Lugtu v. California Highway Patrol , 79 Cal. App. 4th 359 ( 2000 )

94 Cal. Rptr. 2d 113 (2000) 79 Cal. App. 4th 359

Cecelio LUGTU et al., Plaintiffs and Appellants,
v.
CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

No. D032518.

Court of Appeal, Fourth District, Division One.

March 24, 2000.

Law Office of Steven W. O'Reilly and Charles B. O'Reilly, Marina Del Rey, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Margaret A. Rodda, Assistant Attorney General, Kristin G. Hogue and Karen M. Walter, Deputy Attorneys General, for Defendants and Respondents.

McDONALD, J.

In this case we determine that a law enforcement officer has a duty of reasonable care to the occupants of a motor vehicle when the officer stops the vehicle for a traffic violation.

Cecelio Lugtu, Zean Lugtu, Zeachelle Lugtu and Leah Cabildo (together Plaintiffs) appeal a judgment after the trial court granted the summary judgment motion of the State of California and Richard Hedgecock (together Defendants) in Plaintiffs' personal injury action against Defendants and others. Plaintiffs contend the trial court erred by finding: (1) Hedgecock did not owe Plaintiffs a duty of reasonable care; (2) no triable issues of material fact existed whether (a) Hedgecock acted with reasonable care or (b) Hedgecock's alleged negligence was a legal cause of Plaintiffs' injuries; and (3) Defendants are statutorily immune from liability. We reverse the judgment and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL

BACKGROUND

On August 15, 1996, Hedgecock was a California Highway Patrol (CHP) motorcycle patrol officer on duty on Highway 78, which had three westbound lanes. Shortly before 5:00 p.m. he saw a Toyota Camry traveling westbound at an estimated speed of 85 miles per hour in the fast, or number one, lane. Hedgecock drove in the middle lane to a position beside the Camry, sounded his siren to attract the attention of its driver, and motioned to the driver to stop in the 10-foot wide center divider median area. The driver stopped the Camry in the median area. Hedgecock stopped his motorcycle 10 to 15 feet behind the Camry and turned off the motorcycle's lights. He walked to the driver's side of the Camry, which was about two feet from the concrete median barrier. There were three young girls in the backseat (Zean Lugtu, Zeachelle Lugtu, and Leah Cabildo) who were not restrained by seatbelts. Hedgecock issued a speeding citation to Michael Lugtu, the Camry's driver, and a safety belt citation to Cecelio Lugtu, who was sitting in the front passenger's seat. After writing the citations, Hedgecock noticed that the girl in the middle rear seat remained unrestrained and stated he would issue another citation if she were not restrained by a seat belt. Michael Lugtu got out of the Camry as Hedgecock began walking back to his motorcycle. The Camry had been stopped in the median area for about six to eight minutes at that time.

Hedgecock saw a westbound pickup truck drifting into the center median toward him and the Camry. As the truck approached, he waved and jumped up and down, trying to attract the attention of the truck's driver, James Neeb. The truck was partly in the median area and partly in the number one lane. Hedgecock dove over the concrete median barrier and heard a loud crashing noise. The truck struck the rear of the Camry. Hedgecock called for assistance and rendered aid to the Camry's occupants. Plaintiffs were seriously injured in the accident.

Plaintiffs filed a complaint against Defendants, Neeb, and Michael Lugtu, alleging a negligence cause of action.^[1] Defendants filed a motion for summary judgment, asserting that: (1) Hedgecock did not owe a duty of reasonable care to Plaintiffs; (2) as a matter of law, the accident was not foreseeable and Hedgecock's conduct was not a legal cause of Plaintiffs' injuries; and (3) Defendants were statutorily immune from liability. Defendants argued that Hedgecock owed no duty of reasonable care to Plaintiffs because his alleged conduct was merely a failure to protect Plaintiffs from injury, a negligent omission or nonfeasance, and he did not have the requisite special relationship with Plaintiffs on which negligence liability could be based. Defendants lodged declarations of Hedgecock and Arnold Sidney. Hedgecock stated in his declaration that he decided to stop the Camry in the median area because it was closer to the number one lane than to the right shoulder and was a lesser hazard to him and the Camry's occupants than stopping on the right shoulder. He stated that CHP procedures gave him discretion whether to stop a traffic violator in the median area or on the right shoulder. Sidney stated in his declaration that he had been a CHP officer since 1969, was trained on CHP motorcycle patrol procedures and was instructed that a motorcycle patrol officer had discretion whether to make a traffic enforcement stop in the median area. In 1991 Sidney trained Hedgecock on CHP motorcycle patrol procedures. He instructed Hedgecock that a traffic stop in the median area was appropriate if the violator was in the fast, or number one, lane and if he believed a stop in the median area would be safer. Sidney stated that based on his review of various documents, Hedgecock acted reasonably and within his discretion by stopping the car in the median area.

