Adams v. City of Fremont

• Citation: 80 Cal.Rptr.2d 196,68 Cal.App.4th 243
• Decision Date: 03 December 1998
• Docket Number: A075279,Nos. A074965,s. A074965
• Court: California Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 8853, 99 Cal. Daily Op. Serv. 143, 98 Daily Journal D.A.R. 12,317 Johnette Marie ADAMS et al., Plaintiffs and Appellants, v. CITY OF FREMONT et al., Defendants and Appellants.

Page 196

80 Cal.Rptr.2d 196

68 Cal.App.4th 243, 98 Cal. Daily Op. Serv. 8853,

99 Cal. Daily Op. Serv. 143,

98 Daily Journal D.A.R. 12,317

Johnette Marie ADAMS et al., Plaintiffs and Appellants, v. CITY OF FREMONT et al., Defendants and Appellants.

Nos. A074965, A075279.

Court of Appeal, First District, Division 2, California.

Dec. 3, 1998.

As Modified on Denial of Rehearing Jan. 4, 1999.

Review Denied March 24, 1999.

Farmer & Murphy, George Edson Murphy, Frank J. Torrano, Ranch Cordova, for Appellants City of Fremont et al.

DeGoff and Sherman, Victoria J. DeGoff, Richard Sherman, Berkeley, for Respondents Johnette Marie Adams et al.

RUVOLO, J.

I. INTRODUCTION

Appellants City of Fremont and Fremont Police Sergeant Steven Osawa appeal from a jury verdict awarding Patrick Adams's surviving spouse and stepdaughter approximately $4 million in this action for wrongful death and negligent infliction of emotional distress. The jury found that City of Fremont police officers negligently handled an emergency situation in which Patrick ¹ was fatally injured after threatening to commit suicide and refusing to surrender his loaded firearm to police officers. ² Appellants contend the verdict must be reversed as a matter of law on two major grounds: (1) appellants owed no legal duty of care to Patrick or his family; and (2) appellants were immune from liability under Government Code section 820.2. ³ Appellants We hold that police officers responding to a crisis involving a person threatening suicide with a loaded firearm have no legal duty under tort law that would expose them to liability if their conduct fails to prevent the threatened suicide from being carried out. The judgment of the trial court is reversed and the trial court is directed to enter a judgment in favor of appellants.

also contend the jury's findings were not supported by substantial evidence and that respondents were not entitled to damages for negligent infliction of emotional distress under a "bystander" theory as a matter of law.

II. BACKGROUND

In August 1994, the Estate of Patrick Adams, the decedent's surviving spouse, Johnette Marie Adams, and the decedent's stepdaughter, Gina Fanucchi ⁴ (respondents) filed a complaint against the City of Fremont and numerous police officers alleging causes of action for negligence, wrongful death and various intentional torts stemming from the events leading up to Patrick's death. Respondents later amended their complaint to name the City of Fremont and Fremont Police Sergeant Osawa as the sole defendants.

During the four-week trial of respondents' claims, evidence was introduced to support the following facts. Patrick was employed as a nurse at Washington Hospital. He was married to Johnette Marie Adams. Johnette had an adult daughter, Gina, from a previous marriage. Patrick helped raise Gina, and Gina regarded Patrick as her parent.

Patrick periodically went through periods of depression in which he would withdraw and isolate himself. Patrick told Johnette he had been suicidal in the past. Johnette described Patrick as unable to "handle alcohol." When Patrick drank hard liquor, "his behavior would change dramatically." He would become "belligerent" and "argumentative."

Patrick owned a 12-gauge shotgun and a 9-millimeter Beretta handgun. In 1988, Johnette called the police for assistance after Patrick drank too much hard liquor and slapped her in the face. After the police departed, Johnette hid Patrick's firearms in the garage because she knew he had been drinking and was depressed. At some point following the 1988 incident, the firearms were returned to the house.

On April 19, 1993, Patrick, Johnette, Gina, and Gina's fiancee, Robert Gholston, attended a family dinner at Johnette's father's house. The purpose of the dinner was to introduce the family to the new girlfriend of Johnette's father. The dinner was tense and uncomfortable. Patrick drank at least two beers and some hard liquor. He became aggressive and argumentative. Gina and Robert drove Patrick and Johnette home at approximately 9 p.m.

Once they arrived at their home, Johnette and Patrick argued over Patrick's drinking. Patrick acted like he was "out of control." He broke dishes, and swept items off the counter with his hands. Johnette pushed Patrick. Patrick pushed her back, causing her to fall to the floor. Johnette telephoned Gina and asked Gina to pick her up so she could stay at Gina's house. After the telephone call, Patrick grabbed Johnette's hand and led her to the door stating, "You can wait for Gina outside."

