MANASARIAN v. PEOPLE (1985)

In this case we hold that the supplying of gasoline by a tow truck operator to an allegedly intoxicated driver who has run out of gasoline on a heavily travelled bridge which has no shoulders or refuge areas cannot, as a matter of law, be the proximate cause of injuries which occur when the driver, a few miles later, negligently strikes another vehicle.

Hasmik Manasarian and her minor daughters Lala, Seta and Ara appeal from a judgment entered after the trial court granted a motion for judgment on the pleadings in favor of the State of California and Donald Machado.   They contend that the trial court erred in granting the motion, but if the motion was correctly granted they should be given leave to amend.   We conclude that the motion was correctly granted without leave to amend and affirm the judgment.

FACTS

The Manasarians' causes of action for wrongful death and negligent infliction of emotional distress arose from an accident on the San Mateo bridge which occurred when a motorist, Clyde Amaral, struck and killed Sarkis Manasarian (plaintiffs' husband and father respectively), who was stopped in a westbound lane changing a tire on his own vehicle.

The Manasarians were driving westbound on the San Mateo bridge (State Highway 92) when their car had a flat tire.   There were no shoulders or refuge areas for westbound traffic on this heavily travelled high speed bridge.   The Manasarians were stopped in one of the two westbound traffic lanes while Sarkis changed the flat tire.

Approximately two to three miles from the Manasarian car, Amaral ran out of gasoline.   He too stopped while heading westbound in a traffic lane.   Donald Machado a tow truck driver employed by Caltrans, a division of the State of California, came to the scene and provided Amaral with gasoline.   Amaral proceeded westbound on the bridge and within minutes struck and killed Sarkis Manasarian (hereafter decedent) in full view of his family.

The plaintiffs' second amended complaint alleges that Machado was negligent in providing gasoline for Amaral, in that Machado knew, or in the exercise of reasonable care should have known, that Amaral was under the influence of alcohol and not in a condition to drive.   They also claim that Machado's conduct in allowing Amaral to continue driving and not reporting him to the highway patrol proximately caused decedent's death and the harm to his family.

The grounds for the motion for judgment on the pleadings were:  (1) the state and its employee owed no duty of care to plaintiffs to protect them from the conduct of other persons, including Amaral;  (2) the negligent driving of Amaral, not the furnishing of gasoline, was the proximate cause of plaintiffs' injuries;  and (3) the state and its employee were immune from liability by virtue of the discretionary immunity in Government Code sections 815.2, subdivision (b), and 820.2.   The trial court granted the motion and the Manasarians appeal from the judgment in favor of defendants.

I.

Like a demurrer, a motion for judgment on the pleadings is generally confined to the face of the pleadings, together with any matter of which the court may take judicial notice.  (Code Civ.Proc., §§ 430.30, subd. (a), 430.70;  4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 162, p. 2817;  3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 854, p. 2456.)

 The Manasarians included with their opposition to defendants' motion a portion of Machado's deposition and part of a tow service manual for drivers used by Caltrans.¹  Neither of these extrinsic materials were authenticated by declarations or affidavits, nor were they matters of which the court may take judicial notice under Evidence Code sections 450 and 452.   Therefore, the trial court could not properly consider the proffered extrinsic evidence, nor may this court on appeal.  (Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 987 fn. 6, 128 Cal.Rptr. 691.) ²  The Manasarians also include references to the narrative factual accounts made by counsel at the hearing.   Since these narratives were not made under oath and were not authenticated in any way, they also are extrinsic evidence which may not be considered on determination or review of a judgment on the pleadings.  (Ibid.)

 Where, as here, there has been no demurrer, the court should not grant a motion for judgment on the pleadings without first giving the party leave to amend the complaint, if the defects in the complaint may be corrected by amendment.  (Mac Isaac v. Pozzo (1945) 26 Cal.2d 809, 815–816, 161 P.2d 449;  4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 169, pp. 2821–2822.)   Additionally, the issue of whether it was an abuse of discretion to sustain a demurrer without leave to amend is open on appeal even though no request to amend was made in the trial court.  (Code Civ.Proc., § 472c.)   Since the reason for the rule, making it an abuse of discretion in some cases to deny leave to amend, is the same on a motion for judgment on the pleadings, the same rule applies.  (Mac Isaac v. Pozzo, supra, 26 Cal.2d at p. 816, 161 P.2d 449.)

 There can be no abuse of discretion in failing to grant leave to amend if the Manasarians cannot, as a matter of law, allege facts which would be sufficient to correct the defects in their complaint, to show:  (1) that negligent conduct by Machado proximately caused the harm to the Manasarians;  and (2) that Machado was not shielded by immunity provided by Government Code sections 820.2 and 815.2, subdivision (b).

