Opinion
Review Granted May 19, 1994.
Review Granted Previously published at: 27 Cal.App.4th 1323, 22 Cal.App.4th 765
Opinion on pages 1274-1288 omitted.
REVIEW GRANTED.
COUNSEL [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
[27 Cal.Rptr.2d 538]Beatrice Taines, Walnut Creek, Gail A. Fritschle, Lafayette, for plaintiff and appellant.
Peter P. Edrington, A. Byrne Conley, Peter A. Urhausen, Gibbons, Lees & Edrington, Walnut Creek, for defendants and respondents.
OPINION
STEIN, Associate Justice.
Pele Thomas was seriously injured when he was struck by a police vehicle driven by Officer Jim Jenkins. The superior court found that Government Code section 845.8 and Vehicle Code section 17004 immunized the City of Richmond and Jenkins from any liability for those injuries, and granted summary judgment in favor of both the City of Richmond and Jenkins on Thomas's complaint against them for damages. Thomas appeals. We conclude that Jenkins is immune from liability, but the City of Richmond is not. We therefore will reverse the judgment as to the City of Richmond.
FACTS
On the evening of September 4, 1990, Thomas, then 18-years old, stood with a friend, Joell Carter, on the corner of Sixth Street and Pennsylvania Avenue in Richmond. City of Richmond police officers, responding to a report of two men with shotguns or rifles at that location, drove up to Thomas and his friend Carter. Thomas and Carter bolted, notwithstanding that an officer yelled at them to " Halt, stop." Other police officers responded to the first officer's report that he was chasing subjects running northbound on Sixth Street. Thomas ran by one police car, and turned left onto Pennsylvania Street, again ignoring an officer's orders to stop. Officer Jenkins, who was driving on Pennsylvania Avenue, saw Thomas make the turn just as he had backed and turned his vehicle towards Sixth Street. Thomas was running in a traffic lane and did not appear to be carrying either a rifle or a shotgun. Officer Jenkins accelerated towards Thomas and, a few moments later, his vehicle struck Thomas, rendering him a quadriplegic.
DISCUSSION
As will be discussed, infra, Officer Jenkins is immune from suit, and Thomas does not contend otherwise. It is Thomas's position that the City of Richmond is liable for his injuries because they either were the result of police negligence or tortious intentional acts. The superior court, believing itself to be bound by the decision in Hooper v. City of Chula Vista (1989) 212 Cal.App.3d 442, 260 Cal.Rptr. 495, ruled otherwise. After careful consideration, we believe that Hooper v. City of Chula Vista reached the correct result on the particular facts of that case, but we decline to follow it insofar as it holds that a public entity is immune from liability for the negligent or intentional torts of its police officers committed while attempting to apprehend a suspected criminal. In our opinion, the issue is not immunity, but whether the officers acted reasonably under the circumstances; if so, no liability can attach. Here, as in most cases, the issue of whether the officers acted reasonably under the circumstances presents issues of fact. Summary judgment, therefore, should not have been granted in favor of the City of Richmond.
The Court Erred in Finding that the City of Richmond is Immune from Thomas's Suit
There is no general immunity for injuries resulting from police action. Indeed, a facial reading of the relevant statutes supports the opposite conclusion. Government Code section 815.2, subdivision (a) provides that a public entity is liable " for injury proximately caused by an act or omission of any employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." Subdivision (a), therefore, establishes a general rule of liability. That rule is partially [27 Cal.Rptr.2d 539] circumscribed by subdivision (b), providing that except as otherwise provided by statute, a governmental entity, such as the City of Richmond, " is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." In general, police officers are not immune from liability for injuries resulting from their tortious conduct, and their employers, therefore, also are subject to liability. " The Legislature has recognized that the imposition of vicarious liability on a public employer is an appropriate method to ensure that victims of police misconduct are compensated. It has done so by declining to grant immunity to public entities when their police officers engage in violent conduct. Since the enactment of the California Tort Claims Act in 1963 ([Gov.Code] § 810 et seq.), a governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215, 285 Cal.Rptr. 99, 814 P.2d 1341; and see cases cited there.)
