DONALD R. SHELTON et al., Plaintiffs and Appellants, v. CITY OF WESTMINSTER et al., Defendants and Respondents.
Civ. No. 24979
Fourth Dist., Div. One.
Dec. 24, 1982.
138 Cal. App. 3d 610
Marc Creighton Block for Plaintiffs and Appellants.
Ruston & Nance and Lee P. O‘Connor for Defendants and Respondents.
STANIFORTH, J.—Plaintiffs (Sheltons) appeal a judgment of dismissal entered upon an order sustaining, without leave to amend, the general demurrer of defendants City of Westminster and police employee (City) to Sheltons’ second amended complaint (complaint). For the reasons set forth we affirm the order.
For purposes of the demurrer and this appeal, the factual allegations of the complaint must be taken as true. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 [86 Cal.Rptr. 88, 468 P.2d 216].) The complaint alleged in substance the following:1 Sheltons’ son Mark Duane Shelton was an apparent homicide victim of the “Freeway Killers.” Mark had been missing since August 4, 1979, when screams were heard by the Sheltons’ neighbors. On October 6, 1979, the Sheltons filed a missing persons report with the Westminster Police Department. Sheltons allege the police officers told them their missing person report would be fully and completely investigated; in fact the City failed to provide them with a form from the California Department of Justice authorizing the release of their son‘s dental records. Sheltons allege such a procedure-duty is required by
Sheltons’ son was found dead on August 11, 1979, in San Bernardino County and was listed by San Bernardino officials as an unknown person—John Doe No. 16-79. Sheltons were not informed John Doe 16-79 was their son until April 1, 1980. Sheltons charged the City‘s failure to obtain their son‘s dental record and forward it to the Department of Justice in a timely manner caused damages such as investigation expense, grief and sorrow, shock and injury to the nervous system, mental and physical pain and suffering, permanent disability, medical and other expenses related to these injuries.
I
The first cause of action alleges a failure to discharge a mandatory duty required by
We face the problem of ferreting out legislative intent from a statute whose plain language and legislative history stubbornly refuse to yield even a hint of statutory purpose to create a duty toward the Sheltons or to contemplate a tortious award of damages for the injuries claimed.
Where the statute‘s plain language is of no assistance, we turn next to the Legislative Counsel‘s Digest as an aid in ascertaining the intent of the statute. (See Morris v. County of Marin (1977) 18 Cal.3d 901 [136 Cal.Rptr. 251, 559 P.2d 606].) The digest to the 1978 enactment states in part: “Under existing law, the coroner or medical examiner is required to investigate deaths which occur without medical attendance and under other specified circumstances.
“This bill would require the coroner or medical examiner, when he is unable to establish the identity of the body in the investigation of a death by visual means, fingerprints, or other identifying data, to have a dentist carry out a dental examination of the body. If the coroner or medical examiner with the aid of the dental examination and other identifying findings is still unable to establish the identity of the body, such person would be required to prepare and forward the dental examination records to the Department of Justice, as specified.
“This bill would require a sheriff, chief of police, coroner or medical examiner, or other law enforcement authority to request the family or next of kin of a missing person who has not been found within 30 days to give them written consent to contact and request the missing person‘s dental records from such person‘s dentist or dentists and to send such records to the Department of Justice, along with a missing person report, for recordkeeping, after conferring with the coroner or medical examiner, as specified. It would require the sheriff, chief of police, coroner or medical examiner, or other law enforcement authority to report to the Department of Justice when a person reported missing is found, and would require the department to erase specified records with respect to such missing person upon receipt of such report.
In the first place, no particular or specific person or body is charged with the duty; rather several departments are assigned common duties and a variety of duties. In short, a whole host of duties are assigned at various levels of government. The joint duties are interrelated and contingent upon the performance of other governmental departments. The plain words of the statute can be scrutinized in part or in whole in vain. There is no hint that plaintiffs are (1) owed a duty (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 [185 Cal.Rptr. 252, 649 P.2d 894]) or (2) among the class of persons the statute was designed to protect, or (3) the statute was designed to protect against the particular injury caused. (
Secondly, not all statutes using direct obligatory language create a “mandatory duty.” (Morris v. County of Marin, supra, 18 Cal.3d 901, 910, fn. 6.)3 It is arguable in this case the obligatory language creating the police duty is merely administrative instruction but we accept a heavier burden on this appeal. We assume
II
In face of a total lack of judicial precedent for their cause of action and a statute which does not expressly or by rational inference contemplate their claim, the Sheltons ask this court to undertake the delicate and difficult task of fashioning a new cause of action, to find a duty owed them.
