Opinion
B162174.
10-30-2003
BRANDEN WARD SEIFERT, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.
Sohaila Sagheb for Plaintiff and Appellant. Rockard J. Delgadillo, City Attorney, Katherine J. Hamilton, Assistant City Attorney, Janet G. Bogigian and Lisa S. Berger, Deputy City Attorneys, for Defendants and Respondents.
In this negligence action against the City of Los Angeles and two of its police officers, the trial court sustained the defendants demurrers without leave to amend. We affirm.
There are other defendants, but they are not parties to this appeal.
FACTS
A.
Branden Ward Seifert was injured in an automobile accident. Among others, he sued the City of Los Angeles and two police officers (Alexander Alvarez and Christopher Rodriguez) for damages on a negligence theory and in his second amended complaint alleged the following facts:
There were three "known vehicles" involved in the accident — (1) Seiferts westbound car, (2) an eastbound car leased by Oganes Manvelian and driven by Parsam Manvelian (which Seifert claims caused the accident by crossing a double yellow line and colliding head-on with Seifert), and (3) a car occupied by Steven Radford and Patty Tanabe (which Seifert says "had no involvement in causing the accident").
Before the police arrived, there "was a crowd of young people" at the scene, and all of them "appeared to know . . . Manvelian . . . and they were pushing and arguing among themselves, speaking in Armenian, like . . . Manvelian and his passenger." Manvelian and his passenger "were too injured to call friends to the scene," and the "friends" were called by the driver or passenger of a fourth vehicle which had been "drag racing" with Manvelian just before the accident occurred. Seifert believes the fourth vehicle was a "substantial factor" in causing the collision.
Within minutes after the accident, Officers Alvarez and Rodriguez arrived at the scene of the accident and "noticed that it was chaotic. Officer Alvarez told everybody to clear away from the scene . . . without first making a determination that the persons he was removing from the scene . . . had not been a factor in causing the accident. . . . [The officers] remained on the scene and continued to talk to witnesses in an attempt to fully investigate and report this accident. [¶] . . . Officer Rodriguez knew when he happened upon the accident scene that the extent of property damage and personal injury was conclusive as to greatly excessive speeds.
"Officer Rodriguez could not speak with [Manvelian or his passenger] because they were injured too severely[, but the] officers spoke with the driver and passenger of vehicle three, Steven Radford and Patty Tanabe. Officer Rodriguez also spoke with the driver of [the] fourth vehicle[, which he believed] was involved in the accident and [had been] racing [with Manvelians] vehicle and therefore [was] a significant factor in bringing about the accident. [¶] Officer Rodriguez saw damage to the fourth vehicle which would have been consistent with this fourth vehicle being involved in the accident. . . . [¶] Officer Alvarez also noted the presence of the fourth vehicle and spoke with its occupants. Officer Alvarez believed that this fourth vehicle was somehow associated with or related to [Manvelian].
"Neither Officer Alvarez nor Officer Rodriguez had a duty to come to the aid of [Seifert] or to undertake the investigation and documentation of the accident. However, once the officers undertook the investigation of this accident they became volunteers who, having no initial duty to do so, undertook to come to the aid of another and thereby subjected themselves to the `good Samaritan rule. Once the officers undertook investigation and documentation of the accident they had a duty to exercise due care . . . and are liable to [Seifert] in that they (a) failed to exercise due care and thereby increased the risk of harm to [Seifert], or (b) [Seifert] suffered harm because of his reliance on the undertakings of the officers.
"In addition to the officers there were multiple persons at the scene of the accident . . . . In addition, there were fire personnel at the scene . . . who could have recorded the identity of the fourth vehicle involved in this incident. . . . Any one of these persons, except for police involvement, were in a position to assist [Seifert] by, at a minimum, recording the license plate number of the fourth vehicle. . . . [¶] However, upon their arrival at the scene of the incident the first act that Officer Alvarez engaged in was to clear the accident site [and to] ensure that anybody [who] was not actually injured by the accident moved away . . . . Therefore, the very first act of Officer Alvarez was to reduce the number of volunteers [who] could have acted on behalf of [Seifert] . . . . Having undertaken the responsibility of investigat[ing] and documenting this accident . . ., the officers had a duty to perform the investigation . . . with due care. These officers stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and preventing other assistance from being sought.