II.

The Manasarians contend that the trial court erred in granting defendants' motion for judgment on the pleadings because defendant Machado owed a duty of due care to the Manasarians which he breached by:  providing gasoline to an intoxicated motorist;  failing to contact the California Highway Patrol for assistance;  and failing to tow Amaral off of the bridge.

a. Duty

“As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.   Such a duty may arise, however, if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’  (Citations.)”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894;  Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334;  Williams v. State of California (1983) 34 Cal.3d 18, 22–23, 192 Cal.Rptr. 233, 664 P.2d 137.)   In Williams the Supreme Court confirmed that even in the case of police officers, no special relationship automatically exists between members of the California Highway Patrol and the motoring public generally, or between the patrol and stranded motorists generally.  (Id., at p. 24 fn. 3, 192 Cal.Rptr. 233, 664 P.2d 137.)

The circumstances under which a police officer or other public employee will be held to have a special relationship with the injured party or the tortfeasor were examined in Davidson.   The court concluded that a special relationship will be found where the facts indicate:  (1) There was a voluntary assumption by the public official of a duty toward the injured party (Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9–10, 120 Cal.Rptr. 5 [although no special relationship found there];  and cases cited therein);  (2) that the police had induced the victim's reliance on a promise, express or implied, that they would protect him (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453);  or (3) the victim was dependent upon the police or other public officials for protection because the official either created the peril (Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352) or increased or changed the risk which would otherwise have existed, by giving the injured parties a false sense of security and perhaps preventing them from seeking other assistance.  (Davidson v. City of Westminster, supra, 32 Cal.3d at pp. 206–208, 185 Cal.Rptr. 252, 649 P.2d 894;  see also Williams v. State of California, supra, 34 Cal.3d at pp. 23–25, 192 Cal.Rptr. 233, 664 P.2d 137;  Jackson v. Clements (1983) 146 Cal.App.3d 983, 988, 194 Cal.Rptr. 553;  Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82.)

In the instant case, the Manasarians did not plead in their second amended complaint that a special relationship existed giving rise to a duty of due care.   We must determine whether the Manasarians could plead facts supporting a special relationship if they were given leave to amend.  (See Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 207 Cal.Rptr. 853.)

The Manasarians do not claim that they were induced to rely on any promise by the defendants to protect them and it seems impossible that they could plead facts so alleging.   Instead, they argue that Machado's conduct either created the peril to the decedent or that it increased the risk of harm.   The peril here was the negligent driving of Amaral while intoxicated.   It is not alleged that Machado either gave him the car or the alcohol.   The Manasarians assert that Machado had a duty to prevent Amaral from driving by either refusing to give him gasoline;  calling the highway patrol;  or towing him off of the bridge.

 The Manasarians' claim that Machado's conduct created the peril or increased the risk of harm is predicated on the assumption that alternative conduct by Machado would not have involved any hazards.   This assumption is incorrect.   Tow truck drivers are not peace officers and have no more power to arrest or detain another person than does an ordinary citizen.   Giving Amaral gasoline was the quickest way to clear the bridge.   Both towing Amaral or calling the highway patrol for assistance would have involved leaving traffic obstructed by continuing to block one of the two westbound lanes of traffic for a longer period of time, thus substantially increasing the danger that other drivers would collide with Amaral's stopped car, those stopped behind him, or those in his lane attempting to get into the one remaining westbound lane.

 The Manasarians rely on cases involving a breach of duty of due care by police.   In Green v. City of Livermore (1981) 117 Cal.App.3d 82, 90–91, 172 Cal.Rptr. 461, the court found a breach of duty when officers failed to prevent intoxicated passengers from escaping by driving a vehicle after the police had arrested the driver.   In Mann v. State of California, supra, 70 Cal.App.3d at pages 780–781, 139 Cal.Rptr. 82, a special relationship was found where a highway patrol officer first stopped to aid stalled cars, parking behind them and using his flashing lights to warn oncoming cars, and then withdrew without warning leaving the cars and drivers exposed when they believed the officer was protecting them.   In McCorkle v. City of Los Angeles, supra, 70 Cal.2d at pages 259–262, 74 Cal.Rptr. 389, 449 P.2d 453, the court found that an officer was negligent in failing to set flares or otherwise protect plaintiff who accompanied him into a roadway at night to look for skidmarks from a prior accident.

The facts in the instant case distinguish it from Green, Mann and McCorkle.   In Green the police officers could easily, and without any additional risk of harm, have prevented the intoxicated passengers from escaping by removing the keys from the car.   In Mann the highway patrol officer could have continued to protect the stalled cars, which were not in the traffic lane, by remaining parked behind them with his lights flashing.   In McCorkle the officer could have set warning flares around the intersection before leading the plaintiff into the roadway to look for skidmarks.   Here, unlike Green, Mann and McCorkle, Machado had no simple, hazard-free alternative for avoiding the peril, nor did he have the power of a police officer to enforce his will over Amaral.

