Opinion
KAUS, J. I
The issue is whether the mere fact that a highway patrolman comes to the aid of an injured or stranded motorist creates an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties. We find that stopping to aid a motorist does not, in itself, create a special relationship which would give rise to such a duty.
According to plaintiff’s complaint, she was a passenger in an automobile on a bridge crossing the American River in Sacramento when a piece of a heated brake drum from a passing truck was propelled through the windshield and struck her in the face before coming to rest on the rear seat of the automobile. The complaint also alleges: “At such time and place, defendants, State of California, Doe One, Doe Two, Doe Three, Doe Four and Doe Five, and each of them, arrived within minutes of the accident and assumed the responsibility of investigating the accident, and the accident of two other vehicles which were damaged and stopped at the scene to determine causes thereof, and said defendants so negligently and carelessly investigated the accident as to virtually destroy any opportunity on plaintiff’s part to obtain compensation for the [22]severe injuries and damages she suffered from any other defendants or any other persons who concurred in causing them. Included amongst said acts of negligence was the failure to investigate the brake drum part to determine it was still hot, failure to identify other witnesses at the scene or even the other motorists damaged by brake drums, and failure to attempt any investigation or pursuit of the owner or operator of the truck whose brake drum broke and caused plaintiff’s injuries.”1
The state moved for judgment on the pleadings on grounds the police function in investigation of accidents is immune under specific immunity statutes (Gov. Code, §§ 818.2, 821, 845, 846) and under general governmental immunity for discretionary acts (§§ 820.2, 820.25). The trial court granted the motion, finding the state immune under sections 820.2 and 820.25 and refusing to apply what it called the “special relationship exception” to statutory immunity.2
II
Once again the immunity cart has been placed before the duty horse. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197 [185 Cal.Rptr. 252, 649 P.2d 894].) We said in Davidson (pp. 201-202): “Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. This logical sequence of inquiry was overlooked in dicta in at least three Court of Appeal cases: Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6 [120 Cal.Rptr. 5]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588 [114 Cal.Rptr. 332]; McCarthy v. Frost (1973) 33 Cal.App.3d 872 [109 Cal.Rptr. 470], The fallacy was exposed in Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 704 [141 Cal.Rptr. 189], where Justice Reynoso, writing for the Court of Appeal, arrayed the subjects of the inquiry in proper order: ‘The parties assume that if we conclude the alleged facts establish as a matter of law the existence of a “special relationship” (a relationship giving rise to the county’s duty to act prudently, and appellants’ justifiable reliance thereon) we will obviate the need [23]to consider whether respondents are immune from liability under sovereign immunity principles. Implicit in this exception theory is the assumption the “special relationship” creates an affirmative governmental responsibility which when breached gives rise to governmental liability notwithstanding the discretionary (immunized) character of the tortious act. ’ The Whitcombe court disagreed, correctly explaining that the question of ‘ “duty” [to which the special relationship concept pertains] is only a threshold issue, beyond which remain the immunity barriers . . . .’ (73 Cal.App.3d at p. 706.)”
In Davidson we referred to Professor Van Alstyne’s summary of the problem in California Government Tort Liability Practice (Cont.Ed.Bar 1980) section 2.65: “Some of the cases represent an unnecessary effort to categorize the acts or omissions in question as immune discretionary functions, when the same result could be reached on the ground that the facts fail to show the existence of any duty owed to plaintiff or any negligence on the part of the police officers. See, e.g., McCarthy v Frost, supra; Bratt v San Francisco [(1975) 50 Cal.App.3d 550 (123 Cal.Rptr. 774)]. Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any ‘special relationship’ between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. See, e.g., Mikialian v Los Angeles (1978) 79 CA3d 150, 144 CR 794 (no duty of police to place flares for protection of tow truck operator); J. A. Meyers & Co. v Los Angeles County Probation Dep’t (1978) 78 CA3d 309, 144 CR 186 (no duty of probation officers to disclose criminal record of probationer to prospective employer).”
