State Not Liable for CHP Officer’s Loss of Evidence

Monday, December 19, 2011

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State Not Liable for CHP Officer’s Loss of Evidence—C.A.

By KENNETH OFGANG, Staff Writer

The state cannot be held liable to a motorcyclist who was unable to sue the driver of a car he collided with because a California Highway Patrol officer lost or destroyed the second driver’s identifying information, the Court of Appeal for this district has ruled.

Div. Seven Friday ordered publication Friday of its Nov. 30 opinion in the case of Ronald Strong. The decision reverses a judgment of nearly $100,000 based on injuries Strong received in May 2006 when his motorcycle struck the other vehicle on Encinal Canyon Rd. in Malibu.

Strong alleged that the second vehicle entered the roadway unsafely, causing the collision. A friend of Strong’s, riding some distance behind, helped get Strong off the highway and waited with Strong and the other driver for emergency personnel to arrive.

Strong sued the state and CHP Officer Christopher Swanberg for negligence, infliction of emotional distress, and violation of his civil rights The parties eventually stipulated that Swanberg be dismissed from the action and that the case be tried solely on theories of negligence.

Bench Trial

At a bench trial before Los Angeles Superior Court Judge Lisa Hart Cole, Strong testified that he spoke with Swanberg at the scene and asked for the identity of the other driver. He said he repeated that request when Swanberg came to see him in the hospital.

Swanberg did not give him a name, but said it would be in the accident report, Strong testified, so Strong did not make further effort to learn the name at that time.

Swanberg, however, testified that Strong had already been taken to the hospital by the time he arrived. He said a deputy sheriff was present and gave him a piece of paper with Strong’s name on it and told him Strong had been taken the hospital.

He said he spoke to Strong’s friend, Jack Ribis, and the second driver and then went to the hospital, where he said he met Strong for the first time. There was a contradiction between Swanberg’s report and ambulance company records, however, as Strong reported arriving at the scene at 7:59 p.m., whereas the ambulance repotedly did not arrive until 8:04.

Officer Contradicted

Ribis identified Swanberg and said he saw the officer at the scene and heard him ask Strong for identification and insurance information, and also heard him tell Strong that the other driver’s information would be “in the police report” and that Strong would “get it at the hospital.”

Swanberg’s report said that Strong caused the collision. Efforts by Swanberg and the CHP to locate the other driver were unsuccessful.

The CHP’s internal investigation faulted Swanberg for failing to preserve the second driver’s identifying information, and for erroneously blaming Strong for the accident. In a revised report, Swanberg admitted his error and concluded on the basis of statements and physical evidence that the unidentified driver was at fault.

Strong presented evidence of serious injuries, chronic pain, and loss of ability to work..

In her statement of decision, Cole found the officer to be lacking in credibility. She concluded that he had spoken to Strong at the scene, and had promised that he would receive the other driver’s information, lulling Strong into believing he had no need to seek that information himself, but had either lost or destroyed the information.

Special Relationship

The judge found that Swanberg’s promise to provide the information created a special relationship as a matter of law, and that the breach of that promise was actionable. She further found that the CHP’s Collision Investigation Manual and form Traffic Collision Report were legislative enactments that created a mandatory duty to properly investigate, and that the breach of that duty was actionable under Government Code Sec. 815.6.

The judge ruled that total damages in the case were approximately $220,500, that the CHP and the driver of the second vehicle were each 50 percent at fault, and that damages should be reduced by five percent because Strong failed to mitigate them, for a net award of $99,224.90.

But Justice Frank Jackson, writing for the Court of Appeal, said that Cole made several errors of law.

To find a public entity liable for breach of mandatory duty under Sec. 815.6, the jurist explained, there must be “an enactment that is designed to protect against that particular type of injury,” as well as an injury of that kind proximately caused by the violation of that enactment.

The trial judge’s ruling that the CHP’s manual and form were such enactments was erroneous, Jackson said.

The ruling, he noted, relied on a 1985 Supreme Court decision that upheld a jury instruction permitting jurors to find the CHP liable if its officer violated any provision in the agency’s investigative manual and the violation was a cause of the plaintiff’s injuries.

Jackson said the ruling was not controlling because the issue of whether the manual had the force of law was not resolved by the Supreme Court, having been raised for the first time on petition for rehearing. Besides, the justice wrote, the case preceded the 1987 enactment of Evidence Code Sec. 669.1, which specifies that for the purpose of determining whether a violation of law creates negligence liability, policy manuals and guidelines regarding the conduct of public employees are not legislative enactments unless formally adopted as statutes, ordinances, or administrative regulations.

The justice went on to say that while Cole correctly concluded that Swanberg owed Strong a duty of care, he and the state have sovereign immunity from liability because a public entity cannot be held liable on a claim that could not be brought against a private party.

California, he explained, does not recognize a cause of action for spoliation of evidence absent a violation of statute. Since no statute permits an action against a private party for failing to preserve the type of evidence that was lost or destroyed in this case, Jackson said, the state and its employees are not subject to such an action.

Attorneys on appeal were Deputy Attorneys General Richard J. Rojo and D.L. Helfat for the state and Armando J. Berriz of Neustadt & Berriz for Strong.

The case is Strong v. State of California, B225885.