It is further settled that this general policy of liability extends to certain situations in which suspected criminals have been injured by police attempting to effect an arrest or otherwise exert control over a subject. There is no general statute precluding imposition of liability on either the police officers or the employing public entity. Penal Code section 835a, however, provides, " Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance." (Emphasis added.) It follows that there can be no public liability for injuries resulting from the use of reasonable force. Liability does, however, attach if unreasonable force is used in effecting an arrest. (Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 262-268, 60 Cal.Rptr. 355.) Whether the force used by the police was or was not excessive presents issues of fact. (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 8, 261 Cal.Rptr. 287.)
Other cases recognizing this principle include Kortum v. Alkire (1977) 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, and Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 374-375, 132 Cal.Rptr. 348, recognizing that officers and their employers may be sued for wrongful death or injury arising from the use of excessive force in effecting an arrest. The Supreme Court in Brower v. Inyo County (1989) 489 U.S. 593, 598-600, 109 S.Ct. 1378, 1382-1383, 103 L.Ed.2d 628, held that petitioners stated a cause of action under 42 United States Code section 1983 by alleging that the police acted unreasonably in setting up a concealed roadblock to apprehend petitioners' decedent who was killed when he struck the roadblock. In Tennessee v. Garner (1985) 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1, the court held that civil liability could attach for the use of deadly force to prevent the escape of a fleeing felon. It was held in Soto v. City of Sacramento (E.D.Cal.1983) 567 F.Supp. 662, 671-672, that plaintiff stated a cause of action under 42 United States Code section 1983 by alleging that police used excessive force in effecting arrest by causing him to be bitten by a police dog.
The wrongful death case of Munoz v. Olin (1979) 24 Cal.3d 629, 156 Cal.Rptr. 727, 596 P.2d 1143 is instructive and provides an analogy to the present situation. Two arson investigators, believing that Munoz was an arsonist, shot and killed him when he attempted to run away from them. The investigators reported that they had observed Munoz start a fire. They drove toward him and he ran. They pursued him in their car and later on foot, yelling at him and ordering him to stop, identifying themselves as police. When Munoz continued to attempt to evade the investigators, they shot over his head, and when he continued to run, after having made a flinging motion with his arms, they shot and killed him. The plaintiffs' version of the facts was that there was no reason to suspect that Munoz was an arsonist. Munoz, returning home late at night, tapped on the window of his bedroom to get his wife to open the door and then walked back down an alley to get to his door. At that point the investigators began to pursue him and, when he ran, shot and killed him. The Supreme Court noted that on the evidence, the jury was entitled to find the officers and their employer, the City of Los Angeles, liable on either a theory of intentional tort or negligence. As relevant here, the court found that the jury could have found negligence on the investigators' part in presuming that Munoz [27 Cal.Rptr.2d 540] was an arsonist, in failing to adequately warn Munoz or attempt other means of apprehending him, in interpreting the situation as requiring the use of weapons, or in their manner of using the weapons. (24 Cal.3d at pp. 636-637, 156 Cal.Rptr. 727, 596 P.2d 1143.) The significance of Munoz v. Olin, however, is not that the jury ultimately did or did not find liability on the part of the city and its employees, but that the Supreme Court recognized that there could be liability; i.e., that the public entity and its employees did not enjoy immunity from prosecution for injuries resulting from actions taken to apprehend a suspected criminal. (See, also, Peterson v. City of Long Beach (1979) 24 Cal.3d 238, 155 Cal.Rptr. 360, 594 P.2d 477, recognizing that a police officer and his employer might be held liable for the failure to use due care in apprehending a suspicious person, and Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 86 Cal.Rptr. 465, 468 P.2d 825, recognizing that an officer and employer might be held liable for shooting a suspect attempting to escape from them.)
In passing, we note that Government Code section 820.2 creates an immunity for a public employee's discretionary acts. That immunity has been interpreted to extend to the decision to undertake an investigation, as opposed to the ministerial act of performing that investigation. (Mann v. State of California (1977) 70 Cal.App.3d 773, 778, 139 Cal.Rptr. 82.) There is no claim in the present case that the police officers acted wrongfully in determining to investigate the report of armed men. Thomas's theories of liability, rather, arise out of the performance of the investigation.
In the present case, unlike the cases cited above, the allegedly tortious actions resulted from the use of an automobile, a distinguishing fact deemed significant by the City of Richmond and the superior court. We agree that the fact that Officer Jenkins was driving an authorized emergency vehicle immunizes him from any liability otherwise attaching as a result of his operation of that vehicle. We do not agree that it immunizes the City of Richmond.
