Duffy v. City of Oceanside

CourtCalifornia Court of Appeals
Writing for the CourtWIENER; STANIFORTH, Acting P.J., and WORK
Citation224 Cal.Rptr. 879,179 Cal.App.3d 666
PartiesLynnette M. DUFFY, et al., Minors, etc., Plaintiffs and Appellants, v. The CITY OF OCEANSIDE, an Incorporated municipality, the State of California, et al, Defendants and Respondents. D002552, D001527.
Decision Date01 April 1986
Kenneth L. Greenman, Jr., Helen H. Peak and Andreasen, Gore, Grosse, Greenman & Betz, Oceanside, and William C. Halsey, Vista, for plaintiffs and appellants

John K. Van de Kamp, Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen. and Jeffrey T. Miller and Kristin G. Hogue, Deputy Attys. Gen. and Dennis W. Daley and Daley & Heft, Encinitas, for defendants and respondents.

WIENER, Associate Justice.

This appeal involves the tragic murder of plaintiffs' mother by Joseph Larroque a parolee of the state prison system, and arises out of plaintiffs' attempts to fix financial responsibility for that death on the State of California--for failing to properly monitor Larroque's parole--and the City of Oceanside--for employing Larroque and failing to warn the victim, also a city employee, of Larroque's dangerous propensities. The trial court concluded neither defendant owed a legal duty to the victim and accordingly sustained respective demurrers without leave to amend. As to the State, the court independently concluded that the immunity provisions of Government Code section 845.8 applied to bar plaintiffs' claim.

After stating the facts as alleged in the complaint, we will address the issue of each defendants liability separately.


Laverne Duffy, the victim, was employed by the City of Oceanside in its engineering department. In August 1978 the City hired Joseph Larroque and also assigned him to In September 1978 Duffy reported to her superiors that Larroque had sexually harassed her during working hours by touching parts of her body in a suggestive fashion without her permission. Despite these reports Duffy was never warned about Larroque's background. Circumstances changed, however. Beginning in January 1979 Duffy and Larroque developed a friendly work and social relationship which continued for some four and one-half years. The City knew of the development of this relationship but nonetheless failed to warn Duffy about Larroque.

                the engineering department. 2  Larroque was on parole following three years in a state mental hospital and an additional four years in state prison after convictions for kidnapping, rape and sexual assault.  The conditions of parole included that Larroque regularly report to a parole officer and take prescribed medication

On May 19, 1983, Larroque placed an inter-office call to Duffy regarding work-related matters. During the conversation, Larroque asked for Duffy's help in remedying a problem he had earlier in the morning with his car. Duffy agreed and apparently left the office with Larroque on her lunch break. Thereafter, Larroque kidnapped Duffy, taking her to his home where he stripped, bound and gagged her. After tying a self-tightening noose around her neck, Larroque left her to go back to work, intending to return later. While he was gone, Duffy strangled herself attempting to escape.

The defendants' demurrers to plaintiffs' first complaint were heard separately. Both were sustained--the City's with leave and the State's without leave to amend. The City's demurrer to plaintiffs' amended complaint was later sustained without leave and a judgment of dismissal entered on November 13, 1984.