Plaintiffs opposed Defendants' motion for summary judgment, asserting that Hedgecock owed them a duty of reasonable care and whether Hedgecock exercised reasonable care and whether his conduct was a legal cause of their injuries were triable issues of fact. They also asserted that Defendants were not statutorily immune from liability. Plaintiffs argued they were not required to show a special relationship existed between Hedgecock and them as a requisite to the existence of Hedgecock's legal duty to use reasonable care in making a traffic stop. Plaintiffs also argued that the CHP officer safety manual (Manual) showed that traffic enforcement stops should be made on the right shoulder of highways rather than in the median area. Plaintiffs lodged a declaration of Joseph Thompson, chapter 10 of the Manual, a copy of the CHP's report on the accident, and excerpts from the depositions of Hedgecock and Sidney. Thompson stated in his declaration that he was employed by the CHP from 1959 through 1982 as an officer and as an accident investigator. He had been trained on motorcycle patrol procedures. He stated he was familiar with the Manual and it required all routine traffic stops to be made on the right shoulder of a highway and CHP officers had no discretion to direct a motorist to the center median area when making a traffic stop. Thompson stated that based on his review of documents, Hedgecock was negligent in directing the Camry's driver to stop in the center median area instead of on the right shoulder, and by so doing, Hedgecock substantially increased the risk of harm to the Camry's occupants. Thompson stated that the center median area was only for emergency vehicles; drivers on the freeway do not expect to see a routine traffic stop in the median and such stops could startle drivers, causing them to lose control of their vehicles.

Defendants asserted specific evidentiary objections to Thompson's declaration and the CHP's investigative report on the accident.

On October 21, 1998, the trial court issued its order granting Defendants' motion for summary judgment. The court stated: "The court declines to rule on specific evidentiary objections. However, the court will disregard all evidence which is found to be incompetent or inadmissible. (See Biljac Associates v. First Interstate Bank (1990) 218 Cal. App. 3d 1410 [267 Cal. Rptr. 819].)

"Defendants' Motion for Summary Judgment is granted as defendant Hedgecock had no duty to stop [P]laintiffs on the right shoulder as a matter of law and there is no triable issue of fact as to whether Hedgecock acted with due care or whether his conduct was a legal cause of [Plaintiffs' injuries. In addition, even assuming a duty, lack of due care, and causation, defendants are immune from liability.

"The undisputed evidence demonstrates that Officer Hedgecock was not required by the [Manual] or internal procedures to stop [P]laintiffs only on the right shoulder of the freeway and that stopping a vehicle in the center median area is acceptable CHP procedure under certain circumstances, pursuant to the Sidney declaration.... Therefore, as a matter of law, [Defendants did not owe [P]laintiffs a duty to stop them on the right shoulder only.

"Defendants cannot be found negligent for Hedgecock's actions unless Hedgecock failed to exercise due care in deciding to stop [P]laintiffs in the center median area. In order to demonstrate a lack of due care, [P]laintiff[s] must present evidence showing that Hedgecock had `actual knowledge of some history that ... an accident is likely to occur ...' at that place. (Whitton v. State of California (1979) 98 Cal. App. 3d 235, 242-243 [159 Cal. Rptr. 405].) The undisputed evidence demonstrates no such knowledge[.] (See the Hedgecock declaration....)

"Similarly, because of a lack of foreseeability, [Defendants' conduct was not a cause-in-fact or substantial factor in bringing about [Plaintiffs' injuries. (Id.)

"Defendants are also not liable for any claimed nonfeasance in that there are no facts showing a special relationship existed between [Defendants and [Plaintiffs. Indeed, [P]laintiffs concede in their opposition that the concept of special relationship has `no applicability herein.' ...

"Even assuming the existence of a duty, lack of due care, and causation, [Defendants are immune from liability for discretionary acts pursuant to Government Code [section] 820.2. As is pointed out above, the undisputed evidence in this motion demonstrates that Officer Hedgecock's decision to stop [Plaintiffs' car in the center median area of the freeway was a judgment call and an acceptable option, depending on the circumstances. In other words, it was a discretionary act subject to immunity pursuant to [Government] Code [section] 820.2."

The trial court entered judgment for Defendants. Plaintiffs timely filed a notice of appeal.

DISCUSSION

I

Summary Judgment Standard of Review

The purpose of a motion for summary judgment is "to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial." (Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App. 3d 1, 10, 262 Cal. Rptr. 716.) Code of Civil Procedure section 437c, subdivision (c) provides that a motion for summary judgment must be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As a reviewing court, we conduct a de novo review to determine whether there are any genuine issues of material fact. (Appalachian Ins. Co., supra, at p. 11, 262 Cal. Rptr. 716.) Also, an appellate court in reviewing a grant of summary judgment "must make its own independent determination of the construction and effect of the papers submitted [citation], and the validity of the ruling is reviewable irrespective of the reasons stated. [Citation.]" (Preis v. American Indemnity Co. (1990) 220 Cal. App. 3d 752, 757, 269 Cal. Rptr. 617.)

We strictly construe the moving party's papers and liberally construe those submitted by the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46.) "Doubts as to the propriety of summary judgment should be resolved against the moving party. [Citation.]" (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal. App. 3d 379, 383, 271 Cal. Rptr. 780.) Furthermore, "[i]t is the moving party's burden to make a sufficient showing that the claim is entirely without merit and if that showing is deficient summary judgment must be denied. [Citation.]" (Id. at p. 384, 271 Cal. Rptr. 780.)

II

Liability of Public Employees and Public Entities for Negligence Generally

Public employees are liable for injuries caused by their negligence to the same extent as private persons, except as otherwise specifically provided by law. (Gov. Code, § 820.)^[2] Public entities are liable for the negligent acts of their employees who are acting within the scope of their employment, except as otherwise specifically provided by law. (§ 815.2.)

