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California
Law Dictionary
Tort Negligence-Duty
(Munoz v. City of Union City)
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Tort Negligence Duty Police No Duty of In Crisis Situation
(Munoz v. City of Union City)

In Rowland v. Christian (1968) 69 Cal.2d 108, the court identified a number of elements to be assessed in deciding whether a defendant owed a tort duty to a plaintiff. “These factors include: (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; and (7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability. (Rowland, supra, 69 Cal.2d at pp. 112-113.) Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency’s powers; the role imposed on it by law; and the limitations imposed on it by budget. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 . . . ; Dutton [v. City of Pacifica (1995)] 35 Cal.App.4th [1171,] 1175; Allen [v. Toten (1985)] 172 Cal.App.3d [1079,] 1086-1087.)” (Adams, supra, 68 Cal.App.4th at pp. 267-268.) “[W]hen addressing conduct on the part of a defendant that is ‘deliberative, and . . . undertaken to promote a chosen goal, . . . [c]hief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.’ [Citations.]” (Parsons, supra, 15 Cal.4th at p. 473, italics omitted.)

We considered these factors in Adams, in which the majority concluded that the police owed no duty of care toward a man killed during a crisis situation. The decedent in Adams had a history of depression, had been suicidal in the past, and became belligerent and argumentative when he drank hard liquor. After an argument with his wife in which the decedent broke dishes and pushed his wife, relatives found he had broken various items in the house and isolated himself in a dark closet. He responded to his stepdaughter’s attempts to talk to him by discharging a firearm, causing his relatives concern that he might have injured himself. The relatives left the house and called the police, who eventually found the decedent sitting in the bushes in the backyard, wearing only underwear and cradling a gun pointed at his own chest. The police, who had weapons drawn and a police dog who had approached the decedent in the bushes, made various attempts to talk with the decedent, while the decedent continually told the police to leave. Some 16 minutes after the police had located the decedent in the yard, he told the police he could make them leave and gunfire erupted from the bush area. Believing the decedent had shot at them, the police fired at him. The self-inflicted shot from the decedent’s gun proved fatal.

As in the present case, the expert testimony in Adams was conflicting as to whether the police officers’ conduct at the scene fell below the standard of care. As here, Reedy testified as an expert for the plaintiffs that the police response was too rushed and confrontational, and that the police did not follow proper guidelines for crisis management. Additionally, a psychiatrist testified that the police were a substantial cause of the suicide. The defense law enforcement experts testified that the steps taken by the police were proper and disagreed with the plaintiffs’ psychiatrist’s opinion.

Adams focused on the tactical choices made by the police because the plaintiffs based their claims on this facet of the response. In balancing the Rowland factors, the majority justifiably placed importance on the public policy implications inherent in the analysis. (See Parsons, supra, 15 Cal.4th at p. 472.) For example, in discussing the Rowland factor of moral blame, we noted that “[p]olice officers often act and react in the milieu of criminal activity where every decision is fraught with uncertainty. [Citation.]” (Adams, supra, 68 Cal.App.4th at p. 270.) We went on to comment further, “[w]e agree with the Allen [v. Totten, supra, 172 Cal.App.3d 1079] court’s conclusion that police officers providing assistance at the scene of a threatened suicide must concern themselves with more than simply the safety of the suicidal person. Protection of the physical safety of the police officers and other third parties is paramount. [Citation.]” (Adams, supra, 68 Cal.App.4th at p. 271, fn. omitted.)

These practical concerns compelled us to observe how imposing a duty of care would actually threaten, and not promote, public safety: “Moreover, at a minimum, imposition of a tort duty on public safety officers engaged in disarming suicidal persons is certainly likely to result in a more tentative police response to such crises. A suicide crisis involving a loaded firearm is an unstable situation in which the police must be free to make split-second decisions based on the immediacy of the moment. Knowledge that any unsuccessful attempt at intervention will be subjected to second-guessing by experts with the 20/20 vision of hindsight years following the crisis is likely to deter the police from taking decisive action to protect themselves and third parties. [Citations.] Certainly, the risk of inhibiting law enforcement intervention necessary for the preservation of community welfare and peace outweighs the importance of ensuring nonnegligent treatment of persons threatening suicide—a consideration we readily acknowledge and which is only minimized by its comparison to the greater public interest.

