Lead Opinion
Opinion
Nаpoleon Johnson, Jr., a convicted murderer on parole, kidnapped and killed Grace Morales. Plaintiffs, the victim’s children, have sued the State of California (State) and Johnson’s parole officer for wrongful death and violation of the Civil Rights Act of 1871. (42 U.S.C. § 1983.) In their first amended complaint, plaintiffs alleged that the parole officer, Michael Ybarra, knew that Johnson had threatened to kill Morales but nevertheless told her that the parolee would “not come looking” for her. The superior court sustained demurrers by Ybarra and the State without leave
I. Facts
Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly, we assume that the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. (Phillips v. Desert Hospital Dist. (1989)
According to the first amended complaint, Johnson went to prison in 1974 for the murder of his wife. In August 1985, when he was released on parole, Ybarra became his parole agent. While on parole, Johnson “began a romantic relationship and cohabited with” Morales. In March 1986, when Morales moved out of Johnson’s home, he “began a сampaign of violence, intimidation and harassment directed at [her], which included attempted stabbings, repeated death threats at knife point, forced sexual relationships at knife point and false imprisonment.”
When Ybarra learned that Johnson had threatened Morales’s life, the parole officer met with Morales “in the presence of Johnson to inquire regarding the alleged threats.” Johnson denied the threats, and Ybarra initially “concluded that the threats had not been made.” But Johnson repeated his threats about a week later, telling Ybarra that “he was looking for [Morales]” and that “[he would] kill her if [he] found her.” At this point, Ybarra concluded that Johnson was dangerous and placed him in 72 hours’ custody for psychiatric observation. Upon Johnson’s release, Ybarra
While Johnson was undergoing psychiatric treatment, an attorney who was representing Morales in a child custody proceeding attempted to obtain information from Ybarra about Johnson’s prior murder conviction. The attorney told Ybarra “that she was applying for a temporary restraining order.” Ybarra “refused to tell [the attorney] the nature of the crime,Pi but advised her that the crime committed was not of the type which would indicate that Johnson represented a danger to [Morales’s] children.” However, Ybarra “was still of the opinion that Johnson was very jealous and potentially violent,” and he told Morales’s attorney that he would serve the temporary restraining order and arrest Johnson.
Later, however, Ybarra apparently changed his mind. At some point “he telephoned decedent in an attempt to reconcile the relationship [s/c] between Johnson and [Morales].” The subject of the telephone conversation was death threats. Morales told Ybarra what she feared: “Johnson knew where [she] was living” and “still intended to physically harm her.” However, Ybarra told Morales: “I don’t think you have anything to worry about. He’s not going to come looking for you.”
Plaintiffs do not allege, however, that Morales believed Ybarra or actually and reasonably relied on his assurances. Instead, plaintiffs conclude their pleading with this general allegation of causation: “As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson.” Subsequently, “Johnson kidnapped and shot [her].”
A. The State Law Claim
In their first amended complaint, plaintiff's have labelled their claim under state law simply one for “wrongful death.” The Court of Appeal held that plaintiff's had not stated a cause of action because their allegations did not establish that Ybarra occupied a “special relationship” with either Johnson or Morales. (See Tarasoff v. Regents of University of California (1976)
Negligent misrepresentations involving a risk of physical harm are actionable under the circumstances described in the Restatement Second of Torts, supra, section 311. Under that section, “(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results [fl] (a) to the other . . . . [fl] (2) Such negligence may consist of failure to exercise reasonable care [fl] (a) in ascertaining the accuracy of the information, or [H] (b) in the manner in which it is communicated.” California courts, in holding that plaintiff's have stated causes of action for negligent misrepresentations causing physical harm, have relied both on section 311 (Hanberry v. Hearst Corp. (1969)
Accordingly, we examine whether plaintiffs have stated a cause of action for negligent misrepresentation involving a risk of physical harm. First, plaintiffs must allege that Ybarra had a duty to exercise reasonable care in giving Morales information about Johnson. As Prosser and Keaton have observed, “[i]n all cases of negligent misrepresentation . . . the circumstances must be such that the defendant is under a duty to the plaintiff to exercise reasonable care in giving the information, and that reliance upon what he says, with resulting danger, is reasonably to be expected.” (Prosser & Keeton on Torts, supra, ch. 5, § 33, at p. 207.) In this context, “duty” and “reasonable reliance” are closely connected. The likelihood that one’s statements about personal safety will be taken seriously is a primary factor in detеrmining whether one has a duty to exercise care in making such statements. As the Restatement puts it, such a duty “extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend on the accuracy of the information.” (Rest.2d Torts, supra, § 311, com. b, at p. 106.)
