Tarasoff v. Regents of University of California

• Citation: 33 Cal.App.3d 275,108 Cal.Rptr. 878
• Court: California Court of Appeals
• Decision Date: 06 July 1973
• Parties: Vitaly TARASOFF and Lydia Tarasoff, Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. Civ. 31168.

Page 878

108 Cal.Rptr. 878

33 Cal.App.3d 275

Vitaly TARASOFF and Lydia Tarasoff, Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Civ. 31168.

Court of Appeal, First District, Division 1, California.

July 6, 1973.

For Opinion on Hearing see, 118 Cal.Rptr. 129, 529 P.2d 553.

George A. McKray, San Francisco, for plaintiffs and appellants.

Ericksen, Ericksen, Lynch, Young & Mackenroth, San Francisco, for respondents (excepting Lawrence Moore).

James V. Burchell, Hanna & Brophy, San Francisco, for respondent Lawrence Moore.

MOLINARI, Presiding Justice.

This is an appeal from a judgment of dismissal upon an order sustaining a demurrer without leave to amend to a second amended complaint filed separately in the same action by plaintiffs Vitaly Tarasoff and Lydia Tarasoff.

By said complaints, couched in identical language, plaintiffs sought to recover damages against defendants for the wrongful death of their daughter Tatiana Tarasoff who was killed by Prosenjit Poddar, a University of California student.

The respective complaints allege that defendant Regents of the University of California, a public entity (hereinafter 'The Regents'), is engaged in the business of the care, treatment, and supervision of patients suffering from mental disorders, and is engaged in providing the service of protecting the public from bodily harm by its campus police; that on August 20, 1969, ¹ Poddar was a voluntary outpatient undergoing psychotherapy at the hospital operated and maintained by the Regents; that on said day defendant Lawrence Moore, Ph.D., a clinical psychologist who was providing psychotherapy to Poddar, personally notified defendants Everett D. Atkinson and Johnny C. Teel, officers of the said campus police, that Poddar was capable of doing bodily harm to himself or some one else; that Dr. Moore told said officers that at a psychotherapy session on August 18 Poddar had informed Moore that he was going to kill 'an unnamed girl, readily identifiable as Tatiana Tarasoff, when she returned home to Berkeley from Brazil'; that on August 20, Dr. Moore notified Atkinson and Teel that he would give the campus police a letter of diagnosis on Poddar so that the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley where 'Dr. Moore would assign a 72-hour Emergency Psychiatric Detention' on Poddar; that on or about said day Moore, by letter, notified defendant William Beall, chief of the campus police, that Poddar had a "paranoid schizophrenic reaction, acute and severe" and was "at this point a danger to the welfare of other people and himself"; that in said letter Moore state that "at times he appears to be quite rational, at other times he appears quite psychotic"; that defendant Stuart Gold, M.D., who initially examined Poddar at Cowell Memorial Hospital, and defendant James Yandell, M.D., assistant to the director of said department of psychiatry, concurred in the opinion that Poddar should be committed for observation in a mental hospital; that the campus police responded to said letter and took Poddar into custody; that defendants Gary L. Brownrigg, Joseph P. Halleran, and Atkinson, officers of the campus police, were satisifed that Poddar was quite rational and had changed his attitude altogether; that the campus police released Poddar when he stated he would try to stay away from Tatiana Tarasoff; that defendant D. Harvey Powelson, M.D., director of the department of psychiatry at Cowell Memorial Hospital, upon learning that his staff had made arrangements for Poddar to be placed in a 72-hour treatment and evaluation facility, requested Chief Beall of the campus police to return Moore's letter, ordered all copies destroyed, ordered Moore's therapist's notes on Poddar to be destroyed, and ordered no action to place Poddar in a 72-hour treatment and evaluation facility; and that on October 27, as a direct and proximate result of the negligence of defendants, Poddar, who was deranged and at large, shot and stabbed Tatiana Tarasoff to death.

