․ displays a lighted red lamp ․ as a warning to other drivers․'  Vehicle Code section 21056, however, provides that ‘Section 21055 does not relieve the driver of a vehicle from the duty to drive with due regard for the safety of all persons using the highway․’  Accordingly section 17004 relieves [the officers] of liability since they were in immediate pursuit with the sirens and flashers on so as to satisfy section 21055.   Yet for the County to avoid liability, [the officers] must have acted with due care as required by section 21056.   The cases defining this standard state that an exempt driver must observe that degree of care imposed by common law to immunize his public entity employer from liability under Vehicle Code section 17001.   In Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 47 [22 Cal.Rptr. 866, 372 P.2d 906] ․ it was held that such a driver, operating his vehicle in the line of duty, must nonetheless drive in such a manner as would not impose upon others an unreasonable risk of harm.   The court said ‘The question to be asked is what would a reasonable, prudent emergency driver do under all of the circumstances, including that of emergency.’  (Id., at p. 51 [22 Cal.Rptr. 866, 372 P.2d 906].)”  (Brummett v. County of Sacramento, supra, 21 Cal.3d at pp. 885–886, 148 Cal.Rptr. 361, 582 P.2d 952;  fn. omitted.)

“Due care as an element of negligence presents a question of fact for the jury.  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 492, p. 2755.)   If the circumstances permit a reasonable doubt whether defendants' conduct violated the boundaries of due care, the doubt must be resolved as an issue of fact by the jury rather than of law by the court.”  (Id., at p. 887, 148 Cal.Rptr. 361, 582 P.2d 952.)

The Brummett court found, in light of the evidence in that case concerning the speed of the officers' cars, traffic at the time of the accident, one officer's failure to observe the color of the light at the intersection, and instructions given the officers on when to discontinue pursuit, “there existed sufficient evidence of the officers' negligence to require that a jury weigh the facts [citations], and any doubts as to the propriety of granting a summary judgment should have been resolved in favor of the party opposing the motion.   [Citations.]  (Brummett v. County of Sacramento, supra, 21 Cal.3d at p. 887, 148 Cal.Rptr. 361, 582 P.2d 952.)

The question whether this duty extends to persons such as the plaintiff, who was struck by the fleeing suspect, rather than the officers, was answered in the affirmative in Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 161 Cal.Rptr. 140, and City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395, 182 Cal.Rptr. 443.   In Duarte, officers arrested a suspected drunk driver and left him, unhandcuffed, in the rear of a police vehicle, with its engine running, while they moved the suspect's car.   The suspect got out of the back seat of the police vehicle, walked around to the driver's seat, got in and sped off, pursued by other police vehicles at speeds of up to 65 miles per hour.   The suspect eventually struck and injured Duarte.

The Duarte court stated:  “A duty to protect third persons from unreasonable risk of injury may include a duty to protect against the misconduct of another individual.  ‘ “If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.”  [Citations.]’  [Citation.]”  (Duarte v. City of San Jose, supra, 100 Cal.App.3d at p. 658, 161 Cal.Rptr. 140.)   The court concluded “that a police officer's duty to operate his police vehicle with due care encompasses a duty to third persons such as plaintiff not to leave that vehicle unattended, its motor running, under circumstances which invite theft and flight.”  (Id., at p. 659, 161 Cal.Rptr. 140)

In City of Sacramento v. Superior Court, supra, 131 Cal.App.3d 395, 182 Cal.Rptr. 443, officers pursued a driver they observed as he failed to stop at a red light, and who ultimately collided with the plaintiff.   The court denied the City's petition for a writ of mandate directing the trial court to vacate its decision denying the City's motion for summary judgment because there existed a factual question whether the pursuing officers activated their red lights and siren, and if so at what point.  (Id., at p. 402, 182 Cal.Rptr. 443.)   In the course of that opinion, the court observed that it is settled that a public entity may not be held liable due to its police officers' decision to engage in a chase.  (Bratt v. City and County of San Francisco (1975) 50 Cal.App.3d 550, 123 Cal.Rptr. 774;  Reenders v. City of Ontario (1977) 68 Cal.App.3d 1045, 137 Cal.Rptr. 736.)   The court recognized, however, that the driver of an emergency vehicle does have a duty to exercise due care for the safety of others.  (Brummett v. County of Sacramento, supra, 21 Cal.3d at pp. 886–887, 148 Cal.Rptr. 361, 582 P.2d 952.)

Turning to the question whether that duty includes the duty to sound a siren or flash a red light to warn others of an approaching vehicle pursuit, the court stated:  “The concept of duty is closely related to that of proximate cause.   Indeed, Prosser says that every question arising in connection with proximate cause may be phrased as:  ‘․ was the defendant under a duty to protect the plaintiff against the event which did in fact occur?’  [Citation.]  In cases such as this, where the immediate cause of the injury is the misconduct of a third person, the answer to this question must depend upon whether the hazard that the third person will cause injury to another is created by the conduct of the defendant.  [Citation.]  Where the police officers engage in a vehicle pursuit and their pursuit causes the suspect to engage in a course of conduct creating a danger to other users of the highway, a jury could well conclude that the officers are negligent in failing to flash their red lights or sound their siren in order to alert other innocent parties to the approaching danger created by their pursuit.   This is so because the officers are under a duty to exercise due care during a chase for the safety of innocent persons that may be injured.”  (City of Sacramento v. Superior Court, supra, 131 Cal.App.3d at p. 405, 182 Cal.Rptr. 443;  see also Stark v. City of Los Angeles, supra, 168 Cal.App.3d 276, 282–284, 214 Cal.Rptr. 216.)