III
Accordingly, we turn first to the question of duty under general principles of tort law. As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. (Rest.2d Torts, § 314; 4 Wit-kin, Summary of Cal. Law (8th ed.) Torts, § 554, p. 2821.) (3) Also pertinent to our discussion is the role of the volunteer who, having no initial duty to do so, undertakes to come to the aid of another—the “good Samaritan.” He 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. (Rest.2d Torts, § 323.)
Application of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. To an extent, [24]the concepts are muddied by widely held misconceptions concerning the duty owed by police to individual members of the general public.3
In spite of the fact that our tax dollars support police functions, it is settled that the rules concerning the duty—or lack thereof—to come to the aid of another are applicable to law enforcement personnel in carrying out routine traffic investigations. Thus, the state highway patrol has the right, but not the duty, to investigate accidents (Veh. Code, § 2412;4 Winkelman v. City of Sunnyvale (1976) 59 Cal.App.3d 509, 511 [130 Cal.Rptr. 690]; McCarthy v. Frost (1973) 33 Cal.App.3d 872, 876 [109 Cal.Rptr. 470]) or to come to the aid of stranded motorists (Mann v. State of California (1977) 70 Cal.App.3d 773, 778 [139 Cal.Rptr. 82]). Nevertheless, although “no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally” (Mann, supra, 70 Cal.App.3d at p. 780), 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. (Hartzler, supra, 46 Cal.App.3d at p. 10; Mann, supra, 70 Cal.App.3d at p. 780.)
The breach of duty may be an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal.2d 252 [74 Cal.Rptr. 389, 449 P.2d 453], where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car. The negligence may also constitute an omission or failure to act, as in Morgan v. County of Yuba (1964) 230 Cal.App.2d 938 [41 Cal.Rptr. 508], where a deputy sheriff promised to warn a decedent if a prisoner, who had made threats on her life, was released. The county was held liable when the sheriff failed to warn.
[25]Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. (Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6 [120 Cal.Rptr. 5] [police failed to respond to a plea made 45 minutes before the homicide]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588 [114 Cal.Rptr. 332] [police radio dispatcher delayed 10 minutes after alert before broadcasting burglary in progress]; McCarthy v. Frost, supra, 33 Cal.App.3d 872 [complaint alleged decedent was driving on a state highway at a particular time and place, highway patrol negligently failed to find him, and death was caused by failure to receive timely medical aid; held state and patrolman not liable].)
This does not mean that a promise and reliance thereon are indispensable elements of a special relationship. Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection. A special relationship based on such dependency was found in Mann v. State of California, supra, 70 Cal.App.3d 773. Highway patrolmen, coming to the aid of a stranded motorist, placed their car with flashing lights behind two cars stalled on the freeway. After calling the tow truck, the officers withdrew without warning; they did not wait for the tow track to line up behind the stalled car or provide the alternative protection of flares. Minutes later the stalled car was sideswiped by a passing car and the persons nearby were injured. In Mann, the officers’ conduct contributed to, increased, and changed the risk which would have otherwise existed. They stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought.
Although the Legislature viewed Mann as dangerously extending the liability of peace officers while engaged in activities not involving law enforcement— i.e., while rendering assistance to stranded motorists not involved in accidents5—the case is no more than the application of the duty of care attaching [26]to any volunteered assistance. (Rest.2d Torts, §§ 323, 324.) Indeed, in Davidson v. City of Westminster, supra (32 Cal.3d at p. 208), we held that “Mann, properly read, is a simple application of the ‘good Samaritan’ doctrine. ” To extend the Mann situation—where the officer had undertaken to protect the plaintiff from future physical harm—to the one presented here—failure to investigate the cause and source of harm already incurred—is, however, quite unwarranted. Students of the Bible will recall that while the Samaritan dressed the victim’s wounds and provided him with food and shelter, he took no steps to ascertain the identity of the thieves who had wounded and stripped the victim and left him half dead.
