Antique Arts Corp. v. City of Torrance

• Decision Date: 29 May 1974
• Citation: 39 Cal.App.3d 588,114 Cal.Rptr. 332
• Court: California Court of Appeals Court of Appeals
• Parties: ANTIQUE ARTS CORPORATION, dba Star of Siam, Plaintiff and Appellant, v. CITY OF TORRANCE, Defendant and Respondent. Civ. 42677.

Page 332

114 Cal.Rptr. 332

39 Cal.App.3d 588

ANTIQUE ARTS CORPORATION, dba Star of Siam, Plaintiff and Appellant, v. CITY OF TORRANCE, Defendant and Respondent.

Civ. 42677.

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

May 29, 1974.

John K. Trotter, Jr., Incorporated, Santa Ana, for plaintiff and appellant.

Buck & Smith by F. Eugene Westhafer, Long Beach, for defendant and respondent.

ROTH, Presiding Justice.

Plaintiff-appellant, Antique Arts Corp., dba Star of Siam (Siam) appeals from a judgment of dismissal entered after the general demurrer of respondent, City of Torrance, to Siam's second amended complaint was sustained without leave to amend.

On August 10, 1971 in the City of Torrance, a silent burglar alarm installed on the premises of Siam was, during the course of a robbery by two armed men, activated at 3:32 p.m. and the alert message was relayed to respondent's police department where it was apparently received at 3:32 p.m. Siam alleges on information and belief that the police dispatcher 'negligently and carelessly failed to broadcast a dispatch message to units in the field * * * caused a lengthy delay which * * * in fact allowed the robbers to escape * * *.' Siam directly alleged that the broadcast to the units in the field was at 3:43 p.m., and that a police unit arrived at the scene at 3:44 p.m., one minute after receiving the message; and that the 10 minute delay in transmission of the alert enabled the robbers to complete the robbery and to escape with jewelry and merchandise in the amount of $49,000. ¹ A claim for damages was timely filed with respondent and was rejected.

Siam concedes that a public entity is not required to provide police protection (Govt.Code, § 845) ², but ignores section 846 ³ which relieves an officer from liability for failure to make an arrest. Although Siam concedes that a public employee is not responsible for an act or omission which results from the exercise of discretion 'vested in him, whether or not such discretion be abused.' (Govt.Code, § 820.2) ⁴, it argues that the quoted act of negligence was a failure to perform a ministerial act at the lowest ministerial rung of official action, that such negligence, to wit, the 10 minute delay of the dispatcher, was the causal or proximate cause of its loss and that respondent is legally required to make it whole. Siam relies on cases such as Johnson v. State of California (1968), 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352; McCorkle v. City of Los Angeles (1969), 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 353; Morgan v. County of Yuba (1964), 230 Cal.App.2d 938, 41 Cal.Rptr. 508; Connelly v. State of California (1970), 3 Cal.App.3d 744, 84 Cal.Rptr. 257 and Sava v. Fuller (1967), 249 Cal.App.2d 281, 57 Cal.Rptr. 312.

The cited cases discussed, Infra, apply to special relationships which create an affirmative governmental responsibility, irrespective of whether it is called discretionary or ministerial, the breach of which is the causal and proximate cause of a loss suffered by the complaining party.

Initially it is obvious to us that the alleged 10 minute delay of the police dispatcher was not the causal or proximate cause of Siam's loss. The one and only cause was the robbery.

Whether the immediate presence of police on the scene of a robbery could have prevented it and/or resulted in the recovery of loot after the consummation of a robbery, or whether immediate police response to a concurrent transmission of the alert could have prevented the robbery or recovered the loot is a subject replete with speculation and conjecture. On either assumption, concurrent and aggressive police action to abort a robbery or prevent a loss could be unsuccessful and could result at best in a confrontation that would prevent neither and culminate not alone in the escape of the robbers, but also in personal injury or death to those involved and to innocent persons in the vicinity. Irrespective of sections 845 and 846, the presence or absence of police before, during or after the robbery has in our opinion no such causal or proximate connection with a loss resulting from a consummated robbery as to result in government liability.

'If zeal in making arrests is worthy of being encouraged by not making the deliberate choice of using minimal force subject to review by judge or jury, this goal would effectively be frustrated by making the manner of executing the course chosen subject to judicial scrutiny in a civil suit for damages such as this one. We accomplish nothing by fanning the officer's ardor one moment and extinguishing it the next.' (County of Sacramento v. Superior Court (1972), 8 Cal.3d 479, 483, 105 Cal.Rptr. 374, 377, 503 P.2d 1382, 1385.)

Plaintiff's avowed theory that the alleged negligent omission of respondent was a ministerial act is fallacious. Siam's bare assertion that the duty to transmit a felony alert is one on the lowest rung of the ministerial ladder does not withstand scrutiny. To the contrary, it is a function impregnated with the same discretion which is required in the exercise of any vital and sensitive police function. Delay in the exercise of an alert may for good reasons be calculated. ⁵ If the delay alleged at bench was due to negligence and nothing else, it may be cause for departmental discipline--to assert that the delay at bench, even if it were legally defined as a ministerial act, was the causal and proximate cause of the is to substitute speculation and conjecture is tosubstitute speculation and conjecture for common sense.

The cases relied upon by appellant are predicated upon a special relationship. Siam squintingly argues without authority that the alarm system for which it contracted with a third person, which relays the alarm to the police station, created such a relationship. An alert from an alarm, irrespective of how transmitted, is no more than a complaint that a crime has been or is being committed. It is entitled to the same attention as any crime committed or in the process of commission, telephonically or otherwise reported by a bystander. Siam's suggestion that when police accept the alarm method of receiving information a special relationship is consummated implicitly argues that the police department has guaranteed the safety and security of the persons and property of all those who have made such arrangements. Thus, a police department, contrary to the established public policy of the state has assumed for the governmental entity an obligation which equates to a contractual guarantee of the consequences arising from the commission of a crime.

It is one thing to wash out sovereign immunity for negligent acts or omissions, ministerial or discretionary, because of a special relationship embraced within the cited cases, but it is quite another to contend that the limited scope of the cited cases permit a policeman or the chief of the department to substitute by way of contract express or implicit a rule which equates with strict tort liability. (Cf. Hayes v. State of California, Cal., 113 Cal.Rptr. 599, 521 P.2d 855 (filed May 10, 1974).)

California Tort Claims Act of 1963 (Stats.1963, ch. 1681) sets forth a number of specific immunities for public entities in providing police protection. (See Chapter 3 of Division 3.6 of Title 1, commencing with ...