# Clemente v. State of California > California Supreme Court · October 28, 1985 · 40 Cal. 3d 202 URL: https://www.frixlaw.com/law-library/cases/9847233 ## Case - **Full name:** JOSE L. CLEMENTE, an Incompetent Person, Etc., Plaintiff and Respondent, v. THE STATE OF CALIFORNIA Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** October 28, 1985 - **Citations:** 40 Cal. 3d 202; 219 Cal. Rptr. 445; 707 P.2d 818; 1985 Cal. LEXIS 403 - **Precedential status:** Published - **Opinion:** Dissent by Lucas - **Judges:** Broussard, Kaus - **Cited by:** 79 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9847233 ## How later opinions describe it (automated extraction) - holding that the admission of immigration status, "even if marginally relevant [regarding damages], was highly prejudicial" - holding that state could be sued when highway patrol officer allowed a motorcyclist who had struck a pedestrian to leave the scene without obtaining his identity - noting it is well established that res judicata applies to workmen’s compensation determinations, as does collateral estoppel, where party against whom it is asserted was party to prior adjudication - holding illegal immigrant status, “even if marginally relevant [on damages issues], was highly prejudicial” - holding immigration status, "even if marginally relevant [on damages issues], was highly prejudicial" ## Opinion text *224 LUCAS, J. I respectfully dissent. The majority, after correctly describing the doctrine of “law of the case” and the exceptions thereto, promptly ignores its own description. When law of the case might apply, “[t]he principal ground for making an exception to the doctrine ... is an intervening or contemporaneous change in the law. [Citations.]” (Ante, p. 212.) What could be a clearer intervening change in the law than a Supreme Court decision expressly disapproving the prior Court of Appeal holding in the same case on the same issue? In Williams v. State of California (1983) 34 Cal.3d 18 [ 192 Cal.Rptr. 233 , 664 P.2d 137 ], we summarized the decision in Clemente v. State of California (1980) 101 Cal.App.3d 274 [ 161 Cal.Rptr. 799 ] (hereinafter Clemente I) as one in which the Court of Appeal had found liability even in the absence of an allegation that “the officer’s investigation caused plaintiff not to undertake one of his own.” (Williams, 34 Cal.3d at p. 26 .) That holding followed the finding that the pedestrian was “dependent on the highway patrolman.” (Ibid., italics in original.) Our analysis in Williams concluded that more was required before a cause of action could be stated against a police official and we, therefore, expressly disapproved Clemente I to the extent it was inconsistent with our reasoning. ( 34 Cal.3d at p. 28, fn. 9 .) We concluded instead that the general rule that “one has no duty to come to the aid of another” generally applied. (Id., at p. 23.) Only when a “special relationship arises” may liability be imposed. (Id., at p. 24.) Thus, “when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization. [Citations.]” (Ib id.) However, where allegations amount only to nonfeasance without assertions that the officer in some manner promised to undertake the tasks left undone or otherwise induced reliance on the part of the plaintiff who was in any manner prevented from acting, no duty exists and no liability will be imposed. In other words, dependency alone does not create a relationship which gives rise to a duty to assist or protect the injured person. In Williams , the defendant had not alleged that “the officers assured her, either expressly or impliedly that they would do any of the acts she faults them for not doing, [nor were there] allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which the plaintiff alleges they should have done, nor finally is there any hint that they prevented plaintiff from conducting an investigation of her own.” ( 34 Cal.3d at p. 27 , fn. omitted.) Similarly, in this case no such assertions were made. *225 In his petition before this court, plaintiff stated that because this case had been tried under the authority of Clemente I, “there was no need to plead or prove that the officer’s conduct prevented other assistance from being sought, or caused plaintiff (or someone acting on his behalf) not to undertake an investigation of his own. [f] That issue was not present either at the trial or appellate level in this proceeding.” He then went on to ask us nonetheless to match the facts adduced against the Williams standard and to conclude that the facts were sufficient to permit him an opportunity to amend and retry the case which had not previously addressed this aspect of the officer’s conduct. The parties proceeded in the belief that Clemente I stated the applicable law. Even under that approach, evidence regarding the effects of the officer’s conduct as are asserted here would have been relevant and of assistance to the plaintiff. As the Court of Appeal in the instant case stated, unlike the situation in Williams , “plaintiff in the present case has filed four amended complaints, had a