The Supreme Court (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]) has declared: “Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by
Assuming as an established premise the absence of a clear statutory directive, under what circumstances should a wholly new cause of action be judicially created?
In Smith v. Alameda County Social Services Agency (1979) 90 Cal.App.3d 929, 933 [153 Cal.Rptr. 712], the court faced this precise question. The appeal court held, whether in a general negligence action or an action based on
Smith explained: “Decisions as to whether to tighten or enlarge ‘the circle of rights and remedies’ are often phrased in terms of ‘duty of care.’ The existence or absence of a duty cannot be determined by mechanical or formal tests. Rather ‘judicial recognition of such duty in the defendant with the consequence of his liability in negligence for its breach, is initially to be dictated or precluded by considerations of public policy.’ [Citations.]” (Id., at p. 935; fn. omitted.) How “duty” is to be found: “‘“[D]uty” is . . . only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law of Torts (3d ed.) p. 333, quoted with approval in Dillon v. Legg, supra [68 Cal.2d 728, 734 (69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R. 3d 1316)].)” (Ibid.)4
III
In Rowland v. Christian, supra, 69 Cal.2d 108, the Supreme Court enumerated the major factors to be considered in making the public policy decision: “[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‘s conduct, and the injury suffered, the moral blame attached to the defendant‘s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (69 Cal.2d at p. 113.)
Where public agency duties are involved, additional elements include “the extent of the [agency‘s] powers, the role imposed on it by law and the limitations imposed on it by budget . . . .” (Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847]; Davidson v. City of Westminster, supra, 32 Cal.3d 197, 203.) If we utilize the various policy considerations in the fact situation here, we conclude they militate against a finding of duty.
The statute presents no clear or ascertainable standard for assessing breach of duty. There is neither express duty nor time limit to notify next of kin of the identity of a decedent. The clear duty imposed is to investigate deaths occurring under specified circumstances. The specific duty imposed upon the police is to request consent in order to obtain dental records and to send such records to the Department of Justice for safekeeping. This appears to be in aid of the primary purpose of the enactment as reported by the Legislative Counsel Digest.
If the statute is examined in light of the first three considerations listed by Rowland (a) foreseeability of harm, (b) degree of certainty of the injury, and (c) closeness of the connection between the defendants’ conduct and the injury, the same conclusion results: no duty is shown.
Foreseeability, certainty of injury and closeness of the conduct and the injury can be readily recognized in cases where duty has been found. For example, in Morris v. County of Marin, supra, 18 Cal.3d 901, the county‘s statutory duty was to compel applicants for building permits to carry workers’ compensation insurance. Immediate injury could be clearly foreseen to any injured worker
In Elton v. County of Orange (1970) 3 Cal.App.3d 1053 [84 Cal.Rptr. 27], the regulations imposed duties of maintenance, care and supervision as well as placement in foster homes of dependent children. That a dependent child might be subject to mental and physical injury if foster parents are not carefully selected and supervised is totally foreseeable, a direct and immediate injury. As the Elton court concluded there was a direct and rationally deducible connection between the agency‘s negligent placement of a child in an inappropriate foster home and the injury to the child. The duty imposed upon the agency was clearly designed to protect against this particular type of injury.
In Ramos v. County of Madera (1971) 4 Cal.3d 685 [94 Cal.Rptr. 421, 484 P.2d 93], contrary to State imposed eligibility standards, a welfare department coerced children under the age of 12 to perform agricultural labor as a condition for receiving county aid. In coercing a child to violate the child labor law, it was foreseeable injuries would be sustained by the child. The injuries were directly related to the violation of the duty.
The administrative rule at issue in Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577 [124 Cal.Rptr. 305], required the commission to compel bus companies operating under its authority to carry liability insurance. Lack of financial responsibility of a public carrier would cause a readily foreseeable injury.
