Metropolitan News-Enterprise


Friday, June 23, 2006


Page 1


CHP Not Liable for Injuries to Tow Truck Driver — C.A.


By a MetNews Staff Writer


Highway patrol officers did not owe a duty of care to a tow truck operator injured at the scene of an accident, where the officers neither created nor increased the risk of harm that led to his injuries, the Third District Court of Appeal ruled yesterday.

Tehama Superior Court Judge Edward J. King III granted summary judgment to the CHP, and the Third District affirmed.

On a rainy day in 2003, CHP officers Tim Larios and Vincent Zambrana, arriving at the scene of a one-car accident, found a Volkswagon Jetta overturned in a ditch on the side of the road, the record showed. They informed the CHP dispatch that a tow truck was needed.

Troy Minch, an employee of J& L Towing, later arrived at the scene.

Minch was able to use his truck to roll the Jetta over and remove it from the ditch. He then hooked the Jetta to the truck, and drove it 15 to 20 feet forward onto the shoulder of the road.

After Minch safely parked the Jetta, Zambrana left.

Minch talked with the owner of the Jetta, then returned to his truck to get his receipt book. He approached the cab of the truck on the driver’s side, the side next to traffic, because he remembered that the passenger side was locked.

As Minch approached the cab, Larios went to the other side of the road to warn oncoming traffic, rounding a curve, to slow down. Several vehicles had heeded Larios’ instructions when he spotted two white pickups approaching.

The first truck, driven by Fidel Reyes, slowed down. The second truck, driven by Reye’s nephew, Juvenal Garcia, didn’t slow down until he noticed Reyes’ breaklights.

Garcia slammed on his breaks, locking his wheels, and causing his truck to spin out of control.

The truck slid across the road, hit Minch, knocking him to the ground, hit Minch’s truck, then came to a stop against the Jetta.

Minch was severely injured and sued the CHP, alleging that Larios and Zambrana were negligent in “failing to properly monitor and/or regulate traffic within the vicinity of the [accident scene].”

Justice Arthur G. Scotland, writing for Third District, wrote, “We, of course, accept the rule that a police officer who undertakes to come to the aid of another will be liable if his failure to exercise care increases the risk of harm or the harm is suffered because of the other’s reliance on the undertaking.”

However, the court found that this rule did not help Minch’s case.

“[T]he CHP officers did not owe a duty of care in tort to plaintiff.” Scotland said. “They did not create the risk of harm. After plaintiff extracted the Jetta, they did not direct him to stay at the scene or tell him where to park. They did not lock the passenger door of the tow truck, thus compelling plaintiff to walk on the traffic side of the truck. . . . [A]nd they did not say anything to indicate that they would guarantee his safety.”

Minch claimed that King’s finding that, “Plaintiff has failed to establish, either through witnesses or expert testimony, that the officers did anything wrong,” constituted error. He argued that the issue of whether the officers did anything wrong goes to breach of duty, which should have been left to the jury, and that it was error for the court to make such a finding in resolving the question of duty.

Scotland disagreed, saying:

“There is some overlap in the factors that a court considers in determining the existence of a duty and those the trier of fact will consider in determining whether a duty was breached. Here, the court’s observation that plaintiff did not show the officers did anything wrong reflects that plaintiff’s claim is based upon a general failure to protect, rather than affirmative conduct creating a risk of harm— i.e., nonfeasance rather than misfeasance.”

The court also rejected Minch’s argument that the CHP Officer Safety Manual established the existence of a duty by admonishing officers to perform traffic control functions when necessary. Scotland noted that the manual was not adopted as a rule pursuant to the Administrative Procedure Act.

The case is Minch v. California Highway Patrol, 06 S.O.S. 3189.


Copyright 2006, Metropolitan News Company