As noted, supra, Government Code section 815.2 establishes a general rule of public entity liability for injuries caused by employees, but excepts from that rule an injury resulting from an act or omission of an employee when the employee is immune from liability. Vehicle Code section 17004 specifies " A public employee is not liable for civil damages on account of personal injury ... 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." Since immunity from suit has been granted to Officer Jenkins, Government Code section 815.2, subdivision (b), extends that immunity to the City of Richmond " [e]xcept as otherwise provided by statute." Vehicle Code section 17001 is such a statute. It 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."
The interplay of these sections, and the relevant statutory history, was considered in Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952, an action brought by persons injured when their vehicle was struck by a patrol car engaged in the high-speed chase of a suspected felon. The Supreme Court found that although the officers could not be held liable for the injuries to the plaintiffs, liability might be imposed on the county: " We conclude, therefore, that section 17004 defined only a limited immunity, i.e., an employee immunity, and that section 17001 ‘ otherwise’ provides for public entity liability. Vehicle Code section 17001, therefore, is cognizable under the exception of section 815.2, subdivision (b)." (Brummett, supra, at p. 885, 148 Cal.Rptr. 361, 582 P.2d 952.)
Although the City of Richmond appears to concede that Vehicle Code section 21055 has no application here, we note that section 21055 sets forth provisions somewhat related to those of section 17004. Section 21055 creates an exemption from liability which otherwise might be imposed because of the failure to comply with traffic rules. The exemption extends to the driver of an authorized emergency vehicle " being used in the immediate pursuit of an actual or suspected violator of the law" if, but only if " the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians." Section 21055 does not relieve drivers from the duty to exercise a reasonable standard of care in operating an authorized emergency vehicle; it simply provides that liability cannot be predicated on nothing more than the failure to abide by traffic laws; i.e., on negligence per se. (See Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 40-51, 22 Cal.Rptr. 866, 372 P.2d 906, considering the predecessor statute to Vehicle Code section 21055.) Here, Thomas's theory of liability is not predicated on the failure of the police officers to obey specific traffic laws, but on a theory of general negligence or intentional act.
[27 Cal.Rptr.2d 541] To summarize, although establishing liability may be problematic, neither police officers nor their employers generally are immune from liability for injuries caused to persons injured while attempting to avoid arrest. In addition, although the officers are immune from liability for injuries resulting from the use of authorized emergency vehicles, the employing public entities are not.
We turn next to the specific authorities relied upon by the City of Richmond as establishing an immunity, which, if it exists, necessarily is an exception to these general principles. The City of Richmond relies on Government Code section 845.8, providing: " Neither a public entity nor a public employee is liable for: ... (b) Any injury caused by: ... (3) A person resisting arrest."
While Thomas technically was not resisting arrest (because there was, at the time of the accident, no probable cause to arrest him nor any intent to do so), it is settled that section 845.8 applies not only to arrests but to other, lesser, detentions. (Kisbey v. State of California (1984) 36 Cal.3d 415, 419, 204 Cal.Rptr. 428, 682 P.2d 1093 [where the City and County of San Francisco was held to be immune from suit brought by a plaintiff who was injured when a vehicle, suspected by police to have been involved in a reported disturbance, sped away from investigating officers and collided with the plaintiff's vehicle].) Thus, under section 845.8 the City of Richmond might be immune from a suit for injuries caused by Thomas in his attempt to escape detention. In the present case the suit was not brought by someone injured by Thomas, but by Thomas himself, who unquestionably was injured by the police.