As was said in Williams v. State of California (1976) 62 Cal.App.3d 960, 969 [133 Cal.Rptr. 539]: “A perusal of the opinions in Elton, Ramos, Bradford, and Elson discloses that in each of these cases the reviewing court concluded that the failure to discharge the mandatory duty imposed by the enactment relied upon was the failure to perform a duty clearly designed to protect against the risk of the particular kind of injury for which damages were sought.” (Italics added.)
In Williams, the rule mandating filing a final decision within 60 days from the date of request for fair hearing was held not to create statutory liability in tort for emotional pain and suffering sustained as a result in delay in the decision being issued. The police failure to act here is at best only in a remote causal relationship to the damage suffered. The prime cause, the direct and immediate cause of plaintiff‘s suffering is the murderous act of the person who killed a
If we subject the Sheltons’ claim to the remaining Rowland tests, they fare no better. How the imposition of liability would reduce future harm is not clear. The Legislature allotted the total sum of $37,000 to local agencies for costs incurred by this act. Budgetary restraints alone chill any thought of allocation of any significant work force to the fulfillment of plaintiffs’ demands. Furthermore, many agencies are assigned the duty. No one agency or person is directed to perform a specific act. Finally, the agency involved—Westminster Police Department—is engaged in a full-time effort to maintain public order and to control crime. The apprehension and assistance in the conviction of a criminal is a prime function. Public safety and crime prevention has high priority. The possibility of a crime is always a lurking suspicion when a missing person report is filed. Search for a missing person is clearly within the ambit of police duty, yet to impose tort liability on the City for a possible failure in the investigatory process before the police focus on a crime is to impose such burden on the public fisc as to prevent the performance of the principle duties of the police.
We conclude the first claim fails to state a cause of action for this prime reason: the facts alleged do not establish a statutory duty owed to the class of plaintiffs.
IV
Even if the City owed a “mandatory duty” to provide the Sheltons with a dental release form as required by
This proviso was construed in Williams v. State of California, supra, 62 Cal.App.3d 960. The appeal court concluded the injury was not the particular kind of injury against which the Welfare and Institutions Code section was designed to protect. The duty was to act within a certain time but not within a particular way by awarding benefits to plaintiff. (See also State of California ex rel. Dept. of Rehabilitation v. Superior Court, 137 Cal.App.3d 282, 286 [187 Cal.Rptr. 1].)
In a most recent case (State of California ex rel. Dept. of Rehabilitation v. Superior Court (1982) 137 Cal. App.3d 282 [187 Cal.Rptr. 1]) the appeal court (Dist. 1, Div. 4) held (1) no mandatory duty was imposed upon the State
The Williams and Smith, supra, reasoning was followed in Novoa v. County of Ventura (1982) 133 Cal.App.3d 137, 144 [183 Cal.Rptr. 736], where the duty was to locate a parent and give proper notice of juvenile court hearing. The appeal court held the damages claimed were not the type contemplated by the statute. (See also State of California ex rel. Dept. of Rehabilitation v. Superior Court, supra, 137 Cal.App.3d 282.) In Chaplis v. County of Monterey (1979) 97 Cal.App.3d 249 [158 Cal.Rptr. 395], the county had failed to require a use permit before issuing a building permit as required by an ordinance. Plaintiff‘s loss of the planned land use was held not to be the particular kind of injury designed to be prevented by the ordinance.
Cases which have found the statute designed to protect against the particular injury include Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710 [117 Cal.Rptr. 241, 527 P.2d 865], Bradford v. State of California, supra, 36 Cal.App.3d 16, and Shakespeare v. County of Pasadena, (1964) 230 Cal.App.2d 375 [40 Cal.Rptr. 863]. In Sullivan the court held the county‘s failure to release plaintiff after dismissal of charges (
The Sheltons seek damages for grief and sorrow arising from delay in their son‘s identification. The breach of duty is failure to provide a dental release and forward the records to the Department of Justice. The reasoning of Williams, Novoa, and Dept. of Rehabilitation v. Superior Court and Whitcomb v. County of Yolo (1977) 73 Cal. App.3d 698, 707 [141 Cal.Rptr. 189], compels this conclusion:
We turn to the remaining causes of action. The Sheltons’ second cause of action alleges negligence on the part of the City in failing to comply with
The facts alleged in the second cause of action do not bring this case within the holdings of Tarasoff, Mann or Clemente. In Tarasoff, the court held due to the special relationship between a therapist and his patient, the therapist had a duty to warn a third person of the dangerous propensities of the patient. This duty arose when the patient told the therapist that he intended to kill the third person. The court held that the therapist incurred the duty to use reasonable care to protect the intended victim.