A cause of action for negligence requires a plaintiff to show the "defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]" (Natty v. Grace Community Church (1988) 47 Cal. 3d 278, 292-293, 253 Cal. Rptr. 97, 763 P.2d 948.) "[E]very [negligence] case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct." (Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40, 46, 123 Cal. Rptr. 468, 539 P.2d 36; Civ.Code, § 1714.) The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal. App. 4th 243, 265, 80 Cal. Rptr. 2d 196; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 748, p. 83.) The elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination. (Andrews v. Wells (1988) 204 Cal. App. 3d 533, 538; 251 Cal. Rptr. 344 6 Witkin, supra, § 749 at p. 86.)

A legal duty of reasonable care may arise out of either: (1) "the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated" (i.e., misfeasance), or (2) an affirmative duty where the defendant has a special relationship with the plaintiff or others in plaintiffs class (i.e., nonfeasance). (6 Witkin, Summary of Cal. Law, supra, Torts § 732 at pp. 60-61.) "Thus, in considering whether a person had a legal duty in a particular factual situation, a distinction must be made between claims of liability based upon misfeasance and those based upon nonfeasance." (Andrews v. Wells, supra, 204 Cal.App.3d at p. 539, 251 Cal. Rptr. 344.) Weirum described the distinction between a legal duty arising out of action, or misfeasance, and inaction, or nonfeasance:

"Misfeasance exists when the defendant is responsible for making the plaintiffs position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.... [Liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above." (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 49, 123 Cal. Rptr. 468, 539 P.2d 36.)

In Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, at pages 1838-1839, 20 Cal. Rptr. 2d 913, the court stated:

"In determining whether the defendant owed a duty of due care to the plaintiff in a given case, the courts have applied the balancing test derived from Rowland v. Christian [(1968) 69 Cal. 2d 108, 112-113, 70 Cal. Rptr. 97, 443 P.2d 561]: `... [T]he major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty [that] the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.'"

The following additional factors are considered when a public entity is a defendant: "the extent of the agency's powers; the role imposed on it by law; and the limitations imposed on it by budget. [Citations.]" (Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 268, 80 Cal. Rptr. 2d 196.)

III

Hedgecock Owed Plaintiffs a Duty of Reasonable Care When He Directed the Camry's Driver to Stop for a Traffic Violation

Plaintiffs contend Hedgecock owed them a duty of reasonable care when he directed the Camry's driver to stop for a traffic violation.

A

The parties do not cite, and we are unaware of, any California case that discusses the issue of a law enforcement officer's duty of reasonable care in stopping traffic violators. However, some California cases implicitly hold that the duty exists.

In Whitton v. State of California, supra, 98 Cal. App. 3d 235, 159 Cal. Rptr. 405, the CHP officers stopped the plaintiffs car for a speeding violation. (Id. at pp. 238-239, 159 Cal. Rptr. 405.) The CHP officers parked their vehicle about 15 feet behind the plaintiffs car on the right shoulder of the highway and, while they questioned the plaintiff and administered sobriety tests, a third vehicle struck the CHP vehicle from behind, causing it to pin the plaintiff against her car. (Ibid.) The plaintiff filed a negligence action against the state and the CHP officers, but the jury found for the defendants. (Id. at p. 238, 159 Cal. Rptr. 405.) The trial court denied the plaintiffs motion for judgment notwithstanding the verdict. (Ibid.) On appeal the plaintiff contended substantial evidence did not support the jury's verdict and the trial court erred by denying her motion for judgment notwithstanding the verdict. (Id. at p. 240, 159 Cal. Rptr. 405.) She argued the CHP officers placed her in a zone of danger, improperly exposing her to a foreseeable risk of harm. (Ibid.) The Court of Appeal concluded there was substantial evidence to support the jury's finding that the officers acted in a reasonable manner. (Id. at pp. 241-242, 159 Cal. Rptr. 405.) It stated that it was a question of fact for the jury whether the officers acted in a reasonable manner. (Id. at p. 241, 159 Cal. Rptr. 405.) It further stated the officers had a duty "to perform their official duties in a reasonable manner," but that they need not exercise perfect judgment. (Ibid.) The jury's verdict "indicate[d] that the jury accepted the substantial evidence that the officers did not place or compel plaintiff to remain between the two cars and that she was not at such position at the moment of the impact." (Id. at p. 242, 159 Cal. Rptr. 405.) "The evidence disclosed that the officers followed departmental rules in stopping, questioning, and testing [the plaintiff). There was evidence that the discussion properly took place on the untraveled shoulder of the road and to the side of the parked vehicles." (Ibid.) The court therefore limited the plaintiffs appellate contention to a claim that the CHP officers were absolutely liable despite the substantial evidence supporting the jury's verdict. (Ibid.) The court rejected that contention, stating:

"It cannot be said that the officers in this case were negligent as a matter of law, simply because they stopped the speeding motorist at this location and inquired as to her driving ability. The fact that a possibility existed that the vehicles might be hit by a drunken driver did not change the situation and create a new responsibility on the part of the officers as insurers of the motorists' safety from drunken drivers." (Ibid.)