It could be argued that Thomas himself was the " cause" of the accident, for purposes of Government Code section 845.8's immunity. The flaw in this argument, however, is evident when liability to third persons is considered. Section 845.8 does not immunize public employees or entities simply because an employee is acting in response to the actions of another. As noted, there is no public entity immunity when a third person is injured by a police car involved in a high-speed chase, notwithstanding that the fleeing suspect arguably " caused" the high-speed chase to occur by failing to submit to an investigation or arrest. (Brummett v. County of Sacramento, supra, 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952.) In addition, the case law has interpreted Kisbey and Government Code section 845.8 narrowly, finding that section 845.8 does not immunize a public entity from liability for police negligence even when the person attempting to avoid arrest is the direct cause of the plaintiff's injuries. Thus, in City of San Jose v. Superior Court (1985) 166 Cal.App.3d 695, 212 Cal.Rptr. 661, the court held that the public entity might be held liable for any negligence in engaging in a high-speed chase which ended when the pursued vehicle crashed into plaintiff's car. In Stark v. City of Los Angeles (1985) 168 Cal.App.3d 276, 214 Cal.Rptr. 216, liability was imposed on the public entity for police officer negligence in failing to activate a siren or otherwise warn persons that a high-speed chase was occurring, although, again, the plaintiff was injured when the suspect's vehicle struck the plaintiff's vehicle. Liability may attach even when the suspect causes the injuries while driving a police car in an attempt to escape detention, on the grounds that the police might have been negligent in permitting the suspect to have access to the car. (City of San Jose v. Superior Court, supra, 166 Cal.App.3d at pp. 698-701, 212 Cal.Rptr. 661, reaffirming the earlier case of Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 161 Cal.Rptr. 140.) In addition, it is settled that [27 Cal.Rptr.2d 542]Government Code section 845.8 does not apply where, as here, the police were driving the vehicle which collided with the victim. (City of San Jose v. Superior Court, supra, 166 Cal.App.3d at p. 698, 212 Cal.Rptr. 661.) Although the actions of the suspect may render the responsive actions of the pursuing officers reasonable such that it may ultimately be determined that the public entity should not be held liable, their liability turns on the particular facts of the case rather than on the existence of an immunity. 5
These findings of public liability have been superseded, not by any new interpretation of Government Code section 845.8, but by the enactment of Vehicle Code section 17004.7 granting immunity in certain circumstances to a public entity for injuries caused by the collision of a vehicle being operated by an actual or suspected violator of the law while being pursued by a police officer.
The other authority relied on by the City of Richmond as establishing an immunity in the present case is Hooper v. City of Chula Vista , supra , 212 Cal.App.3d 442, 260 Cal.Rptr. 495. In that case, the Chula Vista police attempted to stop 17-year-old Thomas Hooper, primarily because he met the description of a person who was seen to be driving recklessly in a parking lot and displaying a knife. Hooper, riding a motorcycle, sped away with several police cars in pursuit. After a two-minute, high-speed chase during which Hooper ran seven red lights and had three near collisions at separate intersections, Hooper lost control of his motorcycle, which fell over. Hooper was run over by a pursuing police vehicle and died as a result of the incident. His mother brought an action against the City of Chula Vista for wrongful death. In reversing a judgment in favor of the plaintiff, the court cited City of San Jose v. Superior Court, supra, Duarte v. City of San Jose, supra, and Stark v. City of Los Angeles, supra, for the proposition that " the prevailing interpretation of [Government Code] section 845. 8 has been that Vehicle Code section 17001 carves out a limited exception to the general rule of immunity for injuries caused by fleeing suspects." ( Hooper , supra , 212 Cal.App.3d at p. 450, 260 Cal.Rptr. 495.) Thus, the court in Hooper found that but for Vehicle Code section 17001, the City of Chula Vista would have been immune from suit because of Government Code section 845.8. The court then determined that the " exception" of section 17001 should not apply when the injured person was the fleeing suspect, reasoning that a suspect who has caused a chase has created the conditions which led to the danger of injury and should not be heard to complain of the injuries. ( Hooper , supra , at p. 454, 260 Cal.Rptr. 495.) In addition, and alternatively, the court found that liability should not attach to the public entity because the police owed no duty to the lawbreaker, and the public entity therefore could not be held liable whether or not statutorily immune from suit. ( Id . at pp. 452- 453, 260 Cal.Rptr. 495.)
This holding is inconsistent with those in cases such as Tennessee v. Garner, supra, 471 U.S. 1, 105 S.Ct. 1694, and Brower v. Inyo County, supra, 489 U.S. 593, 109 S.Ct. 1378. In our opinion, the court in Hooper correctly found no governmental liability under the facts before it. That result, however, was correct not because the City of Chula Vista was immune from suit or because the police owed no duty of care to a fleeing suspect; it was correct because there were no facts from which it might be determined that the police had acted unreasonably, i.e., that they had violated any duty owed to the plaintiff's deceased.
