Opinion
B163343.
11-19-2003
JOSEPH A. RYAN, Plaintiff and Appellant, v. CITY OF HERMOSA BEACH et al., Defendants and Respondents.
Kirby, Kirby and Kirby and Steven C. Kirby for Plaintiff and Appellant Joseph A. Ryan. Brady, Vorwerck, and Ryder and Robert Ryder, for Defendants and Respondents the City of Hermosa Beach, City of Hermosa Beach Police Department, and City of Hermosa Beach Fire Department. Kevin Sperry, in Propria Persona, Cross-Defendant.
Plaintiff Joseph A. Ryan (Ryan) appeals from the summary judgment granted in favor of the City of Hermosa Beach and the Hermosa Beach Police Department (collectively City) on his claim for personal injuries arising out of a fight in the City. After responding to the scene of the fight and ascertaining that Ryan, who had been hit and fallen to the sidewalk, was refusing medical treatment and did not want to press charges against his assailants, the police did not conduct any further investigation or ensure that Ryan received medical treatment. Ryan later was hospitalized for a brain injury. Ryan contends the police negligently failed to adequately investigate the fight, obtain medical care for him, and obtain the names of potential witnesses. The trial court granted summary judgment for the City on the grounds Ryan had failed to meet his burden to show a "special relationship" sufficient to impose a duty on the police to undertake an investigation or to ensure his safety. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The material facts are essentially undisputed, and are as follows: On Wednesday, May 16, 2001, at approximately 11:00 p.m., Ryan, age 22, and two friends, Josh Taylor (Taylor) and Kevin Sperry (Sperry), arrived at Sharkeez Bar in the Promenade section of Hermosa Beach near Pier Avenue. The three had consumed a beer or two before going to Sharkeez, and after arriving continued to drink. While dancing with a young woman, Sperry was hit in the back of the head with a piece of ice thrown by some other young men at the bar. Sperry, a football player at Washington State University, is 6 feet, 2 inches tall, weighs 215 pounds, and has a shaved head. Sperry walked over to the group of six or seven men, described as "preppies," who had been throwing the ice. Ryan heard one of the "preppies" apologize for the ice throwing, saying, "sorry, my friends drunk." None of the "preppies" had shaved heads. Taylor and Ryan joined Sperry, who believed a fight was about to ensue. However, no punches were thrown and the bars bouncer asked the "preppies" to leave. Ryan, Taylor and Sperry remained at Sharkeez and continued to drink and dance.
Sometime after 1:00 a.m. on May 17, 2001, the three left Sharkeez and walked up Hermosa Avenue. As the three neared Pier Avenue, they happened upon the "preppies" who were the ice-throwers at the bar. A fight ensued. Neither Sperry nor Taylor could see Ryan during the fight. Taylor heard a loud "thump," and turned to see Ryan on the sidewalk. The fight stopped at that point, having lasted about 30 seconds.
Several people at the scene stated that Sperry had hit Ryan. Sperry acknowledged that Ryan was in the vicinity of where he was swinging. Although he later claimed that he did not hit Ryan, he admitted that he could have hit Ryan without realizing it. According to a third-party witness, cab driver Marcus Menegazzi, a man with a shaved head (Sperry was the only one with a shaved head in the group) pushed one of the "preppies" down the street backwards, with his fist balled up, yelling at the "preppy." Ryan was trying to stop Sperry by standing between Sperry and another man. Sperry threw a punch, accidentally hitting Ryan, and Ryan fell on his back on the sidewalk. Menegazzi did not see or hear anyone else in the group throw a punch. Menegazzi told the police that Sperry was the one who hit Ryan.
After the fighting had stopped, Ryan was unconscious for about a minute and was "just staring" and looked "really scared." One of the members of the "preppy" group identified himself as a paramedic and offered to help. Taylor initially refused, but the paramedic leaned over and attempted to get Ryan to regain consciousness. Taylor did not get his name and did not remember it later. At that point, the police arrived.
Menegazzi did not recall seeing the police approach Ryan, although he saw the paramedics attending to him. Menegazzi did hear police officers asking whether anyone at the scene had seen anything. The police officers who spoke to Menegazzi obtained his name and address.
