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Adam v. City of Fremont12/3/1998
imposition of tort liability on the basis of such a "special relationship," or because the duty was voluntarily assumed, has nothing to do with Rowland v. Christian (1968) 69 Cal.2d 108, as the majority claims, because that case does not concern exceptions to a general rule of no duty. (See Discussion, post, at pp. 24 et seq.)
As should be apparent, the conduct of the police in this case created a situation of dependency resulting in a "special relationship" between the respondents who sought and obtained their assistance and the decedent on the one hand and appellants on the other. The imposition of liability is, however, independently justified by the voluntariness of the police assumption of duty and the manner in which the police on the scene exacerbated the peril that previously existed.
Section 323 of the Restatement of Torts provides as follows: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." (Restatement of Torts, Second, § 323, italics added.) The fundamental idea is that "the undertaking to rescue, although not required, gives rise to the duty to exercise care not to leave the object of the rescue in worse condition than if the rescue had not been attempted." (3 Harper, James & Gray, The Law of Torts, supra, § 18.6, 722.)
Application to the police of the legal principle embodied in section 323 of the Restatement of Torts, and the connection between that principle and the "special relationship" doctrine is best illustrated by Williams v. State of California, supra, 34 Cal.3d 18, even though the court found in that case that the plaintiff had failed to satisfactorily state a cause of action. The plaintiff in Williams was injured when a piece of a heated brake drum from a passing truck was propelled through the windshield of her automobile. She alleged that the police officers who arrived at the scene and investigated the accident negligently failed to test the brake drum part to determine whether it was still hot, failed to secure the identity of witnesses, and failed to attempt pursuit of the owner of the truck, virtually destroying the plaintiff's ability to obtain compensation for her injuries and damages. The trial court granted the state's motion for judgment on the pleadings. The Supreme Court reversed.
The court first observed that the state highway patrol has the right but not the duty to investigate accidents, or to come to the aid of stranded motorists. (Id. at p. 24.) The chief issue in Williams was whether a legal duty could nonetheless be imposed because, by intervening in the situation, the police assumed the responsibility to act reasonably in the circumstances and thereby created a "special relationship." The court stated that, "although `no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally' [citation], 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.] [ ] The breach of duty may be an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles
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