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Berman v. City of Daly City12/22/1993
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
No. A057727
1993.CA.40344 ; 26 Cal. Rptr. 2d 493; 21 Cal. App. 4th 310
Filed: December 22, 1993.
DAVID BERMAN, PLAINTIFF AND APPELLANT,
v.
CITY OF DALY CITY ET AL., DEFENDANTS AND RESPONDENTS.
San Mateo County Superior Court. Super. Ct. No. 367461. Hon. James Ottis Miller, Judge.
Philip Borowsky and Dennis Kruszynski, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, San Francisco, California for appellant.
Joseph C. Howard, Jr. and Andrew H. Pontious, Branson, Fitzgerald & Howard, Redwood City, California for respondents.
Reardon, J.; Anderson, P.J., and Poche, J., Concurring.
Reardon
REARDON, J.:
Plaintiff David Berman appeals from a summary judgment entered in favor of defendants City of Daly City (Daly City) and Police Officer Joseph Crivello on his complaint for damages for personal injuries and for violation of his civil rights which occurred when the car of a fleeing criminal suspect being pursued by Officer Crivello struck a car driven by Berman. In granting summary judgment, the trial court ruled (1) that as to Berman's state cause of action, both Officer Crivello and Daly City were immune from liability (Veh. Code, ยงยง 17004, 17004.7), and (2) that as to the federal civil rights cause of action under 42 United States Code section 1983 (hereafter section 1983), no facts existed upon which to state a claim that Berman's constitutional rights had been violated.
In his appeal, Berman contends, inter alia, that Daly City's vehicular pursuit policy does not provide sufficiently specific guidelines for initiating and terminating vehicular pursuits so as to render Daly City immune from liability under section 17004.7, subdivisions (b), (c)(4). Concerning his federal claim, Berman argues (1) an innocent third party injured in a vehicular pursuit has a Fourteenth Amendment cause of action under section 1983, and (2) state immunities do not protect Officer Crivello and Daly City from liability for section 1983 causes of action.
We agree with Berman's state law claim that Daly City's vehicular pursuit policy does not provide sufficiently specific guidelines for determining when to initiate or terminate a pursuit so as to comply with subdivision (c)(4) of section 17004.7. The trial court therefore erred in granting summary judgment as to defendant Daly City based on its immunity from liability on Berman's state cause of action. In all other respects, however, we uphold the trial court's determinations.
I. FACTS
On December 8, 1990, Joseph Crivello, while acting in his capacity as a Daly City police officer, initiated a high-speed chase in pursuit of Manuel Sanchez, a suspected criminal. Officer Crivello pursued Sanchez onto Highway 101, in the wrong direction. Sanchez's car collided with a car driven by appellant Berman. Both Berman and his passenger, James Szafranski, were injured.
Berman and Szafranski brought separate actions against Daly City and Officer Crivello. In his action, Berman alleged two causes of action against Officer Crivello and Daly City: (1) gross negligence and reckless misconduct; and (2) violating Berman's federal civil rights pursuant to section 1983.
Daly City and Officer Crivello moved for
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