Misrepresentations involving a risk of physical harm constitute an exception to the ordinary rule that “liability [for negligent misrepresentations] is imposed only on those who supply information for business purposes in the course of a business or profession.” (See 5 Witkin, Summary of Cal. Law, supra, Torts, § 721, at p. 820.) The ordinary rule is based on the principle that, in financial matters, a plaintiff “cannot expect the defendant to exercise the same degree of care [in social meetings] as he would when acting in a business or professional capacity.” (Ibid.) The misrepresentations in this case, of course, were not made in a financial context. However, the duty to use reasonable care in giving information applies more broadly when physical safety is involved. In cases “[w]here . . . the harm which results is bodily harm to the person, or physical harm to the property of the one affected, there may be liability for the negligence even though the information is given gratuitously and the actor derives no benefit from giving it.”
In view of Johnson’s threats, did Ybarra have a duty to use reasonable care in giving Morales information about her personal safety? Ordinarily, of course, law enforcement personnel have no duty to volunteer information about released criminals under their suрervision. (Thompson v. County of Alameda (1980)
Second, plaintiffs must allege that Ybarra gave false information to Morales with a degree of culpability at least equal to negligence. Under Restatement Second of Torts, supra, section 311, “[s]uch negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.” Plaintiffs have met this requirement as a matter of pleading. To quote the complaint, Johnson had told Ybarra that “he was looking for [Morales] and that he would “kill [her] if [he] found her.” Despite this knowledge, however, Ybarra allegedly told Morales that Johnson was “not going to come
Third, as in all cases for negligent misrepresentation, plaintiffs must allege facts sufficient to show that Morales actually and reasonably relied on the alleged misrepresentations.
Finally, plaintiffs must allege that Morales’s reliance on Ybarra’s representations proximately caused her death. At present, plaintiffs have alleged that, “[a]s a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson,” who “kidnapped and shot [her].” This general allegation suffices as a matter of pleading solely on the issue of causation. As we have already noted, however, plaintiffs cannot establish a complete causal relationship between Ybarra’s statements and Morales’s death, and thus state a cause of action, without the further allegation that Morales actually and reasonably relied on Ybarra’s statements about Johnson.
B. The Federal Claim
Plaintiffs have also attempted to state causes of action against the State and Ybarra under the Civil Rights Act of 1871 (42 U.S.C. § 1983; hereafter section 1983).
Recent decisions of the United States Supreme Court make it impossible for these plaintiffs to state such a claim. In Will v. Michigan Dept, of State Police (1989)
The State’s failure to prevent harm inflicted by a private actor does not give rise to a cause of action under section 1983. This is the teaching of DeShaney: “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” (DeShaney, supra,
We cannot avoid this holding, as plaintiffs suggest, on the basis of Ybarra’s involvement in Morales’s affairs. The DeShaney court held that a substantially greater degree of state involvement did not give rise to a claim under section 1983.
The plaintiff in DeShaney was Joshua, a young boy who was severely beaten by his father and is now profoundly retarded as a result. The beating followed substantial involvement by the defendants, a county and its department of social services, in attempting to protect Joshua. At one point, based upon reports of child abuse by a physician, the county even removed Joshua from his father’s custody. When the father agreed to cooperate by enrolling Joshua in preschool and by receiving counselling, the county returned the boy to the home where he had suffered abuse. Although medical personnel
The county’s decision to return Joshua to his father’s custody undeniably increased the risk of injury. However, the Supreme Court expressly held that it “does not alter the analysis” that “the State once took temporary custody of Joshua . . . , for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all. . . .” (DeShaney, supra,
Plaintiffs argue that the decision in Wood v. Ostrander (9th Cir. 1989)
If the result that DeShaney compels in this case seems harsh, it is important to remember that our mandate changes when we interpret section 1983. When we interpret that statute, we deal not with the redress of private wrongs but with the allocation of lawmaking power between the federal and state governments. “A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes.” (DeShaney, supra,
III. Conclusion
The decision of the Court of Appeal is affirmed insofar as it holds that plaintiffs have not stated a cause of action and dismisses the purported cause of action under 42 United States Code section 1983. The decision is reversed insofar as it denies leave to amend. Accordingly, the case is remanded to the Court of Appeal, which shall vacate its order denying the petition for a writ of mandate. The Court of Appeal shall also enter a new order granting the petition and directing the superior court to vacate its judgment of dismissal and grant plaintiffs leave to amend to state a cause of action for negligent misrepresentation involving a risk of physical harm.
Lucas, C. J., Eagleson, J., and Kennard, J., concurred.
Notes
Two additional defendants are not parties to this appeal. These are the County of Santa Clara and the Santa Clara Valley Medical Center, a county hospital where Johnson was temporarily confined for psychiatric observation. Plaintiffs allege that the county and its hospital are liable because the hospital’s staff failed to inform Morales of threats that Johnson made against her during his confinement.
Plaintiffs have also alleged that the State is liable because a psychologist in its employ failed to warn Morales of threats by Johnson. The superior court overruled the State’s demurrer to this cause of action, and this ruling is not before us.