“Furthermore, exposing police officers to tort liability for inadequate or unreasonable assistance to suicidal individuals could inhibit them from providing intervention at all. The resulting loss of an important resource in dealing with threatened suicides would be devastating to such affected communities.” (Adams, supra, 68 Cal.App.4th at pp. 272-273.)

Finally, in balancing the Rowland factors we were led to the inexorable conclusion that a tort duty could not be imposed: “On balance, the relevant public policy considerations militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened suicide from being carried out. The foreseeability and certainty of harm suffered are factors that favor imposing a duty. The absence of moral blame, the remoteness of the connection between the conduct of appellants and the harm suffered, the policy of preventing future harm, consequences to the community, the role of law enforcement in society, and the potential detriment to the public in imposing judicial allocation of resources all heavily favor shielding law enforcement personnel from tort liability in instances such as this.

“Moreover, the majority of the disputed conduct in this case was the product of [the officer]’s deliberate tactical decisions designed to maximize the safety of the responding officers. Therefore, under Parsons, supra, 15 Cal.4th at page 472, we must also consider the social value of the interest [the officer] sought to advance. (Ibid.) The social value of protecting the lives of police officers involved in a standoff with an armed individual is extremely high. Accordingly, after balancing the relevant considerations, we conclude that appellants owed respondents no duty of care under this analysis.” (Adams, supra, 68 Cal.App.4th at p. 276.)

The reasoning the majority employed in Adams applies with equal force to cases such as this one where police conduct fails to prevent harm. Like the critique he made of police in Adams, respondents’ expert Reedy offered the opinion that the strategy Woodward employed was unreasonable in a number of ways. These included failing to set up a perimeter to contain the situation, getting too close to Lucilla, getting personally involved rather than maintaining his role as supervisor, failing to take the time to confirm facts through relatives and neighbors, failing to use a hostage negotiator, failing to establish real communication with Lucilla or to communicate with dispatch or Benetez, and having a weapon drawn while taking with Lucilla.

But like Adams, the need to protect the overall safety of the community by encouraging law enforcement officers to exercise their best judgment in deciding how to deal with public safety emergencies vastly outweighs the societal value of imposing tort liability for the judgments they make in emergency situations. Adams stands for the proposition that law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties. Applied to the present case, Adams means that the conduct of the police––Woodward’s decisions as to how to deploy his officers at the scene, the efforts made in an attempt to defuse the situation as safely as possible, and other such factors––cannot subject appellants to liability. For these reasons, finding a tort duty and submitting to the jury the question of whether police decisions fell below the standard of care, was error.[4]

As in Adams, we are not indifferent to respondents’ concern that insulating law enforcement emergency actions from tort liability poses the question of whether such a shield will discourage police from overzealous conduct. Indeed, this concern is likewise noted in the concurring opinion in this case, which complains, “Adams (and this decision, by implication) frees the police to employ outrageously dangerous tactics.” (Conc. opn. of Kline, P.J. at p. 4.) In this regard, we find the response we made in Adams equally applicable here:

“Yet, respondents correctly point out that not imposing a legal duty on police officers to take reasonable measures to prevent a threatened suicide correspondingly diminishes the benefits to the public gained by requiring law enforcement personnel to be accountable for their unreasonable conduct. While this is so to some extent, we conclude on balance the interests to the public in protecting against future harm and the detrimental consequences to the public in imposing a tort duty under such circumstances outweigh the partial loss of legal accountability occasioned by a rule of nonliability. Moreover, our decision does not insulate police misconduct from all legal and internal scrutiny. Plaintiffs may still pursue a legal action when police misconduct constitutes an intentional tort or a violation of an individual's constitutional or other federally protected rights. (42 U.S.C. § 1983.) Furthermore, citizens may obtain internal review of police conduct by filing a citizen complaint (Pen. Code, § 832.5), and police officers may be sanctioned as a result of internal disciplinary proceedings. (See Warren v. District of Columbia (D.C.App. 1981) 444 A.2d 1,8 . . . .) The existence of these other avenues for redress undercuts the need for additionally imposing tort liability to deter police officers from responding to a threatened suicide in an unreasonable manner.” (Adams, supra, 68 Cal.App.4th at p. 274.)