The Hermosa Beach paramedics were attending to Ryan and attempting to get him into an ambulance. Ryan refused; Ryan did not want to go to the hospital because he did not have any insurance. Although the paramedics believed Ryan was coherent and able to make rational decisions, Taylor and Sperry believed he was "clueless." At the scene, according to Taylor, the police asked Ryan if he wanted to press charges and Ryan did not respond. Taylor responded to the officer that Ryan was not interested in pressing charges. According to Taylor, the police did not make any effort to identify any of the "preppies" or to ascertain who hit Ryan. Although the "preppies" were still on the scene, Sperry did not point them out to the police because he "just figured everybody was going to get questioned." He did not hear the police ask if anyone had seen what happened or if anyone else was involved.
The trial court sustained the Citys objections to the deposition testimony of Taylor and Ryan to the extent they opined on Ryans level of consciousness or medical condition. We recite the testimony here in order to address Ryans contentions the court erred in sustaining the objections.
At one other point, Taylor stated that Ryan told the officers he did not want to press charges by responding "no" to their inquiries.
The police concluded that no crime had occurred. Ryan was conscious, speaking with them, and attempting to get up when they arrived. Ryan was able to understand their questions, but did not want to tell them what had occurred. He wanted to go home, and did not want his parents to know about the fight because they would be angry with him.
Ryan has no memory of who hit him, and has no recollection of speaking to police or paramedics that night. Ryan stood up and walked away when he was ready to go.
After the incident, Ryan began to feel ill and was hospitalized for several days, undergoing surgery. Because of his injuries, the hospital contacted the police. On May 17, 2001, at his supervisors direction, Officer Alkadis prepared a crime report from his recollection of the incident and his notes taken at the time which indicated the incident was an "assault with a deadly weapon." Supplemental interviews were conducted.
Ryans complaint filed October 4, 2001, stated four causes of action: (1) personal injuries against the City, the Fire Department, and the Police Department; (2) public nuisance against the City and Sharkeez; and (3) premises liability against Sharkeez. The City cross-complained against Sharkeez and Taylor for contribution and indemnity, and added by "Roe" amendment Sperry. Only the first cause of action remained in the case at the time of the motion; the remaining causes of action and the cross-complaint had been dismissed.
The Fire Department has been dismissed from the action.
Defendants moved for summary judgment on the grounds that the police officers had no duty to investigate the identity of those persons who struck Ryan for purposes of a later civil action. Defendants relied on Government Code sections 815 and 815.2 and Winkelman v. City of Sunnyvale (1976) 59 Cal.App.3d 509 for the proposition that a "special relationship" must exist before law enforcement has a duty to collect evidence or investigate. Defendants further argued that even if such duty existed to obtain the identity of potential witnesses or the identity of persons who allegedly hit plaintiff, Sperrys admission that he hit Ryan rendered the duty moot.
Ryan contended there was a material issue of fact precluding summary judgment as to whether a felony had occurred and whether Sperry had hit him, creating a non-discretionary duty on behalf of police to investigate the crime and arrange medical care for him. He contended a "special relationship" existed between him and the police because "by most accounts" he was unconscious, not coherent and unable to take care of himself. He also contended the police were negligent in investigating the crime after they determined an assault with a deadly weapon had occurred.
In support of his opposition, Ryan submitted the declaration of Frank H. Saunders, a law enforcement consultant and retired police officer. Saunders opined that a special relationship had been formed between Ryan and the police and paramedics because of the seriousness of Ryans injuries, requiring the officers to identify the witnesses and suspects at the scene. Ryan also interposed evidentiary objections to defendants evidence, which were sustained. Defendants objected to statements in the Taylor and Sperry declarations on the subject of Ryans consciousness and medical condition as lacking foundation and because they were prohibited lay opinion testimony; the objections were sustained.
Ryan contends the trial court erred in excluding the opinion evidence of lay witnesses Sperry and Taylor that he was unable to care for himself at the time of the incident. The admission of lay opinion testimony is within the discretion of the court, and we will not reverse absent prejudicial error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Mixon (1982) 129 Cal.App.3d 118, 127.) A lay witness can offer opinion testimony that is based on his or her own perception and is helpful to understanding his or her testimony. (Evid. Code, § 800.) Lay opinion generally is admissible when, "as `a matter of practical necessity . . . the matters . . . observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner." (People v. Williams (1988) 44 Cal.3d 883, 915.) Thus, "`[a] lay witness may testify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording. [Citation.] [Citations.] Where the witness can adequately describe his observations, his opinion or conclusion is inadmissible because it is not helpful to a clear understanding of his testimony. [Citation.]" (People v. Miron (1989) 210 Cal.App.3d 580, 583.) Thus, in the instant case, Taylor and Sperry could not testify to the state of Ryans consciousness, and the court ruled correctly in excluding the evidence. Furthermore, even if the court erred in excluding the evidence, the error was not prejudicial. To the extent Sperry and Taylor could testify to Ryans physical appearance (pale, big-eyed, non-responsive to the officers questions), such evidence does not controvert the fact that he stated to the officers and paramedics that he did not want to press charges or go to the hospital.
