                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                            OFFICE OF THE ATTORNEY GENERAL
                                     State of California

                                       BILL LOCKYER
                                       Attorney General



                                                :
                  OPINION                       :                   No. 99-711
                                                :
                       of                       :               October 13, 1999
                                                :
              BILL LOCKYER                      :
              Attorney General                  :
                                                :
          GREGORY L. GONOT                      :
          Deputy Attorney General               :
                                                :




          THE HONORABLE DICK DICKERSON, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:

               If a California Highway Patrol officer at a scale facility prohibits an overweight
vehicle from being driven on the highway, and the scale facility lacks unloading equipment, is
the California Highway Patrol liable for any injuries sustained by the operator of the vehicle
in attempting to reduce the weight without proper equipment?


                                        CONCLUSION

              If a California Highway Patrol officer at a scale facility prohibits an overweight
vehicle from being driven on the highway, and the scale facility lacks unloading equipment, the
California Highway Patrol is not liable for any injuries sustained by the operator of the vehicle
in attempting to reduce the weight without proper equipment.


                                               1                                         99-711
                                               ANALYSIS

                The inquiry presented for resolution concerns the possible liability of the
California Highway Patrol (“CHP”) for injuries sustained by a trucker at a highway scale
facility. The trucker has been issued a citation for violating vehicle weight requirements (Veh.
Code, § 35000, et seq.) 1 and told that the truck cannot be driven on the highway unless the
weight is reduced. However, unloading equipment is not available at the scale facility. The
trucker nevertheless attempts to reduce the weight without the proper equipment and is injured.
Is the CHP liable for the injuries sustained due to the absence of unloading equipment at the
scale facility? We conclude that it is not.

                The facts in question are similar to those considered in Kramer v. Superior
Court (1966) 239 Cal.App.2d 500. In Kramer, loggers were issued citations for vehicle
weight violations and told they could not move the trucks from the scale facility with the
overweight loads. The loggers argued that since the scale facility did not have unloading
equipment, they should be allowed to continue to a sawmill where the equipment was available.
They acknowledged, however, that portable unloading equipment could be brought to the scale
facility. The court ruled that the CHP properly refused to allow the trucks to be moved
without first reducing the weight. (Id., at pp. 501-504.)

                 Here, as in Kramer, the controlling statute is section 2803, which provides:

               “(a) If the traffic officer determines that the vehicle is not safely loaded
       or that the height, width, length, or weight is unlawful, he may require the driver
       to stop in a suitable place and reload or remove such portion of the load as may
       be necessary to render the load safe or to reduce it to the limits permitted under
       this code. A suitable place is an area which allows the least obstruction to the
       highway and which requires the least travel on the highway by the vehicle.
       Determination of the suitability of an area shall be made by the traffic officer
       who requires the adjustment. All material so unloaded shall be cared for by the
       owner or operator of the vehicle at the risk of the owner or operator.

              “(b) If a certified weight certificate or bill of lading accompanies a
       vehicle which has been determined to be overweight due to the load on the
       vehicle, the driver shall submit the certified weight certificate or bill of lading,
       whichever is appropriate, to the traffic officer when the overweight load is
       removed in the presence of the officer. The officer may note on the certified
       weight certificate or bill of lading submitted by the driver the fact that a portion


       1
           All references to the Vehicle Code prior to footnote two are by section number only.

                                                     2                                            99-711
       of the load has been removed to bring the vehicle and load within the allowable
       weight limit specified in this code, and the officer shall return the certificate or
       bill of lading to the driver.

              “(c) If the height, width, or length of the vehicle is unlawful, irrespective
       of any load thereon, or if an unladen vehicle is overweight, the traffic officer
       may prohibit further movement of the vehicle until a permit is obtained as
       provided in Section 35780.”

Section 35780 in turn states:

              “(a) The Department of Transportation or local authorities, with respect
       to highways under their respective jurisdictions, may, at their discretion upon
       application and if good cause appears, issue a special permit authorizing the
       applicant:

              “(1) To operate or move a vehicle or combination of vehicles or special
       mobile equipment of a size or weight of vehicle or load exceeding the maximum
       specified in this code.

               “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”

                It must be conceded that a scale facility constitutes a “suitable place” as defined
in subdivision (a) of section 2803. The fact that a scale facility does not have unloading
equipment is irrelevant for purposes of the statutory definition. A scale facility “is an area
which allows the least obstruction to the highway and which requires the least travel on the
highway by the vehicle.” (§ 2803, subd. (a); see 22 Ops.Cal.Atty.Gen. 152, 157-158 (1953).)
In Kramer v. Superior Court, supra, 239 Cal.App.2d at 502, the court rejected a claim that
a scale facility was not a “suitable place” due to the absence of unloading equipment, stating
in part:

                “Real parties emphasize the reference of section 2803 to ‘a suitable
       place[.’] But their affidavits do not contradict petitioners’ declaration that for
       at least three years overloaded trucks, including those driven by real parties, had
       in fact reduced loads at this same point. Real parties’ true claim seems to be
       that equipment for unloading logs is not installed at the scales. Uncontradicted
       affidavits show that petitioners informed real parties of the availability of
       unloading equipment to be brought to this spot at small cost. Real parties assert
       only that they should be allowed to proceed to a sawmill where permanent
       loading equipment is maintained. To permit the law violator to continue his
       lawbreaking until he reaches a destination which seems to him fully adequate to