A number of cases have held that police officers are not liable for failing to prevent intoxicated persons from driving or otherwise endangering themselves or others, and that no special relationship arises in such cases.  (Jackson v. Clements, supra, 146 Cal.App.3d at p. 989, 194 Cal.Rptr. 553 [police had observed the intoxicated condition of all three minors involved, and had detained and questioned one of them;  court held no special relationship imposing a duty to prevent them from driving];  Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 945, 196 Cal.Rptr. 301 [police briefly detained intoxicated pedestrian who was injured after he was released, court held no special relationship and no duty to take pedestrian to detoxification center or arrest];  Tomlinson v. Pierce (1960) 178 Cal.App.2d 112, 2 Cal.Rptr. 700 [police detained and released intoxicated motorist, court held no duty to arrest or otherwise restrain him from driving];  see also Harris v. Smith (1984) 157 Cal.App.3d 100, 203 Cal.Rptr. 541.)   In Jackson, the court stated, “Plaintiffs cite no authority, nor has any been found, to support their claim that a police officer's observation of a citizen's conduct which might foreseeably create a risk of harm to others, or the officer's temporary detention of the citizen, creates a special relationship which imposes on the officer a duty to control the citizen's subsequent behavior.   The case law is to the contrary.”  (Jackson v. Clements, supra, 146 Cal.App.3d at p. 987, 194 Cal.Rptr. 553.)   It is not reasonable to require that a tow truck driver on a busy, narrow bridge should have a greater duty to control future conduct of possibly intoxicated motorists than does a police officer.

All that is alleged is that Machado gave Amaral gasoline.   A primary danger caused by stalled or stopped cars on the bridge is that they will be hit by other cars or cause other cars to collide with each other.   By giving gasoline to Amaral, Machado expedited the removal of a stalled car in the quickest way possible, thereby removing a hazard.  Section 23272 of the Vehicle Code requires the state towing service to remove cars obstructing traffic on toll bridges or highways, but gives the tow service the discretion to do so by delivering fuel to out-of-gasoline vehicles.³

It is arguable that Amaral was a greater risk while moving than at rest.   However, it strains the limits of reasonable duty to impose upon Machado liability for determining the level of intoxication of motorists he aids in emergency situations, and preventing those possibly intoxicated from driving, when even police officers trained to identify drunk drivers are not, in the absence of a special relationship, required to do so.

Thus, Machado owed the Manasarians no duty, and even if he did, his supplying gasoline to Amaral was not, as a matter of law, the proximate cause of decedent's death and the injuries suffered by the Manasarians.

b. Proximate cause

In Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 58 Cal.Rptr. 792, the court addressed the question of liability of a person who sells gasoline to an intoxicated driver when the driver injures a third party.   The court found that the intoxication of the driver and not the sale of gasoline was the proximate cause as a matter of law.  (Id., at pp. 690–694, 58 Cal.Rptr. 792.)   The court in Fuller proclaimed itself bound by the decision in Fleckner v. Dionne (1949) 94 Cal.App.2d 246, 210 P.2d 530, “as crystallized in California law by the Supreme Court's opinion in Cole v. Rush” (1955) 45 Cal.2d 345, 351, 289 P.2d 450.  (Fuller v. Standard Stations Inc., supra, 250 Cal.App.2d at pp. 692–693, 58 Cal.Rptr. 792.)   The Fuller court explained, “Fleckner v. Dionne denied liability of a tavernkeeper alleged to have sold liquor to a known inebriate who would foreseeably drive his car, thus exposing others to danger.   This case involves one who sells him gasoline.   There is no significant distinction of logic, social policy or law between these sellers.   Each purveys a different commodity, but these commodities play parallel roles in the combination of circumstances culminating in foreseeable injury.   The Supreme Court's approval (in Cole v. Rush) of a rule exonerating the liquor seller as a matter of law impels us to the conclusion that the gasoline seller must also be exonerated as a matter of law.”  (Fuller v. Standard Stations, Inc., supra, 250 Cal.App.3d at pp. 693–694, 58 Cal.Rptr. 792;  fn. omitted.)   The logic of Fuller is still convincing.   If the person who sold Amaral the alcohol which made him intoxicated cannot be held liable for Amaral's conduct, then Machado should not be liable for giving him gasoline in an emergency situation.

The Manasarians contend, however, that because Cole was overruled in Veseley v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, the Fuller case is no longer valid authority.   This argument lacks merit since legislation has specifically abrogated the holding in Veseley, and subsequent Supreme Court cases have returned to applying the law as stated in Cole, Fleckner and Fuller.

