Bell v. City of Palos Verdes Estates

ROTH, J.

On December 12, 1960, appellant’s motor vehicle operated within the city limits of respondent city (respondent) was halted by a police car operated by two officers, Freil and Tingey, both of whom, together with the chief of police of respondent, are joined as defendants in this action.

On March 9, 1961 appellant filed a timely written verified claim, based on facts hereinafter made clear, with respondent for damages. The claim was denied. This action was filed on October 24,1961.

A second amended complaint alleging three causes of action was filed on January 4, 1962. All causes of action appear to be directed against Freil, Tingey, respondent and the chief of police of respondent city as defendants. On January 15, 1962 the respondent, together with defendant Tingey, filed a joint demurrer to said second amended complaint. Respondent’s demurrer was based on the ground that the complaint did not set forth facts sufficient to constitute a cause of action against respondent. Plaintiff did not amend. On March 14, 1962 the court, pursuant to motion of respondent filed under section 581, subdivision 3, of the Code of Civil Procedure, dismissed said action as to respondent.

The first cause of action alleges that Tingey

“ ...

carelessly, negligently and unlawfully discharged a tear gas gun in plaintiff’s face, causing a tear gas projectile to strike plaintiff’s face and eyes....” The allegation immediately following states that defendant Freil negligently, carelessly and unlawfully aided, assisted and personally cooperated with Tingey in said acts. The second is predicated upon an unlawful and violent assault and incorporates the allegations of the

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first. The third is predicated upon the theory that respondent and the chief of police “... negligently, carelessly and unlawfully trained, instructed, advised and equipped” defendant Tingey.

The appeal is from the judgment of dismissal and the order sustaining demurrer.

The facts as pleaded must be accepted as true. It appears from the facts alleged that as appellant emerged from his vehicle, he was negligently, carelessly and unlawfully struck in the face by a projectile discharged from a tear gas gun carried by defendant Tingey and that defendant Freil cooperated with and assisted Tingey. On these facts Tingey and Freil would be personally liable. Nothing appears to indicate that the discharge of the tear gas gun was anything other than a negligent and careless act. Since Tingey and Freil would be personally responsible, respondent is clearly liable under the rule stated in