Nevertheless, Clemente v. State of California (1980) 101 Cal.App.3d 374 [161 Cal.Rptr. 799], which followed and purported to be controlled by Mann, does impose such an expanded duty on peace officers. The complaint in Clemente alleged that a highway patrolman stopped to investigate an accident in which a motorcyclist allegedly struck a pedestrian in the crosswalk. The officer cleared the site of the accident of traffic and questioned the witnesses. The cyclist admitted that his machine had struck the pedestrian but denied responsibility. The officer radioed for an ambulance, notified the city police, but did not obtain the identity of the motorcyclist, who had departed when the city police arrived.
It is important to note that it was not alleged that the officer’s investigation caused plaintiff not to undertake one of his own. Nevertheless, the Court of Appeal found potential liability against the state based on the officer’s alleged negligence in failing to get the cyclist’s name. It read its own decision in Mann as establishing a special relationship and thus a duty to act based solely on the fact of “dependence.”6 Finding the pedestrian dependent on the highway patrolman, the Clemente court imposed liability where the patrolman’s acts consisted of stopping to investigate and failing to secure the cyclist’s name.
Yet on similar facts, the Court of Appeal in Winkelman v. City of Sunnyvale, supra, 59 Cal.App.3d 509, had found no special relationship giving rise to a duty to assemble evidence for future civil litigation: Plaintiff was driving on a freeway when struck from behind by a pickup truck, which pushed her car across the freeway into oncoming traffic and a collision with another car. Both drivers were badly injured and were unconscious when the city police arrived to [27]investigate. Meanwhile, the driver of the pickup stopped at the city police station and reported that he might have been a participant in a freeway accident, but was allowed to leave because the police had not yet learned that a pickup truck had been involved. Plaintiff based her suit on the city’s alleged negligence in permitting the driver of the truck to leave without securing identification, claiming that she suffered damages in the frustration of a valid cause of action for her injuries.
Responding to plaintiff’s argument in Winkelman that a duty to exercise due care arose when the officers voluntarily undertook to investigate the accident, the Court of Appeal reasoned that the detriment suffered by plaintiff by reason of the involvement of the truck occurred before the officers arrived and the claimed negligence on their part was the failure to protect her from the effects of events that had already happened. Since the officers had not created the peril they were under no duty to take affirmative action unless a relationship existed between them giving rise to the duty. The Court of Appeal found no such special relationship. Obviously Winkelman and Clemente are irreconciliable.
IV
Turning to the case before us, the sum and substance of plaintiff’s complaint is that unnamed agents of the state “arrived within minutes of the accident and assumed the responsibility of investigating the accident. ”7 The alleged negligence is nonfeasance—failure to test for the heat of the object which struck her, failure to secure identification of witnesses, and failure to attempt investigation or pursuit of the owner or occupant of the truck whose brake drum had caused her injuries. There are no allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which plaintiff alleges they should have done nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own.8
Applying the general principles of law represented in the decisions reviewed above, from McCorkle to Mann, we conclude that plaintiff has not stated a cause of action in that she fails to establish a duty of care owed by defendant state. The officers did not create the peril in which plaintiff found herself; they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there is no indication that they voluntarily [28]assumed any responsibility to protect plaintiff’s prospects for recovery by civil litigation; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers’ conduct, statements made by them which induced a false sense of security and thereby worsened her position.9
V
A remaining issue is whether plaintiff should be given leave to amend. (Cf. MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 815 [161 P.2d 449].) In her first and only pleading the facts of her encounter with the officer are alleged in the most general, partly conclusory terms. Presumably they can be fleshed out and—knowing nothing more about the case—it would be presumptuous for us to assume that plaintiff can never state a cause of action. While she has not asked for leave to amend, we are satisfied that this is the result of everybody’s misperception that the legal question presented was immunity, not whether plaintiff had stated or could state a cause of action.10 Since we have reached behind the immunity issue and dealt with the threshold question of whether the complaint stated a cause of action, fairness demands that plaintiff be given an opportunity to give that issue her best shot.