"Having [done these things], both officers . . . breached their duty of care to [Seifert] by failing to identify either the fourth vehicle . . . or the driver or passengers of the fourth vehicle. This is despite the fact that both of these officers stated that this was one of the most severe accidents they had ever investigated and that they each believed the injuries to the parties, especially to [Seifert], were extremely severe. [¶] In addition, these officers failed to take a sufficient number of measurements of skid and yaw marks so that it could be determined how fast [Manvelians] vehicle was traveling pre-impact, at impact or post impact. [¶] . . .
". . . Officer Rodriguez spent 20 to 30 minutes with [the] fourth vehicle and its driver and occupants and had reason to believe that this fourth vehicle was racing [Manvelian] and that the race at excessive speeds was a substantial factor in bringing about the accident." Seifert alleges that, as a direct and legal result of the officers negligence, Seifert suffered bodily injury and emotional distress, incurred medical expenses, and suffered a loss of earnings. He also alleges that, as a result of the officers negligence, he "cannot pursue his right to recovery for injury and damage as against the fourth vehicle and its driver even though they are believed to have been a substantial factor in bringing about the accident."
B.
The officers and the City demurred, relying on Williams v. State of California (1983) 34 Cal.3d 18, for the proposition that when an officer stops to aid a motorist, that act "does not, in itself, create a special relationship" which would give rise to "an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties." (Id. at p. 21.) Over Seiferts opposition in which he claimed this case is different from Williams, the trial court sustained the demurrer without leave to amend. Seifert appeals.
DISCUSSION
Seifert contends Williams is irrelevant because he "alleges that the officers were negligent in their failure to arrest, ticket or otherwise sanction, i.e., [in their] law enforcement responsibilities, and not in their investigation of the accident, to collect and preserve evidence," and because the Supreme Court in Williams did not intend to "suspend the duties of police officers, as police officers, simply because those officers happened to be investigating a traffic accident." Leaving to one side the fact that the complaint alleges a breach of a duty to investigate and document witnesses rather than a breach of a duty to arrest or take other penal action, the argument fails.
A.
The plaintiff in Williams sued the State of California, alleging that she was a passenger in an automobile on a bridge crossing a river "when a piece of a heated brake drum from a passing truck was propelled through the windshield and struck her in the face before coming to rest on the rear seat of the automobile. The complaint also allege[d]: `At such time and place, defendants, State of California, Doe One, Doe Two, Doe Three, Doe Four and Doe Five, . . . arrived within minutes of the accident and assumed the responsibility of investigating the accident, and the accident of two other vehicles which were damaged and stopped at the scene to determine causes thereof, and said defendants so negligently and carelessly investigated the accident as to virtually destroy any opportunity on plaintiffs part to obtain compensation for the severe injuries and damages she suffered from any other defendants or any other persons who concurred in causing them. Included amongst said acts of negligence was the failure to investigate the brake drum part to determine it was still hot, failure to identify other witnesses at the scene or even the other motorists damaged by brake drums, and failure to attempt any investigation or pursuit of the owner or operator of the truck whose brake drum broke and caused plaintiffs injuries." (Williams v. State of California, supra, 34 Cal.3d at pp. 21-22.)
In a footnote, the Supreme Court said that, although not alleged, the plaintiff had explained in a memorandum that she was "`seriously injured and lost her opportunity to obtain a remedy when a California Highway Patrol officer negligently failed to discover the identity of the person who injured her." (Williams v. State of California, supra, 34 Cal.3d at p. 22, fn. 1.) The States motion for judgment on the pleadings was granted, and the plaintiff appealed. On the issue of duty, the Supreme Court held:
"As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. [Citations.] Also pertinent to our discussion is the role of the volunteer who, having no initial duty to do so, undertakes to come to the aid of another — the `good Samaritan. He is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the others reliance upon the undertaking. [Citation.]
"Application of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. To an extent, the concepts are muddied by widely held misconceptions concerning the duty owed by police to individual members of the general public. [Fn. omitted.]
"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] or to come to the aid of stranded motorists [citation]. Nevertheless, although `no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally [citation], when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization. [Citations.]
"The breach of duty may be an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal.2d 252 . . ., where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car. The negligence may also constitute an omission or failure to act, as in Morgan v. County of Yuba (1964) 230 Cal.App.2d 938 . . ., where a deputy sheriff promised to warn a decedent if a prisoner, who had made threats on her life, was released. The county was held liable when the sheriff failed to warn.
"Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. [Citations.]
