Megeff v. Doland

Citation123 Cal.App.3d 251,176 Cal.Rptr. 467
CourtCalifornia Court of Appeals
Decision Date31 August 1981
PartiesBernice E. MEGEFF and Herman Megeff, Plaintiffs and Appellants, v. Charlotte DOLAND, erroneously sued and served herein as Jane Toland; and Thea Stevens, Defendants and Respondents. Civ. 61412.
Joseph W. Fairfield, Los Angeles, for plaintiffs and appellants

Chase, Rotchford, Drukker & Bogust and Hermine Daniels, Los Angeles, for defendant and respondent Charlotte Doland.

Goldman & Cowan, Henry N. Cowan and Jonathan Greenspan, Los Angeles, for defendants and respondents.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiffs Herman and Bernice E. Megeff appeal from a judgment on the pleadings entered in favor of defendant Thea Stevens and a summary judgment entered in favor of defendant Charlotte Doland.

BACKGROUND

In mid-October 1978, Charles Stevens (the 87-year-old husband of defendant Thea Stevens) was admitted to Cedars-Sinai Hospital for treatment of a cardiac condition. Some time thereafter, he exhibited aggressive behavior, pushing or striking an intern and threatening a nurse. As a result, he was transferred to the hospital's psychiatric wing. Approximately ten days after his admission to the hospital, Charles Stevens was released and returned to the apartment he shared with his wife, defendant Thea Stevens.

On November 1, 1978, Charles Stevens approached plaintiff Herman Megeff in the vicinity of 226 North Crescent Drive in Beverly Hills and, without provocation, stabbed him with a pointed object. Herman Megeff retreated to his apartment. A short time later, Charles Stevens gained access to the plaintiffs' apartment at the above address, again stabbed Herman Megeff and also stabbed plaintiff Bernice Megeff. Criminal proceedings were later instituted against Charles Stevens, but were suspended on the ground that he lacked the mental capacity to stand trial for his offenses. (Superior Court file no. A 078131.) Defendant Charlotte Doland is the adult married daughter of Charles and Thea Stevens.

CONTENTIONS

Plaintiffs contend that the trial court erred in granting judgment on the pleadings and summary judgment in that plaintiffs were entitled to relief on their complaint against defendant Thea Stevens and triable issues of material fact existed as to the liability of defendant Charlotte Doland.

DISCUSSION

The gravamen of plaintiffs' complaint is that Charles Stevens' wife and daughter had voluntarily assumed his custody and control over his conduct with knowledge that his propensity for violence posed a risk of harm to third persons, and they negligently failed to exercise sufficient control over his conduct to prevent harm to third persons as a result of which, plaintiffs were injured. In other words, plaintiffs maintain that defendants owed a duty to so control the conduct of Charles Stevens as to avoid harm to plaintiffs.

As stated in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334: "(L)egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." Civil Code section 1714, subdivision (a) is California's expression of policy in this regard, imposing liability "for an injury occasioned to another by (one's) want of ordinary care or skill ...." Thus, it is fundamental that whenever circumstances are such that one person's failure to use ordinary care in his conduct would cause a danger of injury to the person or property of another, a duty arises to use ordinary care to avoid that danger. (Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)

Departure from this principle requires the balancing of a number of factors; the primary ones "are 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." (Id., at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

The most important of the enumerated factors in establishing a duty is foreseeability. Ordinarily, one owes a duty of care to " 'all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.' " (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334; quoting Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 525 P.2d 669.) However, when the avoidance of foreseeable harm requires one to control the conduct of a third person, special rules come into play.

In general, one owes no duty to control the conduct of another person (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Rest.2d Torts (1965) § 315), but the courts have created limited exceptions based on various special relationships between a defendant and either the person whose conduct needs to be controlled or the foreseeable victim of that conduct. (Rest.2d Torts, supra, §§ 315-320.) Section 319 of Restatement Second Torts delineates a special relationship pertinent to the case at bar: "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."

However, the duty created by section 319 is not necessarily one owed to the world at large; the element of foreseeability remains. The custodian must have knowledge of a specific risk to an identifiable and foreseeable victim. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 444, 165 Cal.Rptr. 741.)

We now proceed to apply these general principles to the facts at hand.

Judgment on the Pleadings 1

Plaintiffs allege that for a period of at least one year prior to the November 1, 1978 attack on the plaintiffs, Charles Stevens was an insane person who behaved in a hostile, belligerent and violent manner and had, on several occasions, "set upon, assaulted and beat up innocent persons." Defendants were at all times aware of these facts and agreed among themselves to assume control of his conduct in order to avoid his commitment in an institution. During his hospitalization in October 1978, Charles Stevens attacked an intern and threatened a nurse, as a result of which he was moved to the hospital's psychiatric ward. The defendants had full knowledge of this behavior and that Charles Stevens was a dangerous person; yet, ten days after his admission to the hospital, sought Charles Stevens' release assuring hospital authorities that they would assume full responsibility over him and his conduct and would never leave him unattended. Had defendants not prevailed upon the hospital to release Charles Stevens to their custody, the hospital would have instituted commitment proceedings under the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000, et seq).

Defendants, as his wife and child who exercised complete control of his movements and conduct, were negligent in permitting Charles Stevens to roam the streets of Beverly Hills unattended on November 1, 1978 and in refusing to institute Lanterman-Petris-Short Act proceedings which would have resulted in a court determination that Charles Stevens was dangerous to the public and thereby in his commitment to an institution. The attacks on the plaintiffs were the proximate result of the foregoing negligence.

At first blush, it would appear that plaintiffs have sufficiently alleged a duty on the part of defendants to entitle them to relief. However, only the material facts alleged in a complaint are deemed true; contentions, deductions or conclusions of fact or law alleged in the complaint, or allegations contrary to facts of which a court may take judicial notice, are not accorded similar treatment. (Alva v. Cook (1975) 49 Cal.App.3d 899, 903, 123 Cal.Rptr. 166.) Plaintiffs have requested that we take judicial notice of Los Angeles Superior Court files nos. A 078131 (People v. Charles Stevens) and MP 12702 (Conservatorship of Charles Stevens), and we now do do. The psychiatric reports contained in these files directly contradict the allegation that, prior to the attack on plaintiffs, defendants knew Charles Stevens to be a violent and insane man who had repeatedly assaulted innocent persons. The reports reveal that prior to his hospitalization, Charles Stevens' family had never known him to show any propensity for violence; rather, he was a very peaceful and nonviolent man (although senile). The reports further describe him as hard of hearing, exhibiting difficulty in ambulating, showing signs of disorientation, but cooperative; he became physically aggressive while at Cedars-Sinai Hospital when the staff refused to allow him to leave. Moreover, his attack on the plaintiffs was motivated by his belief that they (as his landlords) were stealing from him. Accordingly, there is nothing in the reports to suggest a violent history or generalized violent behavior or attitudes.

We note, further, that many of the allegations in the complaint are nothing more than legal or factual conclusions. The allegations that Cedars-Sinai Hospital would have instituted commitment proceedings but for defendants' assumption of responsibility over Charles Stevens, that defendants should have instituted such proceedings, 2 and that commitment proceedings would have been successful...

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