The trial court resolved each of the demurrers by concluding that the defendant at issue owed no "duty" to the plaintiffs. We have previously expressed our concern that the "duty" concept is often more of a substitute for rather than an aid to reasoned analysis. (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 197, 208 Cal.Rptr. 384.) In Marois, we observed that to the extent "duty" has independent value as an analytic tool rather than being simply a question-begging conclusion (see Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912; Hucko v. City of San Diego (1986) 179 Cal.App.3d 520, 224 Cal.Rptr. 552 ), it is arguably relative to those "considerations of policy" which sometimes compel a rule of law precluding liability "even when the plaintiff's injury was caused by the defendant's failure to act reasonably." 3 (162 Cal.App.3d at p. 198, 208 Cal.Rptr. 384, emphasis in original.) We specifically identified the common law rule that "one person owe[s] no duty to control the conduct of another" (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334) as an example of a doctrine based on such policy considerations. (Marois, supra, 162 Cal.App.3d at p. 199, 208 Cal.Rptr. 384.) In the present case we must determine whether this common law exception applies to shield the State and City from liability for their allegedly unreasonable acts or whether, by virtue of the special relationship between defendants and either the victim (Duffy) or the perpetrator (Larroque), we must revert back to Our inquiry into the circumstances under which a defendant may be liable for its failure to control or take precautions against the acts of third persons is guided by two significant Supreme Court decisions. In Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, a patient receiving psychiatric treatment at a hospital operated and staffed by defendants revealed to his therapist that he intended to kill Tatiana Tarasoff. The patient later carried out his threat and Tatiana's parents sued defendants for wrongful death. The court began its analysis by reciting the general common law rule precluding liability for the harmful acts of third persons. (Id., at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334.) Relying on Restatement Second of Torts section 315, however, the court goes on to explain that such a duty can "arise from either '(a) a special relation ... 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 ... between the actor and the other which gives to the other a right of protection.' " (Ibid.) Concluding that such a special relation existed between the patient and his therapist, the Tarasoff court held that defendant could be liable for their failure to warn or otherwise protect Tatiana. 4

the general rule that a defendant is liable for all damage occasioned by its failure to exercise reasonable care.

Relying on a similar special relationship between the defendant and a third person murderer, the plaintiffs in Thompson v. County of Alameda (1980) 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 sought to recover from the defendant County following its release of a juvenile offender, James F., who then killed plaintiffs' minor son. Before his release to his mother's custody, James threatened to kill an unidentified child in the neighborhood. Plaintiffs alleged the County had a duty to warn the local police, the neighborhood parents or James' mother regarding the nature of James' threat. A majority of the California Supreme Court rejected plaintiffs' contentions, holding that, at least in the context of third persons posing a threat of criminal behavior, any duty of a public agency to warn does not arise absent the identification of a specific victim. (Id., at p. 754, 167 Cal.Rptr. 70, 614 P.2d 728.)

Liability of the State of California

Plaintiffs in the present case respond to the Tarasoff-Thompson analysis by emphasizing that their complaint against the State does not rely on any failure to warn anyone. Rather, this is a simple allegation of the State's failure to control Larroque in the sense of failing to properly supervise his parole. Plaintiffs thus claim that Thompson's requirement of an identifiable victim has no application to a failure-to-control case.

Plaintiffs' position exhibits a certain logic. Where a special relationship between the defendant and a third person gives rise to a duty on defendant's part to control the third person (Rest.2d Torts, § 315, subd. (a)), a warning to forseeable victims is only one of many ways the defendant can discharge that duty. Depending on the circumstances, it may be reasonable for the defendant to restrain or otherwise directly control or influence the third person. (See Tarasoff, supra, 17 Cal.3d at p. 436 and fns. 7 and 8, 131 Cal.Rptr. 14, 551 P.2d 334; Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 894, 193 Cal.Rptr. 733.) Clearly liability for negligence in such cases cannot be avoided merely because there is no specific identifiable victim. Putting aside questions of governmental immunity Nonetheless several California appellate court cases have arguably attempted to extend the Thompson reasoning to duty-to-control cases. In McDowell v. County of Alameda (1979) 88 Cal.App.3d 321, 151 Cal.Rptr. 779, a decision which preceded Thompson by a year, defendant hospital and doctors determined that Gregory Jones was mentally ill and constituted a danger to himself and others. In transferring Jones to another hospital, defendants negligently placed him in a taxicab rather than in an ambulance or other form of transportation where Jones could be more easily controlled. As a result, Jones escaped and two days later killed plaintiffs' decedent. The court held that plaintiffs had not stated a cause of action because there was "no allegation that Jones was a threat to the decedent, nor is there any allegation that any particular person or group of people would be harmed by the release of Jones. [Defendants] do not owe a duty to society because Jones' behavior may constitute a danger to any person." (Id., at p. 325, 151 Cal.Rptr. 779.)

(see County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 105 Cal.Rptr. 374, 503 P.2d 1382), it seems pointless to argue that prison...

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