"This does not mean that a promise and reliance thereon are indispensable elements of a special relationship. Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection. A special relationship based on such dependency was found in Mann v. State of California [(1977)] 70 Cal.App.3d 773. Highway patrolmen, coming to the aid of a stranded motorist, placed their car with flashing lights behind two cars stalled on the freeway. After calling the tow truck, the officers withdrew without warning; they did not wait for the tow truck to line up behind the stalled car or provide the alternative protection of flares. Minutes later the stalled car was sideswiped by a passing car and the persons nearby were injured. In Mann, the officers conduct contributed to, increased, and changed the risk which would have otherwise existed. They stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought.
"Although [in amending an immunity statute] the Legislature viewed Mann as dangerously extending the liability of peace officers while engaged in activities not involving law enforcement — i.e., while rendering assistance to stranded motorists not involved in accidents — the case is no more than the application of the duty of care attaching to any volunteered assistance. [Citation.] Indeed, in Davidson v. City of Westminster [(1982) 32 Cal.3d 197, 208], we held that `Mann, properly read, is a simple application of the "good Samaritan" doctrine. To extend the Mann situation — where the officer had undertaken to protect the plaintiff from future physical harm — to the one presented here — failure to investigate the cause and source of harm already incurred — is, however, quite unwarranted . Students of the Bible will recall that while the Samaritan dressed the victims wounds and provided him with food and shelter, he took no steps to ascertain the identity of the thieves who had wounded and stripped the victim and left him half dead. [¶] . . . [¶] . . . [¶] . . . [¶] . . .
"Turning to the case before us, the sum and substance of plaintiffs complaint is that unnamed agents of the state `arrived within minutes of the accident and assumed the responsibility of investigating the accident. [Fn. omitted.] The alleged negligence is nonfeasance — failure to test for the heat of the object which struck her, failure to secure identification of witnesses, and failure to attempt investigation or pursuit of the owner or occupant of the truck whose brake drum had caused her injuries. There are no allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which plaintiff alleges they should have done nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own. [Fn. omitted.]
"Applying the general principles of law represented in the decisions reviewed above, . . . we conclude that plaintiff has not stated a cause of action in that she fails to establish a duty of care owed by defendant state. 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 plaintiffs prospects for recovery by civil litigation; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers conduct, statements made by them which induced a false sense of security and thereby worsened her position." (Williams v. State of California, supra, 34 Cal.3d at pp. 23-28, emphasis added, fn. omitted.)
B.
Seiferts effort to distinguish Williams ignores the fact that a duty arises only where law enforcement officers act to "protect the plaintiff from future physical harm" rather than to "investigate the cause and source of harm already incurred," and in the process cause harm to the plaintiff. (Williams v. State of California, supra, 34 Cal.3d at p. 26.) Indeed, as the concurring and dissenting opinions in Williams illustrate, the majority refused to expand the special relationship concept in a fashion that would impose a duty on law enforcement officers "to marshal information for the purposes of [private] civil litigation." (Id. at p. 28, conc. and dis. opn. of Mosk, J.; and see dis. opn. of Bird, C.J., at pp. 30-35; see also Rose v. County of Plumas (1984) 152 Cal.App.3d 999, 1004-1005 [refusing to impose liability where plaintiffs injuries were sustained prior to the arrival of the police].)
As the City points out, Seiferts claim that third persons failed to act in reliance on an assumption that the police were doing everything that needed to be done is pure speculation. (Firemans Fund Ins. Co. v. Superior Court (1977) 75 Cal.App.3d 627, 633.)
In the case before us, the most that can be said is that Officers Rodriguezs and Alvarezs failure to identify the fourth vehicle or its driver affected Seiferts ability to pursue that driver and the vehicles owner for damages — but there is nothing in Sieferts pleading or in his appellate briefs to suggest that the officers acts or omissions contributed in any way to Sieferts personal injuries or to the damage done to his vehicle. Seiferts public policy arguments — which are all based on the premise that Williams is wrong — should be made, if at all, to the Supreme Court, not to us. We are bound by Williams. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
It adds nothing to say, as Seifert does in his appellate briefs but not in his pleading, that the officers owed him a duty to arrest the driver of the fourth vehicle. The duty owed by the officers is to the public at large, not to a particular individual. (Williams v. State of California, supra, 34 Cal.3d at p. 24, fn. 3, original italics ["A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large"].)
DISPOSITION
The judgment (order of dismissal) is affirmed. Respondents are entitled to their costs of appeal.
We concur: SPENCER, P.J. and MALLANO, J.