Plaintiffs do not specifically argue that Ybarra’s refusal to provide such information was tortious. Indeed, state law made it a crime for Ybarra to disclose information about Johnson’s criminal record. (See Pen. Code, §§ 11105.1 [state summary criminal history information; persons entitled to receive], 11142 [authorized person furnishing record or information to unauthorized person; misdemeanor].)
The parties have informed us that the entire telephone conversation between Ybarra and Morales was tape-recorded. However, plaintiffs have included only a few statements from the conversation in their complaint.
In their first amended complaint, plaintiffs clearly distinguish between the liability of Ybarra, which is based on statements, and that of the medical personnel, which is based on a failure to act: “As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson.” (Italics added.)
Plaintiffs may have attempted to state a cause of action for failure to act based upon the allegation that Ybarra failed to serve a temporary restraining order on Johnson or arrest him. However, neither allegation helps plaintiffs to state a cause of action. This is becausе plaintiffs do not allege that an order was actually furnished to Ybarra for service, and because Ybarra enjoys absolute statutory immunity for the failure to arrest Johnson. (Gov. Code, § 846; City of Sunnyvale v. Superior Court (1988)
Civil Code, section 1710, subdivision 2, is often cited as the statutory basis in California for the negligent misrepresentation cause of action. (See, e.g., Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 375-376; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 721, p. 819.) The section defines one form of “deceit” as: “[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true . . . .”
Even in cases involving physical harm, however, “[t]he fact that the information is gratuitous may . . . affect the reasonableness of the other’s reliance upon it in taking action.” (Rest.2d Torts, supra, § 311, com. c, at p. 107.) For example, “[t]here may be no reasonable
A defendant is liable under the theory set out in the Restatement Second of Torts, supra, section 311, only “for physical harm caused by action taken by the other in reasonable reliance upon such information.” (Rest.2d Torts, supra, § 311, subd. (1), italics added.) Under section 311, reliance is an element of the cause of action which must be both pled (Dyson v. General Motors Corp. (E.D.Pa. 1969)
This case also raises issues of statutory immunity, which the superior court resolved in favor of the defendants. The court should reconsider these issues in the light of any new allegations. To address these issues before plaintiffs have stated a cause of action is premature. (Davidson v. Westminster, supra, 32 Cal.3d at pp. 201-202; see also Williams v. State of California (1983)
For the superior court’s guidance, we note that the statutory immunity from liability for misrepresentations (Gov. Code, §§ 818.8 and 822.2) does not apply to negligent misrepresentations involving a risk of physical harm. In Johnson v. State of California (1968)
The dissenting opinion misinterprets Johnson as holding that a plaintiff cannot recover damages for physical harm in an action for negligent misrepresentation. To the contrary, we held only that the immunity statute did not apply to misprepresentations causing physical harm; we expressly held open the possibility that the plaintiff would be able to state a cause of action based upon the parole officer’s misrepresentation. To quote the opinion, “however we may choose to characterize the parole officer’s failure to give adequate warnings to plaintiff, section 818.8 does not apply to this case.” (Id., at p. 800.) Indeed, there would have been no need to address the immunity statute’s applicability unless it was anticipated that the plaintiff would state a cause of action based upon a misrepresentation. It should also be noted that the dissent’s interpretation of Johnson as limiting damages recoverable in an action for negligent misrepresentation conflicts with Civil Code section 3333, which permits the plaintiff in a tort action to recover “the amount which will compensate for all the detriment proximately caused thereby . . . .” (Italics added.)
Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”
Plaintiffs theorize that Ybarra’s bad advice restricted Morales’s psychological freedom to protect herself. But this speculative theory of causation is far too attenuated to support liability under section 1983. Federal law, not state law, determines the closeness of the casual connection that must exist between state action and the alleged deprivation. A “remote” causal connection does not suffice. (Martinez v. California (1980)
In addition, Wood was argued before the Supreme Court’s decision in DeShaney, which received only a passing reference in the Court of Appeals’s opinion. (Wood, supra,
Concurrence Opinion
Concurring.—The majority holds the facts alleged in the complaint may state a cause of action for “negligent misrepresentation,” as defined in the Restatement Second of Torts, section 311, but implicitly holds plaintiffs are precluded from stating a cause of action for “mere” or “regular” negligence. The dissent, quoting language from venerable commentators, asserts that for decades courts have upheld judgments predicated on regular negligence liability in cases of physical injury resulting from negligent misrepresentations, and have not required the plaintiff to meet the more demanding requirement of section 311, i.e., that he prove his “reasonable reliance” on the defendant’s representation. Because I believe the dis
The dissent finds support for its position in the statement in Prosser and Keeton on Torts (5th ed. 1984), section 33, at page 205, to the effect that “ ‘for the most part cases of misrepresentation resulting in physical harm hаve been dealt with in an action for negligence. ’ ” (Dis. opn., post, p. 751, italics added in dis. opn.) Similarly, it quotes 2 Harper et al., The Law of Torts (2d ed. 1986) section 7.6, page 403: “ ‘[wjhere misrepresentations entail the foreseeability of physical harm and such harm in fact results, the ordinary rules of negligence have for some time been applied. ’ ” (Dis. opn., post, pp. 751-752, italics added in dis. opn.) Whatever these statements may have been intended to convey, they do not stand for the proposition advanced by the dissent, i.e., that at common law a plaintiff’s reasonable reliance on another’s representation was irrelevant to stating a prima facie case for “negligence.” In each case cited in support of the italicized proposition in the respective treatises, the court implicitly or expressly recognized a need for reasonable reliance by the plaintiff—or the reasonableness of the reliance is patent on the face of the opinion. (See Prosser & Keeton, supra, § 33, at p. 205, fns. 27-30; 2 Harper et al., supra, § 7.6, at pp. 403-404, fn. 1.) Moreover, in fact, both treatises cite section 311 of the second Restatement in support of their italicized statements—a seeming anomaly that the dissent conveniently ignores.
