*1 Dist., Three. June G016980. Fourth Div. 1998.] [No. v. QUIGLEY, Plaintiff and Appellant,

GAYLE al., CHRIST, Defendants and et FIRST CHURCH OF SCIENTIST Respondents. Dist., June G017471. Fourth Div. Three. 1998.]

[No. QUIGLEY, Plaintiff and v. GAYLE Appellant, AND, W ANTL Defendant and Respondent. RUTH *3 Counsel

Nichols, Anderson, Raster, Lukas, & Raster James H. Paul L. Cummins White, & R. James Wakefield and V. Black for Plaintiff and Bradley Appellant. *4 den, Schimaneck, Hartman, Wait,

Dry Margóles, & Relly Shawn E. Gibson, Crutcher, Sharer, Battles, Dunn McMenomy, & John H. S. Charles Jr., and E. Bradley Pomerance Defendants Respondents. McNamara, Gefis, Peterson, Michael A. P. Carol Oliver & Poll and Jeffrey T. Lauridsen for Defendant and Respondent.

Opinion BEDSWORTH, J. case arises out of a death of tragic 12-year-old This Wantland, is the boy. Gayle Quigley mother of Andrew died who after unsuccessful to treat with attempts spiritual healing methods of Christian Science (Church) church turned out what to be case of diabetes. juvenile death, sued the Church and Following various of its treatment, members who in his as well grandmother, as his participated had each breached of due care alleging when failed refer they Andrew to after conventional medical it became practitioners reasonably clear the Christian Science treatment was After ineffective. proving giving an additional allege facts existence opportunity establishing of a the trial court duty, sustained demurrers the Church its members and in their granted favor. The court later judgment granted in favor summary of Andrew’s also on basis that judgment grandmother, she owed no under the from circumstances. both Quigley appealed these and her judgments Although were consolidated. we share appeals that a to medical belief referral treatment was advisable under the Quigley’s case, of this circumstances we cannot California law agree legal imposed it, on these defendants to seek and we therefore affirm the judgments.

I Demurrers History Facts and Procedural A. a demur sustaining an order entered after

On review of judgment &Gas (Pacific rer, of all facts properly pleaded. the truth we must assume Cal.Rptr. (1985) 172 Cal.App.3d Jose City Electric Co. v. San ex-husband, she and her alleges amended 400].) complaint second Quigley’s custody had (James) physical joint Richard Wantland James 1992, was Andrew son, but that (Andrew), James Andrew Wantland their 1992, the fall or winter California. Sometime with James in living between Decem ill, substantially became and his illness progressed Andrew 20, he died. and December when ber 11 16, December and on no later than about his illness

Andrew complained emaciated, death, and had vomiting he of his December day death, in- symptoms to his to urinate. Just need prior frequent communicate, contact, or move eat, drink, make eye an inability cluded and sum- called December James “911” around. On the afternoon of Andrew was pronounced arrival at the hospital, an ambulance. moned Upon diabetes. determined effects of juvenile to be the dead of what was later *5 until that Andrew was made treatment for to secure medical No effort with call, inform or consult made to nor was any attempt “911” Instead, chose to Chris- rely upon James initially about her son’s condition. of the mind” treatment, to be an “error classifies disease tian Science which the use of medicine. discourages and therefore Science to administer Christian a system The church has established a national includes Science which to children of Christian parents, treatment on local committees (Manager), of committees on manager publication CoP, which is actually and nurses. The (CoP) and practitioners publication “committee,” to Christian advice over telephone provides single-person and legal treatment concerning and nurses practitioners Science parents, to retain Christian encourages parents other the CoP things, issues. Among who nurses, and nurses and counsels practitioners Science practitioners an ill child to also reports The CoP are directly treating patient. Manager. national children by and nurses treat controls which practitioners

The Church Journal, and Science them in the Christian training, by listing their certifying members to retain by encouraging “Journal-listed” nurses and only practi- Thus, tioners. Journal-listed and nurses are practitioners individuals who have demonstrated their moral character and “healing to the satis- ability” of the faction Church.

Christian Science treatment for their practitioners provide prayer patients. location, Such can be from a prayer conducted distant as known practice treatment,” “absent although when the ais discouraged patient Instead, ill child. to seriously practitioners are the church encouraged by ill visit with children. determine personally Practitioners their own fees, if and are any, usually paid patient’s family.

