*1 No. Third 23398. Dist. Oct. [Civ. 1985.] ALLEN,
LINDA Plaintiff Respondent, al.,
GENE TOTEN et Defendants and Appellants.
Counsel *4 Halkides & G. Morgan, Dennis Halkides C. Harry Carpelan Defendants and Appellants.
Robert A. for Plaintiff Rehberg and Respondent.
Opinion SPARKS, J. this case we consider whether there is a cause of action in California for infliction of emotional distress against county and its peace officers for a wife to the scene of a standoff between and her armed and suicidal husband with the that she hope might him persuade to surrender. We decline to such a cause of action recognize even though police, acting lawfully without thereafter negligence, wound the husband in the wife’s presence.
Defendant County Shasta and defendants Gene Toten and Chester Ash- mun, deputies of the Shasta County Sheriff’s from a Department, appeal judgment them liable for finding Linda plaintiff Allen’s emotional injuries suffered when husband, suicide, she viewed her an shot and attempted being wounded by defendants and other officers of the sheriff’s department.
This appeal comes to us on the clerk’s We therefore only. transcript treat it as an on the roll. appeal judgment (1963) Milam 60 Cal.2d (Kopf v. 600, 601 614, 390]; Cal.Rptr. [35 v. Bank America Krueger 204, 145 Cal.App.3d 322].) [193
On such an appeal, of the of the evidence question sufficiency “[t]he is support findings not Unless on reversible error open. appears record, face of the an court appellate is confined to a determination as to are action,[1] the findings whether whether the a cause complaint states issues, findings.” within the whether the is supported 203]; 894, (Bristow v. Morelli 270 Cal.App.2d 207; America, at 145 also Bank Krueger supra, see This 852].) Larson Estate 92 Cal.App.2d sufficiency complaint. confined to appeal consequently The Record that on March
In a Linda Allen joint complaint, alleged husband, Allen, and surrounded driving her Theodore was while stopped time, the At Shasta Sheriff’s by deputies County Department.2 load- knew and armed with a Theodore was and suicidal deputies depressed ed no for violence. handgun, that Theodore had history reputation hour, Ashmun one Defendant was in at the scene for charge approximately after which defendant Toten arrived and assumed command.
Linda further Theodore was stopped after alleged immediately fifed, officers surrounded and defendant sheriff’s before were any weapons scene, defendant directed other her to the At deputies to scene. bring his officers her husband to discard that she to convince requested attempt *5 her and surrender. within view of While Linda was 100 feet and gun plain husband, in Lin- defendants and The averment charging shot wounded him. da’s cause of action asserted: infliction of emotional distress negligent and reason of Defendants Toten “By carelessness negligence vicinity bringing the Plaintiff Linda Allen into immediate Ashmun husband, and view of her her the Plaintiff and in pres- Allen, Theodore ence kill the as wounding alleged said Theodore attempting Allen above, IV Paragraphs great VII Plaintiff Linda sustained through Allen emotional her nervous system.” disturbance and shock and injury defendants, from to dissuade him
Theodore had that alleged attempting himself, actions him commit “incited” injuring carelessly negligently carelessly for the to himself and that defendants drawing purpose gunfire who in wan- engaged failed to control and restrain negligently deputies, a cause of challenge constitute plaintiff’s 1A based on failure state facts sufficient Hence, 430.80, Proc., (a).) (Code by waived subd. action is not a failure to demur. Civ. § (Bowden (1977) 67 may objection appeal. this be the first time on Robinson raised for 1971) 705, Witkin, (2d 871]; Cal. Procedure ed. see also complaint was never Pleading, The transcript clerk’s reveals § Linda Allen any stage judgment amended at Thus in favor proceedings. sufficiency original falls on the complaint. stands or of her parents his complaint her husband and part joined 2Plaintiff’s cause action is action. parties’ causes of realleges and sister. Plaintiff’s action the facts of the other cause of ton and reckless firing their on Theodore with the intent of weapons seriously wounding him. killing
Linda also an additional cause of action for consortium. Theo- pled loss of dore’s and sister for the parents causes of action similarly pleaded negligent infliction of emotional distress. cause,
On Theodore’s was instructed to determine whether de- jury fendants used excessive force in his arrest or were in the manner arrest, which made the they and whether such action caused Theo- any dore’s The injuries. found in favor of Linda cause of action for jury on her however, emotional $50,000. distress and awarded The damages jury, Theodore, found against his and his sister on each of their causes parents, of action.
