Opinion
C042501.
11-26-2003
KARLA DEL CARMEN JOHNSON, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
In this case we must determine whether Government Code section 845.8, subdivision (b) (further undesignated statutory references are to the Government Code) immunized the California Highway Patrol and a highway patrol officer from liability for injury caused by a drunk driver who drove away in a highway patrol car. The trial court concluded that section 845.8 applied to the facts before us, and granted judgment on the pleadings in favor of defendants State of California and California Highway Patrol Officer Eric Lund. Plaintiff appeals. We affirm the judgment.
STANDARD OF REVIEW
A motion for judgment on the pleadings is the functional equivalent of a general demurrer and is governed by the same standard of review. (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397.) Accordingly, we treat the pleadings as admitting all material facts properly pleaded but not assume the truth of the contentions, deductions or conclusions of fact or law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) "[W]e are not bound by the determination of the trial court, but are required to render our independent judgment on whether a cause of action has been stated." (Hoffman v. State Farm Fire & Casualty Co. (1993) 16 Cal.App.4th 184, 189.)
FACTS AND PROCEEDINGS
After a default judgment was entered against the driver, Steven Walton, and after the trial court twice sustained demurrers to plaintiffs complaint, plaintiff filed a third amended complaint against defendants State of California and California Highway Patrol Officer Eric Lund. According to plaintiffs pleadings, "on February 29, 2000, at approximately 10:30 p.m., Plaintiff was lawfully driving from her place of employment to her residence in the northbound lanes of State Highway 99 near the intersection of Highway 32. Driving in a safe manner and at a safe speed, Plaintiffs vehicle was struck by the California Highway Patrol vehicle being operated by Defendant Walton and sustained serious injuries and damages . . . ." She alleged that "Defendant Lund negligently and carelessly left the keys in the ignition of his patrol vehicle, left the engine running and placed in the front seat of the vehicle an arrested drunk driver unattended and unsupervised. The suspected drunk driver was insufficiently restrained thereby allowing him to gain access to the controls of the vehicle and drive said police vehicle."
In her first cause of action, entitled "Public Entity Liability," plaintiff contended that the negligence of defendant Lund "resulted in a dangerous condition of public property which created a reasonable, foreseeable risk of the kind of injury incurred by plaintiff . . . ." She asserted that "[t]he rules, regulations, protocol, and training for California Highway Patrol officers required that an officer maintain his vehicle in a secure condition and that the officer never leave the vehicle unlocked, or the keys in the vehicle with the engine running while the officer was away from the vehicle. The same rules, regulations, protocol and training required that a police officer never leave a prisoner in the police vehicle unattended with the keys in the ignition and the engine running."
In a second cause of action, "Public Employee Violation," plaintiff alleged that this dangerous condition was "directly attributable, wholly or in substantial part, to a negligent or wrongful act of Defendant Lund." In particular, "Defendant Lund had the authority and the means immediately available to take alternative action which would not have created a dangerous condition described in this Complaint. Furthermore, Defendant Lund was aware of the rules, regulations, protocol and training of the California Highway Patrol and the State of California requiring him to secure his vehicle by turning off the engine and removing the keys and locking the vehicle when he was not present immediately in the vehicle. Furthermore, Defendant Lund was aware of the rules, regulations, protocol and training of the California Highway Patrol in not securing the persons of suspected drunk drivers and keeping them from access to a motor vehicle. In addition, Defendant Lund was aware of the rules, regulations, protocol and training of the California Highway Patrol requiring him to keep suspected drunk individuals from having access to motor vehicle and also not to engage in providing to such persons a running police vehicle which the suspect could easily operate."
The People argued in their motion for judgment on the pleadings that as a matter of law, the specific immunity granted in Government Code section 845.8 barred plaintiffs claims against the State of California and Lund. The trial court agreed and entered judgment in favor of the defendants.
DISCUSSION
In her opening brief, plaintiff does not address the immunity issue. Instead, she painstakingly illustrates that the facts of a case may create a special relationship that gives rise to a duty of care between a public entity/employee and a plaintiff.
In this matter, however, whether a duty of care exists is beside the point. Even if we assume defendants owed plaintiff a duty of care, no liability can attach if the immunity established in Government Code section 845.8 applies. Although plaintiff has waived any claim of error in this regard by failing to raise the matter in her opening brief (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"]), we nonetheless explain briefly.
Government Code Section 845.8, subdivision (b) provides: "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." (§ 845.8, subd. (b).) The immunity provided by section 845.8, subdivision (b) is absolute in that it encompasses both discretionary and ministerial acts, as well as omissions of public entities and public employees. (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 485 (County of Sacramento).)
The County of Sacramento presented issues similar to those now before us. In that case, the plaintiff alleged that law enforcement officers acted negligently in failing to properly restrain a prisoner and/or to prevent his escape, which created a dangerous condition of public property. (County of Sacramento, supra, 8 Cal.3d at pp. 480-481.) The court concluded that the county could not be held liable for death caused by an escaped prisoner even though its employees left jail doors unlocked, because the plaintiffs claim was absolutely barred by the immunity granted in section 845.8. (Id., at pp. 484-485.) In so ruling, the court reasoned, "[i]t is questionable that the condition of property becomes dangerous by reason of unlocked doors; but, in any event, the liability of a public entity for injury caused by an escaping or escaped prisoner is covered by section 845.8, subdivision (b), and the latter, being a specific provision, controls over the general provision." (County of Sacramento, supra, at p. 485.)
County of Sacramento applies here. Plaintiff contends that leaving keys in the ignition of a patrol vehicle constituted a dangerous condition of public property upon which government tort liability could be predicated. But even if that is so, the Legislature has conferred immunity in clear terms where that dangerous condition results in injury caused by an escaping prisoner or arrestee. The immunity provision must prevail over the general rule of liability. (See Ramos v. County of Madera (1971) 4 Cal.3d 685, 692.)
Citing to definitions in several Penal Code sections, plaintiff in her reply brief asserts that the driver was not "escaping" under the meaning of section 845.8. She reasons that it was difficult to discern a drunk drivers motive for driving a police car. She argues his motive could have been "an alcohol addled curiosity about the experience of driving a police vehicle," instead of an attempt to escape. Because this argument is raised for the first time in the reply brief, it is untimely and is therefore waived. (Neighbors v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) There are several other reasons, however, why we reject plaintiffs argument. First, plaintiff did not plead such matters and the argument is nothing more than speculation. It is, in addition, a request that we consider matters outside the record on appeal.
Moreover, subdivision (b) of section 845.8, as originally enacted (Stats. 1963, ch. 1681, § 1, p. 3279), provided that neither a public entity nor a public employee was liable for "[a]ny injury caused by an escaping or escaped prisoner." The statute was amended to its current form in 1970, and the Law Revision Commission explained that the intent of the Legislature was to "expand immunity to include persons resisting or escaping from arrest." In Kisbey v. State of California (1984) 36 Cal.3d 415 the California Supreme Court recognized that the statute was intended "to immunize public entities and employees from the entire spectrum of potential injuries caused by persons actually or about to be deprived of their freedom who take physical measures of one kind or another to avoid the constraint or to escape from it." (Id. at p. 419.) Whatever Waltons motives may have been, he was at least seeking to avoid Lunds constraint.
In the instant case, plaintiff was injured by a person characterized in the complaint as "an arrested drunk driver" who, deprived of his freedom, took physical measures to escape from the arresting officers constraint. Section 845.8 applies and the trial courts ruling was correct.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., SIMS, J.