Plaintiffs Yolanda Davidson and her husband appeal from a judgment of dismissal entered in favor of defendants City of Westminster (city) and Police Officers Varner and Rosenwirth, after defendants' general demurrer was sustained with leave to amend and plaintiffs elected not to do so. We affirm.
Yolanda seeks to recover from the city and the officers on the basis of causes of action for intentional and negligent infliction of emotional distress and for negligent investigation, failure to protect, and failure to warn. The causes of action in negligence allege that special relationships existed between Yolanda and the officers as well as between the assailant and the officers, each of which imposed a duty of care on the officers.
Defendants demurred, contending (1) that no "special relationship" giving rise to a duty of care existed under the allegations of the complaint, and (2) that, in any event, the action was barred under the immunity provisions of Government Code section 845, which absolve a public entity or employee of liability for failure to provide adequate police protection.
I. The Negligence Claims
In sorting out the issues presented, it is important to consider first things first. Conceptually, the question of the applicability of a statutory
Just as immunity hurdles are not overcome by the existence of a special relationship, so does the possible inapplicability of immunity not create a special relationship where none otherwise exists. As Professor Van Alstyne summarizes the problem in California Government Tort Liability Practice (Cont.Ed.Bar 1980) section 2.65: "Some of the cases represent an unnecessary effort to categorize the acts or omissions in question as immune discretionary functions, when the same result could be reached on the ground that the facts fail to show the existence of any duty owed to plaintiff or any negligence on the part of the police officers. See, e.g., McCarthy v. Frost, supra; Bratt v. San Francisco [(1975) 50 Cal.App.3d 550 (123 Cal.Rptr. 774)]. Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any `special relationship' between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. See, e.g., Mikialian v. Los Angeles (1978) 79 CA3d 150, 144 CR 794 (no duty of police to place flares for protection of tow truck operator); J.A. Meyers & Co. v. Los Angeles County Probation Dep't (1978) 78 CA3d 309,
Accordingly, we turn first to the question of special relationship. Since we conclude that there is no special relationship in this case that would establish a duty of care for negligence liability purposes, we need not reach the issue of statutory immunity.
This court has considered the duty of care owed by police or correctional officials in a trilogy of cases, Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, Thompson v. County of Alameda, supra,
In Johnson, the plaintiff was attacked by a minor who was placed in her foster home by the Youth Authority with no warning of the minor's known homicidal tendencies. We held that the state owed a duty of care to plaintiff: "As the party placing the youth with Mrs. Johnson, the state's relationship to plaintiff was such that its duty extended to warning of latent, dangerous qualities suggested by the parolee's history or character. [Citations.] These cases impose a duty upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril." (69 Cal.2d at pp. 785-786; italics added.)
In Tarasoff, where a particular individual (Tatiana) was the subject of threats by an eventual assailant (Poddar), we held that the defendant therapists who heard the threats had a duty to exercise due care to warn the potential victim. The duty arose from the special relation between a patient and his doctor or psychotherapist, generally recognized as supporting an affirmative duty for the benefit not only of the patient but of other persons as well. (17 Cal.3d at p. 436; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469 [62 Cal.Rptr. 577, 432 P.2d 193].)
Nevertheless, as to certain police defendants, who had briefly detained and then released Poddar, we concluded that "they do not have any such special relationship to either Tatiana or to Poddar sufficient to impose upon such defendants a duty to warn respecting Poddar's violent intentions. (See Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10 [120 Cal.Rptr. 5]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 593 [114 Cal.Rptr. 332].) Plaintiffs suggest no theory, and plead no facts that give rise to any duty to warn on the part of the police defendants absent such a special relationship." (17 Cal.3d at p. 444; fn. omitted.) We further considered and rejected the possibility that a cause of action could be stated under the principles of Restatement Second of Torts, section 321, that "If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect."
Thompson, like Tarasoff, came to this court at the pleading stage. The county was sued for negligence in failing to warn the local police
Guided by the principles set forth in Johnson, Tarasoff, and Thompson, we examine the relationship between the officers and the assailant and between Yolanda and the officers to decide whether sufficient factors are present to justify the imposition of a duty to warn or otherwise protect Yolanda.
Special Relationship Between Officers and Assailant
Special Relationship Between Yolanda and the Officers
The factors allegedly giving rise to a special relationship between Yolanda and the officers include the decision to conduct the surveillance, the observation of the potential assailant in the laundromat where Yolanda was also present, the recognition of the assailant as the likely perpetrator of a previous assault, the dependence of Yolanda upon the officers to secure her safety, and their failure to intervene by warning or otherwise protecting her.
In Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6, referred to with approval in Tarasoff (17 Cal.3d at p. 444), the court rejected a claim by the administrator of the estate of a woman who was killed by her estranged husband where the police had failed to respond to a plea some 45 minutes before the homicide. In dictum,
The court concluded: "Appellant has failed to plead facts supporting an assumption that a special relationship existed between decedent and the San Jose Police Department. The allegation that the police had responded 20 times to her calls and had arrested her husband once does not indicate that the department had assumed a duty toward decedent greater than the duty owed to another member of the public. The police may have responded repeatedly to her calls, only to discover that she was not in danger. Absent an indication that the police had induced decedent's reliance on a promise, express or implied, that they would provide her with protection, it must be concluded that no special relationship existed and that appellant has not stated a cause of action." (Hartzler, supra, 46 Cal. App.3d at p. 10; see also McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 [74 Cal.Rptr. 389, 449 P.2d 453] [officer investigating accident directed plaintiff to follow him into middle of intersection where plaintiff was hit by another car; held city liable]; Martinez v. State (1978) 85 Cal.App.3d 430 [149 Cal.Rptr. 519]
Plaintiffs correctly point out that a finding of special relationship does not require a promise or reliance thereon in order to impose a duty of care. They cite Johnson v. State of California, supra, 69 Cal.2d 782 and Mann v. State of California (1977) 70 Cal.App.3d 773 [139 Cal.Rptr. 82], for the proposition that a special relationship may be predicated upon a victim's dependence upon the police for protection. In Mann, a highway patrolman placed his car with flashing lights behind two cars stalled on the freeway. After a tow truck arrived, the officer departed without warning. He placed no protective flares. Minutes later the stalled car was sideswiped by a passing car and the persons nearby were injured. Holding there was a special relationship imposing a duty to protect, the court reasoned that the injured party was dependent upon the officer who was an expert in traffic safety and the officer, having chosen to investigate and discovering their plight, had a duty to exercise reasonable care.
Mann and Johnson differ from the instant case in significant respects however. In Johnson, for example, the state put the parolee in the victim's home and failed to warn of homicidal tendencies; thus the state placed the victim in danger. Here the police were in no way responsible for the presence of either the assailant or the victim in the laundromat.
Stripped of its immunity issue, Johnson is a straightforward case of liability based on failure to warn of a foreseeable peril created by the defendant and not readily discoverable by the potential victim. (Rest.2d Torts, § 321.) Mann, properly read, is a simple application of the "good Samaritan" doctrine. (Rest.2d Torts, §§ 323, 324; see also Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 557-558 [105 Cal.Rptr. 358, 503 P.2d 1366]; Keene v. Wiggins (1977) 69 Cal.App.3d 308, 316 [138 Cal.Rptr. 3]; McGuigan v. Southern Pac. Co. (1952) 112 Cal.App.2d 704, 718 [247 P.2d 415].)
Neither of these doctrines applies here. Obviously the peril to Yolanda was not created by the officers. She was unaware of their presence and did not rely on them for protection. Their conduct did not change the risk which would have existed in their absence: There is simply no reason to speculate that anyone — Yolanda or Blackmun, victim or assailant — would have acted differently had the officers not placed the laundromat under surveillance.
Nevertheless, we are urged that mere knowledge of Yolanda's danger imposed on the officers a duty to warn the potential victim. We disagree. The very facts of this case confirm us in our belief, voiced in Tarasoff (17 Cal.3d at p. 444, fn. 18), that under such circumstances the recognition of a cause of action against police defendants, based on a duty to warn, would raise difficult problems of causation and public policy.
Imposition of a duty to warn Yolanda, premised on the theory that she was a potential victim of a potential assailant, necessarily implies a general duty to warn other potential victims in the vicinity. (See Thompson v. County of Alameda, supra, 27 Cal.3d at p. 758.) While under some circumstances the police may conclude that such a course of conduct is prudent and necessary, our past decisions teach that it is
In sum, we conclude that no causes of action for negligence are stated by plaintiffs. Although the facts as alleged may establish that Yolanda, or indeed any other woman using the laundromat, was a reasonably foreseeable victim as in Tarasoff, that factor alone does not suffice to establish a special relationship with the officers imposing upon them a duty to warn or protect.
II. Intentional Infliction of Emotional Distress
Insofar as the claim is based on the theory that the officers acted in "reckless disregard of the potential for harm," we think that the trial court properly found as a matter of law that on the alleged facts the officers' conduct did not rise to the level of outrageous conduct "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Cervantez, supra, 24 Cal.3d at p. 593.) Concededly — assuming the allegations of the complaint to be true — the events which preceded the attack on Yolanda did not constitute the defendant officers' finest hour. The complaint alleges in essence that the officers were staked out near the point of an expected attack, apparently planning to intervene after the assailant had committed himself sufficiently to be subject to arrest, but before he had actually injured the intended victim. It may well be that such a plan was poor police procedure and doomed from the start. Its failure, however, was in no way due to any affirmative misconduct on the part of the officers who participated in the stake-out. They started as mere observers and the sum and substance of the criticism directed against them is that they remained such far too long and were late in becoming active participants. Absent an intent to injure, such inaction is not the kind of "extreme and outrageous conduct" that gives rise to liability under the "intentional infliction of emotional distress" tort.
The judgment is affirmed.
Bird, C.J., Mosk, J., Richardson, J., Newman, J., Broussard, J., and Compton, J.,