Gina and Robert arrived to pick up Johnette at approximately 10:45 p.m. As they started to drive away, Gina became concerned that Patrick might try to drive his van while intoxicated. She asked Robert to return to the house. Robert then tried to speak with Patrick. When he returned to the car, Robert told Johnette and Gina, "We can't leave.... I think he's got the gun because he had his hand behind his back when he answered the door."

After discussing the situation, Johnette, Gina, and Robert drove to the corner store and called Patrick on a pay phone. Patrick did not answer. They returned to the residence and walked through the house, calling Patrick's name. Gina saw broken glass, objects on the floor, a shelf broken off the wall, and overturned furniture. Eventually, Johnette found Patrick sitting on a clothes hamper Gina, Johnette, and Robert ran out of the house. Gina testified she did not believe Patrick had fired the gun at her, but was concerned that he might have shot himself. Johnette testified that her first reaction was that Patrick had shot himself. She pulled Gina out of the house because she "didn't want Gina to see that, ..."

                in the dark master bedroom closet.  Gina entered the bedroom and asked Patrick, "What's the matter?" and "What's wrong?"   Patrick replied, "Just go away.  Just leave me alone."   When Gina continued to initiate conversation, Patrick discharged a firearm.  Gina and Johnette heard the gunshot, but could not see what direction the gun was pointed in when it was fired
                

Gina went to a neighbor's house and dialed 911 for assistance. At her mother's insistence, however, Gina hung up before reporting the incident. After further discussion, they decided to telephone the police from a corner store. On their way, they saw two police cars heading toward the Adams' residence. The police dispatcher had traced Gina's 911 call and sent Fremont Police Officers Kevin Moran and Gregory Pipp to the scene. Officer Pipp arrived at 11:01 p.m., and Officer Moran arrived approximately five minutes later.

Johnette testified that she approached Officer Moran and told him her husband had been drinking, he was distraught, he had fired a shot in the house, and he might have wounded himself. ⁵ Several other officers arrived to assist at the scene. The dispatcher telephoned the residence several times, but no one answered.

At approximately 11:14 p.m., Sergeant Steven Osawa responded to a radio dispatch describing "a possible suicide with the use of a handgun or attempted suicide with a handgun." When he arrived at the Adams' residence, he assumed the position of "supervisor in charge" for the duration of the evening. Sergeant Osawa had extensive experience and training in the "Special Services Unit," or "SWAT." He had attended basic hostage negotiations school three to four years earlier, but did not consider himself a specialist in the field of negotiations.

Officers Moran and Pipp relayed the information provided by the family to Sergeant Osawa. ⁶ Sergeant Osawa requested additional police units and the assistance of a trained negotiator, Officer Sheila Tajima-Shadle. Paramedics and an ambulance were stationed in locations approximately 150 yards away from the residence.

Approximately 15 minutes after Sergeant Osawa's arrival, he decided the police should enter the house for three reasons: (1) Patrick might be wounded and in need of medical care; (2) if Patrick was not wounded, to determine his location and the location of the gun Patrick had previously fired in the house; and (3) to disarm Patrick.

Sergeant Osawa sent Officer Moran to find out from the family what guns Patrick had access to and what Patrick's attitudes were toward the police. Sergeant Osawa received the information that Patrick had access to a Beretta 9-millimeter handgun and a 12-gauge shotgun, that he did not particularly like the police, and that he was unlikely to "take [the police officers] on."

Sergeant Osawa testified that he was concerned about the possibility that Patrick would react aggressively or fire on the officers in an attempt to commit "suicide by cop." He took measures to ensure that there were a sufficient number of officers with "superior firepower" at the scene to respond to such possibilities. Sergeant Osawa searched the house with the assistance of three other armed officers. The officers were heavily armed and their weapons were drawn. Sergeant Osawa periodically called out to Patrick, identifying himself as a member Upon entering the backyard, Osawa again identified himself and called for Patrick to come out with his hands up. Patrick did not respond. Osawa repeated this admonition. There was still no response from Patrick. Finally, Officer Moran found Patrick in the backyard, partially concealed by a large bush. The officers turned a picnic table on its side and kneeled behind it for cover. Sergeant Osawa and Officer Pipp spoke to Patrick for approximately five minutes. Officer Pipp was not a trained specialist in negotiations. The officers called Patrick's name, asked him if he was "okay," and asked him to come out with his hands out and visible. Patrick did not respond.

of the Fremont Police Department and asking Patrick to come out. Patrick did not respond. The officers found an expended 9-millimeter shell in the master bedroom closet and a live round on the bathroom vanity.

Sergeant Osawa...