The trial court denied motion defendants’ for judgment against plaintiff notwithstanding verdict. This followed. appeal
Discussion I.
Defendants contend that Linda’s cause of
is predicated
action
upon
Dillon v.
Legg
A.L.R.3d and that the on his cause for against Theodore negligence of law. de precludes any by Linda as a matter While recovery case, fendants not correctly this does interpret dispose apply their because Linda’s of action for distress is not appeal cause emotional solely based Dillon. upon
Under the Dillon of Linda’s that defend aspect complaint, ants were neither negligent nor used excessive force in relation to Theodore precludes Linda’s v. su bystander (Dillon Legg, under a recovery theory. 68 at pra, 734.)3 Cal.2d Linda concedes this instead argues point that she can recover as a conduct direct victim defendants’ her, toward v. namely (See her the scene. Kaiser Foun bringing Molien 916, 831, dation Hospitals 27 Cal.3d 616 Cal.Rptr. 922-923 [167 813, P.2d 518]; 16 A.L.R.4th v. Court 162 Andalon Superior 899].) 600 733, Legg, supra, succinctly 3In Dillon page v. 68 stated: “In the Cal.2d at court child, primary liability ground absence of the we no for the death of the see tortfeasor independent for an and secondary liability injuries parties. The basis for claims for third defendant; for such be adjudicated liability claims must that and fault fault of who, must be duty the foundation for parties of due care to third as a tortfeasor’s consequence negligence, of such sustain emotional trauma.”
1085 be con action must counter that Linda’s cause of Defendants con “generally because strued as a Dillon action asserting only plaintiff referred to which cur in defendants’ conference statement pretrial [red]” action, because action cause of allegedly as a “Dillon v. plaintiff’s Legg be con to Dillon cannot she witnessed the This reference shooting.” single order, not the parties’ strued to be so conference It is limiting. pretrial Court, rule statement, former (Cal. which Rules of is pretrial controlling. 216, as set 1, the “issues are Jan. That order repealed provided The trial court’s pre forth in the Pretrial . . . .” Statements and pleadings including trial conference order incorporated pleadings, consequently and neg Linda’s which affirmative acts of carelessness complaint, alleged that Linda’s cause directed at Linda We therefore conclude ligence herself. (“in her to include both a Dillon cause broadly enough presence pled to kill . . . Theodore Allen wounding [negligently]”) attempting into the a cause for direct toward her separate negligence (“bringing [her] course, if, husband”), immediate and view of her such vicinity separate cause is cognizable.4
II. We turn Does the complaint then to the central issue in this appeal: state entity facts sufficient to constitute a cause of action against public and its emotional dis officers for their infliction of peace alleged negligent tress in wife of her husband’s threatened to the scene suicide?5 Our research of first has revealed this to be a case impression California.
