Foremost Dairies, Inc. v. State of California
Foremost Dairies, Inc. v. State of California
Opinion of the Court
Opinion
Appellants Foremost Dairies, Inc., and Charles Bosman appeal from a summary judgment granted to respondent State of California (State) in appellants’ action against the State for indemnity. Appellants were sued by third-party plaintiffs for personal injuries resulting when appellants’ truck rear-ended plaintiffs’ vehicle on a state highway obscured by smoke from a nearby fire.
The rules for review of summary judgments are well established and need not be recited. (See, e.g., Corwin v. Los Angeles Newspaper Service Bureau,
The material facts are not in dispute. They reveal that on June 26, 1983, at approximately 5 p.m. CHP Officer Douglas Pappas was operating his patrol car in the area of the interchange of Interstate Highway 5 (1-5) and State Route 162 near Willows. That interchange is a “cloverleaf” design with an overpass for State Route 162. At that time he observed that the southbound lanes of 1-5 in the area of the interchange were partially obscured by smoke from a grass fire on adjacent, private property. He immediately radioed for fire assistance and drove to a point on the southbound lanes of 1-5 approximately 450 feet north of the smoke.
Within three to four minutes after Officer Pappas had stationed his patrol car on 1-5, Bosman, a truck driver employed by Foremost, approached the scene. Bosman was driving a truck southbound on 1-5. When he was approximately one mile from the smoke, Bosman could see the fire, fire equipment at the scene, and the smoke obscuring the highway. The smoke was sufficiently high and dense to obscure the overpass of State Route 162 over the southbound lanes of 1-5. At the same time Bosman also saw the CHP vehicle and the flashing amber light, and he had ample time to stop or slow his truck, but he interpreted the flashing amber light to mean he could proceed with caution. He contended that had the CHP car not been present as it was he would have exercised “considerable bit more caution.” [Sic.] He proceeded into the smoke, which he described in deposition testimony as “driving into a fog,” and struck the rear of plaintiffs’ vehicle. He was driving 55 miles per hour when he first observed Officer Pappas and the smoke and other activity from a one-mile distance. He was traveling approximately 50 miles per hour when he entered the smoke. Prior to the time he entered the smoke, Bosman noted other southbound vehicles passing him.
Our first inquiry is whether the state owed a duty of care to appellants; to paraphrase Justice Kaus—to put the duty horse before the immunity cart.
Appellants contend that a “special relationship” existed, thereby imposing a duty of care on the state where one would not otherwise exist. “[Although ‘no special relationship may exist between members of the California Highway Patrol and the motoring public 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.]” (Williams v. State of California, supra, 34 Cal.3d at p. 24.) A special relationship gives rise to “an ‘initial duty’ to come to the aid of others, regardless of whether there has been detrimental reliance in a particular case.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 789 [221 Cal.Rptr. 840, 710 P.2d 907].) Once the duty arises, “[t]he breach of duty may be an affirmative act which places the .person in peril or increases the risk of harm____” (Williams v. State of California, supra, 34 Cal.3d at p. 24.) As characterized by Lopez, the statement in Williams “was essentially a particularized application of the ‘good Samaritan’ doctrine which provides that a ‘volunteer who, having no initial duty to do so, undertakes to come to the aid of another... 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 other’s reliance upon the undertaking’ (Williams, 34 Cal.3d at p. 23, italics added).” (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at pp. 788-789; see also Clemente v. State of California (1985) 40 Cal.3d 202, 213-214 [210 Cal.Rptr. 445, 707 P.2d 818].)
Appellants contend that by positioning his patrol car as he did and flashing his amber warning light, Officer Pappas created a special relationship requiring him to exercise a duty of care toward them. Specifically, they contend he should have either “put down flares, or gotten out of his patrol vehicle and signalled traffic with a ‘wave down’ gesture, or done something more than simply activating his flashing amber light.”
Appellants alternatively contend that the State may be held liable to them on the ground that their loss was caused by a dangerous condition of State property. Liability for injury caused by a dangerous condition of public
Thus, even if a plaintiff establishes that a public entity had timely notice of all the elements comprising a dangerous condition of public property, the public entity is not liable for injuries proximately caused by the dangerous condition if it renders an adequate warning.
It is undisputed that a warning was given. Whether the warning was adequate is ordinarily a question of fact, but it may “be resolved as a question of law if reasonable minds can come to but one conclusion. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36]; Richards v. Stanley (1954) 43 Cal.2d 60 [271 P.2d 23], Rogers v. Jones (1976) 56 Cal.App.3d 346, 350 [128 Cal.Rptr. 404]; Bakity v. County of Riverside (1970) 12 Cal.App.3d 24 [90 Cal.Rptr. 541].)” (Mamola v. State of California ex rel. Dept, of Transportation (1979) 94 Cal.App.3d 781, 790 [156 Cal.Rptr. 614].)
We conclude this is such a case. Appellant Bosman was fully aware of the dangerous condition; he received a warning from Officer Pappas to proceed with caution; he understood the warning to be related to the smoke on the highway; and he understood it to mean he should proceed with caution. A public entity is not liable for failing to warn of a condition of which the plaintiff is fully aware. (Belcher v. City and County of S. F. (1945) 69 Cal.App.2d 457, 463 [158 P.2d 996]; Bunker v. City of Glendale (1980) 111 Cal.App.3d 325, 333 [168 Cal.Rptr. 565], dis. opn. of Beach, J.) Any sugges
For purposes of our analysis we have assumed that those issues claimed by appellants to be triable issues of material fact are resolved in their favor. We thus find it unnecessary to address those issues or the additional responses by the state.
Affirmed.
Low, P. J., and King, J., concurred.
Plaintiffs also named the State as a defendant, but did not proceed against it.
Appellants also cross-complained against other parties who are not involved in this appeal.
There is a dispute between the parties as to whether Officer Pappas was parked 450 feet or 200 yards north of the smoke. However, this is not a material fact within the context of this proceeding, and the parties do not suggest otherwise.
Bosman contends that had it not been for Officer Pappas, he would have exercised greater caution. However, regardless of the degree of caution he would have exercised he was, in either event, governed by Vehicle Code section 22350, which provides: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for ... visibility, the traffic on,... and in no event at a speed which endangers the safety of persons or property.”
Unless otherwise indicated, all further statutory references are to the Government Code.
Reference
- Full Case Name
- FOREMOST DAIRIES, INC., Cross-complainants and v. THE STATE OF CALIFORNIA, Cross-defendant and
- Cited By
- 1 case
- Status
- Published