Ne Casek v. City of Los Angeles

CourtCalifornia Court of Appeals
Citation43 Cal.Rptr. 294,233 Cal.App.2d 131
Decision Date22 March 1965
PartiesKathryne NE CASEK, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, Robert Conrad, Edward Modarelli, Defendants and Respondents. Civ. 27592.

Smith, Butts & Diekman, Hollywood, and David A. Binder, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Assy. City Atty., Victor P. Spero, Division Chief, Deputy City Atty., Arthur Y. Honda, Deputy City Atty., for respondents.

KAUS, Justice.

Appeal from judgment of dismissal, following the sustaining of defendants' demurrers without leave to amend.

The first amended complaint to which the demurrers were directed alleged in substance:

The individual defendants Conrad and Modarelli were police officers employed by the defendant City of Los Angeles on November 22, 1961. In the afternoon of that day they had arrested and handcuffed two persons whom they had charged or suspected of an undisclosed violation of law and who 'defendants knew, or in the exercise of reasonable care should have known, were dangerous, desperate and desirous of escaping and avoiding arrest and imprisonment.' Thereafter the defendants 'carelessly, recklessly, negligently and unlawfully' allowed the two suspects to escape. Handcuffed together the escapees ran along the public sidewalk which was then occupied by many persons including the plaintiff. They collided with her, causing her to be thrown to the sidewalk, with resulting personal injuries.

The complaint also alleges that the defendants knew, or in the exercise of reasonable care should have known, that if the suspects were not held under actual physical restraint, they would be dangerous to members of the public such as the plaintiff. In particular, such knowledge was, or should have been, derived from the fact that the two suspects were handcuffed together.

Although, as will be demonstrated, the result is unaffected by the date of this occurrence, it should be noted that it happened on November 22, 1961, after the passage of Civil Code, section 22.3 but before the enactment of the comprehensive legislation sometimes referred to as the California Tort Claims Act of 1963, which we will call the 'Act'.

It is our conclusion that no cause of action has been alleged against any defendant either under the common law as it was thought to be before Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, and Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465, or under the law as declared by those decisions. We further conclude that the Act did not change the law pertaining to the facts before us and that--with one possible exception noted at the end of this opinion--no questions of retroactivity are involved.

Counsel for both sides have correctly analyzed that this appeal involves two basic questions, although each has its ramifications. The first question is whether, regardless of the official status of the defendants the complaint states a cause of action against the officers and hence, by the application of the doctrine of respondeat superior, against the city. The second question is whether or not the officers are protected by the so-called 'discretionary immunity' doctrine. Since we feel that the answer to the second question is freer from doubt than the answer to the first 1 and that it is in the affirmative, we do not reach the first.

There is no question that police officers may, in a proper case, be found to be engaged in a discretionary activity and thus protected by the doctrine recognized in Lipman v. Brisbane Elementary School Dist., supra, that government officials are not personally liable for their discretionary acts within the scope of their authority. (ibid., 229). Thus in Tomlinson v. Pierce, 178 Cal.App.2d 112, 2 Cal.Rptr. 700, and Rubinow v. County of San Bernardino, 169 Cal.App.2d 67, 336 P.2d 968, police officers were held to be immune from civil liability on allegations that they negligently failed to arrest suspected lawbreakers. But the fact that police officers may be protected by the doctrine, does not necessarily mean that they are protected when engaging in activities which are properly classifiable as ministerial rather than discretionary. Applied to the case before us, this means that while a police officer may be protected as far as his decision not to make an arrest is concerned, it does not follow that, the decision to arrest having been made, he cannot be answerable in damages for the consequences of a careless execution of his decision. The question in each case must be whether or not the particular activity which is alleged to have been improperly performed, is to be classified as discretionary or ministerial.

The cases are not lacking in definitions. In Tomlinson v. Pierce, supra, the distinction is stated as follows, quoting from Doeg v. Cook, 126 Cal. 213, 216, 58 P. 707; "The liability of a public officer to an individual for his negligent acts or omissions in the discharge of an official duty depends altogether upon the nature of the duty to which the neglect is alleged. Where his duty is absolute, certain, and imperative, involving merely the execution of a set task,--in other words, is simply ministerial,--he is liable in damages to anyone specially injured, either by his omitting to perform the task, or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, to be exerted or withheld according to his own judgment as to what is necessary and proper, he is not liable to any private person for a neglect to exercise those powers, nor for the consequences of a lawful exercise of them where no corruption or malice can be imputed, and he keeps within the scope of his authority." (ibid pp. 116-117, 2 Cal.Rptr. p. 703). That this definition leaves a great deal of room for argument in particular cases is obvious. Activities which are clearly discretionary as far as the decision to engage in them is concerned, obviously have their ministerial features once the decision has been made. Conversely even the most ministerial task, has its discretionary aspects. In Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P. 462, 468, it is said: '* * * it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.'

Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activity falls should be guided by the purpose of the discretionary immunity doctrine. This purpose was expressed by our Supreme Court in Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 229, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467, as follows: 'The subjection of officials, the innocent as well as the guilty, to the burden of a trial and to the danger of its outcome would impair their zeal in the performance of their functions, and it is better to leave the injury unredressed than to subject honest officials to the constant dread of retaliation.' Several California cases 2 have quoted the statement of Judge Learned Hand in Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581: 'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that it quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.'

While undoubtedly there are many cases where either judicial precedent or reason compel a holding in particular situations that a duty is discretionary or ministerial, there are others--and this is one of them--where precedent at least is lacking. Thus we must look to the reasons advanced in justification of the discretionary immunity doctrine and determine whether in the situation before us, they are applicable.

In spite of certain intimations in the public communications media to the contrary, the courts recognize that the public has a vital interest in suspected law violators being arrested and brought to trial on the charges against them. Any rule which would restrict a police officer's zeal in carrying out his duties as a law enforcement official is undesirable in the absence of strong countervailing considerations, such as the protection of constitutional rights.

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