We concept our with a statement of the begin analysis underlying that all duty tort law: been in California has established long “[I]t owe a unless persons public policy of care to avoid to others injury Code, 1714, subd. clearly (See an be made. Civ. requires exception § (a); Rowland v. Christian Cal.2d (1982) 31 Cal.3d 496].)” Court A.L.R.3d (Lipson Superior defendants, demurred on they 4If could have Linda’s cause of action was unclear so, Proc., §430.10, (f).) do
grounds (Code Having failed to uncertainty. Civ. subd. 430.80, Proc., (a).) (Code objection. defendants have waived that subd. Civ. § *7 upheld can be properly plaintiff 5This issue is that the before us because concedes only negligence. upon theory a that the of defendant’s she was direct victim by long-settled precepts determining sufficiency guided In we are the complaint the alle- relating all material factual general to demurrers: demurrer admits the truth of “[A] allegations, or gations ability prove in these complaint; question plaintiff’s the that the of to court; reviewing and that possible difficulty the the making proof such does not concern (Alcorn v. plaintiff only may to relief.” plead showing need facts that he be entitled some 88, 216]; 493, (1970) citations Engineering, Cal.Rptr. Anbro 2 468 P.2d Inc. Cal.3d 496 [86 omitted.) 1086
362, 629, Hence, 372-373 822], omitted.) 644 P.2d fn. Cal.Rptr. [182 the absence of a an whenever a is in such overriding policy, person public that, position with to if he due care regard another did not use in his own conduct, another, he would cause a to arises to use injury danger duty due care to such (Rowland (1968) avoid v. Cal.2d Christian 69 danger. 108, 97, 561, 112 496].) 443 32 Cal.Rptr. P.2d A.L.R.3d [70 considerations,
But since ex “duty” whether it implicates policy public ists in a (Weirum case is a v. RKO particular necessarily of law. question General, 40, 468, Inc. 15 36].) Cal.3d 539 P.2d Cal.Rptr. mind, moreover, We bear in of that duties are not discoverable facts legal nature, that, but are a merely of law cases of conclusory expressions particular liability should be for done. type, damage (Tarasoff v. imposed 425, Regents University 17 Cal.3d 434 [131 of of California 14, 334, in 1166].) 83 A.L.R.3d Thus courts “have voked the of duty to limit ‘the otherwise infi concept generally potentially nite act, which would follow . . v. liability every negligent (Thompson 741, 70, Alameda County 27 Cal. 3d of 728, 701], omitted.) A.L.R.4th citation the Consequently, question “ conclusion, ‘. duty . . is a shorthand of a rather to statement than an aid . . . analysis itself. it be recognized “duty” should is not sac [b]ut itself, rosanct in but an of the sum of those only total consider expression ations of which lead to policy say the law that the particular plaintiff ” entitled (Dillon v. 68 Cal.2d at protection.’ Legg, supra, p. quot Prosser, with ing (3d 1964) Law of Torts at approval 332-333.)6 ed. pp. In care, determining whether one owes another a the duty major policy considerations to be are: balanced of harm foreseeability “[T]he the the that the plaintiff, degree certainty suffered the injury, closeness of the connection the between defendant’s conduct and the injury suffered, conduct, the moral blame the attached to defendant’s the policy harm, future of the burden preventing extent to the defendant and con sequences to the care re community to exercise with imposing duty cost, breach, sulting liability and the availability, prevalence Christian, insurance for risk (Rowland involved.” v. Cal.2d supra, 69 Alameda, 112-113; at 27 Cal.3d pp. Thompson County supra, accord Furthermore, involved, 750.) are additional public agencies “‘[w]hen Torts, 6In the “to “duty” Restatement Second of the word is used denote the fact that required actor is do particular to conduct himself in manner at the risk that if he does not any so he subject duty injury becomes to whom the is owed for another other, Torts, (Rest.2d sustained legal such which that conduct is a cause.” actor’s case, imposition § the context of this would mean on they must use members do not either reasonable care ensure that sustain policy emotional subject liability. distress at scene or themselves to For reasons text, explicated in we impose duty. decline to such a
1087 role elements include “the extent of imposed agency’s] powers, [the it . . law and the limitations it upon by budget; imposed upon 799, (Peterson v. San 36 Cal.3d Francisco Dist. Community College 1193], omitted.) 806 citations Cal.Rptr. [205 initial, test While the court-determined of harm is the foreseeability care, decide, of a as a other move the court to may factors policy law, (Dillon matter of v. not to accord to the protection particular plaintiff. 739; Legg, 68 Cal.2d at Cas. Co. supra, Austero v. National therein.) Thus and cases cited 107] compelling considerations public policy may weigh against imposition for & Tel. liability (See harm that is Tel. Bigbee foreseeable. Pacific 49, 59, Co. 947]; Cal.3d fn. 14 Dillon v. Legg, supra, 739.) 68 Cal.2d at p. whether,
We turn then to as these factors to determine controlling a matter of public should be officers policy, liability upon peace imposed of a public entities for member to the scene police bringing standoff to aid in the relative. surrender of an armed and suicidal 1. Foreseeability Harm to Plaintiff.
