Morgan v. Yuba County

CourtCalifornia Court of Appeals
Citation230 Cal.App.2d 938,41 Cal.Rptr. 508
Decision Date30 November 1964
PartiesWalter W. MORGAN, individually and as guardian ad litem of Helen Morgan, James Morgan and William Morgan, minors, Plaintiffs, Walter W. Morgan, as guardian ad litem of Helen Morgan, James Morgan and William Morgan, minors, Appellants, v. The COUNTY OF YUBA, Defendant and Respondent. Civ. 10636.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, and Reginald M. Watt, Chico, for appellants.

Joseph L. Heenan, Rich, Fuidge, Dawson & Marsh, Marysville, Thomas A. Tweedy, Marysville, of counsel, for respondent.

PIERCE, Presiding Justice.

In this wrongful death action against the County of Yuba a demurrer was sustained without leave to amend and three of the plaintiffs, the minor children (and heirs) of decedent, appealed from the judgment of dismissal.

The grounds upon which the trial court sustained the demurrer were that the action was barred by the statute of limitations (Code Civ.Proc. sec. 340, subd. 3); this because the action had not been filed within one year of the death of decedent. While this appeal was pending, Cross v. Pac. Gas & Elec. Co. (Jan. 1964), 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353, was decided. It held, as to the heirs of a decedent who were minors, that the statute of limitations was suspended during their minority and that a judgment of dismissal against such heirs was reversible error.

Respondent concedes that because of the rule in the Cross case, supra, the judgment of dismissal cannot be sustained upon the grounds stated. However, if the judgment is proper upon any grounds, our duty would be to affirm it. (Stowe v. Fitzie Hotels, Inc., 44 Cal.2d 416, 282 P.2d 890; Southall v. Security Title Ins. etc. Co., 112 Cal.App.2d 321, 246 P.2d 74; Morris v. National Federation of the Blind, 192 Cal.App.2d 162, 13 Cal.Rptr. 336.) Respondent county now contends that it is not liable for the acts or omissions charged in the complaint against its officers in any event and therefore the judgment was proper.

The essential allegations of the complaint can be simply stated: On September 19, 1960, a deputy sheriff of defendant Yuba County, acting on a complaint made by plaintiffs' decedent, Elizabeth Moregan, arrested one Avel Ashby. The complaint alleges that '[o]n or about September 18, 1960, prior to said arrest, and again on September 20, 1960, subsequent to said arrest, the Sheriff and Deputies of the County of Yuba undertook to warn plaintiffs immediately upon said Ashby's release on bail. Said sheriff and deputies had full knowledge that said Ashby threatened the life of said ELIZABETH MORGAN.' It is further alleged that the warning was not given and that as a proximate result thereof said decedent was killed by Ashby.

The contention of respondent county is that neither it nor its officers were liable. Its theory is that the acts of the sheriff and his deputies were discretionary acts for which neither they nor the county are liable either under the government tort liability legislation of 1963 (Stats.1963, ch. 1681 [Gov.Code §§ 814-895.8]) or the common law--this notwithstanding the rule in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, holding that the doctrine of governmental immunity could no longer be used to shield a public entity from liability for torts for which its agents were liable.

Respondent, to justify its conclusions, treats the allegations of the complaint as charging the public officers referred to with negligence in having released a dangerous prisoner on bail and, having so construed the pleading, it urges that this is an exercise of discretion (in the determination of whether 'public safety will be endangered by such release') for which neither the county nor the acting officers can be held liable. And respondent cites a provision of the 1963 legislation, Government Code section 845.8, which provides that neither a public entity nor its employee is liable for an injury resulting from a determination of whether to release a prisoner. Also cited is Government Code section 820.2, providing that a public employee is not liable for an act or omission which is 'the result of the exercise of the discretion vested in him, whether or not such discretion be abused.'

As to the facts assumed by respondent, it correctly states the statutory rule and, perhaps, the common law rule (cf. Azcona v. Tibbs, 190 Cal.App.2d 425, 12 Cal.Rptr. 232). But the facts stated do not accurately describe the acts or omissions charged in the complaint. Plaintiffs do not urge that the officers negligently released a dangerous prisoner. The negligence charged is the failure to warn, as promised, that a dangerous prisoner was about to be, or had been, released.