The court concluded the plaintiff had shown no reason to create and apply "a rule of almost absolute liability." (Id. at p. 243, 159 Cal. Rptr. 405.) It stated:

"In summary, when an officer stops a motorist on the shoulder of the highway and allows the motorist to remain in or near the area, such officer is not negligent simply because there is a possibility that a drunken driver might collide with such vehicles parked on the shoulder and off the traveled lane. All possibilities of risk even if `foreseeable' in the abstract as possibilities cannot be eliminated. There was no evidence in the case at bench that any of the risks to plaintiff, and which are common to all users of the public area, was increased by any negligent conduct on the part of [the officers]. Negligence seldom, if ever, is a pure question of law. It most always is a question of fact to be determined by the fact finder, here the jury. The jury here found in favor of defendants. The trial court did not err in denying the motion for judgment notwithstanding the verdict." (Id. at p. 244, 159 Cal. Rptr. 405.)

Whitton affirmed the defense verdict because substantial evidence supported the jury's verdict and the CHP officers were not absolutely liable to the plaintiff for injuries suffered during a traffic stop. However, Whitton did not hold that CHP officers do not owe a duty of reasonable care to occupants of cars stopped by them for traffic violations. Rather, Whitton assumed CHP officers owe a duty of reasonable care to such persons. (Id. at p. 241, 159 Cal. Rptr. 405.)^[3]

Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575, at page 587, 86 Cal. Rptr. 465, 468 P.2d 825, also implicitly concluded law enforcement officers owe a duty of reasonable care to persons stopped for traffic violations. Grudt stated: "[T]he evidence favorable to plaintiff raised a reasonable doubt whether [the police officers] acted in a manner consistent with their duty of care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death." (Ibid. Grudt) reversed the judgment for the defendants because the trial court erroneously precluded the plaintiffs negligence theory of liability and excluded a police tactical manual as evidence of the officers' standard of reasonable care. (Id. at pp. 585-588, 86 Cal. Rptr. 465, 468 P.2d 825; cf. Mann v. State of California (1977) 70 Cal. App. 3d 773, 780, 139 Cal. Rptr. 82, superseded by statute on other grounds as noted in Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 283, fn. 31, 80 Cal. Rptr. 2d 196 ["Once, having apprised himself of the dangerous position of the stranded motorists and those about them, such as plaintiff, [the officer] had a duty to exercise ordinary care to protect these people from traffic dangers...."].) Reed v. City of San Diego (1947) 77 Cal. App. 2d 860, 177 P.2d 21 did not directly address the issue of the duty of reasonable care owed by law enforcement officers to occupants of cars stopped by them for traffic violations, but it affirmed a judgment on a jury verdict for the plaintiff in a factual situation similar to that in Whitton. Reed also concluded that the defendant officers were not statutorily immune from liability for their negligence. (Id. at pp. 862-868, 177 P.2d 21.)

B

Kaisner v. Kolb (Fla.1989) 543 So. 2d 732 is the most analogous case we have found that expressly discusses the issue of whether a law enforcement officer owes a legal duty of reasonable care to occupants in a car stopped for a traffic violation. Plaintiffs Kaisner, his wife, and five children were traveling in a pickup truck on a city street when officers stopped it for an expired inspection sticker. (Id. at p. 733.) The officers parked their vehicle behind the truck in the right curb lane. (Ibid.) Kaisner walked between the two vehicles and complied with the officers' order to not walk any farther. (Ibid.) A few minutes later, a third vehicle struck the officers' vehicle from behind, causing it to strike Kaisner and his truck. (Ibid.) The plaintiffs filed a negligence action against the officers, the sheriffs department, and the insurer of the officers' vehicle, alleging the officers breached a duty of care by not using proper procedures in the stop. (Ibid.) The trial court granted the defendants' summary judgment motion. (Ibid.) The Florida Supreme Court reversed the summary judgment, concluding:

"In this case, we find that [the plaintiffs were] owed a duty of care by the police officers when [Kaisner] was directed to stop and thus was deprived of his normal opportunity for protection. Under our case law, our courts have found liability or entertained suits after law enforcement officers took persons into custody, otherwise detained them, deprived them of liberty or placed them in danger. [Citations.] So long as [Kaisner] was placed in some sort of `custody' or detention, he is owed a common law duty of care." (Id, at p. 734, italics added.)

The court elaborated: "[Kaisner] and his family unquestionably were restrained of their liberty when they were ordered to the roadside. They were not free to leave the place where the officers had ordered them to stop. [Kaisner] effectively had lost his ability to protect himself and his family from the hazard at hand, which consisted of onrushing traffic. The only way [Kaisner] could have escaped this threat would have been by disobeying the officers' instructions that he remain in the general area where they had stopped him, thus subjecting himself to immediate arrest and criminal charges. Under these circumstances, [Kaisner] clearly was sufficiently restrained of liberty to be in the `custody' or control of the police. Thus, the officers owed him and his family a duty of care arising under the common law of Florida." (Ibid., italics added.) On the issue of foreseeability, it stated:

"There is a strong public policy in this state that, where reasonable men may differ, the question of foreseeability in negligence cases should be resolved by a jury. [Citation.] Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. [Citations.]

"We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police. The expert's affidavit in this case created an issue of fact as to whether the police violated this duty of care and were therefore guilty of negligence...." Id. at pp. 735-736, italics added.)

