Metropolitan News-Enterprise


Thursday, December 11, 2014


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No Liability for Death of Intoxicated Girl CHP Officers Allowed to Wander Highway on Foot at Night—C.A.


By a MetNews Staff Writer


The Court of Appeal for this district has affirmed a judgment of dismissal in a case brought against the state by the parents of a 17-year-old girl who, despite being in an intoxicated state, was allowed by two California Highway Patrol officers she asked for help to wander by foot into the night, ending with her being fatally struck by a car on a highway.

Los Angeles Superior Court Judge Lee Edmon, sitting on assignment, wrote the opinion for Div. Three, of which she will become presiding justice on Jan. 5. A concurring opinion was penned by the outgoing presiding justice, Joan Dempsey Klein.

The unpublished opinions were filed Monday.

Los Angeles Superior Court Judge Barbara M. Scheper sustained demurrers without leave to amend to the complaint filed by parents of the decedent, Sophia Salazar. Edmon said that while the “facts of this case are undeniably tragic,” the parents can have no redress against the state, either for violation of federal civil rights or for negligence, based on the officers’ failure to save their daughter from harm.

According to complaint, she had left a party in an intoxicated state, wandered onto a parking lot of a 7-11 convenience store at about 12:30 a.m., and asked the officers for help getting home. The pleading averred that she was “visibly distraught, shaken, disoriented, and intoxicated, ill and in need of medical care, lost, visibly underage, alone and out on public streets past curfew.”

They called a cab for her, but she refused to take it. The complaint alleges:

“[The officers] allowed Sophia to leave their presence in the well-lit area of the 7-Eleven parking lot on foot, in the dark. They stood and watched as Sophia headed in a direction opposite from the home address she had provided to the defendants. The defendant officers stood and watched with reckless disregard for the dangers to Sophia as she stumbled deeper into a high-crime area in the wrong direction.”

No Affirmative Act

Edmon wrote:

“Under applicable federal and state law, the officers and the State could be liable only if they took some affirmative action to place Sophia in danger or to heighten her vulnerability to existing danger. Because plaintiffs did not allege any such affirmative action, the trial court correctly sustained defendants’ demurrer.”

Differentiating decisions finding liability under 42 USC §1983 for federal civil rights violations based on a “state-created danger theory,” Edmon said those cases did involve “affirmative conduct.” She elaborated:

“When Sophia approached the officers at the 7-Eleven, she was already ‘distraught, shaken, disoriented, and intoxicated.’ Her physical condition and location were unchanged when she walked away from the officers a short time later; unlike the cited cases, the officers neither moved her to different location nor deprived her of the assistance of family or friends. In short, while the officers did not improve Sophia’s circumstances, neither did they make them worse. Under the authority discussed above, therefore, the officers’ actions did not give rise to a Fourteenth Amendment substantive due process claim.”

Edmon said that previous cases have held: that police officers do not have a duty, on which a negligence action may be premised, to take an inebriated person into civil or criminal custody.” It has also been decided, she noted, that “minors have no greater right than adults to sue public officials for failing to protect them from the consequences of their own intoxication.”

Klein’s opinion

Klein said in her concurring opinion:

“Given the present state of the law, the decedent’s parents cannot state a cause of action in tort against the two California Highway Patrol (CHP) officers and the State of California. Nonetheless, this court’s affirmance should not be construed as condoning the conduct of the CHP officers in this fact situation. A modicum of common sense could have prevented this tragedy. Taking as true the allegations of the complaint, reasonable law enforcement officers would have detained this obviously intoxicated juvenile, placed her in the back seat of their vehicle, and taken her into civil protective custody. Instead, they did nothing. As a result, a young life met a tragic ending and a family is devastated.

“Hopefully, one day the Legislature will see fit to heighten the duty of law enforcement in such circumstances. Until then, one can only rely on the conscience of individual officers as they perform their duties.”

The case is Esmaili v. California, B246247.

Mark S. Eisenberg of the West Los Angeles law firm of Eisenberg & Associates and Daniel C. Leib of the Beverly Hills-based Leib Law Corporation argued for the parents. Deputy Attorney General Sandra I. Barrientos represented the state.


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