The historical development of the tort explains and supports the conclusion of the majority that reasonable reliance is and should be an element of the cause of action. In the late 1920’s and early 1930’s there was considerable debate about the nature of the emerging mispresentation cause of action, and the limits that should be placed on such an action. (See, e.g., Bohlen, Misrepresentation as Deceit, Negligence, or Warranty (1929) 42 Harv.L.Rev. 733; Green, Deceit (1930) 16 Va.L.Rev. 749; Carpenter, Responsibility for Intentional, Negligent and Innocent Misrepresentation (1930) 24 (Ill.L.Rev. 749; Bohlen, Should Negligent Misrepresentation Be Treated as Negligence or Fraud? (1932) 18 Va.L.Rev 703; Green, Innocent Misprepresentation (1933) 19 Va.L.Rev. 242.)
On the basis of sparse and evolving case authority, in 1934 the drafters of the original Restatement of Torts adopted former section 311, which articulated a circumscribed rule under which certain persons whose business it is to give out information could be held liable for bodily harm resulting from a plaintiff’s “expectable” reliance on their misrepresentations. Thereafter a “negligent misrepresentation” cause of action, based in part on the authority of section 311 and in part on preexisting common law, continued to
This evolution of the common law was codified by the drafters of the second Restatement. In their Tentative Draft No. 5, issued in April 1960, the drafters revised former section 311 by, inter alia, inserting an express “reasonable reliance” condition. They also observed in their note to the American Law Institute that both Holt, supra,
Accordingly, it appears to me that the dissent—and the commentators on which it relies—misperceive the true state of the common law by asserting without qualification that actions for negligent misrepresentation have long been analyzed under simple “negligence” principles. In fact, as noted above,
I believe there are legitimate jurisprudential and policy reasons to require a plaintiff to plead and prove reasonable reliance when alleging that a negligently made misrepresentation resulted in physical injury. In such situations the plaintiff will often be in the best position, and have the final opportunity, to avoid any risk of harm. He must ultimately decide, based on his own assessment of the circumstances known to him, whether to act on the representations of the defendant. Moreover, a plaintiff will often be the party most capable of correctly evaluating a risk. Finally, fairness dictates that a plaintiff justify his reliance, and that the reliance be reasonable, lest the speaker incur liability out of all proportion to his culpability for careless speech. For these reasons I concur in the majority’s election to adopt the second Restatement view of liability for negligent misrepresentation resulting in physical harm, to the exclusion of a “traditional” negligence action.
Eagleson, J., concurred.
Nothing in the dissent’s analysis of Holt, supra,
The dissent concedes, as it must, that the court in Holt, supra,
Through selective quotations from Webb, supra,
As the majority notes (ante, p. 734, fn. 4), plaintiffs have not pleaded an action based on failure to warn, and we need not decide today whether such an action would be appropriate.
Dissenting Opinion
Dissenting.—Although it characterized Ybarra’s “advice” as “clearly outrageous conduct,” the Court of Appeal nevertheless held that the complaint fails to state a cause of action on three grounds: it is not plainly foreseeable that because of Ybarra’s “ill advised” statements, Morales would be murdered; the causal connection between Ybarra’s advice and Morales’s death is too nebulous; and expanding the liability of parole officers would impose too heavy a burden on the community.
Underlying the foregoing grounds, each of which is demonstrably wrong or embodies an erroneous legal standard, appears to be the appellate court’s fatalistic view that “in the less than two-week period that elapsed between Ybarra’s conversation with Morales and her death, it is highly speculative to assume that she could have accomplished any improvement in her security. The frightening reality is that for one in Morales’s position there is frequently nothing she can do to protect herself.” The majority in essence adopt this view, although in a less obvious and objectionable form and, in affirming the lower court’s holding, compound rather than correct its errors.