In City of Sacramento, supra, the court found that the record “presented a strong case for a finding that the officers were not negligent,” in that, under one view of the evidence, it did not appear that the officers created the dangerous situation by pursuing the suspect.   However, in light of the suspect's deposition testimony that he decided to run the final red light because he saw the officers pursuing him, the court concluded that the plaintiff had pointed to some evidence supporting his claim, and that the motion for summary judgment was therefore properly denied.

In the present case, there was no conflicting testimony of either the suspect, who died prior to the bringing of the motion for summary judgment, or of the plaintiff or any bystander.   Nor is there evidence of any deviation by the officers from departmental policy.   In fact, plaintiff has not specified what he feels the officers should have done differently.   He simply claims that inasmuch as he alleged a negligent pursuit, the question whether the officers exercised due care in the circumstances is one of fact for a jury to decide.   While this is generally true, the cases we have discussed, supra, make it clear that summary judgment may be proper in some cases.   The question is whether the circumstances permit a reasonable doubt whether the officers' conduct violated the boundaries of due care.  (Brummett v. County of Sacramento, supra, 21 Cal.3d at pp. 885–886, 148 Cal.Rptr. 361, 582 P.2d 952.)

 In the present case, we are satisfied beyond a reasonable doubt that the officers exercised due regard for the safety of all persons using the highway in pursuing an armed robber at speeds of 50–90 miles per hour, slowing at intersections, through an area of medium to light traffic at about 9:00 o'clock in the morning on a dry and sunny day, with their emergency lights and sirens activated.   The pursuing officers' vehicles were under control at all times and did not collide with plaintiff's vehicle.  (Cf. City of Sacramento v. Superior Court, supra, 131 Cal.App.3d at p. 405, 182 Cal.Rptr. 443.)   The motion for summary judgment was properly granted.

DECISION

The judgment is affirmed.

I dissent.

The question of the duty owed to the plaintiff in this case cannot be resolved in favor of respondent since that question involves a factual determination which cannot be conclusively decided in the course of a summary judgment motion.   As the court in Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 887, 148 Cal.Rptr. 361, 582 P.2d 952, stated:  “Due care as an element of negligence presents a question of fact for the jury.  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 492, p. 2755.)   If the circumstances permit a reasonable doubt whether defendants' conduct violated the boundaries of due care, the doubt must be resolved as an issue of fact by the jury rather than of law by the court.”

The evidence in the present case establishes that Officer Carney's police vehicle was only five to six car lengths behind Arias's vehicle when the latter entered the intersection of Old River School Road and Imperial at approximately 80 miles per hour and against a red light.   In my view, there exists sufficient evidence of the officer's negligence to require a jury to weigh the facts.   Any doubts as to the propriety of granting a summary judgment should have been resolved in favor of plaintiff.  (See Brummett v. County of Sacramento, supra, 21 Cal.3d at p. 887, 148 Cal.Rptr. 361, 582 P.2d 952.)

Accordingly, I would reverse the judgment entered below.

FOOTNOTES

1.   Vehicle Code section 17004:  “A public employee is not liable for civil damages on account of personal injury to ․ any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, ․”Vehicle Code section 165:  “An authorized emergency vehicle is:  ․ (b) Any publicly owned vehicle operated by the following persons, agencies or organizations:  ․ (2) Any police department․”

2.   Government Code section 845.8, subdivision (b) is a part of the California Tort Claims Act of 1963 (Gov.Code, § 810 et seq.), and provides in part:  “Neither a public entity nor a public employee is liable for:  ․ (b) Any injury caused by:  (1) An escaping or escaped prisoner;  (2) An escaping or escaped arrested person;  or (3) A person resisting arrest.”Both the City and its officers are immune from any liability imposed by the Tort Claims Act.   However, “[w]hile the act is the principal source of such liabilities, other statutory sources do exist.  [Citation.]”  (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 652–653, 161 Cal.Rptr. 140.)   One such other statutory source is Vehicle Code section 17001, infra.Insofar as the City now contends that the decision of our Supreme Court in Kisbey v. State of California (1984) 36 Cal.3d 415, 204 Cal.Rptr. 428, 682 P.2d 1093, disapproved of Duarte, and immunized public entities and employees from liability for all injuries caused by fleeing suspects, we note that the police were not operating a motor vehicle when Kisbey was injured, and concur in the conclusion of the court in City of San Jose v. Superior Court (1985) 166 Cal.App.3d 695, 212 Cal.Rptr. 661, that “notwithstanding the sweep of the Kisbey court's language, its narrow holding does not conflict with either Duarte v. City of San Jose, supra, 100 Cal.App.3d 648 [161 Cal.Rptr. 140] or City of Sacramento v. Superior Court [1982] 131 Cal.App.3d 395 [182 Cal.Rptr. 443].”  (City of San Jose v. Superior Court, supra, 166 Cal.App.3d at pp. 700–701, 212 Cal.Rptr. 661;  Stark v. City of Los Angeles (1985) 168 Cal.App.3d 276, 285–287, 214 Cal.Rptr. 216.)

DANIELSON, Associate Justice.

ARABIAN, J., concurs.