Kaisner concluded: "We thus find that a duty of care existed that would support a lawsuit in the absence of any viable claim of governmental immunity...." (Id. at p. 736.)^[4]Kaisner supports the conclusion that Hedgecock owed Plaintiffs a legal duty of reasonable care when he directed the driver of the Camry to stop for a traffic violation.^[5]

C

It is a question of law for our determination whether Hedgecock owed Plaintiffs a legal duty of reasonable care when he directed the Camry's driver to stop for a traffic violation. (Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 265, 80 Cal. Rptr. 2d 196.) Plaintiffs' complaint alleged that Hedgecock was negligent by directing the Camry's driver to stop in the median area. In the absence of clear California authority, we apply the Rowland balancing test to determine whether Hedgecock owed Plaintiffs a duty of reasonable care in stopping the Camry's driver for a traffic violation.

The first factor in the Rowland test is the foreseeability of the kind of harm suffered by Plaintiffs. Foreseeability of harm is not decided based on "whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe (1986) 41 Cal. 3d 564, 573, fn. 6, 224 Cal. Rptr. 664, 715 P.2d 624.) Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal. 3d 49, at pages 57-58, 192 Cal. Rptr. 857, 665 P.2d 947, stated: "`[F]oreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.' [Citation.] One may be held accountable for creating even `"the risk of a slight possibility of injury if a reasonably prudent [person] would not do so."' [Citations.] Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm—e.g., being struck by a car while standing in a phone booth—not its precise nature or manner of occurrence. [Citations.]" Bigbee concluded that it was reasonably foreseeable that a vehicle could veer off a busy road and strike a person in the defendant telephone company's telephone booth that was located 15 feet from the road. (Id. at p. 58, 192 Cal. Rptr. 857, 665 P.2d 947.) Bigbee stated: "Swift traffic on a major thoroughfare late at night is to be expected.... [I]t is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel— no matter how straight and level that road may be." (Ibid.) Furthermore, a third person's negligent acts do not preclude a defendant's liability for negligence if the third person's negligence is reasonably foreseeable. Bigbee noted: "`If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.'" (Ibid., quoting Rest.2d Torts, § 449, p. 482.) We conclude Bigbee controls the issue of foreseeability in this case. In this era of high-volume and high-speed highway traffic, it is reasonably foreseeable that a car in the fast lane may veer off the marked traffic lane and into an adjacent area, striking another car that is stopped in that area.^[6] Therefore, by directing the driver of the Camry to stop along a busy highway, Hedgecock should have reasonably foreseen the risk that the Camry would be struck by a passing car and that Plaintiffs would be injured. The degree of foreseeability in this case was greater than that in Bigbee. Plaintiffs were not in a telephone booth 15 feet from a highway as in Bigbee, but in a car that was stopped only a few feet from the fast lane of onrushing highway traffic.

The second Rowland factor is the degree of certainty that Plaintiffs suffered injuries. Plaintiffs were all treated for injuries at a hospital after the accident. Defendants do not dispute that Plaintiffs were injured. Therefore, it is certain Plaintiffs suffered injuries from the accident.

The third Rowland factor is the closeness of connection between Hedgecock's conduct and the injuries suffered by Plaintiffs. Hedgecock directed the driver of the Camry to stop in the median area where it was later struck by a passing car that veered from the fast lane. We conclude there is a close connection between Hedgecock's action and the injuries suffered by Plaintiffs.

The fourth Rowland factor is the moral blame attached to Hedgecock's conduct. If Hedgecock is ultimately found to have acted without reasonable care by placing Plaintiffs in risk of the harm they suffered, he should bear some moral blame for placing Plaintiffs in that vulnerable position. That moral blame may be greater because Hedgecock, as a CHP officer who regularly patrolled the highway in question, may be deemed to have had constructive, if not actual, knowledge of the substantial risk and potential harmful consequences of his conduct in directing the driver of the Camry to stop in the median area.

The fifth Rowland factor is the policy of preventing future harm. We believe the law generally should encourage law enforcement officers to exercise reasonable care and prevent harm to traffic violators to the extent reasonably practicable. The imposition of a duty of reasonable care on Hedgecock in the circumstances of this case presumably will encourage law enforcement officers generally to exercise reasonable care when stopping traffic violators. Imposition of a duty of care furthers the policy of preventing future harm to drivers and passengers of cars that are stopped for traffic violations.

The sixth Rowland factor is the extent of the burden on Hedgecock and the consequences to the community of imposing a duty of reasonable care in this case. Defendants do not assert that imposition of a duty of reasonable care on Hedgecock in this case would be overly burdensome. Hedgecock chose among directing the Camry's driver to stop in the median area or on the right shoulder area, or to leave the highway entirely. Highway 78 had three westbound lanes in the immediate area. It would not necessarily have consumed undue time or expense for Hedgecock to direct the Camry's driver to cross two lanes and stop on the right shoulder or to leave the highway at the next off-ramp, rather than stop in the median area. Furthermore, although imposition of a duty of reasonable care and potential liability may result in a financial loss to Defendants and indirectly the community, that financial loss may ultimately encourage Defendants to act in the future to avoid the type of injuries suffered by Plaintiffs in this case. Therefore, the community, which includes occupants of cars stopped for traffic violations, will presumably benefit from the anticipated reduction in the number and severity of injuries suffered by its members who travel in vehicles on highways.