Christian Science nurses care” provide to the only “practical patient. Standard for nurses covers to bathe and feed training only how patients bed are change how linen. Nurses trained view the as actually patient healed, and “not see the reality Nurses physical their symptoms.” relay observations regarding patient’s condition to the who then practitioner, It Christian Science treatment. is considered provides prayer unethical for accredited Christian Science and nurses to treat a practitioners patient iswho also medical care. relying upon McCann, Ann

Respondent Journal-listed was contacted by practitioner, 17, 1993, about condition no December Andrew’s later than telephone absent treatment from her McCann continued only home. provided receive calls Andrew’s condition until December telephone regarding the date death. made McCann no to inform attempt Quigley, mother, about the treatment. nurse, Laura a Journal-listed was the

Respondent Armstrong, on-call nurse for, Christian Science Service of respondent Visiting Nurse Los Angeles (the Service) Inc. on December County, Armstrong 20. was summoned noon, Andrew’s home before been told “there shortly very having sick” arrived at the home at 12-year-old boy. Armstrong approximately *6 12:40, and James a form other immediately sign providing, among requested that the custodial parents agreed to Christian Science things, rely upon treatment. the document line for both mother Although provided signature father, contacted was not nor the to consent. Quigley given opportunity Andrew, the

During she cared observed he was not period Armstrong contact, or to talking, making eye his noticeably people responding Andrew, and abnormal. she unable to breathing Because felt quick help consulted another nurse from Service later that after- Armstrong with the noon. The second advised her to be called. Quigley nurse insist that How- ever, “911,” call grandmother Andrew’s father and decided to rather than Quigley.

1033 California, Gilbert, received Robert the CoP for Southern Respondent noon, a.m., condition at 11:30 calls him of Andrew’s informing telephone Gilbert, turn, at in contacted the Manager and 1:15 on December 20. p.m. a.m., and Armstrong Gilbert advised James 11:51 12:23 and 1:24 p.m. p.m. retain a local Journal-listed their and recommended that James rights of contact suggested anyone who could visit Andrew. Gilbert never practitioner or secure medical care. Quigley Church, McCann, Gilbert, each demurred the Service and Armstrong it not the amended other did contending, among things,

to second complaint, The trial court sustained the the existence of sufficiently allege duty. leave to amend. demurrers without

B. Discussion demurrers, the contends the trial court erred in sustaining an all the facts because she had “not had yet opportunity fully explore . . . and “the of the issues are factual in nature through discovery” majority and not to demurrer.” first fails because our argument subject Quigley’s the record reveals she did in substantial actually engage discovery prior court’s ultimate in favor of Andrew’s entry summary judgment grand mother, Wantland, facts Ruth but has nonetheless failed new identify any discovered—or even have altered court’s might anticipated—which issue. Her second fails because the existence analysis argument sustained, issue which demurrers were an issue duty, upon law, (1997) (Parsons not an issue of fact. v. Crown Co. 15 Cal.4th Disposal 70].) P.2d 936 Cal.Rptr.2d [63 Nally next the court relied v. Grace argues improperly 948], P.2d Community Church 47 Cal.3d. 278 Cal.Rptr. Nally, defendants owed no to Andrew. In concluding demurring counselor has no prevent Court concluded Supreme spiritual health suicide him to licensed mental by referring professionals, person’s The decedent was even that suicide becomes a “foreseeable risk.” when with de- Kenneth who had been 24-year-old Nally, experiencing problems suicide, his and had unsuccessfully for a before years pression period death. of his years depres- suicide a month before his During attempted sion, from counseling pastors had received not Nally only regular spiritual church, treatment at various times. but also medical and psychological *7 suicide, he still in a hospital,

After initial at while Nally’s attempt informed he was he did not succeed.” “sorry two of his counselors pastoral Church, 286.) at 47 Cal.3d (Nally Community supra, p. Apparently v. Grace 1034 were also pastors hospital assumed aware of death personnel Nally’s

wish, suicide, and did not inform of it. anyone before his Shortly Nally another counselor about questioned pastoral whether Christian who com- mitted suicide would nonetheless be “saved.” that Nally was assured “ ” (Ibid.) ‘a is once is person who saved saved.’ always sued,

After his second—successful—suicide con- attempt, Nally’s parents his tending counselors were to do more to pastoral obligated prevent suicide. The Court instead that unlicensed Supreme disagreed, holding spiri- suicide, tual counselors had no to duty even a foreseeable and no prevent of care. The court general duty with the professional began proposition “one is not liable for the ordinarily actions of another and is under no duty harm, another from in the absence of a protect of special relationship control,” Church, or (Nally v. Grace 47 Cal.3d at custody Community supra, 293) and then various factors in p. analyzed whether the ser- determining vices offered counselor created such a by spiritual “special relationship.” created, In no determining court special relationship expressed concern that to refer particular stifle all or imposing “may gratuitous and concluded religious counseling,” of the harm or foreseeability “[m]ere is insufficient to create a knowledge danger, legally cognizable special (Id. rise to a relationship giving 297.) harm.” legal duty prevent p. while Quigley, some between and this acknowledging similarity Nally case, it on the basis the decedent distinguish Nally was an attempts adult who amade choice to seek whereas in voluntary pastoral counseling, this case Andrew was a mere child who was not in a to exercise position choice in his treatment the doctrine According Quigley, options. parens be patriae higher standards on those who render services to requires imposed doctrine, a child. parens which misapplies patriae refers to the traditional role and state to act as obligation guardian (see, children and other (1992) In re S. 4 incompetents e.g., Roger 208]) when she we it to create Cal.App.4th Cal.Rptr.2d suggests apply of care general owed all toward children. decline to by persons We (See do (1993) so. Mirkin v. Wasserman 5 Cal.4th 1104-1105 [23 P.2d “courts ‘should be hesitant to Cal.Rptr.2d [noting 568] tort when to do so would involve “impose complex policy [new duties] [citation], decisions” when such are decisions more especially appropriately Moreover, ”].) deliberation and resolution’ subject legislative Quig- to focus the on of choice ley’s analysis lack attempt purported children, As is the case with all Andrew’s treatment disingenuous. virtually adult, James, was chosen in this case his father had the who qualified to do so. concerns about that choice are Any appropriately (See directed toward James. Walker v. Court 47 Cal.3d. 112 Superior

