State ex rel. Department of the California Highway Patrol v. Superior Court

Under the Freeway Service Patrol (FSP) Act, motorists receive free emergency roadside assistance as a public service on California’s busiest highways. (Sts. & Hy. Code, § 2560 et seq; Stats. 2000, ch. 513, § 1, pp. 3576-3577.) FSP tow trucks drive designated routes at peak traffic hours and respond to calls for assistance. The FSP program is jointly administered by the California Department of Transportation (Caltrans), the Department of the California Highway Patrol (CHP), and local transportation agencies. Caltrans manages statewide funding, planning, and coordination. CHP trains the tow truck drivers, supervises field operations, and may provide dispatchers. Local agencies contract with privately owned tow services, which hire and assign the drivers and provide trucks that must be dedicated solely to the FSP program.

The Orange County Transportation Authority (OCTA) oversees a local program. It contracted with California Coach Orange, Inc. (California Coach) for FSP tow services, and with CHP for field supervision, program management, and oversight of contractor service quality. On January 16, 2008, a California Coach FSP tow truck driven by Joshua Guzman hit a car on…

Concurring. — I join fully in the court’s conclusion that the role the Freeway Service Patrol Act (Sts. & Hy. Code, § 2560 et seq.) contemplates for the Department of the California Highway Patrol (CHP) does not suggest CHP is a special employer of tow truck drivers participating in the freeway service patrol program. (Maj. opn., ante, at pp. 1012-1015.) I further agree that, given the procedural posture of this case, it is premature to say categorically CHP did not act as a special employer here without permitting plaintiffs the opportunity to present evidence demonstrating such a role.

In my view, that should be enough to resolve the instant case. We need not opine on whether the Legislature had in mind potential exposure to vicarious liability under common law employment principles when it established the freeway service patrol program. (Maj. opn., ante, at pp. 1010-1012.) To the extent the majority opinion does, I cannot agree with its conclusions.

As the majority opinion recognizes, the limits on state tort liability principally are governed by a different set of statutes from the Vehicle Code and Streets and Highways Code provisions at issue here. The Legislature in the…