It cannot be that could not foresee that plausibly argued reasonably wife to the and her armed scene standoff between police and suicidal husband her. The wife could result in emotional might injury end predictably the suicide or the as up viewing killing wounding, itself case, in the present of her armed husband. None of these scenarios is so unlikely they can be termed as a matter of law. unforeseeable 2. Degree Certainty That Injury. Plaintiff Suffered Dillon,
In the California mother could recover Court held that a Supreme when she damages emotional trauma and that resulted injury physical witnessed the inflicted death of her infant negligently daughter. reaching holding, court the contention that the rejected imposition for this emotional trauma would inundate the with a flood of fraud- judiciary ulent and (68 indefinable “Whatever the claims. Cal.2d at p. possi- bilities of fraudulent claims of disinterested physical injury by spectators accident, noted, an ...” the court “we cannot doubt that a mother certainly (Id., who sees her child killed will suffer from shock.” at physical injury 735-736.) that a wife pp. By a we too cannot doubt parity reasoning, who sees her suffer from similarly husband shot and wounded will seriously emotional shock. The absence of on the any negligence part not, view, does in our render the to the less certain. any injury spouse *9 3. Closeness Between Conduct and the In- Connection of Defendant’s
jury Suffered.
The assailed conduct was by plaintiff spouse the act police bringing suicide; the scene of: her threatened and the standoff husband’s between her armed husband and as with we foreseeability, police. Again, cannot aas matter of law say connection between defendants’ con- duct of her to the was so remote scene and as to plaintiff’s injury relieve defendants from to emotional anticipating plaintiff’s exposure inju- There existed the ry. ever armed husband possibility that present plaintiff’s suicide, would have to be taken either of force or would commit which could lead directly emotional plaintiff’s injury.
4. Moral Blame Attached to Conduct. Defendants’
Police officers are safety well- responsible guarding being community at hence also for large dissuading potential suicide victims from their own lives. As was said West taking People officers are “Police guard 729]: ians of the peace and are concerned with security community criminals in a ‘. . . and the of our complex efficiency whole society— sys tem, order, for the designed law and purpose maintaining depends upon which extent to such their are faithful to the officers duties and perform trust in them. reposed the duties of officers are those of Among police crime, (Id., 220-221, preventing commission of . . .’” at citation pp. omitted.) In addition to that as a result general duty, person, any “[w]hen disorder, others, ., officer, of mental is a or to . a danger himself . peace take, . . . cause, taken, may, or upon probable cause to be into person him custody or her in a ... for 72- place facility mentally [for ill] hour Code, treatment and (Welf. evaluation.” & Inst. light § officers, view, these injunctions, our no moral blame for incur bringing family member to the in an scene threatened suicide attempt to persuade a suicide victim to reduce surrender his weapon, thereby the risk of others or harming himself.
5. Policy Preventing Future Harm. would
Plaintiff need argue recognition prevent would less to the emotional she exposure harm suffered as a being brought result to the her scene of husband’s overlooks the coun This wounding. argument interest served to use all avail tervailing by allowing encouraging police resources, members, able harm to the public including family prevent and the While insu liability might suicide. person threatening recognizing suicide, late it wounding, might members from homicide or family seeing assistance, in a resulting from discourage also requesting homicide, or wounding) (suicide, number of violent resolutions greater *10 threatened suicides. we should whether
These factors force to consider the policy question us emotional from the members elevate the interest of some family protecting more lives. that of saving trauma of a suicide or above viewing wounding choice, a that, the if given We have the difficulty proposition accepting of a threatened the would rather not be scene caring spouse brought of suicide, or injury the demise that she not view thereby ensuring possible family that the the suicidal and instead risk the increased likelihood person, case, we note member would die or be This parenthetically, wounded.7 to discard his would not be before her husband us had persuaded plaintiff short, emotional and surrender. not follow that gun preventing it does discouraging harm to in be served by would persons plaintiff’s position from suicides. police seeking assistance threatened