In 1978 the Legislature expressly abrogated Veseley and the cases following it which had attempted to impose liability on both tavernkeepers and social hosts who served alcohol to intoxicated persons who later caused injuries.   (Civ.Code, § 1714, subds. (b) and (c);  Bus. & Prof. Code, § 25602, subds. (b) and (c).) ⁴  Both sections required a return to prior judicial interpretation finding the consumption of alcoholic beverages as the proximate cause of injuries inflicted by an intoxicated person.

 The constitutionality of these provisions was upheld in Cory v. Shierloh (1981) 29 Cal.3d 430, 433, 174 Cal.Rptr. 500, 629 P.2d 8.   In Cory the court also confirmed that the 1978 legislation was not to be read as providing specific “substantive grants of immunity but are merely descriptions of the ‘prior judicial interpretation’ on the subject of the liability of the provider of alcoholic beverages.   Although the 1978 amendments are hardly models of draftsmanship, we must conclude that section 25602, subdivision (b), reasonably construed, bars a suit by the intoxicated consumer as well as by third persons injured by him.   Any other construction would produce a singularly anomalous result, permitting a tort recovery against the provider by the intoxicated consumer, while barring recovery against the same provider by an innocent third person who was injured by the same consumer.”  (Id., at p. 437, 174 Cal.Rptr. 500, 629 P.2d 8.)   The Supreme Court in Strang v. Cabrol (1984) 37 Cal.3d 720, 209 Cal.Rptr. 347, 691 P.2d 1013, again recently refused to interpret the legislation as restricting the scope of the immunity to cases involving exactly the same factual patterns as the cases mentioned in the statute and cited Fuller with approval.   The majority opinion in Strang applied the rule expressed in Cole and Fleckner, quoting Fuller and concluding that stare decisis required them to find that providing alcohol (in Strang to a sober underage person) was not the proximate cause of the injury involved.

 Applying the logic of Fuller, Cory and Strang, Machado's conduct cannot be the proximate cause of the Manasarians' harm as a matter of law.

Since the trial court correctly granted judgment on the pleadings on the grounds that Machado owed no duty of care to the Manasarians and Machado's conduct was not, as a matter of law, the proximate cause of decedent's death, we need not address the question of immunity under Government Code sections 820.2 and 815.2, subdivision (b).

The judgment is affirmed.

FOOTNOTES

1.   Contrary to the plaintiffs' assertions, the section of the Caltrans' tow service manual for drivers submitted as extrinsic evidence does not specifically instruct Caltrans' drivers not to give gasoline to intoxicated motorists.   Instead, the section concerns methods for drivers to use for their own safety in handling “unusually belligerent” or irate motorists.   In such cases it advises the driver to remain safely in his vehicle until the California Highway Patrol can arrive to control the motorist.Additionally, in Machado's deposition, he stated that there is no written Caltrans' policy that he knew of detailing how to deal with a drunk driver who is out of gasoline.

2.   The Manasarians' reliance on Stencel Aero is misplaced.   In Stencel Aero the court clearly distinguished between evidence presented outside of the face of the pleadings which was “appropriately authenticated” by sworn declaration, and that which was not.   The court only considered the authenticated materials and excluded the others.   Here, none of the materials were properly authenticated and they consequently must all be excluded.  (Stencel Aero Engineering Corp. v. Superior Court, supra, 56 Cal.App.3d at pp. 987–988 fn. 6, 128 Cal.Rptr. 691.)

3.   Vehicle Code section 23272 states in pertinent part:  “When any vehicle or object on any vehicular crossing, upon which towing service is maintained, is stopped for any reason and is obstructing or may obstruct traffic, such vehicle or object shall be towed by the towing service ․ [¶] Notwithstanding the foregoing provisions, the department may furnish and deliver fuel to vehicles, the supply of which is exhausted, or change tires, and may charge a reasonable sum for the services and materials furnished, or if the department deems it safe and advisable, and the owner or operator of the vehicle or object so requests, it may be towed from the vehicular crossing.”  (Emphasis added.)

4.   Civil Code section 1714 states in part:  “(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager [ (1971) ] (5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151] ), Bernhard v. Harrah's Club [ (1976) ] (16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719] ), and Coulter v. Superior Court [ (1978) ] ( [21] Cal.3d [144, 145 Cal.Rptr. 534, 577 P.2d 669] ) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.”Business and Professions Code section 25602 states in part:  “(b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.(c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151] ), Bernhard v. Harrah's Club (16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719] ) and Coulter v. Superior Court ( [21] Cal.3d [144, 145 Cal.Rptr. 534, 577 P.2d 669] ) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.”

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.