1035 P.2d can be found criminally negligent Cal.Rptr. parent 852] [a child].) treatment ill on for relying exclusively seriously prayer father his treatment and involvement of Andrew’s presence healers had “a also undercut that the Christian Science Quigley’s argument deal more environment than did the church great control over Andrew’s officials in to the fact Andrew “was Nally.” According Quigley’s argument, not a adult free to affairs as he fit sought physically healthy arrange [sic] . . . caused him to have a direct and with his dependent relationship course, healers.” Of that not true. on his was simply dependency father, who was a adult free to Andrew’s affairs healthy arrange physically as he saw fit. also to Nally attempts distinguish by arguing imposing

on Christian Science to care not have healers refer to medical would patients effect on com- chilling freedom. We own religious disagree. Quigley’s that medical treatment is the tenets of the plaint alleges inconsistent with faith, Christian Science and it is considered “unethical” to Christian provide Science treatment to medical care. Under those circum- receiving patient stances, Christian Science healers which imposing any duty upon required them to to seek medical care would interfere with encourage patients directly their own can religious We conceive of a more practices. hardly chilling Nally effect. is simply indistinguishable. unable to it

Finally, Nally, avoid distinguish Quigley attempts defendants assumed a due care arguing demurring voluntarily illness, because “Andrew’s regarding physical well-being entrusted to defendants’ coordinated for treating nationally system contention, however, ill children.” That reveals the most fundamental flaw in As in her Quigley’s analysis. acknowledges expressly complaint, Christian Science treatment is intended to address only spiritual problem, one, not a since to be an “error physical Christian Science disease perceives Indeed, of the mind.” that Christian Science Quigley specifically alleges are healers trained “to not see the and to see reality physical symptoms case, as healed.” turned In this fact that Andrew’s patient problem nature, i.e., out not be but was instead juvenile spiritual, physical diabetes, does not the fact that the defendants undertook change demurring of, no to evaluate the or otherwise address Andrew’s severity responsibility beliefs, Indeed, condition or medical needs. their given particular physical are out carry Christian Science healers least group qualified perhaps such a it. The demurrers were least assume likely properly sustained.

II The Summary Judgment A. Facts and Procedural History

Rather than to the second amended demurring complaint, it, Ruth answered but grandmother moved for subsequently summary judg ment on the issue. review of an “On order or granting denying summary we examine the facts to the trial court judgment, and presented law, determine their effect as matter of law. . . . of Duty, being question (Parsons amenable to resolution v. particularly by summary judgment.” Co., 464-465.) Crown 15 Cal.4th at Disposal supra, pp. to the Ruth

According allegations Quigley’s complaint, 273a, breached is the one allegedly embodied in Penal Code section which on who “under circumstances or conditions imposes liability any person death, to likely harm or causes or produce great bodily willfully permits suffer, child to or thereon inflicts or mental unjustifiable physical pain . . . .” suffering

In of her motion for Ruth asserted facts which support summary judgment, were and largely by Quigley. her ex-husband James undisputed Quigley Andrew, were the custodial with James as custo- parents acting primary dial Ruth was not a custodian or and had no written parent. guardian, authorization to seek medical care for Andrew. diabetic condition Ruth, was not or diagnosed known to his death. family, including prior death, activities, the week before his Andrew in numerous During engaged school, eat, including out to helping repave driveway, going going and errands.1 running came into contact with Andrew Although many people death, the week before his be none his condition to serious thought until the of his death. James decided to Andrew at home on the day keep James, afternoon of December who was authorized to decide treatment, whether when to seek medical made the decision to rely upon Christian on Science treatment December 20.2 realizing activities, engaged response 1In to the assertion Andrew in numerous offered not, stayed during part evidence that Andrew home from school week. She does however, dispute the other activities listed Ruth. response engage 2In to the factual assertion that James decided to Christian Science care on 20, Quigley initially sought December contends Ruth Christian Science treatment for Andrew true, however, initially sought on December and James it on December 19. Even if those dispute regarding rely facts do not create a who made the decision to on Christian Science treatment on December 20. ill, terminate it also James who decided to Andrew was care.3 Science treatment and seek medical Christian motion, addi- her to the offered In connection with opposition fact which contended established triable issues of regarding tional facts she Ruth acted as the existence of Ruth’s duty. According Quigley, primary Wednesday, Thursday, Friday part for Andrew on *10 caregiver food, December 20. Ruth to his death on Saturday Sunday, provided prior behavior, and made decisions regard- rules for Andrew’s housing, clothing, in Andrew’s and health care. Ruth also schooling actively participated ing death, the of his Christian care for Andrew on securing day Science inform- the Christian Science nurse from discouraged contacting Quigley, by her “was not in the ing Quigley picture.” in those conclusions Ruth’s role in Andrew regarding caring