Our differences with the reasoning in Hooper begin with our reading of the City of San Jose v. Superior Court / Stark v. City of Los Angeles line of cases. The Hooper opinion characterizes those cases as recognizing that the liability of Vehicle Code section 17001 is an exception to the immunity granted by Government Code section 845.8. We read the cases and the statutes as establishing that section 845.8 creates an immunity only to the extent that injury was caused by a person attempting to avoid detention or arrest. It creates no general public entity immunity for injuries caused by police negligence. That such negligence may have occurred while the police were driving an authorized [27 Cal.Rptr.2d 543] emergency vehicle means that liability attaches under Vehicle Code section 17001 (as an exception to the special nonliability statute of Vehicle Code section 17004). Vehicle Code section 17001 is not an exception to Government Code section 845.8; rather, section 845.8 establishes an exception from the liability otherwise imposed under section 17001.
The real question, therefore, is whether liability for injuries to a fleeing suspect is excepted from the imposition of liability set forth in section 17001. As we have discussed, liability will be imposed on a public entity for the torts of its police officers, whether or not those torts caused injury to a fleeing suspect, and whether or not those torts involve the use of an authorized motor vehicle. We perceive no reason to find immunity where the tort both caused injury to the fleeing suspect and involved the use of an authorized motor vehicle. In all situations the issue simply is whether the police acted reasonably under the circumstances. It follows that we also disagree with any holding in Hooper that police officers owe no duty to a fleeing suspect, or that the suspect should not be heard to complain about police action taken in response to his or her own attempt to avoid detention. Cases such as Munoz v. Olin, supra, 24 Cal.3d 629, 156 Cal.Rptr. 727, 596 P.2d 1143, Peterson v. City of Long Beach, supra, 24 Cal.3d 238, 155 Cal.Rptr. 360, 594 P.2d 477, and Grudt v. City of Los Angeles, supra, 2 Cal.3d 575, 86 Cal.Rptr. 465, 468 P.2d 825, establish that the police do indeed owe a duty to a fleeing suspect. Again, we perceive no reason to find an exception to this general recognition of duty simply because the police pursued the suspect in an authorized vehicle.
We do agree, however, that public entity liability cannot be predicated merely on the fact of police pursuit, at least where pursuit is warranted. The opinion in Reenders v. City of Ontario (1977) 68 Cal.App.3d 1045, 137 Cal.Rptr. 736, relied upon in part by the court in Hooper , sets forth a useful analysis of the problem. In Reenders, the police responded to a report of a reckless driver racing a motorcycle up and down a city block at a high rate of speed, at one point crashing through a gate into the rear yard of a nearby residence. The driver was followed by one police car. Other police cars joined the pursuit, activating their oscillating lights and sirens. During the pursuit the motorcycle traveled at high and unsafe speeds, weaving in and out of traffic, running a red light and finally running into a vehicle driven by the plaintiff. The court declined to consider whether the public entity might be immune from an action brought against it by the plaintiff. Instead, it considered whether, as the plaintiff contended, the City of Ontario owed a legal duty to the plaintiff to refrain from pursuing the motorcyclist. In passing, the court noted that liability under Vehicle Code section 17001 was not an issue " inasmuch as plaintiff's injury was not caused by any ‘ negligent or wrongful act or omission in the operation of any motor vehicle’ by an employee of City within the meaning of section 17001." (Reenders, supra, 68 Cal.App.3d at p. 1052, 137 Cal.Rptr. 736.) The court found, and we agree, that the question of liability turned on the existence of negligence by the police officers. The court recognized that liability for negligence might exist— that the public entity was not immune from suit— but noted that neither Vehicle Code section 17001, nor any other similar statute, defines actionable negligence. The court considered the basic policy factors by which it may be determined whether a particular duty should be imposed on a defendant, there, the duty to refrain from pursuing the motorcyclist. It concluded that as a matter of public policy, no such duty existed under the facts before it. In so concluding, the court stated, " To impose a duty upon [27 Cal.Rptr.2d 544] municipalities not to pursue a lawbreaker already engaged in dangerous conduct on the city streets would obviously cast a considerable burden on such cities and have serious consequences to the community. One of the prime functions of government is to insure law-abiding, orderly conduct. What is a law enforcement officer to do faced with a situation such as that confronting the police officers in this case? Nothing? The imposition of a duty not to pursue would severely restrict necessary law enforcement conduct without any guaranty that serious injury to members of the public might not ensue anyway." (Reenders, supra, at p. 1054, 137 Cal.Rptr. 736.)
