Metropolitan News-Enterprise


Friday, October 2, 2009


Page 4


C.A.: Officers Not Liable for Leaving Drunken Men in Parking Lot


By SHERRI M. OKAMOTO, Staff Writer


Two California Highway Patrol officers who left a pair of highly intoxicated young men in a San Francisco parking lot in the early morning hours could not be held negligent for a targeted attack on the men after their departure, the First District Court of Appeal has ruled.

Affirming a trial court’s decision in an unpublished opinion, Div. Five concluded Wednesday that the men’s complaint raised no triable issues of fact that the officers breached their duty to not induce detrimental reliance on their protection.

On July 12, 2003 CHP Officers Scott McFarlane and Matthew Weber observed an Oldsmobile roll through a red light at the intersection of Ocean Avenue and Howth Street.

When the driver of the car, Ryan Crowley, failed the field sobriety tests administered and a preliminary alcohol screening test showed he had a blood alcohol level of about 0.10 percent, the officers arrested him for driving under the influence.

Crowley’s passengers, Brendan Burke and Robert Ramirez, were also visibly intoxicated, according to the complaint. Later blood-alcohol tests indicated that Burke’s level of intoxication was 0.28 percent and Ramirez’s was 0.18 percent.

The officers allegedly directed Ramirez to move Crowley’s car to a San Francisco City College parking lot that was immediately adjacent to that section of the street and, upon learning that Ramirez did not have a driver’s license, let him use Crowley’s cell phone to call his brother for a ride home, the complaint said.

Ramirez allegedly told the officers his brother would arrive in about ten minutes, and the officers left with Crowley.

When Ramirez’s brother arrived, he discovered Ramirez and Burke had both been shot multiple times. Ramirez, who had been shot 22 times, died of his wounds.

Phillip Sands was subsequently arrested and convicted of murdering Ramirez for the purpose of preventing him from testifying in a criminal proceeding and assaulting Burke with a machine gun.

Ramirez’s mother and Burke sued the officers and the CHP for negligence, asserting that “leaving two obviously intoxicated young men in a parked car at 3:30 a.m., one of whom was under the legal drinking age, was a violation of [the CHP’s] own policies and procedures and was the proximate cause” of Ramirez’s death and Burke’s injuries.

After unsuccessfully demurring, the defendants moved for summary judgment and San Francisco Superior Court Judge Patrick Mahoney granted the request, finding that the officers did not have any information or knowledge about Sands, and that it would not have been reasonably foreseeable that Ramirez and Burke would be shot in the parking lot.

He reiterated these findings in rejecting the plaintiffs’ motion for a new trial.

Writing for the appellate court, Justice Terence L. Bruiniers rejected the plaintiffs’ argument that Burke’s and Ramirez’s intoxication and lack of mobility in a potentially hazardous location in the early morning hours imposed a duty to provide protection on the officers.

Absent any evidence supporting an inference that Ramirez and Burke would have taken any different action had they been stranded with a stalling car and an intoxicated driver without the officers present, Bruiniers reasoned that there was no evidence Ramirez and Burke were lulled into a false sense of security by the officers’ actions.

“Although the officers withdrew the protection of their physical presence, that withdrawal does not give rise to liability in the absence of detrimental reliance,” Bruiniers said

Bruiniers posited that Ramirez, Burke and Crowley “were either effectively stranded on Ocean Avenue before the police arrived, or at risk of serious injury or death with an impaired driver.”

After the arrest of Crowley “removed one potential, and self-evidently foreseeable, lethal risk,” the justice said no reasonable trier of fact could reasonably find that the officers placed Ramirez and Burke at a greater risk of harm by removing Crowley from the scene, ordering Ramirez to move the car out of a traffic lane, and instructing him remain there until someone came to pick him up.

The justice added that any alleged violation of CHP policies and procedures in the officers’ handling of the traffic stop might create a triable issue as to the officers’ breach of duty, but could not create a legally recognized duty apart from the duty not to induce detrimental reliance or increase the risk of harm to the detained occupants of the vehicle.

Presiding Justice Barbara J. R. Jones and Justice Mark B. Simons joined Bruiniers in his decision.

The case is Ramirez v. California Highway Patrol, A121607.


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