the death were not the evidence entirely by his days prior supported Instead, cited. evidence demonstrated that Andrew Quigley’s only a substantial amount of his time at Ruth’s house the few during days spent death, or before his and did not to school on go Wednesday, Thursday colleague, to the our Friday. Contrary implication Quigley dissenting there was no evidence Andrew to be sick the time he was during appeared teeth in the with Ruth. The Andrew had of was thing aching only complained the wake of his braces on December 15. It was having tightened Tuesday, teeth, illness, he not some other which caused Ruth to contact aching suggest his orthodontist and a Christian Science healer while he was in her care. The teeth, sore of a rebuilt combined with his desire to ensure completion that his were also the reason was to be Christmas motorcycle present, school, house, Andrew out and at stayed grandparents’ during week before his death. Included activities among many time he was out of were several to Honda to obtain school trips dealerships for the motorcycle. parts

The had ceded responsibil- evidence also did not establish James parental Ruth, or that Ruth was decisions ity actually making regarding fact, In relied upon by school attendance or health care. evidence Andrew during revealed James had also substantial time with spent house, was at Ruth’s those last of the time Andrew days, including portions care arrang- and had for Andrew’s health arrangements made personally felt free to her the visit to the orthodontist. The fact Andrew ing accept to seek medical response 3In to the factual assertion it was James who made decision care, Quigley merely point that James called an ambulance.” “[u]ndisputed states at some omitting dispute evidence to the conten quibbling language, while citation to Such over tion, dispute does not create a of fact. 1038 teeth, he contact a

suggestion Christian Science healer for his aching orthodontist, her he contact his belies assertion reject suggestion Quigley’s Ruth was health care decisions for him. making

B. Discussion

The court’s decision relied on grant summary judgment heavily People v. 9 Cal.4th P.2d In Cal.Rptr.2d 1229]. Heitzman Heitzman, the Court of care owed to a Supreme analyzed dependent elder under Penal (a), Code section subdivision tracks the which 273a, section child abuse statute relied in language upon by Quigley her The court held that an adult who was aware her complaint. daughter, father was but was not her actual being grossly neglected, father’s elderly caretaker, had no legal duty court prevent neglect. specifically relied tort of care can be principles concluding legal duty imposed actual only with and control over the or upon person custody dependent, *11 a with the the legal duty control with or upon person custody person control.

Our own on analysis contentions are Quigley’s by appeal complicated fact that in her brief.4 extraordinary Quigley ignores opening Heitzman can, We therefore must construe her as best we in arguments, light essence, enunciated in In sum principles Quigley argues Heitzman. was because Ruth’s course conduct mary judgment improper in caring death, Andrew the week before his during as well as her in his participation death, role, care on the of his is evidence she was day in acting parental James, with “the jointly crucial hours on date of Andrew’s during [the and thus assumed the direct aof custodian. The with duty problem death]” this is the evidence argument reveals more than Ruth’s as a nothing acting father, with the consent of Andrew’s at babysitter, various times during death, week before Andrew’s when it was Andrew did not undisputed appear to be ill. We assertion that reject Quigley’s implicit merely child, on, awith to look after his off and for a of a agreeing parent period few would somehow transform the a de days, caretaker into facto parent, with to the actual legal rights responsibilities coequal parent. course, the

Of fact that Ruth the status of rather than occupied babysitter, death, the week before Andrew’s does not mean she owed him parent, brief, reply by arguing application 4In her defends that omission has no Heitzman action, only alleged because her complaint contained several causes of one of which violation upon of the criminal child abuse statute others of which relied common law tort However, principles. Supreme specifically upon principals Court relied common law tort Heitzman, duty (People supra, at p. to ascertain the existence of in v. 9 Cal.4th Heitzman 212), why analysis fails be to her explain properly applied would not then law common tort claims. by agreeing no of care. she assumed certain duty Clearly responsibilities is, however, with act as This at which we babysitter. part company point He hold that our ends with a analysis our would dissenting colleague. a babysit- determination that Ruth owed some to Andrew as duty by acting ter, and would leave to the to determine whether that undefined jury duty made abundantly was breached. We cannot As our Court agree. Supreme Co., 456, clear last in Parsons v. Crown 15 Cal.4th year Disposal supra, part of the court’s whether owed evaluating duty responsibility what that be. defining duty would Parsons,