In addition to misapplying established law, the majority create new law that is ill-advised and potentially mischievous. Despite clear controlling precedent of this court and the painstaking efforts of commentators, the majority confuse misrepresentations resulting in physical injury with the common law tort of negligent misrepresentation. The latter is a distinct form of tort liability; its origins lie in the common law actions of fraud and deceit. Quite naturally, it shares with fraud and deceit the requirement that causes of action thereunder be pleaded with specificity. By contrast, negligent misrepresentation resulting in physical harm is not a separate tort and, as many commentators have taken pains to clarify, the rules of simple negligence apply.
The practical effect of the majority’s error is negligible in this case; on remand, plaintiffs will simply add five words to the complaint and proceed.
The majority characterize the liability for negligent misrepresentation resulting in physical harm as “an exception” to the ordinary rule that liability for the common law tort of negligent misrepresentation is imposed only on those who supply information for business purposes. In doing so, the majority reveal a profound misunderstanding of the law. The fact is that negligent misrepresentations resulting in physical harm have been the basis for liability in negligence long before the distinct common law tort of negligent misrepresentation was developed. “The courts which impose liability for negligent misrepresentation in cases in which the injury is financial or economic rather than to person or property are merely extending to interests of economic, financial and business advantage a protection similar, though not identical, to that which has been for years given to interests in security of person and property.” (Bohlen, Should Negligent Misrepresentations Be Treated as Negligence or Fraud? (1932) 18 Va.L.Rev. 703, 706.) Negligence is not an exception to negligent misrepresentation. And to the extent that the protection afforded by the law of negligence is “not identical” to the protection afforded by the law of negligent misrepresentation, the majority’s error sows the seed оf confusion.
I
According to the first amended complaint, Napoleon Johnson, Jr., was convicted of murdering his wife in 1973. He was released on parole in 1985 under the supervision of Michael Ybarra, a parole officer employed by the state. Johnson then began a romantic relationship and cohabited with Grace Morales. In March 1986 Morales moved out of Johnson’s residence and he began a campaign of violence and harassment against her, including sexual intercourse at knife point and death threats.
After Ybarra learned that Johnson had threatened the life of Morales, the parole officer met with her in the presence of Johnson to ask about the alleged threats. Johnson denied making the threats, and Ybarra initially concluded that he had not made them. About a week later, however, on April 3, 1986, Johnson told Ybarra that he felt jealous, angry and abandoned, and that “he was looking for [Morales].” Johnson then said, “I’d kill [Morales] if I found her.” The complaint alleges that Ybarra knew Johnson had killed his wife in a fit of jealousy over the breakup of their marriage. Ybarra committed Johnson to a medical facility under the provisions of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.). After
During this time an attorney, Marta Vides, was representing Morales in connection with custody proceedings involving her children. Vides learned of Johnson’s violence and threats against Morales and, on April 9, 1986, she told Ybarra that Johnson had attempted to stab Morales, and that she intended to apply for a temporary restraining order to protect Morales from Johnson. Ybarra agreed to serve the order and arrest Johnson.
Thereafter, in a telephone conversation Morales told Ybarra that Johnson knew where she was living and advised him that she thought Johnson still intended to physically harm her. “In spite of decedent’s expressed fears,” the complaint alleges, Ybarra replied, “I don’t think you have anything to worry about. He’s not going to come looking for you.” He repeatedly asked her if she really wanted to end the relationship, and told her that Johnson had said he was still in love with her.
The complaint further alleges that as a proximate result of Ybarra’s conduct, Morales “failed to take steps to protect herself from Johnson.” One week later, Johnson kidnapped Morales and shot her to death. Her surviving children brought this lawsuit.
II
The majority fault plaintiffs for failing to allege sufficient facts to show that their mother “actually and reasonably” relied on Ybarra’s statements. The reasonableness of a plaintiff’s conduct (or in this case, that of the plaintiffs’ decedent) is not an element of a cause of action for negligence and is properly considered, if at all, as a matter of comparative negligence. (See part IV, post.) But even if reasonable reliance were an element of plaintiffs’ cause of action, the facts alleged in the first amended complaint meet the pleading requirements. As the majority opinion itself correctly explains, “Since parole officers have statutory obligations to supervise parolees and expertise in doing so, a member of the public might reasonably believe that an officer who has chosen to discuss a parolee’s dangerousness ‘purports to have special knowledge of the matter, or special reliability.’ ” (Ante, at p. 736, italics added.) Yet ignoring the rule that the pleader is entitled to all reasonable presumptions and inferences, the majority appear to believe that Morales was unreasonable in relying, or did not in fact rely, on Ybarra’s
Those allegations, however, do not detract from the aura of reliability surrounding Ybarra’s statement. Ybarra told Morales that Johnson “would not come looking for you.” This is not idle chitchat of an unconcerned bystander; it is a statement by a parole officer to a known victim of his parolee’s violence on a matter of grave concern to the victim’s safety. It is phrased not as an opinion but as an unconditional fact, and it implies knowledge of other, unstated facts—perhaps that “Johnson assured me he would not look for you” or that “I told Johnson if he threatened you again, I would take steps to revoke his parole.” The majority are too readily convinced by Ybarra who in hindsight now declares, “I did not reasonably expect Morales to rely on my assurances.” I am not convinced, but in any event that is a question for the jury.
