Walker v. County of Los Angeles

• Decision Date: 25 June 1987
• Citation: 238 Cal.Rptr. 146,192 Cal.App.3d 1393
• Court: California Court of Appeals Court of Appeals
• Parties: Clayton WALKER, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. B016197.

Page 146

238 Cal.Rptr. 146

192 Cal.App.3d 1393

Clayton WALKER, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

B016197.

Court of Appeal, Second District, Division 7, California.

June 25, 1987.

Certified for Partial Publication ^*

As Modified July 24, 1987.

Review Denied Sept. 16, 1987.

Savin & Bursk and George J. Savin, Jr., and Bonnie Marie Bursk, Northridge, for plaintiff and appellant.

DeWitt W. Clinton, County Counsel, and Dennis M. Gonzales, Sr. Deputy County Counsel, Los Angeles, for defendant and respondent.

JOHNSON, Associate Justice.

As best our research indicates, this case raises an issue of first impression in California. Does a public employee create a "special relationship" with a private citizen by asking that citizen to perform a public function which involves a foreseeable risk of injury? If so, the public employee owes a duty of due care toward the private citizen and the public entity is liable to the private citizen for injuries caused by its employee's negligence. We hold a special relationship indeed is created by the public employee's request. We thus reverse the trial court which granted summary judgment against a private citizen injured while performing a public function at the behest of a public employee.

FACTS AND PROCEEDINGS BELOW

This is a dog bite case with a different twist. Not "man bites dog" but "dog bites dog catcher," or more accurately, a dog catcher's helper.

With one important exception, the essential outline of the story is undisputed. On July 21, 1982, appellant Clayton Walker's mother-in-law called County Animal Control. She reported there were two dogs roaming in the Tujunga area that had been left or abandoned by their owners. The county dispatched Gail Miley, a uniformed animal control officer, to round up the animals. She managed to capture one of the abandoned dogs and put it in her truck. But she couldn't catch the second.

Officer Miley told the mother-in-law she would return later with a dog trap and make another attempt to capture the elusive canine. Appellant's mother-in-law replied her son-in-law might be able to help. Officer Miley then drove over to appellant's house and asked him if he would capture the dog. Appellant Walker said "yes" and obtained some dog biscuits. He went up the hill and managed to place a rope over the dog's head. However, when he brought the animal down the hill and near the truck the dog "freaked out" and bit Walker's thumb off.

On October 12, 1982, Walker filed a complaint seeking damages for personal injuries against the County of Los Angeles. He alleged the county's employee, Animal Control Officer Miley, failed to give him proper equipment and support, and otherwise had failed to exercise due care in connection with his attempt to capture the dog. On July 12, 1985, the superior court heard the county's motion for summary judgment. On August 13, 1985, the court granted the motion, then dismissed the complaint. The court based its ruling on a finding "The County of Los Angeles is immune under Government Code sections 820.2, 820.8 and 815.2" and the further ground "there was no special relationship of reliance on Officer Miley which would give rise to [a cause of action]...."

Appellant filed a timely appeal.

DISCUSSION

The trial court granted a summary judgment. This court recently examined the standards for reviewing an order granting summary judgment (Code Civ.Proc., § 437c: "The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. (Citation omitted.) Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Citation omitted.) [p] 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' (Citation omitted.) 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' (Citation omitted.)" (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 626-627, 193 Cal.Rptr. 600; italics added.)

In deciding whether the trial court properly granted summary judgment, we must ask and answer two questions. First, did triable issues remain as to whether the plaintiff had a cause of action against the animal control officer, and through her, the county? Secondly, if so, were there triable issues remaining whether governmental immunity applied to insulate the defendant from liability for this cause of action? We find the facts present a potential cause of action and furthermore governmental immunity does not apply in this situation.

I. A GOVERNMENTAL OFFICER WHO REQUESTS ASSISTANCE OF A PRIVATE CITIZEN IN THE PERFORMANCE OF A DANGEROUS TASK WHICH IS PART OF THE OFFICER'S OFFICIAL DUTIES AND WHICH IS FOR THE BENEFIT OF THE GENERAL PUBLIC HAS A DUTY OF DUE CARE TOWARD THAT PRIVATE CITIZEN.

Los Angeles County, as a public entity, is liable for injuries proximately caused by their employees including animal control officers who are acting within the scope of their employment. (Gov.Code, § 815.2) ¹ However, the county ordinarily is not liable if the employee's act or omission would not give rise to a cause of action against that employee (Gov.Code, § 815.2(a)) or if the employee is immune from liability (Gov.Code, § 815.2(b)). Thus, the county's liability depends on the liability of its employee, Animal Control Officer Miley.

In its brief the county argued it is not liable because plaintiff's action is not predicated on violation of any statute. In support of this position it pointed to Government Code section 815 which reads in pertinent part: "Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee...." (Italics added.) The brief contended this code section "abolishes all common law or judicially declared forms of liability for public entities."

Understandably, the county did not press this contention at oral argument. What this argument neglects to recognize is that Government Code section 815.2 provides the statutory basis for this and many other causes of action. This section, as will be recalled, states: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." (Gov.Code, § 815.2(a). See fn. 1, supra.) It is undisputed Animal Control Officer Miley was a county employee acting within the scope of her employment when she sought to capture this stray dog and asked Walker to help out. Consequently, under the terms of section 815.2(a) if she would be liable for an injury proximately caused by her acts and omissions during Walker's attempt to retrieve the animal, so would the county.

This brings us quickly to the county's second--and far more serious--contention. It argues the county is not liable because the acts and omissions of its employee, the animal control officer, would not have given rise to a cause of action against that employee. Those acts and omissions could not form the basis for a cause of action because Officer Miley owed no duty to the plaintiff under the circumstances of this case.

A. A Governmental Request for Assistance Can Create a "Special Relationship" Between the Government and a Private Citizen.

With the possible exception of "proximate cause" nothing in negligence law has confounded courts, law professors, or treatise writers more than the concept of duty. (See generally Prosser and Keeton, Torts, (5th ed. 1985) pp. 356-385, especially pp. 373-385, and the numerous authorities cited therein.) What relationship must one person have with another and in what context before she must pay money to the other for her negligent action (or inaction). That is the basic question.

Drawing a boundary line around one's duty in the law of tort becomes even more complicated when we are inquiring into the liability of public employees and most especially when what is involved is something those employees failed to do rather than something they did--their omissions not their acts. Private citizens ordinarily do not owe an affirmative duty to save their fellow citizens from harm unless they personally created the risk. (Rest. 2d ed., Torts, § 314, see pages 19-21, infra.) ² But in a very real sense the general public pays public employees specifically for the purpose of having them assume an affirmative duty to aid everyone in that general public. Thus, if ordinary standards applied they might be held responsible in tort for every injury suffered by every member of society every time a public employee negligently failed to do something which could have prevented harm. However, it is feared this concept of duty might expose public employees and especially the public treasury to intolerable financial burdens. To avoid this possibility, most jurisdictions have required something extra before public employees owe a duty in tort to do something to prevent injury to any member of the general public.

In California this concern is addressed by requiring a "special relationship" between the public employee and a specific private citizen before a duty is created. A "special relationship" exists if and only if an injured person demonstrates the public officer "assumed a duty toward [him] greater than the duty owed to another member of the public." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 206, 185 Cal.Rptr. 252, 649 P.2d 894.)

In prior cases California courts have found "special relationships" to arise where: (...