family during Community. Extent to the Burden to and Consequences 6. of Defendant the on some of Under the we touched heading, previous First, of burden on defendant worthy police consideration here. as to points officers, in our view the interests protect, have the police following order of and emergency in most threatened suicide descending significance, themselves, including situations: the the physical safety community, citizens, members;8 other and of the safety family potential physical (the victim a fam suicide); threatened sanctity and the psychological a family member at the for ily scene. To on liability police impose member to the that the psycho scene of a threatened suicide would signal more, less, than sanctity member is not logical important Po- suicide. and the threatened safety well-being community deputies other Ashmun complaint alleges 7The directed “Defendants Toten scene, the Plaintiff Linda brought to the scene Allen ... bring whereupon was to the [she] the Defendants Toten and Ashmun requested by the Plaintiff attempt to convince Theodore Allen to discard deputies.” weapon to the Defendant his surrender This, will. against her complaint allege The does not that Linda was taken to the scene then, to be family member is not a case or otherwise caused the where officers coerced alleged that she was nowhere brought involuntarily. scene We note also that distress was her emotional danger physical injury from or the or that Theodore by physical injury. caused fear of at history a of suicide 8‘‘Statistically, higher among persons with homicide rate is among persons attempts higher tempts, and the converse true: the rate of suicide is also wary where in cases particularly with assaultive histories. . . . The officer should be himself with threatening to kill an individual has locked himself in his house or car and is outward, feeling over unloved gun. only turning a It takes a his resentment moment inward, (Cooke, Training Police begin firing instead of for him to at the officer.” Officers 227, 232.) (Jan. 1979) to Handle Suicidal Persons 24 J. Forensic Sci. lice officers should be able to enlist the aid of family members without fear of lawsuits when that aid is voluntarily given. Dissuading police, by imposing tort if things from their best go awry, exercising calling family member to assist a suicidal increases disarming person the burden on them one means for resolution eliminating peaceful crisis.
Second, related, Quite are the to the community. sim- consequences ply, we would from the price members chance pay protecting family suicide, homicide, witnessing would be occurrence wounding *11 greater suicides, numbers of of homicides and In woundings. any weighing interests, these conflicting and life must be safety preserving physical par- context, amount. As we said in a it the different is for life-threatening pres- ervation of this to life itself . . . that we now cast our “paramount right (Maxon appellate votes.” 135 Superior v. Court 516].) of Not members coincidentally, family persons threatening suicide share this universal it situa- only is miscarried goal; tions as here to in- presented that about emotional they complain exposure jury.
7. Availability, Cost and Prevalence Insurance the Risk Involved. for
This factor has little relevance in this Although may case. public agencies obtain insurance to cover the of their the negligence employees, imposition of liability upon them and their officers in these crises tend to police would curb the use of members in these family potentially tragic crises. Powers, 8. The Extent the Public Agency’s Its Role and Budget. We have noted that police officers a are public agency enjoined to the keep peace to and its members. These officers protect society consequently are both empowered bound to take into those duty custody who breach the peace by others or firearms. threatening themselves with (Pen. Code, 417.8; Code, (a)(2); subd. Welf. & Inst. Thus §§ § peace officers cannot decline intervene crises. life-threatening these Budgetary do constraints not here. appear relevant
We have on a the considerations expounded underpinning legally cognizable duty. We now the In undertake task of our balancing. opinion blame, the policy consideration of (1) the lack of moral the extent of the on burden police and the agencies community adverse consequences on officers and their imposing liability employers, peace public the mandatory to intervene in responsibility officers these danger ous and situations all more inherently weigh heavily than con- explosive cause. and proximate foreseeability, certainty injury, siderations be otherwise sum, would of these considerations what the absence policy lives) involved (saving tort is not one because the of the conduct utility a (emotional dis- harm of the threatened likelihood outweighs gravity Inc., General, 47; Pros- RKO Cal.3d at supra, Weirum v. (See p. tress). ser, 1971) (4th 149.)9 Law of ed. Torts no tort liability
