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Souza v. City of Antioch4/30/1997
the negligence of its employees is no greater than it has been. Our holding merely enforces, it does not expand, the duty our law has imposed on public officials to exercise reasonable care in certain circumstances.
Finally, we do not open to scrutiny every helpful act the police render. As the California Supreme Court pointed out in Davidson, M.B., and Williams, in addition to police action, a plaintiff's induced reliance or dependence is also essential to the creation of a special relationship. And the question whether both action and reliance are present -- that is, whether a plaintiff has alleged "misfeasance" or mere "nonfeasance" -- remains one for the courts to answer case by case.
We, therefore, emphatically reject amici's assertion that our decision binds "police throughout the State of California . . . to guarantee the success of each response to a hostage or barricaded suspect situation." We do not depart today from long-settled rules of law. The duty we assign to police is not the duty to rescue hostages or even to take every step that might possibly mitigate their predicament. It is, instead, the same old duty, having once undertaken to act, to act reasonably.
Defendants and amici remind us that the APD in this instance was responding to a "preexisting crisis." We agree. But our law cannot be read as they read it: to say that, once Joel took the children, anything police undertook to do was good enough. The creation of danger in the first instance is not the necessary predicate to liability in tort. If it were, virtually all police action would be above scrutiny because police, more often than not, respond to crises they do not create. That is their job. They are trained and paid to do it, if not with skill, then with care. It is, therefore, eminently reasonable to hold them to the same standard as we hold ordinary citizens.
Because our decision does not reform established principles of official duty, we are confident that it will not discourage police from rendering assistance in situations that call for their expertise. We are also confident that it will not encourage criminals who otherwise would not take hostages to do so. Indeed, criminals have taken hostages throughout history because of their expectation that authorities value innocent life and will take steps to preserve it. Our vindication of that expectation should come as no surprise to anyone.
b. Immunity
Sovereign immunity may still bar a peace officer's liability even after a court has recognized a special relationship between him and a plaintiff giving rise to a duty. ( Whitcombe v. County of Yolo (1977) 73 Cal. App. 3d 698, 141 Cal. Rptr. 189.) Whether immunity shields a state actor in a particular instance depends on whether his alleged negligent act is "discretionary" or "ministerial." Government Code section 820.2 erects a barrier to the liability of any public employee "for any injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." In other words, discretionary acts are immune; ministerial acts are not.
Resolution of the immunity question is less straightforward than it may first appear because our Supreme Court has rejected a "semantic approach" to defining discretionary functions. In the leading case of Johnson v. State of California (1968) 69 Cal. 2d 782, 788-790, 73 Cal. Rptr. 240, 447 P.2d 352 (Johnson), the court refused to read "discretionary" in its literal sense, noting, in the words of an earlier case, that " '. . . it would be difficult to conceive of any official act, no matter how directly ministerial, that did n
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