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Duty of Care to Traffic Victims and Statutory Immunities of California Highway Patrolmen

NCJ Number
California Western Law Review Volume: 19 Issue: 2 Dated: (1983) Pages: 306-329
H Hata
Date Published
24 pages
This paper examines two recent California cases, Clemente v. State and Williams v. State, which addressed the question whether the special relationship doctrine may be employed to impose a duty on highway patrol officers to identify tortfeasors in automobile accidents.
In Clemente, the court held that the special relationship between the officer and the accident victim could be employed to impose a duty on the officer to protect the plaintiff from a loss of opportunity to sue, a nonphysical injury. In contrast, the court in Williams rejected the special relationship as a means of imposing a duty to protect the plaintiff from a nonphysical injury doctrine. Under California law, a promise by a patrol officer to obtain the name of the tortfeasor and a special relationship of dependence can be used to impose a duty on the officer. The officers in Clemente and Williams made no such promises, but both victims were dependent on them as one was severely injured and the other stranded in passing traffic. Prior California cases have used the special relationship doctrine to impose a duty on private persons to protect others from the loss of a prospective pecuniary advantage. Public policy of California clearly makes no distinction between private persons and public employees in regard to liabilities for torts. Therefore, it follows that a special relationship between a highway patrol officer and a plaintiff can be employed to impose a duty on the officer to protect the plaintiff from nonphysical injury, loss of the opportunity to sue. However, even if a special relationship and duty to investigate are established, the statutory immunities provided to highway patrol officers and the State may preclude tort recovery. The court in Clemente held that immunity claimed for failure to enforce a law under California Government Code section 818.2 and 821 was not a bar to the plaintiff's suit, whereas the Williams court took the opposite view. The Clemente decision should be rejected because it is inconsistent with legislative intent. The paper includes 131 footnotes.