We hold is therefore there to the a member family of emotional distress infliction officers, a matter of scene of a threatened suicide as public because peace obvious, what is have no from witnessing policy, duty prevent person use care a due duty inherent in all such crises.10 Since legal potential Tel. Tel. & (Bigbee necessary is a element of action negligence Pacific Co., 49, 54, supra, (1983) 34 Cal.3d fn. 3 947]), and have no of care to emotional duty prevent because officers standoff, distress members to the scene of a suicidal family brought member, not cannot It stand. family police, loved risk of emotional the benefit of weigh trauma against saving member, risk, one’s life. unlike the Having weighed police, *12 decline to the must may to scene. But elected to relative go having go, the be the emotional not to in a rescue but to endure prepared only rejoice burden of a as well. tragedy
Conclusion sum, there toward liability no no direct being bystander liability the in favor of must be reversed.11 plaintiff, judgment plaintiff declined, to public policy grounds, 9Courts have frequently explicit implicit on either or recognize upon tort defendants and liability overweighing imposed because of the burden (1982) (See, consequences. City the adverse social v. Westminster 32 e.g., Davidson of 252, potential Cal.Rptr. duty Cal.3d 197 victim); under to warn assault (police no [185 894] Airlines, (1977) Cal.Rptr. 563 Borer v. American 441 Inc. 19 Cal.3d [138 (1981) (no consortium); v. Zoradi P.2d cause of action for loss Baldwin parental 858] duty Cal.App.3d prevent 123 under no to Cal.Rptr. (college 275 administrators [176 809] (1979) Agency 90 on-campus County drinking); Smith v. Social Services Alameda (no public adop liability of a Cal.App.3d Cal.Rptr. creating 929 action [153 cause of 712] home); v. Los agency for an Mikialian adoptive tion failure to find an infant (no Angeles duty place to flares Cal.App.3d Cal.Rptr. 79 150 [144 794] County protection Meyers Angeles Prob. operator); for tow A. & v. Los truck J. Co. (no to Dept. duty probation officers Cal.App.3d Cal.Rptr. 78 309 [144 186] Derrick v. Ontario employer); disclose criminal probationer prospective record of to duty Community Hospital (1975) (hospital no under 566] disease). coming person contagious, to warn individuals in contact with communicable with caution, mem holding, duty prevent family to 10Our we is limited lack of a to the brought crisis scene to assist the sustaining they bers from harm are the emotional when duty defusing clearly owe a to the explosive officers the standoff. Police officers injury physical other person gunfire member to use not to expose reasonable care is by witnessing what inherent possible unconnected with the trauma caused emotional the situation. 11Because, statutory immunity does “[conceptually, question applicability the
The judgment reversed.
Regan, J., P. Acting concurred.
CARR, J. dissent. respectfully I
The
elected
majority
to treat this
as one in which the sole issue is
appeal
to state “a
sufficiency
cause
action
complaint
against
public
entity
its
officers for their
peace
alleged negligence
bringing
wife
scene of her husband’s threatened
As I con-
suicide.”
sider the
briefs
contention was
argument, appellant’s
that this case fell
solely within Dillon
v. Legg
Having
this
on
opted
solely
determine
case
of the com-
sufficiency
plaint,
facts,
then
majority
indulged
an unwarranted assumption
*13
which facts are
in the
necessary
decision to
Linda’s
planks
policy
disallow
cause of action but which
are
facts
absent from the
The
totally
record.
first
fallacious fact is that Linda Allen
to
to
consented
the
sui-
going
threatened
cide scene and
and
freely
voluntarily
the
officers there
accompanied
freely
remained at the scene until her husband was
voluntarily
shot.
In the third
cause
action
in
alleged
the
the
complaint,
parents
sister,
it is
that “the
Hosier
alleged
defendants
and Swartzenberg picked up
Allen,
Allen,
William
plaintiifs
Bettie
and Millie
with
Hay
their consent
in
...
order to
to the
at
transport
site which
Theodore Allen
[them]
duty
care to the
not even arise until it is determined that a defendant otherwise owes
(Davidson
immunity”
City
plaintiff and thus would be liable in the absence
such
894]),
and be-
Westminster
Cal.3d
201-202 [185
here,
duty
question
we
reach
whether defendants
cause
hold that no such
arose
we do not
and 815.2.
are immune from
under Government Code sections 820.2
case,
result,
prior
1A defense
predictable
verdict
the husband was a
to the civil
he
as
(a),
pled guilty to a violation of
Code
Penal
section
subdivision
assault with intent to
officer,
court,
great bodily injury
do
person
felony.
required,
to the
of a
The trial
as
jury
plea
instructed the
on this
and its effect.
