Allen v. Toten

• Decision Date: 02 October 1985
• Citation: 218 Cal.Rptr. 725,172 Cal.App.3d 1079
• Parties: Linda ALLEN, Plaintiff and Respondent, v. Gene TOTEN, Chester Ashmun and the County of Shasta, Defendants and Appellants. Civ. 23398.
• Court: California Court of Appeals Court of Appeals

Page 725

218 Cal.Rptr. 725

172 Cal.App.3d 1079

Linda ALLEN, Plaintiff and Respondent, v. Gene TOTEN, Chester Ashmun and the County of Shasta, Defendants and Appellants.

Civ. 23398.

Court of Appeal, Third District, California.

Oct. 2, 1985.

Review Denied Jan. 16, 1986.

Halkides & Morgan, G. Dennis Halkides and Harry C. Carpelan, Redding, for defendants and appellants.

Robert A. Rehberg, Redding, for plaintiff and respondent.

SPARKS, Associate Justice.

In this case we consider whether there is a cause of action in California for negligent infliction of emotional distress against a county and its peace officers for bringing a wife to the scene of a standoff between the police and her armed and suicidal husband with the hope that she might persuade him to surrender. We decline to recognize such a cause of action even though the police, acting lawfully and without negligence, thereafter wound the husband in the wife's presence.

Defendant County of Shasta and defendants Gene Toten and Chester Ashmun, deputies of the Shasta County Sheriff's Department, appeal from a judgment finding them liable for plaintiff Linda Allen's emotional injuries suffered when she viewed her husband, an attempted suicide, being shot and wounded by defendants and other officers of the sheriff's department.

This appeal comes to us on the clerk's transcript only. We therefore treat it as an appeal on the judgment roll. (Kopf v. Milam (1963) 60 Cal.2d 600, 601, 35 Cal.Rptr. 614, 387 P.2d 390; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207, 193 Cal.Rptr. 322. On such an appeal, "[t]he question of the sufficiency of the evidence to support the findings is not open. Unless reversible error appears on the face of the record, an appellate court is confined to a determination as to whether the complaint states a cause of action, ¹ whether the findings are within the issues, and whether the judgment is supported by the findings." (Bristow v. Morelli (1969) 270 Cal.App.2d 894, 898, 76 Cal.Rptr. 203; see also Krueger v. Bank of America, supra, 145 Cal.App.3d at p. 207, 193 Cal.Rptr. 322; Estate of Larson (1949) 92 Cal.App.2d 267, 268, 206 P.2d 852. This appeal is consequently confined to the sufficiency of the complaint.

THE RECORD

In a joint complaint, plaintiff Linda Allen alleged that on March 15, 1981, her husband, Theodore Allen, was stopped while driving and surrounded by deputies of the Shasta County Sheriff's Department. ² At that time, the deputies knew Theodore was depressed and suicidal and armed with a loaded handgun, and that Theodore had no history or reputation for violence. Defendant Ashmun was in charge at the scene for approximately one hour, after which defendant Toten arrived and assumed command.

Linda further alleged that immediately after Theodore was stopped and surrounded and before any weapons were fired, defendant sheriff's officers directed other deputies to bring her to the scene. At the scene, defendant officers requested that she attempt to convince her husband to discard his gun and surrender. While Linda was within 100 feet and plain view of her husband, defendants shot and wounded him. The charging averment in Linda's cause of action for negligent infliction of emotional distress asserted: "By reason of the carelessness and negligence of the Defendants TOTEN and ASHMUN in bringing the Plaintiff LINDA ALLEN into the immediate vicinity and view of her husband, the Plaintiff THEODORE ALLEN, and in her presence wounding and attempting to kill the said THEODORE ALLEN as alleged in Paragraphs IV through VII above, Plaintiff LINDA ALLEN sustained great emotional disturbance and shock and injury to her nervous system."

Theodore had alleged that defendants, in attempting to dissuade him from injuring himself, carelessly and negligently "incited" him to commit actions for the purpose of drawing gunfire to himself and that defendants carelessly and negligently failed to control and restrain deputies, who engaged in wanton and reckless firing of their weapons on Theodore with the intent of seriously wounding or killing him.