This brings the case into a new category--the negligent omission to perform an act voluntarily assumed. And the problem for our determination is whether such an omission proximately causing a fatality is actionable against the entity for which the offending officer works.

We first discuss the problem within the framework of the 1963 legislation. 1

Government Code section 815.2 2 as enacted in 1963 (Stats.1963, ch. 1681) 'imposes upon public entitles vicarious liability for the tortious acts and omissions of their employees' (see Comment, 4 Cal.Law Rev.Com.Report [1963], p. 838), but excludes liability in those cases where employees are themselves immune.

By Government Code section 820.2 3 public employees are immune from liability for acts or omissions which are the result of 'discretion' vested in them.

No discretion is exercised in warning those whom one has promised to warn of the impending release of a dangerous prisoner. The simple act of reaching for a telephone or of dispatching a messenger is wholly ministerial. A discretionary act is one which requires 'personal deliberation, decision and judgment' while an act is said to be ministerial when it amounts 'only to an obedience to orders, or the performance of a duty in which the officer is left no choice of his own.' (See Prosser, Torts (3d ed.), p. 1015.) This definition is imperfect but will suffice here. It has been criticized as 'finespun and more or less unworkable' (Prosser op. cit. p. 1015) and, as regards the definition of 'discretionary,' it is no doubt sometimes a too-inclusive classification where the duties of 'operational level' public officers are involved (Compare Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, with Indian Towing Company v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48.) But in this case we do not have to make any 'finespun' differentiation. Whatever the policy of the law may or should be regarding the nature of the act performend, when an officer makes a theretofore-umpromised decision on the question whether or not he should warn a threatened victim of a prisoner's release, once the decision has been made and the promise has been given, the act of carrying out the promise is not discretionary in any sense. (See Dillwood v. Riecks, 42 Cal.App. 602, 610, 184 P. 35.)

We now reach the question--is disregard of such a nondiscretionary promise actionable?

By Government Code section 820 4 of the 1963 legislation it is provided that '[e]xcept as otherwise provided by statute (including Section 820.2)' a public employee is liable, and enjoys the same defenses, as a private person for his acts and omissions. The comment of the California Law Revision Commission (4 Cal.Law Rev.Com.Report 1963, p. 842) regarding this section states: 'This section declares the pre-existing law.'

Under the facts of this case a private person would be liable.

It may be stated as a general principle that 'in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.' (Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23, 27.) Exceptions to this rule exist, however, when there has been a voluntary or grantuitous undertaking. A person not required to perform services for another may sometimes do so, and in such case, in certain instances, is under a duty to exercise due care in performance. (2 Rest., Torts, secs. 323, 324, p. 873, et seq.; Perry v. D. J. & T. Sullivan, Inc., 219 Cal. 384, 389-390, 26 P.2d 485; Griffin v. County of Colusa, 44 Cal.App.2d 915, 923, 113 P.2d 270 (a decision of this court, rule applied to nurses employed by a county hospital); Biondini v. Amship Corp., 81 Cal.App.2d 751, 763, 185 P.2d 94--and see other cases cited 2 Witkin, Summary of California Law, Torts, sec. 241, p. 1436.) The foregoing cases are illustrative of instances where the officer, in addition to promising an act, has embarked upon its performance when the casualty occurs. These cases do not cover the facts of the instant case. But there is another exception to the rule of nonliability for an unperformed gratuitous undertaking which does fit the facts of this case. It has been held that 'nonfeasance may give rise to tort liability where a person, in reasonable reliance thereon, suffers harm, as by refraining from securing other necessary assistance. (Rest., Torts, sec. 325; see also 64 Harv.L.Rev. 913.)' (2 Witkin, op. cit., p. 1437.) (Emphasis supplied.)

In the law review article cited by Witkin (Professor Seavey, 'Reliance on Gratuitous Promises or Other Conduct,' 64 Harv.L.Rev. 913) the author observes (on p. 919): '[O]ne who represents that he will extend aid to a helpless person is responsible for the harm caused by the failure to receive the aid if, but for the defendant's conduct, aid would have been rendered by others.' (And see Rest., Torts, sec. 325, and Comment.)

We find Fair v. United States, 234 F.2d 288 (5th Cir. 1956) indistinguishable from the case at bench. There the heirs of a nurse and two other victims of a homicidal assault by an insane air force...

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