                                                                   3                                                               99-711
       correct his violation seems to pervert the true purpose of section 2803. . . . ”

The court explained the “true purpose of section 2803” as follows:

               “The weight limits obviously are designed to protect the highways (22
       Ops. Cal. Atty. Gen.152). Also apparent is the desire to protect other highway
       users from the hazard of vehicles which are less manageable by reason of
       overloading. Any thought that furtherance of these public interests is limited to
       issuance of a citation is dispelled by the quoted provision of section 2803. We
       would subvert the statutory scheme if we held that the driver of an overweight
       vehicle has the unqualified right to continue his unlawful use of the highway
       once he has received a citation. The fines fixed by section 42030 for violation
       of the weight limitations are not licenses for continuing violation of the law.
       For many years, department regulations have been clear that an overloaded
       vehicle shall not be allowed to proceed until the load is reduced, and this
       reasonable administrative construction of the statute is entitled to weight.”
       (Ibid.)

              Accordingly, a scale facility is a “suitable place” for purposes of section 2803,
and it would not serve the purposes of the statute to allow the operators of overweight vehicles
to continue on the highway even though the scale facility lacks unloading equipment. Such
equipment may be brought to the scale facility, or as authorized by subdivision (c) of section
2803, a special permit may be obtained to operate the overweight vehicle under the conditions
of section 35780. The fact that obtaining unloading equipment or a special permit may be
costly in terms of time and money for the vehicle operator does not permit those who have
disobeyed the law to ignore the law.

               With this statutory background in mind, we turn to the central issue of
determining the possible liability of the CHP when a trucker has attempted to remove a portion
of an overweight load without proper equipment and has been injured. Is the CHP liable for
the injuries sustained on property under its control and which would not have occurred had the
CHP officer allowed the trucker to return to the highway after issuing the citation?

              The answer to that question is found in the California Tort Claims Act (Gov.
Code, §§ 810-998.3; “Act”).2 The Act governs actions at law for civil liability against public
agencies, including state agencies, and their officers and employees. (81 Ops.Cal.Atty.Gen.
331, 332 (1998).) The Act specifically addresses “the substantive liabilities and immunities
of (§§ 810-895.8), the procedures for initiating claims against (§§ 900-935.6), and the


       2
           All references to the Government Code hereafter are by section number only.

                                                    4                                     99-711
entitlement to defense of (§§ 995-996.6) and indemnification for (§§ 825-925.6) public
employees.” (81 Ops.Cal.Atty.Gen. 199, 199-200 (1998), fn. omitted.) A public entity is not
generally liable for an injury except as otherwise provided by statute. (§ 815; Caldwell v.
Montoya (1995) 10 Cal.4th 972, 980; Iverson v. Muroc Unified School Dist. (1995) 32
Cal.App.4th 218, 227.)

                 In determining whether liability may exist in a particular case, the threshold
inquiry under the Act is whether the defendant owes a duty of care to the plaintiff. (Williams
v. State of California (1983) 34 Cal.3d 18, 22-23; Ronald S. v. County of San Diego (1993)
16 Cal.App.4th 887, 893.) “The existence of a duty ‘is entirely a question of law, to be
determined by reference to the body of statutes, rules, principles and precedents which make
up the law . . . .’ [Citation.]” (Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 941.)
Does a CHP officer have a duty to the operator of an overweight vehicle with respect to
reducing the weight safely? In Kramer, the court concluded that the CHP has no duty to safely
reduce an overweight load; rather, it is the responsibility of the vehicle operator. “We find no
impropriety in requiring one who embarks upon a trip in an overloaded truck to provide for
himself the means of safely reducing his load when he is caught.” ( Kramer v. Superior Court,
supra, 239 Cal.App.2d at 502.)

                By issuing a citation and prohibiting the vehicle’s return to the highway, a CHP
officer does not create a “special relationship” (see Ronald S. v. County of San Diego (1993)
16 Cal.App.4th 887, 893) with the vehicle operator so as to impose a duty of care in reducing
the weight. The officer does not thereby prevent the operator from obtaining the proper
equipment or a special permit to return to the highway. (See Williams v. State of California,
supra, 34 Cal.3d at 26-28; Stout v. City of Porterville, supra, 148 Cal.App.3d at 944.) In
short, the officer does not thereby take responsibility for reducing the overweight load. (See
22 Ops.Cal.Atty.Gen., supra, at 156-157.) 3

               Because of the lack of a duty of care on behalf of the CHP officer in the
circumstances presented, there can be no liability imposed upon the CHP. We thus conclude
that if a CHP officer at a scale facility prohibits an overweight vehicle from being driven on
the highway, and the scale facility lacks unloading equipment, the CHP is not liable for any
injuries sustained by the operator of the vehicle in attempting to reduce the weight without
proper equipment.


        3
           If a CHP officer’s actions or inactions in a particular situation result in the creation of a “special
relationship” imposing a duty of care, the issue of causation would need to be addressed, and if causation
were found, it must then be determined whether any statutory immunity from liability existed. (See McCorkle
v. City of Los Angeles (1969) 70 Cal.2d 252, 261-263; Stout v. City of Porterville, supra, 148 Cal.App.3d
at 945.) Here, we are not asked to consider any action by a CHP officer. We only address the absence of
unloading equipment at a scale facility.

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