In sued a after the noise from one of plaintiff garbage company its trucks her horse in Griffith Park. The trial court entered sum spooked reversed, no was owed. The Court of mary judgment, finding duty Appeal here; the same the dissent i.e. that a relying upon analysis duty employed was owed and it was for the to decide whether that was breached. jury duty Court and reinstated the The summary judgment. Supreme disagreed court made clear it is not sufficient to conclude that a exists. merely Indeed, rule, the court its each began analysis general by noting “[a]s (15 472.) ahas to use care.” Cal.4th at It also person ordinary agreed p. that the to avoid had “limited common law garbage duty” company (Id. 477.) horses with its based frightening machinery. p. 108, 112-113 the factors enunciated in Rowland v. Christian 69 Cal.2d 496], 443 P.2d Cal.Rptr. A.L.R.3d court rejected that the suggestion owed “an company guard against expansive horses,” *12 (15 477.) as claimed. Cal.4th at Because frightening plaintiff p. there was no evidence the defendant had breached the limited duties it did owe, the court concluded summary was judgment appropriately granted. case, Parsons to this it is does not end clear our

Applying analysis Ruth, Instead, determination that as a owed some of care. we babysitter, duty must evaluate encom- whether Ruth’s as a specifically obligations babysitter i.e., a to do the she is accused of to do here: seek passed duty thing failing ill, medical care for a child and whose who did not to be seriously appear view, had not elected to do so.5 In our do not. parent they Christian, Under be Rowland v. Cal.2d the factors to supra, 69 (1) considered in whether a exists are: the of determining duty foreseeability care, during 5There is no evidence that the time he in Andrew “became ill” was Ruth’s despite dissenting colleague’s way. evidence our desire to frame the issue that There is no condition, diabetes, juvenile during the evi symptomatic became that time. All not, efficacy dence it did trial the is that which makes it difficult to understand the of the dissent calls for. babysitter’s a ill express opinion We therefore no about a duties when child becomes only duty during period emergency, may the of care. Absent an it be the is to contact the case, during undisputed present In this it father James was also a parent. (2) the harm to the of the would suffer plaintiff; degree certainty plaintiff (3) the closeness of the connection the conduct injury; between defendant’s suffered; (4) and the the moral blame attached to the defendant’s injury conduct; harm; (5) (6) future extent of the policy preventing defendant; (7) burden to the to the community consequences imposing breach; a to exercise care duty with resulting liability (Id. cost and for the risk involved. availability, insurance prevalence p. 113.) case,

In this the fact that Andrew was to be active appeared on the Ruth took care reasonably healthy Wednesday, Thursday Friday of him had no as a medical strongly she to seek care suggests babysitter circumstances, for him Under those death period. subsequent from lack of medical care was neither foreseeable nor certain. Ruth’s failure death, to seek medical care also not connected to Andrew’s directly since failure on her could been cured have James’s part seeking care medical once Andrew was back at home. Little moral blame prompt attaches to the failure to obtain medical care for a child who does not appear to be ill and whose is in a his condi evaluate parent position tion. future harm would not be policy preventing likely significantly advanced a aon to seek medical care under by imposing babysitter cases, these circumstances. there be rare Although may admittedly including one, care, the instant where be resistant to medical parent might unusually the child be and referral to medical care may deceptively asymptomatic, life, would have saved a to all we cannot fashion which is duty applicable case, such rare instances. In such justified only ordinary imposing would themselves from encourage babysitters liability by protect stomach, medical care whenever child of an seeking complained upset fever, headache or even whose slight though knowledge parent, child’s health and medical is more had decided on a history comprehensive, fact, different course. In such a rule would be if the particularly pernicious *13 part three-day period during periodically babysat, substantial which Ruth and was equally able to evaluate Andrew’s need for medical care. grandmother, neighborhood teenager 6The fact that Ruth was rather than a or a worker, professional might argue greater responsi child care cause one to she had a moral blame, However, bility, greater authority and a in there the thus moral this case. is no for greater duty right parental proposition grandparents that have a or to intervene in decisions else, Code, (See be more inclined to anyone they might than do Fam. even if so. 3930 § [“A Indeed, child.”].) parent duty support parent’s have a child the does does not the to argue duty grandparent, that her as a and did not sue not even Ruth’s stemmed from status husband) (Ruth’s grandfather despite spent the fact he also substantial time with Instead, argument Wednesday—Friday period. upon the relies the Andrew duty by agreeing responsibility that a take care and Ruth assumed toward Andrew to preventing doing others from so. child in had needs and a medical question specialized complicated history unknown to a caretaker. temporary a not we think on a to be