The trial court found that no "special relationship" existed between defendants and Ryan because a special relationship arises only where a special promise, either express or implied, is made by an officer upon which the victim detrimentally relies, citing Adams v. City of Fremont (1998) 68 Cal.App.4th 243.
DISCUSSION
Ryan raises multiple contentions, which present a variation on the same theme: there is a disputed issue of material fact pertaining to the existence of a special relationship. Ryan contends that his evidence at trial will establish that once the police took control of the scene, they had a duty to conduct an investigation and ensure he received medical care because he was in a dependent position and detrimentally relied on the police to protect him. (Williams v. State of California (1983) 34 Cal.3d 18.)
I. STANDARD OF REVIEW
The standard of review on appeal from a summary judgment is now well settled: "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . . (Code Civ. Proc., § 437c, subd. (o )(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
II. NO DUTY EXISTED BECAUSE RYAN HAS FAILED TO ESTABLISH A SPECIAL RELATIONSHIP
Although related questions where governmental tort liability is at issue, the concepts of duty and immunity involve distinct analyses. If no legal duty is owed, the question of governmental immunity is irrelevant. (Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488, 502.) "So deeply rooted is this decision tree" that courts must insure that "the immunity cart [is not] placed before the duty horse." (Adams v. City of Fremont, supra, (1998) 68 Cal.App.4th at p. 263.) The question of whether a special relationship exists is a matter of law where no disputed factual issues are material to this determination.
Prior to 1963 and enactment of the California Tort Claims Act, the state and its political subdivisions had no tort liability to private citizens. Currently, the right to recover against the government for negligent conduct is controlled by statute. (Gov. Code, § 815; Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 264.) However, where a legal duty is not created by statute, the question of whether such duty exists is analyzed under general principles of tort law. (Ibid.)
Government Code section 815 provides in relevant part that "Except as otherwise provided by statute: [¶] (A) A public entity is not liable for an injury, whether such injury arise out of an act or omission of the public entity or a public employee or other person."
Under these principles, an individual has no duty to come to the aid of another; a person who has not created a peril is not liable in tort for the failure to take action to assist or protect another unless a relationship gives rise to a duty to act. (Williams v. State of California, supra, 34 Cal.3d at p. 23.) A person, including a member of law enforcement, who undertakes to come to the aid of another, however, must exercise due care in performance of that assistance. In that case, the "good Samaritan" is liable if the failure to exercise due care increases the risk of harm, or harm is suffered because of the other persons reliance upon the good Samaritans assistance. (Williams v. State of California, supra, at p. 23; Winkelman v. City of Sunnyvale, supra, 59 Cal.App.3d at p. 511.) Thus, where the state, through its agents, voluntarily assumes a protective stance towards a member of the public and undertakes action on behalf of him or her, thereby inducing reliance, law enforcement is held to the same standard of care as the general public.
In the context of police or paramedics responding to individuals in peril, the police are under no duty to investigate properly, to investigate at all, or to respond to requests for assistance, where the police have not acted in a manner that would induce reliance on a promise, express or implied, that they would provide protection. (See, e.g., Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10 [police failure to respond to plea for help made 45 minutes before homicide]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 590-591 [police dispatcher delayed 10 minutes after alarm before broadcasting burglary in process].)