The seventh Rowland factor is the availability, cost, and prevalence of insurance for the risk involved. Although no evidence was submitted on this issue, we presume that Defendants can obtain insurance for this type of personal injury liability. Even were insurance unavailable, we presume the State of California has sufficient economic resources to self-insure for this type of risk and that it would indemnify its CHP officers for any personal negligence liability imposed in these types of cases.

Finally, we consider additional factors when a public entity is involved. (Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 268, 80 Cal. Rptr. 2d 196.) The CHP is an agency of the state and its law enforcement powers over traffic violators are substantial. When a CHP officer directs a driver to stop because of a traffic violation, that driver is obliged to comply. The law should encourage the agency and its officers to stop traffic violators in a location that it is as safe as is reasonably practicable for the officers, occupants of stopped vehicles and other vehicles. Defendants do not show there is any compelling budgetary reason not to impose a duty of reasonable care and potential liability in cases like this one. The CHP and its officers are generally charged with the protection of the public. To impose a duty of reasonable care and potential liability in this case should serve to further that general goal.

Based on all of these factors, we conclude Hedgecock owed Plaintiffs a legal duty of reasonable care when he directed the driver of the Camry to stop for a traffic violation.

D

Defendants' argument against a finding of a legal duty of reasonable care is that Plaintiffs' negligence cause of action alleged nonfeasance, liability for which requires a special relationship between Plaintiffs and Defendants. However, Plaintiffs alleged that Hedgecock directed the driver of the Camry to stop in the median area. Hedgecock's act was the basis of Plaintiffs' negligence cause of action and therefore they alleged misfeasance, not nonfeasance. Jackson stated:

"Plaintiffs did not need to assert the existence of a special relationship between [the defendant] and the decedent because plaintiffs' theory of liability is grounded on [the defendant's] alleged misfeasance (creating the risk to the decedent and making his position worse by causing him to drive an unsafe vehicle likely to break down on the highway), not on nonfeasance. Accordingly, the question of liability turns on the ordinary duty of due care, not on the existence of a special relationship." (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1842, 20 Cal. Rptr. 2d 913.)

Therefore, in this case Plaintiffs need not show Defendants had a special relationship with them because they allege misfeasance based on Hedgecock's act, which allegedly created a risk of harm and made their position more vulnerable.

IV

Triable Issues of Material Fact Exist Whether Hedgecock Acted With Reasonable Care and Whether His Alleged Negligence Was a Legal Cause of Plaintiffs' Injuries

Plaintiffs contend the trial court erred by finding that there were no triable issues of material fact whether Hedgecock acted with reasonable care and whether his alleged negligence was a legal cause of their injuries.

A

In opposition to Defendants' summary judgment motion, Plaintiffs lodged excerpts from the Manual and Thompson's declaration. The Manual instructed on proper techniques for CHP officers to use in stopping traffic violators: "After determining that a driver is to be stopped, effective techniques should be used to ensure stopping on the right shoulder rather than in the median or in a traffic lane." (Italics added.)

It further stated: "The driver should be directed by use of the hand gesture to the right lane." The Manual also stated:

"(3) If possible, ensure a violator does not stop in the roadway or park in the median divider. All stops on freeways should be made completely off the roadway and as inconspicuously as possible to minimize the possibility of a traffic slowdown. Use a surface street location if the violator agrees.

"(4) When a violator stops in the center divider, the officer must make a decision whether to handle the transaction there or request a move to a safer location. Factors to be considered are divider width, traffic speed, traffic density, and other surrounding circumstances. The ultimate question is, `Are the hazards of conducting the stop in the center divider more or less than moving the violator across multiple freeway lanes?'

"(5) Avoid stopping motorists where restricted shoulders or heavy congestion exists. The stop should be delayed until a safe location is reached. If asked, the officer should explain to the motorist why the stop was not made at the original point of violation.

"(6) Some stops by motorists on right shoulders will be in a hazardous location. When this occurs, the officer should immediately give clear directions where and when to move the vehicle before starting any enforcement contact. A delay in moving may result in both the officer and the violator being struck by passing traffic. The proper use of the vehicle public address system in these situations can be very effective. Care must be exercised to ensure this aid is used in a nonoffensive manner. Courtesy is the key." (Italics added.)

Thompson's declaration stated that the Manual did not give CHP officers any discretion to make traffic stops in the center median lane. Rather, it provided that officers must make all routine traffic stops by directing violators to the right shoulder. Thompson stated that Hedgecock was negligent in directing the driver of Plaintiffs' car to stop in the center median lane, rather than on the right shoulder.