Allen
in
alleges
par-
. . .” In
of action Linda
was
the fifth cause
stopped.
other
XVIII “the
Toten and Ashmun directed
deputies
defendants
agraph
scene,
Allen was
. . . Linda
. . . Linda Allen ...
to the
bring
whereupon
record
(Italics added.)
to the
. . . .”
in the
brought
Nothing
supports
scene
her action
the scene or
conclusion that Linda consented to
majority
go
to the scene or
was
going
remaining
voluntary.
conclusions,
law,
com-
In fact and
all
are
such factual
inferences
against
in favor of
with the
all inferences are
hornbook rule of law that
mencing
with the
of the
validity
judgment
any condition
facts consistent
will be
this case comes
us
judgment
to have existed.
presumed
Though
clerk’s
on a so-called
in fact includes the entire
roll
it
appeal,
instructions
instructions.2 A
transcript, including
reading
jury
jury
Linda
to the
as to which
discloses that as to
given
jury,
no error is urged,
Allen,
whether defend-
the case was submitted on three
theories:
separate
ants
... or
“negligently
shooting
neg-
to the scene of
brought [Linda]
in the
ligently retained
there or
allowed
to participate
negligently
[her]
[her]
[Theodore],”
events
to the
which
“was a prox-
arrest of
leading
negligence
imate
cause
serious emotional distress to
The
resolved
jury
[Linda].”
negligence issue
Linda’s favor on one or more of the three grounds
record, we must
submitted to them. In the absence of a full
negligence
there was
instructions to the
presume
jury
for these
evidentiary support
record,
infer,
that the
resulting verdict. We
in the absence
may
Linda,
evidence disclosed the
either
force or
by
persua-
officers compelled
sion,
scene,
to the
her to
induced
go
forcibly
negligently
participate
her
or forc-
husband to throw out his
and/or
persuading
gun
negligently
retained her at the
after she insisted
ibly
upon
scene to witness the shooting
that,
removed from the scene. We could also infer
no
being
having
scene,
Linda to the
undertaken
bring
nonetheless did so and
they
having
this mission were
her
having
thereafter
in their conduct in
negligent
partic-
in the
her
retaining
with her
or were
ipate
negotiations
husband
failed,
at the
would be
scene with
that if
her husband
knowledge
persuasion
when the
shot. This latter
has
arisen
situation
liability-creating
generally
acts
discretionary
afforded
for the exercise of
immunity
public employees
(See
Government Code
Johnson v. State
section 820.2 is asserted.
*14
failure
(state held liable for
This us to brings the second unwarranted ma- of fact assumption by jority: “the police, and without acting lawfully negligence” brought Linda to the scene “of a standoff between the and her armed and police suicidal husband.” Linda in her and the alleged negligence complaint jury by verdicts3 found special on the of the officers. negligence part
The majority’s of Linda’s cause of action can be rejection justified only if we officers, conclude that for whatever policy reasons negligence peace take, form that negligence may member to scene of a threatened suicide in an suicide attempt persuade prospective victim to surrender his is excusable and nonactionable because to weapon impose would have a effect on the chilling performance officers their fulfilling the commission of crime. This is prevent somewhat analogous the admission of coerced asserting denying confessions, non-Mirandized evidence statements and obtained illegally would have a effect on the officers in chilling performance appre- criminals. hending
The evidence this case toward may not support finding negligence Linda Allen the officers in evidence But if the question. sufficiency form, special 3In a jury verdict found to be both Officers Toten and Ashmun *15 apportioned negligence percent Linda was percent to Toten and 40 to Ashmun. any found to be not manner. issue, was a viable it was the of the defendants to responsibility bring this court a record of that evidence so we could assess the sufficiency. They have failed to so do. I refuse to what evidence was speculate presented fact, the triers of jury, would affirm the judgment.
Respondent’s petition review Court was denied Jan- Supreme uary 1986.