However, a special relationship can be found even in the absence of a promise, where "the conduct of a police officer in a situation of dependency results in detrimental reliance on him for protection." (Williams v. State of California, supra, 34 Cal.3d at p. 25 .) For example, in Mann v. State of California (1977) 70 Cal.App.3d 773, 779-780, a Highway Patrol officer stopped his vehicle to assist two stranded vehicles by the side of a busy highway. The motorists were standing by the side of the road; the officer failed to advise them to return to the vehicles for their safety. A few minutes after a tow truck driver arrived, the Highway Patrol officer left the scene; his departure left the two vehicles without the protection afforded by the flashing lights of the patrol car. Furthermore, the officer failed to put out protective flares and did not wait for the tow truck to assume a protective position. The motorists were struck and injured by another vehicle. (Id. at pp. 776-777.) Mann held that a "special relationship" existed between the officer and the injured motorists because "once a state traffic officer has chosen to investigate the plight of specific persons on a freeway and informed himself of the foreseeable danger to them from passing traffic, a special relationship requiring him to protect them by readily available means arises and liability may attach if the officers limited duty to protect those people under these special circumstances is not performed." (Mann v. State of California, supra, at p. 780.) In other words, because the officers conduct increased and changed the risk that otherwise might have existed, a duty arose.
Law enforcement personnel generally do not, however, have a duty to undertake an investigation. In Winkelman, the plaintiff was rear-ended by a pickup truck that caused her to run head-on into another vehicle. (Winkelman v. City of Sunnyvale, supra, 59 Cal.App.3d at p. 511.) The pickup truck left the scene, and law enforcement came to investigate the accident. Meanwhile, the driver of the pickup stopped at a police station and advised them he had been in an accident; however, the police failed to follow up on the drivers claims and did not get his name or license number. (Id. at p. 511.) Without analyzing the "special relationship" issue, the court rejected the plaintiffs claims of a duty to investigate, finding no duty because "[p]olice officers have the right, but not the duty, to investigate accidents" and also rejected plaintiffs claim of a duty to exercise due care once an investigation was undertaken because "whatever detriment [plaintiff] suffered by reason of the involvement of the driver of the pickup truck had already occurred when that vehicle drove away from the scene." (Id. at p. 511.)
However, in Clemente v. State of California (1980) 101 Cal.App.3d 374, the court found a duty to investigate based upon the plaintiffs dependence. The plaintiff was struck by a motorcycle while crossing the street. When a highway patrol officer arrived at the scene, the officer saw the plaintiff "crawling in the crosswalk in an attempt to reach the safety of the parkway and sidewalk." He also observed a man pushing a motorcycle, who admitted to the officer that he had hit the pedestrian. (Id. at p. 376.) The officer left the scene without obtaining the name of the motorcyclist, who was never found. (Id. at p. 377.) Relying upon Mann, the court found a special relationship because the disabled and "apparently incompetent" plaintiff was completely dependent upon the highway patrol officer. (Id. at p. 380.)
In Williams, the court reconciled the different results of Clemente and Winkelman. Williams held that where a Highway Patrol officer merely comes to the aid of a stranded motorist that act does not alone create a duty to investigate. (Williams v. State of California, supra, 34 Cal.3d at p. 21.) The plaintiff, a passenger in a vehicle on the highway, was struck in the face by a flying piece of brake drum that came off a passing truck. Two other vehicles had been hit by debris and stopped by the side of the road near the car in which plaintiff was riding. The Highway Patrol arrived at the scene, but failed to determine whether the brake drum, which had come to rest in the back seat of the car, was still hot; failed to ascertain the names of other witnesses stopped at the scene; and failed to investigate or attempt to pursue the truck that had caused the accident. (Id. at pp. 21-22.) Williams found no duty of care because the officers did not create the peril; they did not take any affirmative action which contributed to, increased, or changed the risk to which plaintiff was exposed; they did not assume "any responsibility to protect plaintiffs prospects for recovery by civil litigation;" and there were no factors establishing a special relationship, "namely, detrimental reliance by the plaintiff on the officers conduct, statements made by them which indicated a false sense of security and thereby worsened her position." (Id. at p. 28.)
In the instant case, no special relationship existed because the admissible uncontradicted evidence established that at the time the officers arrived at the scene, the injury had already occurred. Ryan, an adult, was conscious and able to respond. He advised police that he did not wish to prosecute (obviating the need for an investigation consisting of witness names, statements, or phone numbers) and did not want to go to the hospital (obviating the need to provide for medical care). Ryan was not dependent, in apparent imminent peril, or unable to conduct his own investigation; nothing the officers did, or did not do, changed the risk that already existed, or induced a false sense of security. The fact that Ryan was more seriously injured than it appeared at the time, and that on reevaluation of the facts he concluded he exercised poor judgment at the time in refusing medical treatment, does not create a duty.
DISPOSITION
The judgment of the superior court is affirmed. Respondents are to recover their costs on appeal.
We concur: JOHNSON, Acting P. J. WOODS, J.