The trial court found that Hedgecock "had no duty to stop [Plaintiffs on the right shoulder as a matter of law" and therefore there was no triable issue of fact whether Hedgecock acted with reasonable care. However, the issue is not whether Hedgecock had a duty to stop Plaintiffs' car on the right shoulder; rather, the issue is whether Hedgecock used reasonable care in stopping the car in the median area, a triable issue of material fact for the jury to decide. Thompson's declaration raises a triable issue whether Hedgecock used reasonable care by directing the driver of Plaintiffs' car to stop in the median area. The Manual is evidence of Hedgecock's exercise of his duty of reasonable care. (Grudt v. City of Los Angeles, supra, 2 Cal.3d at p. 588, 86 Cal. Rptr. 465, 468 P.2d 825.) Viewing the evidence favorably to Plaintiffs, it can reasonably be inferred that the Manual states a general preference for making traffic stops on the right shoulder. In fact, its only references to stops in the median area are to instances when the motorist stops there, presumably without directions from the officer to do so. In that instance, the officer is instructed to consider directing the motorist to a safer location. Therefore, under the circumstances of this case there is a triable issue of fact whether Hedgecock acted with reasonable care by directing the driver of Plaintiffs' car to stop in the median area.^[7]

B

In opposition to Defendants' summary judgment motion, Plaintiffs argued there was a triable issue of fact for the jury whether Hedgecock's alleged negligence was a legal cause of their injuries. They argued Neeb's direct act of causing the accident did not preclude Defendants' liability because Hedgecock's negligence was a substantial factor in causing the accident and Neeb's act was reasonably foreseeable.

The trial court found that "because of a lack of foreseeability, [Defendants' conduct was not a cause-in-fact or substantial factor in bringing about [Plaintiffs' injuries."

In a negligence action the plaintiff must show that the defendant's act or omission was a cause of the plaintiffs injury. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1846, 20 Cal. Rptr. 2d 913.) The element of causation generally consists of two components. (Id. at p. 1847, 20 Cal. Rptr. 2d 913.) The plaintiff must show (1) the defendant's act or omission was a cause-in-fact of the plaintiffs injury, and (2) the defendant should be held responsible for negligently causing the plaintiffs injury. (Ibid.) The second component is a normative or evaluative one that asks whether the defendant should owe the plaintiff a legal duty of reasonable care under the circumstances of the case. (Id. at pp. 1847-1848, 20 Cal. Rptr. 2d 913.) We have concluded that Hedgecock did owe a duty of reasonable care to Plaintiffs and the second component of causation is therefore satisfied.

The first component of causation-in-fact generally is a question of fact for the jury. Causation-in-fact is shown if the defendant's act or omission is "a substantial factor" in bringing about the plaintiffs injury. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1847, 20 Cal. Rptr. 2d 913; Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1051-1052, 1 Cal. Rptr. 2d 913, 819 P.2d 872.) Defendants assert that Hedgecock's act could not be a cause-in-fact of Plaintiffs' injuries because Neeb's act was the direct cause of their injuries and that act was not reasonably foreseeable. We conclude that there is a triable issue whether Hedgecock's act was a substantial factor in bringing about Plaintiffs' injuries. Viewing the evidence favorably to Plaintiffs, they would not have been in the Camry in the median area had Hedgecock not directed its driver to stop there. Had the Camry not been stopped in the median area Neeb's truck presumably would not have struck the Camry. Therefore, but for Hedgecock's actions the accident and Plaintiffs' resultant injuries would not have occurred. The risk of a vehicle veering off the fast lane and into the highway median area was reasonably foreseeable. Also, Thompson's declaration supports a reasonable inference that Hedgecock's alleged negligence was a substantial cause of Plaintiffs' injuries. Neeb's act, whether innocent, negligent, or reckless, does not absolve Defendants of liability for Hedgecock's negligence unless Neeb's act is found by the jury to have been an intervening or superseding cause of Plaintiffs' injuries. (Torres v. Xomox Corp. (1996) 49 Cal. App. 4th 1, 18-19, 56 Cal. Rptr. 2d 455; Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 58, 192 Cal. Rptr. 857, 665 P.2d 947.) Under the circumstances of this case, that question cannot be decided as a matter of law. For Defendants to show that Neeb's act was a superseding cause of Plaintiffs' injuries, they must show that intervening act was so highly unusual or extraordinary that the accident was not likely to happen and therefore was not foreseeable. (6 Witkin, Summary of Cal. Law, supra, Torts § 975 at p. 366; Bloomberg v. Interinsurance Exchange (1984) 162 Cal. App. 3d 571, 576-577, 207 Cal. Rptr. 853; Akins v. County of Sonoma (1967) 67 Cal. 2d 185, 199, 60 Cal. Rptr. 499, 430 P.2d 57.) We conclude there are triable issues of fact whether Neeb's act was foreseeable and whether Hedgecock's act was a cause-in-fact of Plaintiffs' injuries.^[8]

V

Defendants Are Not Statutorily Immune from Liability

Plaintiffs contend the trial court erred by finding that Defendants were immune from liability because Hedgecock's alleged negligent acts were discretionary decisions under section 820.2.^[9] The trial court stated: "Hedgecock's decision to stop [Plaintiffs' car in the center median area of the freeway was a judgment call and an acceptable option, depending on the circumstances. In other words, it was a discretionary act subject to immunity pursuant to [Government] Code [section] 820.2."