Similarly, duty babysitter imposing responsible care, for health but also for condi- only problems arising during preexisting (such are) the tions with as known to too symptoms they big parent, imposes a burden. Babysitters, as do not have as caregivers, generally temporary much a information about child’s needs as a and are day-to-day parent, therefore in needs. evaluating health care And if such handicapped liability could be a we it not cannot see would also be imposed upon babysitter, why teachers, leaders, scout field and else imposed upon anyone supervisors trip who a takes child. temporary charge to the also such a community against militate consequences imposing Parents have the and

duty. to make health care decisions for right duty Code, (See their children. 6910.) Fam. a Imposing coequal § caregivers would and temporary encourage conflict undermine potentially Indeed, that the parental has a authority. Legislature clearly expressed policy the health favoring primacy parental responsibilities in care area. Family Code sections 6550 and 6552 that even when the resides with minor provide member other the family than or that can parent caregiver guardian, authorize medical treatment for minors after a declaration only executing intent, have either swearing advised or of their or they parent guardian then, were unable to contact them. Even decision of such residential is caregiver superseded decision of or by any contravening parent guardian which does not endanger child.7

In of the clear light cannot policy expressed Legislature, we by say that a has seek babysitter to medical care for a any duty child who does not to be ill and whose in a appear parent position is personally evaluate the child’s condition has elected not to seek such care.8 However, we must also we are not faced here with the situation emphasize factor, 7We final Rowland availability, cannot evaluate the prevalence cost insurance, However, as have no pertaining light we facts before us issue. to that in of our factors, evaluation impose of the other we not inexpen would even if insurance were sive readily available. view, 1995) reliance on Lundman v. 8In our the dissent’s McKown (Minn.Ct.App. Lundman, one, misplaced. factually N.W.2d In case similar the court this stepfather concluded the of a child treated with Science care Christian owed him First, seek justified ways. medical care. The court its two held conclusion in it stepfather “accepted responsibility protect” had participating the child in his Christian (Id. 820.) p. Science care. explained as we relation to the Science Christian *14 case, voluntarily accepts defendants in this we do not that one for responsibility believe who healing automatically addressing a spiritual child’s would that responsible become for child’s any (See Williams v. State of general being. medical needs other aspect or well care and the tenure of a babysitter’s arising during of a medical emergency the not any regarding the and we do express opinion unknown to parent, duties, or or to to contact the guardian, either parent of babysitter’s scope attention, circumstances. direct medical under those seek care to seek medical had no obligation concluded that Ruth Having him, turn to the crucial she we now babysat for Andrew the during period Andrew had itself to be serious. Andrew’s illness revealed when period 19, the care thereafter under December was returned to his own home on facts, the who then made it was James of James. According undisputed during fact that Ruth was present for Andrew. The treatment decisions out his treatment James in carrying time and even assisted crucial period, “custodian” decisions, Ruth into legal to either transform was insufficient to control legal duty she have had might under or to suggest Heitzman James.9 34 Cal.3d California, supra, relies Williams v. State also

Quigley because she “isolated of care to Andrew assumed duty arguing Ruth James, was legal caregiver him from other caregivers.” the entire relevant in Andrew’s care during and involved who was present decisions. There is likewise the treatment and was actually making period, for Ruth was preventing no merit in the contention responsible herself, the Christian because Ruth informed merely access to Quigley of Andrew’s in the on the day was “not picture” Science nurse James, not one to be made by to contact was death. The decision from Ruth, the nurse no indication Ruth prevented and there is discussing James.10 that issue with summary erred in granting contends the trial court also

Finally, Quigley between the “attributes of relationship [Ruth] because judgment were to whether sufficient steps a triable issue as . . . establish [Andrew] 137], the court P.2d in which Cal.Rptr. 34 Cal.3d 18 [192 California injured motorist investi- came to the aid of an highway patrolmen who concluded that civil evidence for her preserve related gated accident assumed no the cause of her (and stepparents was that custodial suit.) given by the Lundman court justification The second visitation) parental responsibility presumptively assume stepparents “visitation” words, Lundman court concluded marriage. In other by virtue of their stepchildren their already rejected as very argument we have parent, a de facto stepparent presumptively applied to Ruth in this case. Heitzman, her father lived in the home where daughter present the defendant 9In time, participate in many nights, and did initiate and including spending part substantial needs. and medical about her father’s condition discussions unavailability by Ruth’s Quigley’s persuaded of evidence the nurse was 10There is also no ill, Andrew was contrary, subsequently concluded when the nurse comment. To to call “911.” James decided instead suggestion Quigley be contacted. she renewed her *15 however, taken to Andrew.” That protect misses the argument, of the point which summary judgment ruling, was based the determination Ruth did upon not owe any duty, not a conclusion she had sufficient upon taken to steps fulfill it.