Linda also pled an additional cause of action for loss of consortium. Theodore's parents and sister similarly pleaded causes of action for the negligent infliction of emotional distress.

On Theodore's cause, the jury was instructed to determine whether defendants used excessive force in his arrest or were negligent in the manner in which they made the arrest, and whether any such action caused Theodore's injuries. The jury found in favor of Linda on her cause of action for emotional distress and awarded damages of $50,000. The jury, however, found against Theodore, his parents, and his sister on each of their causes of action.

The trial court denied defendants' motion for judgment against plaintiff notwithstanding the verdict. This appeal followed.

DISCUSSION

I.

Defendants contend that Linda's cause of action is predicated upon Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, and that the judgment against Theodore on his cause for negligence precludes any recovery by Linda as a matter of law. While defendants correctly interpret and apply that case, this does not dispose of their appeal because Linda's cause of action for emotional distress is not solely based upon Dillon.

Under the Dillon aspect of Linda's complaint, the judgment that defendants were neither negligent nor used excessive force in relation to Theodore precludes Linda's recovery under a bystander theory. (Dillon v. Legg, supra, 68 Cal.2d at p. 734, 69 Cal.Rptr. 72, 441 P.2d 912.) ³ Linda concedes this point and argues instead that she can recover as a direct victim of defendants' negligent conduct toward her, namely bringing her to the scene. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 922-923, 167 Cal.Rptr. 831, 616 P.2d 813; Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899.)

Defendants counter that Linda's cause of action must be construed as asserting only a Dillon action because plaintiff "generally concur[red]" in defendants' pretrial conference statement which referred to plaintiff's action as a "Dillon v. Legg cause of action, allegedly because she

                witnessed the shooting."   This single reference to Dillon cannot be construed to be so limiting.  It is the pretrial conference order, not the parties' pretrial statement, which is controlling.  (Cal. Rules of Court, former rule 216, repealed Jan. 1, 1985.)   That order provided that the "issues are as set forth in the Pretrial Statements and pleadings...."  The trial court's pretrial conference order consequently incorporated the pleadings, including Linda's complaint, which alleged affirmative acts of carelessness and negligence directed at Linda herself.  We therefore conclude that Linda's cause is broadly enough pled to include both a Dillon cause ("in her presence wounding and attempting to kill ... THEODORE ALLEN [negligently]") and a separate cause for direct negligence toward her ("bringing [her] into the immediate vicinity and view of her husband"), if, of course, such a separate cause is cognizable. 4
                

II.

We turn then to the central issue in this appeal: Does the complaint state facts sufficient to constitute a cause of action against a public entity and its peace officers for their alleged negligent infliction of emotional distress in bringing plaintiff wife to the scene of her husband's threatened suicide? ⁵ Our research has revealed this to be a case of first impression in California.

We begin our analysis with a statement of the underlying concept of duty in tort law: "[I]t has long been established in California that all persons owe a duty of care to avoid injury to others unless public policy clearly requires that an exception be made. (See Civ.Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)" (Lipson v. Superior Court (1982) 31 Cal.3d 362, 372-373, 182 Cal.Rptr. 629, 644 P.2d 822, fn. omitted.) Hence, in the absence of an overriding public policy, whenever a person is in such a position with regard to another that, if he did not use due care in his own conduct, he would cause injury or danger to another, a duty arises to use due care to avoid such danger. (Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.)

But since "duty" implicates public policy considerations, whether it exists in a particular case is necessarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) We bear in mind, moreover, that legal duties are not discoverable facts of nature, but are merely conclusory expressions of law that, in cases of a particular type, liability should be imposed for damage done. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.) Thus courts "have invoked the concept of duty to limit generally 'the otherwise potentially infinite liability which would follow every negligent act, ...' " (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728, citation omitted.) Consequently, the question of duty " '... is a shorthand statement of a conclusion, rather than an aid to analysis in itself ... [b]ut it should be recognized that "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead In determining whether one owes another a duty of care, the major policy considerations to be balanced are: "[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care...