Based upon foregoing alleged facts plaintiffs purport to plead a cause of action in four counts. In the first count they allege that defendants were negligent because, knowing of Poddar's dangerous and homicidal state, they took no action within a reasonable time to place him in a 72-hour treatment an evaluation facility. In the second count plaintiffs predicate negligence on the basis that, knowing that Poddar was mentally disturbed, dangerous and a threat to the safety of Tatiana Tarasoff, defendants permitted Poddar to be released from the custody of the campus police without the 72-hour emergency psychiatric detention and did not notify Miss Tarasoff's parents that she was in grave danger from Poddar. The third count predicates liability upon the alleged negligence of Dr. Powelson in wilfully abandoning a dangerous patient and deliberately attempting to conceal Poddar's dangerous propensities through administrative action. In the fourth count plaintiffs allege that defendants have a primary duty to safeguard the interest of a patient and the public and that, knowing of Poddar's mental condition, they negligently permitted Poddar, by administrative action, to be abandoned without further psychiatric surveillance or placement in a 72-hour treatment and evaluation facility such as that provided for in Welfare and Institutions Code section 5150; and that by so detaining Poddar, defendants could have taken individual action to prevent the anticipatory homicide.

The issue presented is whether the second amended complaints state a cause of action. 'The essence of a cause of action is the existence of a primary right and one violation of that right, i. e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests. [Citations.] The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. [Citations.] 'The cause of action is simply the obligation sought to be enforced.' [Citations.]' (Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 65-66, 42 Cal.Rptr. 473, 480.)

I advert, initially, to the first and fourth counts. These allege essentially that defendants failed in their duty to have Poddar committed for a 72-hour psychiatric evaluation and that such failure was the proximate cause of Poddar's actions resulting in Miss Tarasoff's death.

The 72-hour evaluation alluded to in the complaints is that provided for in Welfare and Institutions Code section 5250. ² In 1969 the pertinent portions of that statute read as follows: 'When any person is a danger to others, or to himself, or gravely disabled as a result of mental disorder, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, or other professional person designated by the county may, upon reasonable cause, take or cause to be taken, the person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene as a facility for 72-hour treatment and evaluation. . . .'

Pursuant to the provisions of section 5150, a person admitted to a facility for the 721-1 hour treatment therein provided may be detained for a period not exceeding 72 hours. If a person detained for 72 hours under the provisions of section 5150 has received and evaluation he may be certified for not more than 14 days of involuntary intensive treatment under certain specified conditions. (§§ 5250, 5251, 5252, 5253, 5254.) At the expiration of the 14-day period of intensive treatment a person may be confined for an additional period not to exceed 90 days upon petition to and a hearing by, the superior court where a person is a danger to himself or to others as a result of mental disorder. (§ 5300 et seq.) A court-ordered evaluation is initiated by a petition in the superior court requesting such an evaluation prepared and filed by the person or agency designated by the county. (§ 5202.) Such a petition may be applied for by any individual. (§ 5201.) Under such a procedure the person alleged to be mentally disordered may be detained for treatment and evaluation for a period not exceeding 72 hours unless the 14-day intensive treatment provided for in section 5250 and the subsequent 90-day treatment provided for in section 5300 are invoked.

Adverting to section 5150, upon which plaintiffs' first and fourth counts are based, I observe that a person may be taken or caused to be taken to a facility for 72-hour treatment and evaluation only by a peace officer, a member of the attending staff of an evaluation facility designated by the county, or by a professional person designated by the county. In this connection, I note that there are two sets of individual defendants, i. e., the named members of the campus police and the named doctors, all of whom are alleged to be employees of defendant The Regents.

Under subdivision (i) of section 5008, defining terms used in the pertinent provisions of the Welfare and Institutions Code, "Peace officer' means each of the persons specified in Sections 830.1 and 830.2 of the Penal Code.' Members of the University of California police department, while designated as 'peace officers' pursuant to the provisions of Penal Code section 830.3, are not among the persons specified in Penal Code sections 830.1 or 830.2. (See Pen.Code, § 830.3.) Subdivision (j) of section 830.3 of the Penal Code provides that 'Members of the University of California police department appointed pursuant to Section 23501 of the Education Code are peace officers; provided, that the primary duty of any such peace officer shall be the enforcement of the law as that duty is set forth in Section 23501 of the Education Code.' At all times pertinent to the instant action section 23501 of the Education Code provided that the ...