Those factors are: " ‘ [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ " (Reenders v. City of Ontario, supra, 68 Cal.App.3d at pp. 1050-1053, 137 Cal.Rptr. 736, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)
We heartily agree, and in that agreement lies the basis of our conclusion that the correct result was reached in Hooper . As in Reenders, the police had reason to believe that the fleeing suspect was dangerous. As in Reenders, that danger was exacerbated by the suspect's actions, after being approached by the police, in driving recklessly. The police officers in that case, as in all cases, certainly owed the fleeing suspect no duty to refrain from pursuit, and in Hooper , not just the decision to pursue but the execution of that decision manifestly was reasonable. As the court in Reenders found, the police had no other practical choice but to speed after the dangerous lawbreaker. It follows that in Hooper as well as in Reenders, although the officers owed a general duty to the public and to the fleeing suspect to act reasonably, and the public entities were not immune from liability for any unreasonable actions, the evidence was that the officers did in fact act reasonably under the totality of the circumstances. Therefore, although there was no immunity, there also was no liability.
The court in Reenders was not concerned with police negligence during the pursuit, probably because the suspect and not the police was the direct cause of the plaintiff's injuries. (But see City of San Jose v. Superior Court, supra, 166 Cal.App.3d 695, 212 Cal.Rptr. 661 and Stark v. City of Los Angeles, supra, 168 Cal.App.3d 276, 214 Cal.Rptr. 216.)
The same would be true if Thomas in this case was attempting to impose liability on the City of Richmond for negligence in the decision to pursue or if he was claiming liability for injuries resulting from the fact of pursuit, as opposed to police negligence in pursuing. For example, under Reenders Thomas could not shift onto the City of Richmond responsibility for his own negligence in running in the street by claiming that his decision to run in the street was prompted by the police pursuit. Thomas's claim, however, is based on alleged wrongful or negligent actions by the police taken during the pursuit. Under the City of San Jose v. Superior Court / Stark v. City of Los Angeles line of cases, liability may attach for the tortious actions of the police. (Cf. Hooper v. City of Chula Vista , supra , 212 Cal.App.3d at p. 455, 260 Cal.Rptr. 495.) Under the Munoz v. Olin line of cases, liability is not precluded on the grounds that the plaintiff is a fleeing suspect.
As noted earlier, we also would find the City of Richmond immune from such a claim to the extent that it was based on the discretionary act of deciding to pursue.
Finally, although in finding the existence of an immunity the superior court found it unnecessary to consider the evidence, on our review of the record there are facts and inferences which, if found true by the finder of fact, would justify the imposition of liability on the City of Richmond. (See Munoz v. Olin, supra, 24 Cal.3d 629, 156 Cal.Rptr. 727, 596 P.2d 1143.) The police responded to the report of someone carrying a shotgun or rifle. Thomas was not armed, and Officer Jenkins did not believe that he was. Unlike the situation in Reenders and Hooper , neither Thomas nor his conduct posed any immediate danger to the public, which danger could only be prevented by immediate, forceful police action. He was nonetheless struck and seriously injured by a police vehicle manned by an officer who observed Thomas for some period of time before hitting him, who admitted to accelerating just before impact, and who may have caused his vehicle to swerve into Thomas's path. From these facts the finder of fact [27 Cal.Rptr.2d 545] could conclude that Thomas's injuries were the result of police negligence, or even possibly of the intentional use of excessive force. Under the circumstances, summary judgment was improper.
Thus, Officer Jenkins stated that after making the turn and realizing that Thomas was running towards the police car, he " [i]mmediately applied the brakes," but his foot slipped off the brake towards the accelerator pedal. " After my foot slipped, I still saw the subject running toward my car, in the Number One lane, and I figured I'd have to take an evasive action to get out of his path so he wouldn't impact with me. I cranked the wheel to the left.... My body slid to the right, slightly, and my foot hit the accelerator." Finding that Officer Jenkins's statement alone disclosed the existence of triable issues of fact, we need not discuss the superior court's ruling that the declaration of Brook Payne, filed by Thomas in opposition to the City of Richmond's motion for summary judgment, could not be admitted.
The judgment is reversed as to the City of Richmond. Costs are awarded to appellant.
STRANKMAN, P.J., and DOSSEE, J., concur.