Ill The are judgments affirmed. are to recover their Respondents costs. SONENSHINE, J., P. Acting Concurring.— I concur but write I separately because find Justice Bedsworth’s analysis of Ruth’s summary judgment motion unnecessarily complicated. issue we need only address is whether Ruth owed Andrew a

care. Our dissenting colleague maintain Ruth’s actions of coming Andrew’s aid and him isolating from other caregivers created this I would duty. with agree this legal conclusion if the record supported factual It premise. does not.1

Andrew’s general condition the week before his death and Ruth’s involve- ment with him that time restaurants, are Andrew went to undisputed. helped repair him, family driveway, ran various errands. who saw People orthodontist, including his verified he did not appear until symptomatic he day died. Ruth was with Andrew on Monday, December for a few hours at his house after he went 15th, to school. On Tuesday the Andrew went to school and Ruth did not see him. He 16th, stayed Ruth’s house on the school, he although did not go were symptoms minimal. Andrew missed school on the 17th and 18th. He at Ruth’s home slept both but nights, spent just part day there. Again in the record nothing he indicates was ill at this time. The state of his health is not contested. Simply stated, neither party he alleges to be sick. appeared Andrew left his grand- mother’s on and ate Saturday 19th lunch at a restaurant with his father and sister. Ruth did not see him again that but visited day with him on he died. Sunday, day who,

“One so, under no being do takes of another charge who is helpless to aid or adequately himself protect subject liability [or herself] 1Quigley also grandmother, maintains Ruth’s status a as Christian Scientist and health practitioner invested relationship her with Andrew with dependence elements of trust and customarily special found in a relationship. Quigley fails to cite authority relevant for this position. The two cases rely which does involve defendants who induced or prevented helpless seeking victims from assistance. I explain, As now Andrew was never helpless while in Ruth’s care. *16 [1Q . . the failure him . harm caused to bodily

to the other for any [or her] the of the other while safety reasonable care to secure of the actor to exercise Torts, 324, 139.) (Rest.2d . . . .” charge p. within the actor’s § care to secure Andrew’s to exercise reasonable Ruth was under no duty that time during of his life and nothing happened to the last week safety prior he time was Andrew was not in need of help this obligation. change a seemingly more than babysit Ruth did nothing with Ruth. On Monday, Ruth was The had no contact on Tuesday. after school. two healthy teenager be the Science Christian suggested practitioner with him on She Wednesday. contacted, hurt.2 He part because Andrew’s teeth spent but that was facts fail to establish but the undisputed at Ruth’s Friday again Thursday court did not err on Saturday. Andrew returned home his need for help. to establish motion. failed Ruth’s summary judgment in granting to Andrew. Ruth owed duty I concur that

RYLAARSDAM, J., Dissenting.— Concurring were church and its the Science representatives the demurrers of Christian from my colleagues’ I dissent sustained. respectfully properly Wantland, of Ruth in favor decision to affirm the summary judgment of care towards Mrs. Wantland assumed Andrew’s grandmother. and caretaker. Whether the role of babysitter she undertook Andrew when seeking acted not unreasonably that is whether she she breached this duty, him, not be fact which should care for is a medical question adequate of summary judgment. decided by way 20, 1992, Wantland was solely Mrs. Sunday. died on December

Andrew week. for substantial preceding for his care periods responsible 16, 14, December after school. On she Andrew babysat December On house. On at Mrs. Wantland’s to school but spent day Andrew did not go a substantial school and portion 17 and he missed again spent December Wantland; at her house. On he also these nights Mrs. spent of each with day Wantland and apparently with Mrs. morning he December spent contacts initiated thereafter. Mrs. Wantland father’s house returned his knew they to make sure Science church of the Christian with representatives Andrew needed help. active and appeared “the fact that Andrew was notes that

The lead opinion took Ruth Friday Thursday on the Wednesday, to be reasonably healthy seek medical babysitter she had no as him strongly suggests care of ante, 1040.) Justice (Lead at p. opn., him during period.” care for support this the record fails to practitioner, but suggests Ruth contacted 2The dissent contention.