The concurring opinion also exhumes its view in the Adams dissent that a tort duty should be imposed here under the rescuer theory, or special relationship doctrine, suggested by section 343 of the Restatement Second of Torts. We need not repeat the dialogue we exchanged with the dissent in Adams on this alternative tort theory for the simple reason that no contention was made by respondents in this case, either in the trial court or on appeal, that appellants’ liability was premised on the special relationship doctrine. Indeed, respondents’ brief cites neither Williams v. State of California (1983) 34 Cal.3d 18, nor Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 (Lugtu), the two cases our concurring colleague principally relies upon in seeking its application to the inapposite facts of this case.[5]

But our analysis does not end with our discussion of the meaning of Adams, for Adams presented a more limited claim than that being made in this case. Here, the focus is not simply on the failure of police to prevent harm, but police conduct that directly inflicted harm. Adams does not go so far as to insulate officers in crisis situations from liability for their own unreasonable use of deadly force. Indeed, we expressly recognized in Adams that reckless and unreasonable use of deadly force by the police would be subject to tort liability:

“We agree with appellants that the harm suffered by Patrick is most appropriately characterized as suicide. Respondents contend the jury was free to infer that Patrick did not die from self-inflicted injuries because the possibility existed that Patrick shot himself reflexively after police officers fired the first shots. Below, the trial court repeatedly rejected this argument, concluding that to permit the jury to ‘speculate and suppose that the gunfire originated with the police, is not something I can accept. There is no evidence presented to the jury or to me that the officers fired first.’ We agree that no evidence was introduced from which a reasonable jury could conclude that the police officers fired first. . . . If the factual record supported the dissent’s conclusion that in the absence of any threatening behavior, officers recklessly ‘killed’ Patrick by ‘riddl[ing]’ his body with a ‘hail of bullets,’ we certainly would agree that the officers were properly subjected to tort liability. (Dis. opn., post, at p. 307.)” (Adams, supra, 68 Cal.App.4th at p. 262, fn. 16.)

Twenty-eight years earlier our Supreme Court determined that police officers have a duty to use reasonable care in employing deadly force. In Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 (Grudt), Grudt, who was slightly hard of hearing, was driving in a high crime area when plainclothes police officers in an unmarked vehicle unsuccessfully attempted to stop him and observed him reach under the front seat of the car. Two other plainclothes officers who had heard a broadcast about the pursuit intercepted Grudt at an intersection and one of them tapped loudly on Grudt’s window with a loaded shotgun. According to the officer, he shot Grudt when Grudt suddenly accelerated, brushed past one officer and struck the other in the leg; according to other evidence, Grudt’s car had not moved at the time the shots were fired. Grudt died within seconds. At the time of the shooting, marked police vehicles were converging on the intersection from north and south. Grudt’s wallet was found under the seat of the car. (Id. at pp. 581-582.)

The Grudt court found the trial court erred in removing the issue of negligence from the jury, as the evidence most favorable to the plaintiff could have supported a view that Grudt, driving in a high crime area late at night and hailed to stop by men in plain clothes, thought he was going to be robbed, tried to elude the robbers, hid his wallet under his seat and was shot when his car stopped at an intersection. Questions of negligence were presented by the officers’ decisions to arrest Grudt without waiting for uniformed officers to arrive, to tap on the window with a shotgun, and to use deadly force. “At the very least, the evidence favorable to plaintiff raised a reasonable doubt whether [the officers] acted in a manner consistent with their duty of due care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death.” (Grudt, supra, 2 Cal.3d at p. 587.)

Munoz v. City of Union City A0958467/23/04

Jul 23 2004

A095846
[PDF] [DOC]

Munoz v. City of Union City 7/23/04 CA1/2

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