We conclude the trial court erred by finding that the section 820.2 discretionary immunity provision applied to Hedgecock's decision to direct the driver of the Camry to stop in the median area. Discretionary acts covered by that statute have consistently been interpreted by California courts to include only those acts of public employees that are basic policy-making decisions. (Caldwell v. Montoya (1995) 10 Cal. 4th 972, 981-982, 42 Cal. Rptr. 2d 842, 897 P.2d 1320.) Ministerial or operational decisions of public employees are not protected by that statute because they "merely implement a basic policy already formulated." (Id. at p. 981, 42 Cal. Rptr. 2d 842, 897 P.2d 1320.) In McCorkle v. City of Los Angeles (1969) 70 Cal. 2d 252, at page 261, 74 Cal. Rptr. 389, 449 P.2d 453, the court assumed a police officer exercised discretion in deciding to investigate an accident, but concluded section 820.2 "did not clothe him with immunity from the consequences of his negligence in conducting it." Hedgecock's decision to stop the Camry for a traffic violation and to direct the driver to stop in the median area was an operational or ministerial decision, rather than a discretionary decision protected by immunity. (Id at pp. 261-262, 74 Cal. Rptr. 389, 449 P.2d 453; Mann v. State of California, supra, 70 Cal. App.3d at p. 778, 139 Cal. Rptr. 82.)

Defendants alternatively assert that the immunity provisions of section 821.6 ^[10] apply in this case because in stopvested in him, whether or not such discretion be abused." ping the Camry Hedgecock was conducting an investigation that might lead to the institution and prosecution of judicial proceedings. Hedgecock's stop of the Camry cannot reasonably be viewed an investigation that is part of the institution or prosecution of judicial proceedings. Hedgecock was simply stopping the Camry to issue a speeding citation. Section 821.6 was not intended to protect law enforcement officers from liability in these types of cases. Plaintiffs do not allege malicious prosecution by Defendants. (Cf. Bell v. State of California (1998) 63 Cal. App. 4th 919, 929, 74 Cal. Rptr. 2d 541; Asgari v. City of Los Angeles (1997) 15 Cal. 4th 744, 756-759, 63 Cal. Rptr. 2d 842, 937 P.2d 273.) Amylou R. v. County of Riverside (1994) 28 Cal. App. 4th 1205, 34 Cal. Rptr. 2d 319 and Baughman v. State of California (1995) 38 Cal. App. 4th 182, 45 Cal. Rptr. 2d 82, cited by Defendants, are inapposite because they involve actual law enforcement investigations.

Defendants finally assert that section 845 provides them with immunity for Hedgecock's alleged negligence. That statute applies to actions for not providing police protection. Plaintiffs allege that Hedgecock committed misfeasance by affirmatively directing the driver of the Camry to stop in the median area. Their negligence action is not based on nonfeasance or a failure to protect them. Therefore, section 845 does not apply. (Wallace v. City of Los Angeles (1993) 12 Cal. App. 4th 1385, 1402, 16 Cal. Rptr. 2d 113; Mann v. State of California, supra, 70 Cal.App.3d at pp. 778-779, 139 Cal. Rptr. 82.)

VI

Conclusion

Because Hedgecock owed Plaintiffs a duty of reasonable care, triable issues of material fact exist on breach of that duty and causation, and no statutory immunity applies, the trial court erred by granting Defendants' motion for summary judgment.

DISPOSITION

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. Appellants shall recover their costs of appeal.

HUFFMAN, Acting P.J., and McINTYRE, J., concur.

NOTES

[1] The State of California Department of Transportation was also named as a defendant on a dangerous condition cause of action, but apparently Plaintiffs voluntarily dismissed it as a defendant.

[2] All further statutory references are to the Government Code unless otherwise specified.

[3] Plaintiffs do not contend that Hedgecock was negligent as a matter of law because the Manual purportedly requires that all traffic stops be made on the right shoulder or off the highway. Plaintiffs assert that Hedgecock's negligence is a question of fact for the jury's determination.

[4] Kaisner then proceeded to discuss and conclude that no basic policy-making or discretionary acts for which the officers could be immune from liability were performed by them in conducting the traffic stop. (Id. at pp. 736-738.)

[5] A legal treatise also provides support for that conclusion, stating: "No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." (Prosser & Keeton, Torts (5th ed.1984) § 53, p. 359.) We believe reasonable persons would agree that when a law enforcement officer assumes control over a vehicle by ordering its driver to stop for a traffic violation, that officer owes a duty of reasonable care to the occupants of that vehicle to not unreasonably place them in a zone of risk of harm from reasonably foreseeable accidents caused by approaching vehicles.

[6] This type of highway accident is reasonably foreseeable and is the antithesis of the chain of bizarre events that caused the plaintiff's injury in the infamous case of Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. Palsgraf held that because the injury to the plaintiff was not reasonably foreseeable, the defendant did not owe a legal duty of reasonable care to the plaintiff.

[7] The trial court also incorrectly stated that Plaintiffs must prove that Hedgecock had actual knowledge that an accident was likely to occur at that location. The court cited Whitton as support for that conclusion, but Whitton did not require that showing when the issue of exercise of reasonable care was presented to the jury for a factual determination. Rather, that requirement applied only when the unsuccessful plaintiff contended on appeal that the defendants were negligent as a matter of law. Whitton restated the general rule that whether the defendant law enforcement officers acted in a reasonable manner was a question of fact, which at trial the jury decided adversely to the plaintiff. (Whitton v. State of California, supra, 98 Cal.App.3d at pp. 241, 244, 159 Cal. Rptr. 405.)

[8] Whitton did not hold that it is unforeseeable as a matter of law that a vehicle may veer off a highway and strike another vehicle that is in the median area.

[9] Section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion

[10] Section 821.6 provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."