jury trial on the merits, and has still been unable to establish any of the required elements necessary to establish a duty of care owed by defendant State. Clearly, further action would be futile.” Accordingly, I would reverse the judgment. I also cannot agree with an additional holding of the majority. Specifically, my colleagues find no error in the trial court’s instruction to the jury that: “If you find that defendant Arthur Loxsom violated any provisions of the California Highway Patrol Accident Investigation Manual and that such violation was a legal cause of injury to the plaintiff, you will find that such violation was negligence.” It was disputed whether the manual was applicable here, and the parties presented conflicting testimony as to whether it applied only to the patrol’s primary jurisdiction, namely, roads and freeways in unincorporated areas, or whether it also applied to city streets such as the one where the accident at issue here occurred. Defendants contend that the instruction essentially informed the jury that the manual was applicable, thus removing from it the disputed issue of its role in the context of city streets. As the majority notes, this negligence per se instruction followed instructions telling the jury “that the Highway Patrol’s jurisdiction extended throughout the state, that its primary jurisdiction was on highways and freeways within incorporated areas and that patrol officers had the right but not the duty to investigate . . . .” (Ante, p. 216.) Conceding that “there may be some ambiguity in the form of the instructions permitting an inference that the manual’s provisions were applicable to the accident” {ante, p. 216), the majority nonetheless concludes that it was proper because it “permitted the jury to reject the instruction if it *226 concluded that the manual was not applicable to accidents on city streets.” (Ibid., italics added.) I find that result untenable. The core of the majority’s analysis amounts to the conclusion that, first, the instruction, which required a finding of negligence per se, was improperly ambiguous on its face. However, despite the lack of instructions on the precise and necessary condition precedent, namely, whether the manual applied, the majority sweepingly assumes the jury could somehow find that the mandatory and directive language of the instruction itself allowed the jury to disregard it. The first standard instruction given to the jury included the words “It is my duty to instruct you in the law that applies to this case and you must follow the law as I state it to you.” Yet, the majority finds the challenged instruction proper on an unwarranted and illogical assumption that the jurors ignored the fundamental direction that they follow the law as stated and instead intuited from the language of the specific instruction that it could be disregarded. Such a conclusion flies in the face of generally accepted principles used for constructing jury instructions. Because this instruction told the jury to find negligence per se if the manual was violated, without requiring it first to find that the manual was applicable, the error was prejudicial. It removed a significant and disputed fact from the jury’s purview. On this basis alone, I would reverse and remand. 1 Appellants’ petition for a rehearing was denied January 23, 1986, and the opinions were modified to read as printed above. Grodin, J., Lucas, J., and Panelli, J., were of the opinion that the petition should be granted. In footnote 6 of the majority opinion {ante, p. 216) the majority asserts that in the petitioifor rehearing defendant contended for the first time on appeal that the California Highway Patrol Accident Investigation Manual was not adopted in accordance with the Administrative Procedure Act and it therefore did not have the force of law. I find this assertion disingenuous at best. It is clear that the effect of the manual was a major issue in this case throughout and in fact the requirement of compliance with the Administrative Procedure Act was argued in the trial court. The trial court found at one point that the regulation did not have the force of law yet still gave the disputed instruction. Defendant, as appellant, may therefore have reasonably determined that it need not readdress the issue of whether the manual had the force of law on appeal; it was only necessary for it to explain why, once having made that finding, the trial court erred in giving the instruction that it did. I think it is clear that the court erred in its original disposition of this issue, and I think that the issue was clearly and sufficiently raised such that we should acknowledge our error and grant rehearing. I cannot, however, speak further to the merits of the issue because the timing of the order modifying the majority two days before our jurisdictional time finally elapses, leaves me and those also voting for rehearing with no time adequately to explore the question or to prepare a responsive opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9847233. Public record. Not legal advice.