Davidson v. City of Westminster

• Decision Date: 30 August 1982
• Citation: 185 Cal.Rptr. 252,32 Cal.3d 197,649 P.2d 894
• Court: California Supreme Court
• Parties: , 649 P.2d 894 Yolanda DAVIDSON et al., Plaintiffs and Appellants, v. CITY OF WESTMINSTER et al., Defendants and Respondents. L.A. 31449

Page 252

185 Cal.Rptr. 252

32 Cal.3d 197, 649 P.2d 894

Yolanda DAVIDSON et al., Plaintiffs and Appellants, v. CITY OF WESTMINSTER et al., Defendants and Respondents.

L.A. 31449.

Supreme Court of California

Aug. 30, 1982.

Jack Hylton Clark and Peake & Clark, Santa Ana, for plaintiffs and appellants.

Glen E. Tucker, Wood, Tucker & Ward & Bonelli, Wood & Heib, Encino, for defendants and respondents.

John W. Witt, City Atty., San Diego, Ronald L. Johnson, Chief Deputy City Atty., and Eugene P. Gordon, Deputy City Atty., as amici curiae for defendants and respondents.

KAUS, Associate Justice.

Plaintiffs Yolanda Davidson and her husband appeal from a judgment of dismissal entered in favor of defendants City of Westminster (city) and Police Officers Varner and Rosenwirth, after defendants' general demurrer was sustained with leave to amend and plaintiffs elected not to do so. We affirm.

According to the complaint, Yolanda Davidson was stabbed four times by Jack Blackmun while in a public laundromat. On three earlier occasions women had been stabbed at the same or nearby laundromats. The evening before Yolanda's stabbing, two police officers had the laundromat under surveillance when another stabbing occurred; the police chased the suspect but failed to catch him. The next evening the officers had the laundromat under surveillance for the purpose of preventing assaults and apprehending the felon. The officers were aware of Yolanda's presence in the laundromat throughout the surveillance. After about an hour of surveillance, they saw a man on the premises who closely resembled the attacker of the previous evening and, while watching him for 15 minutes, identified him as the likely perpetrator of that assault. As the officers watched, the suspect entered and left the laundromat "several times." The officers did not warn Yolanda. Eventually she was stabbed.

Yolanda seeks to recover from the city and the officers on the basis of causes of action for intentional and negligent infliction of emotional distress and for negligent investigation, failure to protect, and failure to warn. The causes of action in negligence allege that special relationships existed between Yolanda and the officers as well as between the assailant and the officers, each of which imposed a duty of care on the officers. ¹

Defendants demurred, contending (1) that no "special relationship" giving rise to a duty of care existed under the allegations of the complaint, and (2) that, in any event, the action was barred under the immunity provisions of Government Code section 845, which absolve a public entity or employee of liability for failure to provide adequate police protection. ² Without indicating the grounds for its ruling, the trial court sustained the demurrer. On this appeal, plaintiffs maintain that neither of the defendants' arguments support the trial court judgment.

I. The Negligence Claims

In sorting out the issues presented, it is important to consider first things first. Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. This logical sequence of inquiry was overlooked in dicta in at least three Court of Appeal cases: Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332; McCarthy v. Frost (1973) 33 Cal.App.3d 872, 109 Cal.Rptr. 470. The fallacy was exposed in Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 704, 141 Cal.Rptr. 189, where Justice Reynoso, writing for the Court of Appeal, arrayed the subjects of the inquiry in proper order: "The parties assume that if we conclude the alleged facts establish as a matter of law the existence of a 'special relationship' (a relationship giving rise to the county's duty to act prudently, and appellants' justifiable reliance thereon) we will obviate the need to consider whether respondents are immune from liability under sovereign immunity principles. Implicit in this exception theory is the assumption the 'special relationship' creates an affirmative governmental responsibility which when breached gives rise to governmental liability notwithstanding the discretionary (immunized) character of the tortious act." The Whitcombe court disagreed, correctly explaining that the question of " 'duty' [to which the special relationship concept pertains] is only a threshold issue, beyond which remain the immunity barriers ...." (73 Cal.App.3d at p. 706, 141 Cal.Rptr. 189.)

Just as immunity hurdles are not overcome by the existence of a special relationship, so does the possible inapplicability of immunity not create a special relationship where none otherwise exists. As Professor Van Alstyne summarizes the problem in California Government Tort Liability Practice (Cont.Ed.Bar 1980) section 2.65: "Some of the cases represent an unnecessary effort to categorize the acts or omissions in question as immune discretionary functions, when the same result could be reached on the ground that the facts fail to show the existence of any duty owed to plaintiff or any negligence on the part of the police officers. See, e.g., McCarthy v. Frost, supra; Bratt v. San Francisco [ (1975) 50 Cal.App.3d 550, 123 Cal.Rptr. 774]. Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any 'special relationship' between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. See, e.g., Mikialian v. Los Angeles (1978) 79 CA [Cal.App.] 3d 150, 144 CR [Cal.Rptr.] 794 (no duty of police to place flares for protection of tow truck operator); J. A. Meyers & Co. v. Los Angeles County Probation Dep't (1978) 78 CA [Cal.App.] 3d 309, 144 CR [Cal.Rptr.] 186 (no duty of probation officers to disclose criminal record of probationer to prospective employer)."

Accordingly, we turn first to the question of special relationship. Since we conclude that there is no special relationship in this case that would establish a duty of care for negligence liability purposes, we need not reach the issue of statutory immunity.

As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if "(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection." (Rest.2d. Torts (1965) § 315; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 751-752, 167 Cal.Rptr. 70, 614 P.2d 728; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.) Plaintiffs urge that defendants are liable under both theories.

In determining the existence of a duty of care in a given case, pertinent factors to consider include the "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 with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.) "When public agencies are involved, additional elements include 'the extent of [the agency's] powers, the role imposed upon it by law and the limitations imposed upon it by budget; ...' (Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847]; see Smith v. Alameda County Social Services Agency, supra, 90 Cal.App.3d 929 [153 Cal.Rptr. 712].)" (Thompson, supra, 27 Cal.3d at p. 750, 167 Cal.Rptr. 70, 614 P.2d 728.)

This court has considered the duty of care owed by police or correctional officials in a trilogy of cases, Tarasoff v. Regents of University of California, supra, Thompson v. County of Alameda, supra and the earlier case of Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352].

In Johnson, the plaintiff was attacked by a minor who was placed in her foster home by the Youth Authority with no warning of the minor's known homicidal tendencies. We held that the state owed a duty of care to plaintiff: "As the party placing the youth with Mrs. Johnson, the state's relationship to plaintiff was such that its duty extended to warning of latent, dangerous qualities suggested by the parolee's history or character. [Citations.] These cases impose a duty upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril." (69 Cal.2d at pp. 785-786, 73 Cal.Rptr. 240, 447 P.2d 352, emphasis added.)

In Tarasoff, where a particular individual (Tatiana) was the subject of threats by an eventual assailant (Poddar), we held that the defendant therapists who heard the threats had a duty to exercise due care to warn the potential victim. The duty arose from the special relation between a patient and his doctor or psychotherapist, generally recognized as supporting an affirmative duty for the benefit not only of the patient but of other persons as well. (17 Cal.3d at p. 436, 131 Cal.Rptr. 14, 551 P.2d 334; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469, 62 Cal.Rptr. 577, 432 P.2d 193.)

Nevertheless, as to certain police defendants, who had briefly detained and then released Poddar, we concluded that "they do not have any such special relationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn respecting Poddar's violent...