Sonenshine’s of An- concurring likewise stresses opinion allegations drew’s health on the death. This be days well apparent preceding may true, although father’s decision to him out of school and Mrs. keep Wantland’s Christian treatment three concerning Science inquiries days before Andrew’s death do raise about the condition of his health. questions But whether these are true or false raises allegations merely questions fact. As the child’s Mrs. Wantland owed Andrew a of care. caregiver, *17 The next is: Did she breach that A well conclude question duty? jury might care, that while he was under his condition grandmother’s was that, such that a reasonable would not seek medical attention or in person care, view the of father’s decisions Andrew’s health Mrs. Want- regarding land acted in neither reasonably medical care for him nor seeking adequate the father’s failure to obtain such care to the reporting authori- appropriate alternative, ties. In the a reach a jury might conclusion. In other contrary words, care, whether Mrs. Wantland breached her of that duty is whether she circumstances, acted under the a reasonably is of fact. question The Restatement Second of Torts Mrs. provides guidance determining who, so, Wantland’s of care: duty “One under no to do being takes duty of another charge who is aid or himself is helpless adequately protect to the subject liability [5Q other for harm any caused to him . . . bodily by the failure of the actor to exercise reasonable care to secure the of the safety other Torts, while within the (Rest.2d 324.) actor’s . . .” charge, The § reliance on majority’s (1994) v. People 9 Cal.4th 189 Heitzman [37 236, 1229], 886 P.2d Cal.Rptr.2d to conclude Mrs. Wantland did not owe a Andrew, of care duty towards held Penal Code misplaced. Heitzman 368, section (a) subdivision could not be construed to constitutionally on a impose generalized duty child towards a disabled But elderly parent. care, case did not hold that one who assumes a of be it to a duty parent, or a grandchild, is immune stranger, Quite from to the liability. contrary, the case recognized one care of towards an assuming duty elderly custodian, such aas caretaker or person, who breaches that “caus- duty by or ing] or permitting] injury will physical endangerment incur criminal . (9 214.) . . .” at liability Cal.4th p. context, In a different factual Williams v. State 34 of California

Cal.3d 18 P.2d states the rule Cal.Rptr. general govern- 137] of care owed one ing duty who “undertakes to come to the aid of (Id. 23.) another.” at The Good Samaritan “is under a to exercise due p. duty care in and is liable if . . performance . his failure to exercise such care harm, (Ibid.)

increases the risk of such . . .” are of course My colleagues status, correct: A virtue of that does not care grandmother, by owe duty to her grandchild. regardless may person, relationship, and, so, assume such a if be liable for the voluntarily negligent discharge duty. 1995)

Lundman v. McKown 530 N.W.2d is factually (Minn.Ct.App. There, similar to the case. a child named Ian died from juvenile- present onset diabetes because his caretakers failed to obtain medical appropriate mother, care. Ian’s natural father had and her sued who hus- custody, Wantland, band. The he husband as does Mrs. “that owed no argued, to Ian because he was a and because solely stepparent mother] [the (Id. 820.) decisions about Ian’s health care.” responsible making p. Court Minnesota we Appeals rejected argument: “Although that, as a William McKown had no ‘final recognize stepparent, usually care, word’ control over Ian’s health we that his as a disagree relationship (Ibid.) did not of care.” The court went on to stepparent impose assumed, describe the which were similar very responsibilities stepparent assumed, to those Mrs. Wantland concluded facts support “[t]hese *18 that knew of Ian’s and the of his finding gravity stepfather] helplessness [the situation, Ian, that he and that a accepted responsibility protect special (Ibid.) existed between two.” relationship (1997) Neither Parsons v. Crown Co. 15 Cal.4th 456 Disposal [63 291, (1968) P.2d nor Rowland v. Christian Cal.2d 936 69 Cal.Rptr.2d 70] 97, 561, 108 443 P.2d 32 A.L.R.3d detract from the Cal.Rptr. [70 496] conclusion that Mrs. Wantland had assumed a of care Andrew. towards duty rule, (1) Parsons teaches that each has a to use duty general person “[a]s care,” law, (2) it is a to be decided on a ordinary case-by-case question rule,” basis case falls within an to this given general exception “[w]hether “ (3) those this decision is ‘but an of the sum total of only expression which lead the law to that the considerations policy say particular plaintiff ” Co., (Parsons 15 Cal.4th is entitled to v. Crown Disposal supra, protection.’ 72, 728, Dillon v. 68 Cal.2d citing Legg Cal.Rptr. p. 1316].) 441 P.2d 29 A.L.R.3d Christian,

In this decision Rowland v. Cal.2d 108 making supra, 69 policy us “the of harm to the tells we should consider foreseeability plaintiff, that the the closeness of the suffered degree certainty plaintiff injury, suffered, connection conduct and the between defendant’s injury conduct, moral blame attached to the defendant’s of preventing policy harm, to the future the extent of the burden defendant consequences care with for resulting liability exercise community imposing duty breach, cost, and the of insurance for the risk availability, prevalence (Id. 113.) involved.” at p. each factors on the analyzes

The lead of these opinion premised assump- he died. did not of his fatal illness until the day tion Andrew show symptoms so, In author himself in the doing opinion’s improperly places position addressed, of fact finder. The issue to be the factors rioted considering whether, case, in Rowland is not under the facts of this as viewed specific defense, most for the Mrs. Wantland owed a to obtain favorably medical care To frame the issue is to invade the Andrew. so adequate of the fact finder. province

The issue to be addressed is a more one: generic babysitter whose May becomes ill be with a medical charge charged to obtain appropriate care? When the issue is thus framed an of the Rowland factors leads analysis to such an conclusion that the answer is in the affirmative that it inescapable to here each unnecessary review of those factors. This answers the legal issue of The duty. rest is for the jury. should be reversed and a should decide summary judgment jury

whether Mrs. Wantland breached the of care she towards assumed Andrew.