Ill
Negligence and negligent misrepresentation are different torts and to confuse the two, as the majority do today, is to ignore the lesson taught by this court in Johnson v. State of California (1968)
In Johnson, supra,
Many cases have followed Johnson. In Michael J. v. Los Angeles County Dept, of Adoptions (1988)
In Bastian v. County of San Luis Obispo (1988)
In all these cases, the plaintiffs alleged causes of action for negligence, not negligent misrepresentation. (Michael J., supra,
Prosser and Keeton went on to state, “Liability in negligence sometimes rests upon some form of misrepresentation on the part of the defendant, by which the plaintiff, or some third person, has been misled to the plaintiff’s damage. The remedy of an action for deceit!
Similarly, Profеssors Harper, James and Gray explained that “[wjhere misrepresentations entail the foreseeability of physical harm and such harm
When Prosser and Keeton noted that “neither the courts nor legal writers have found any occasion to regard [misrepresentations resulting in physical harm] as a separate basis of liability” (op. cit. supra, § 105, at p. 726), why do the majority choose this occasion to ignore stare decisis and to create new law? They rely in part on section 311 of the Restatement Second of Torts (section 311). Section 311 was not intended, however, to create a basis of liability separate from and narrower than the tort of negligence. All the comments to that section emphasize the breadth of liability for negligent misrepresentations resulting in physiсal harm, indicating that the members intended to clarify the broad rules of negligence, not create a narrower tort.
As comment (a) observes, “The rule stated in this Section represents a somewhat broader liability than the rules stated as to the liability for pecuniary loss resulting from negligent misrepresentation, stated in § 552 . . .” Comment (b) notes that the rule finds particular application when part of the speaker’s business or profession is to give information on which the safety of the recipient or a third person depends, but is “not, however, limited to information given in a business or professional capacity .... It extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend upon the accuracy of the information.” (Italics added.)
Comment (c) observes that the rule may apply when the information given is purely gratuitous, again emphasizing the rule’s amplitude. Comment (d) instructs that “negligence may consist of failure to make proper
In his concurring opinion, the Chief Justice joins in the majority’s view that under section 311 a plaintiff must plead and prove his “reasonable reliance” on the defendant’s representation. He maintains that the numerous “venerable commentators” cited herein “misperceive the true state of the common law,” and notes that “each of the . . . cases [they rely on] in which recovery was allowed either recognized the plaintiff’s reasonable reliance, or such reliance was clear from the facts.” (Ante, at pp. 743-744.) This misses the point. The issue is not whether the reasonableness of plaintiff’s reliance is relevant, but whether plaintiff or defendant bears the burden of pleading and proof on the matter. Certainly nothing on the face of section 311 purports to alter the common law rule that the reasonableness of a plaintiff’s conduct is examined under the doctrines of contributory or comparative negligence. The concurring opinion’s reliance on Webb v. Cerasoli (1949)
In Webb, the jury awarded the plaintiff, a painter, damages for injuries sustained when he fell from a marquee while painting the home of the defendant. The defendant was held liable “in negligence” (
In Holt, a landlord hired two plumbers to install a toilet on a porch extending from the plaintiff’s home. Before the work was begun the landlord assured the plaintiff that she could safely use the porch during the repairs, and when the plaintiff asked one of the plumbers if she could safely walk on the porch while he was installing a pipe, he replied, “Well, if it holds a man like me, it will hold a little woman like you.” Shortly after the plumbers completed the job, the plaintiff sustained injuries when the porch floor collapsed beneath her. The court affirmed a judgment on directed verdict for defendant plumber. “In this case it is clear that the plumber was not under a duty to plaintiff growing out of any previous relation to plaintiff or the property, or for having any special knowledge as to the condition of the porch. At the most his statement before the work was begun was a mere concurrence in the landlord’s statement. . . . [Tjhe alleged statements of [the plumbers] were such casual expressions of opinion as plaintiff was not entitled to rely upon under the circumstances.” (
Neither of these cases, four decades old, stands for the proposition that a plaintiff must plead and prove reasonable reliance.
IV
Michael J., Bastían and Connelly were reviewed at the pleading stage, after defendants had successfully demurred; nevertheless, none of the courts required plaintiffs to plead, as the majority do today, that they reаsonably relied on the defendants’ misrepresentations.