The judgment is reversed, with directions to permit plaintiff to file an amended complaint, should she ask for leave to do so.
Richardson, J., Broussard, J., Reynoso, J., and Golde, J.,* concurred.
Although plaintiff does not identify the fictional defendants in the complaint, a memorandum filed in opposition to the motion for judgment on the pleadings stated that “Plaintiff was seriously injured and lost her opportunity to obtain a remedy when a California Highway Patrol officer negligently failed to discover the identity of the person who injured her.”
The trial court stated: “Plaintiffs action against the State of California is predicated upon an exception to statutory immunity granted the state from liability arising from the negligent performance of discretionary acts. The Third District Court of Appeal has expressly repudiated such an exception based upon a ‘special relationship’ theory as pleaded here by plaintiff. Allowing this exception would contravene established immunity principles postulated under the California Tort Claims Act.”
See excellent discussion in Warren v. District of Columbia (D.C.App. 1981) 444 A.2d 1, 4-9. The court stated: “. . . the allegations of negligence in the present case derive solely from defendants’ status as police employees and from plaintiffs’ contention that defendants failed to do what reasonably prudent police employees would have done in similar circumstances. The difference is between ordinary negligence on the one hand and a novel sort of professional malpractice on the other. A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large. ” (Italics added; id., p. 8.)
Section 2412 provides: “All members of the California Highway Patrol may investigate accidents resulting in personal injuries or death and gather evidence for the purpose of prosecuting the person or persons guilty of any violation of the law contributing to the happening of such accident.” (Italics added.) As McCarthy v. Frost, supra, 33 Cal.3d 872, points out, section 2412 imposes no duty to investigate—it is only permissive. We add the observation that the intended beneficiaries of any investigation that is undertaken are the People as prosecutors in criminal cases, not private plaintiffs in personal injury actions.
The Legislature purported to overrule Mann by enacting section 820.25 (Gov. Code) as an urgency measure in 1979. The section, described by some as conceptually flawed (see Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar Supp. May 1982) § 2.65), deals with immunities and therefore, need not be set forth here. Nevertheless, the intent expressed in the urgency clause reveals legislative concern with the ramifications of expanded liability in the area of law enforcement and police activities: “A recent ruling by the appellate court has held that liability may attach to a state traffic officer who stops to assist a stranded motorist, [¶] In such a situation, the officer would not be immunized from tort liability by Section 820.2 of the Government Code, which gives a public employee immunity from liability when an act or omission which causes injury results from an exercise of discretion, since the court found that while the initial decision to stop may be discretionary, the decision to leave is not. To avoid liability, a traffic officer, or a state or local law enforcement official, would have to either not render assistance to motorists who are not involved in an accident or, having stopped to give assistance, [26]remain at the scene even though more serious emergency situations may arise elsewhere in the meantime, [¶] Therefore, in order that traffic officers, and state or local law enforcement officials, may have flexibility in assisting stranded motorists and in order that the state will no longer be required to pay damages on this theory of expanded liability, it is necessary that this act take effect immediately.”
One might well question whether the drowning man is not similarly dependent on the swimmer on shore; it is settled that there is no legal duty to come to the rescue. (Prosser, Law of Torts (4th ed. 1971) pp. 340-341; Rest., Torts, § 314, com. (e).)
The nature of the state’s undertaking was pleaded only as a legal conclusion; it was never presented as a factual allegation.
Incidentally, there is no allegation that the investigation which the officers did not conduct would have identified the person or entity responsible for plaintiff’s injuries or established legal liability by that person or entity.
To the extent that Clemente v. State of California, supra, 101 Cal.App.3d 374, is inconsistent with our views, it is disapproved.
As noted, the trial court gave judgment on the pleadings on an immunity theory. All briefs in the Court of Appeal and in this court were filed before our decision in Davidson v. City of Westminster, supra, 32 Cal.3d 197, reversed the priorities. )
Assigned by the Chairperson of the Judicial Council.