The facts of Tarasoff bear no resemblance to the case at bench. The Tarasoff court stated: “Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another (Richards v. Stanley (1954) 43 Cal.2d 60, 65 . . . ; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 . . . ; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, §§ 315-320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person‘s conduct, or (b) a special relation . . . between the actor and the other which gives to the other a right of protection.‘” (Tarasoff, at p. 435.)
Here there are no facts alleged to give rise to such “special relationship” between Sheltons and the City. Sheltons alleged only a failure to comply with
VI
The third through seventh causes of action all allege various deprivations of constitutional rights based on either the federal civil rights statutes (
Sheltons’ arguments seek to turn a defective tort claim into a manifold deprivation of constitutional rights. (See Paul v. Davis (1976) 424 U.S. 693, 698-699 [47 L.Ed.2d 405, 412-413, 96 S.Ct. 1155]; Heard v. LaFourche Parish School Bd. (E.D.La. 1979) 480 F.Supp. 231, 231, 232.) The Sheltons cite no authority for the proposition they are entitled as a matter of due process to their “tax-money‘s worth” in police services; the distribution of such services, in the absence of invidious discrimination, is appropriately thought to lie within the discretion of the political branches of government. (McLaughlin v. Florida (1964) 379 U.S. 184, 191-192 [13 L.Ed.2d 222, 227-228, 85 S.Ct. 283]; cf. Hawkins v. Town of Shaw, Mississippi (5th Cir. 1971) 437 F.2d 1286.) Nor do they explain how any alleged action on the part of Westminster officials deprived them of their parental rights. Carried to its illogical conclusion, the Sheltons’ argument would create a constitutionally based right of action for the parent whenever a public official committed a tort against the child. (See Baker v. McCollan (1979) 443 U.S. 137, 147 [61 L.Ed. 2d 433, 443-444, 99 S.Ct. 2689].) As to the equal protection claim, the basis for the discrimination is not alleged to be suspect, and the rationale underlying the supposed disparate allocation of police resources does not appear irrational. Sheltons have not alleged a violation of their constitutional rights.
Rowland v. Christian teaches there are two exceptions to the general principle a person is liable for injury caused by his negligence: (1) there is a statutory provision declaring an exception or (2) balancing considerations of public policy an exception is necessary. In this case
Sheltons ask the court to create a wholly new cause of action without legislative or judicial guidance or approval. This nova arrives without the societal input that should precede such a great leap across the barrier reefs of foreseeability, duty and the proximate cause requirement of
The judgment is affirmed.
Brown (Gerald), P. J., concurred.
WIENER, J., Dissenting.—I agree with the majority the trial court properly rejected several of the Sheltons’ theories of recovery and therefore concur in
The Sheltons’ second amended complaint alleges the City violated a statutory standard of reasonableness as provided in
In analyzing the legislative purposes underlying
several principles of general application to cases involving the scope and extent
Westminster argues the sole legislative intent in enacting
The Legislature would thus appear to have considered other factors in adopting
Past cases indicate numerous examples of statutes enacted for multiple concurrent purposes. (See, e.g., Courtell v. McEachen (1959) 51 Cal.2d 448, 459 [334 P.2d 870]; Cappa v. Oscar C. Holmes, Inc. (1972) 25 Cal.App.3d 978, 982-983 [102 Cal.Rptr. 207]; Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 903 [93 Cal.Rptr. 530].) I think it is likely the Legislature was motivated by similar multiple purposes in enacting
Appellants’ petition for a hearing by the Supreme Court was denied February 23, 1983. Bird, C. J., and Reynoso, J., were of the opinion that the petition should be granted.