That reasonable reliance is not an element in plaintiff’s cause of action is clear: as in any cause of action for negligence, the reasonableness of a plaintiff’s conduct is considered, if at all, under the doctrine of contributory or comparative negligence. In Seagraves v. ABCO Manufacturing Co. (1968)
In Freeman v. United States (6th Cir. 1975)
In Robb v. Gylock Corporation (1956)
In Virginia Dare Stores v. Schuman (1938)
In Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co. (4th Cir. 1915)
As in Michael J, Bastían and Connelly, the plaintiffs in these cases suffered physical harm outside the context of commercial transactions; their causes of action were for negligence, not negligent misrepresentation. As in this case, it is the allegedly negligent defendant who should bear the burden of proving that plaintiff’s reliance was unreasonable.
By contrast, comparative negligence is not a defense to the tort of negligent misrepresentation under California law. In Carroll v. Gava (1979)
In short, the majority opinion reintroduces confusion into an area of law that courts and commentators have endeavored to clarify. These authorities are virtually unanimous in support of the proposition that negligent misrepresentations resulting in physical injury give rise to a cause of action for negligence, not negligent misrepresentation. Under standard pleading rules, the complaint sufficiently alleges that Morales relied on Ybarra’s statements. Fortunately, the majority’s error will not have significant ramifications in this case because plaintiffs can easily amend the complaint;
V
I would reverse the judgment of the Court of Appeal dismissing plaintiffs’ first cause of action.
The Court of Appeal in this case properly recognized that the general rule of negligence in California is that a person is liable “not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person.” (Civ. Code, § 1714; Rowland v. Christian (1968)
The Court of Appeal, after examining three of the seven factors identified in Rowland, concluded that Ybarra should not be held liable. After analyzing the Rowland factors, I conclude that at least six weigh in plaintiffs’ favor and do not warrant a departure from the fundamental principle that every person is liable for injuries occasioned by his failure to use ordinary care. I will review these factors seriatim, beginning with foreseeability.
Defendants assert in essence that Morales had no reasonable basis to rely on Ybarra’s advice because she more than anyone knew how dangerous
Second, while we know that Morales realized Johnson had been dangerous, unless we are prepared to conclude that no reasonable person charged with such knowledge would be influenced by statements of the perpetrator’s parole officer, we cannot hold that Morales’s injuries were unforeseeable as a matter of law. It is well settled that unless there is no room for a reasonable difference of opinion, foreseeability of harm is a question of fact for a jury. (Pool v. City of Oakland (1986)
The second Rowland factor, the degree of certainty that the plaintiff suffered injury, was not addressed by the Court of Appeal. Its role is usually confined to cases of negligent infliction of emotional distress and, in such cases, is generally a question for the jury. In this case, plaintiffs, the now-motherless children of Morales, have certainly suffered injury.
The third Rowland factor, the causal connection between the defendant’s conduct and the injury suffered, is a closer question. Concluding the connection in this case was too nebulous as a matter of law to support liability, the Court of Appeal reasoned, “The weakness of the connection between Ybarra’s bad advice and Morales’s death is illustrated by the difficulty in showing concretely how Ybarra’s act resulted in the murder. Plaintiffs do not say that Morales followed Ybarra’s advice in any way, as by reconciling
I am unwilling to subscribe to the fatalistic view that as a matter of law women in Morales’s position can do nothing to protect themselves. To the contrary, among numerous possibilities she could have stayed at a women’s shelter or with relatives, improved her home security, alerted her neighbors and the police, moved to a distant location, or applied for a temporary restraining order. Moreover, the Court of Appeal holds plaintiffs to too high a standard of pleading in requiring them to “show[ ] concretely how Ybarra’s аct resulted in the murder.” Rather, ‘“it is the settled rule in California that negligence and proximate cause may be simply set forth.’ ” (4 Witkin, Cal. Procedure, (3d ed. 1985) Pleading, § 562, at p. 600, quoting Roberts v. Griffith Co. (1929)
The fourth Rowland factor, the moral blame attached to the defendant’s conduct, weighs heavily in plaintiffs’ favor. It is difficult to conceive an acceptable excuse for Ybarra’s statements to Morales. One can surmise he believed that if he could convince her to return to Johnson, she would be a stabilizing influence on him and help him lead a productive and law-abiding life. Perhaps he was motivated by an ill will toward her and his entreaties were made with a reckless disregard for their truth or falsity. From the removed perspective of an appellate court, with only the cold record of the pretrial proceedings before us, I would not presume to determine the factors that motivated Ybarra. It can assuredly be said, however, that Ybarra’s conduct itself was, in the words of the Court of Appeal, “clearly outrageous.”
The fifth Rowland factor is the policy of preventing future harm. We have repeatedly refused to impose a duty to warn potential victims based on a law enforcement officer’s mere knowledge that there is some danger. (Davidson v. City of Westminster (1982)
The Court of Appeal’s analysis of the sixth Rowland factor, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care, is puzzling. On the basis of its unwarranted assumption that “Nothing short of confining Johnson could probably have prevented this death,” the Court of Appeal concluded that “the decision to leave [Johnson] at large is not actionable by virtue of the immunity statutes.” Again, the Court of Appeal misconceives the premise of liability. By failing to appreciate that plaintiffs’ action is based on the affirmative misconduct of Ybarra which allegedly increased the danger faced by Morales, and not on Ybarra’s failure to confine Johnson, the Court of Appeal in effect creates immunity where the Legislature created none.
Having concluded that six of the seven Rowland factors examined above militate in plaintiffs’ favor, I am of the view that the final Rowland factor, the availability, cost and prevalence of insurance for the risk involved, even if it weighed heavily in defendants’ fаvor, could not support a departure from the fundamental principle that all persons are responsible for injuries caused by their failure to exercise due care.
VI
I reluctantly concur in the majority’s affirmance of the judgment in favor of defendants on plaintiffs’ cause of action under 42 United States Code section 1983. In DeShaney v. Winnebago County Dept, of Social Services (1989)
If the affirmative act of placing a three-year-old boy in the custody of his abusive father does not “restrain” the boy’s freedom “to act on his own behalf,” the allegations of Ybarra’s misconduct a fortiori do not meet this stringent standard. Even if Ybarra’s entreaties caused Morales, a competent adult, to forgo precautions she would otherwise have taken, we cannot say that Ybarra thereby “restrained” her freedom to act on her own behalf. Under the high standard set by the Supreme Court in DeShaney, I agree that the complaint fails to state a cause of action under 42 United States Code section 1983.
In other respects I would reversе the Court of Appeal’s decision.
Broussard, J., and White (Clinton W.), J.,
Plaintiffs will add the underscored words: “as a proximate result of [Ybarra’s misstatements] to decedent, and in reasonable reliance thereon, [Morales] failed to take steps to protect herself from Johnson.”
The complaint does not allege that a temporary restraining order was actually applied for or issued.
Section 818.8 provides, “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”
Another case (this without governmental defendants) standing for the proposition that misrepresentations outside the commercial and financial context are treated under the rules of general negligence is Pamela L. v. Farmer (1980)
The majority purport to follow Johnson’s holding that section 818.8 immunity does not apply to misrepresentations outside the financial or commercial context, but inexplicably fail or refuse to acknowledge the rationale underlying the holding. In as clear terms as possible, Johnson stated, “ ‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs, applies to intereferences with financial or commercial interest.” (
“It is not clear whether the court [in Holt v. Kolker (1948)
Negligent misrepresentation “is a form of deceit without . . . the element of scienter.” (Yanase v. Automobile Club of So. Cal. (1989)
The Chief Justice, in his concurrence, quotes out of context from Tentative Draft No. 5 of the second Restatement to give the impression that the drafters unambiguously support his interpretation of Holt and Webb. (Ante, at p. 743.) Note (4), from which the quotation is taken, addresses the issue of whether liability under section 311 should extend to “information given gratuitously, and not in the course of an activity in which the actor has any interest. . . .” The drafters cite Holt and Webb to make clear that these cases did not hold to the contrary.
Thus, the drafters were not concerned in note (4) with a nuanced discussion of justifiable reliance, or in clarifying whether this element should appear in the plaintiff's or defendant’s case. Rather, they sought to establish the quite unrelated principle that section 311 liability does not depend on a financial relationship between plaintiff and defendant. Note (4) is dubious authority in support of any other proposition.
.Much of the majority’s discussion of reasonable reliance echoes the rejected position of the concurring and dissenting retired superior court judge sitting temporarily in Connelly: “it is to be noted that the direct cause of the damage alleged was the rise in the waters of the river. The information given had no causal connection with that fact. As the water level rose inch by inch, [the plaintiff] had as full knowledge of what was happening as did [the defendants].” (
The concurring opinion suggests that legitimate jurisprudential and policy reasons exist to require a plaintiff plead and prove reasonable reliance. It asserts, “the plaintiff will often be in the best position, and have the final opportunity, to avoid any risk of harm. He must ultimately decide, based on his own assessment of the circumstances known to him, whether to act on the representations of the defendant.” (Ante, at p. 744.) Whatever jurisprudential value the rule has in general, it seems singularly unfair to require plaintiffs in this case to plead the specific circumstances known to their deceased mother. Even as a general matter, the reasoning is unsound. It is what Prosser and Keeton describe as “something resembling billiard-parlor reverse English,” by which a few courts “have even purported to recognize a ‘last clear chance’ doctrine in favor of the defendant, to bar the plaintiff’s recovery.” (Op. cit. supra, § 66, at p. 464.) Moreover, the reasoning reminds the bench and bar of the harsh “all- or-nothing” approach of contributory negligence this court rejected in Li v. Yellow Cab Co. (1975)
Presiding Justice, Court of Appeal, First Appellate District, Division Three, assigned by the Chairperson of the Judicial Council.