SOUZA v. CITY OF ANTIOCH

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Court of Appeal, First District, Division 3, California.

Jennifer Lee SOUZA, Plaintiff and Appellant, v. CITY OF ANTIOCH et al., Defendants and Respondents.

Patricia MARIN et al., Plaintiffs and Appellants, v. CITY OF ANTIOCH et al., Defendants and Respondents.

No. A071686.

    Decided: April 30, 1997

Michael J. Appel,Joseph J. Appel, Law Offices of Appel & Appel, Walnut Creek, for plaintiff and appellant (Souza). Philip R. Weltin, Law Offices of Philip R. Weltin, Walnut Creek, for plaintiffs-appellants (Marin et al). James V. Fitzgerald, William E. Manning, Sellar, Hazard, Snyder, Fitzgerald, McNeely & Alm, Walnut Creek, for defendants-respondents. Martin J. Mayer, John L. Simonson, Law Offices of Mayer, Coble & Palmer, Long Beach, for amici curiae on behalf of defendants-respondents.

Plaintiff Jennifer Lee Souza (hereafter “plaintiff” or “Jennifer”) appeals the summary judgment entered against her in an action for the wrongful death of her children, Nicholas and Cheri, and in favor of the defendants City of Antioch and its police officers, Edgar Keller and Michael Schneider.   Plaintiff's husband, Joel Souza, shot and killed their children on July 11, 1993, nine minutes after the individual defendants informed him that in ten minutes a SWAT team would force entry of the bedroom in which he had barricaded himself and the children.

In the companion case, summary judgment was granted against Patricia Marin, William Souza, and Cynthia Poipao, respectively, the mother, brother, and sister of Joel Souza (hereafter “the family”).   The family sought damages from the defendants for the emotional distress they suffered when they heard three shots fired within the house where they knew Joel and the children were barricaded.

In these consolidated appeals we are asked to consider three issues relating to the potential liability of the defendants.   In Jennifer's case, we first decide whether the police had a duty to exercise reasonable care to prevent Joel Souza from harming the children.   Next, we examine whether the defendants' allegedly negligent acts were “discretionary” within the meaning of Government Code section 820.2, and thus immune from liability.   Lastly, we consider whether defendants may be liable to the family, who sued as bystanders to the tragedy, upon a theory of negligent infliction of emotional distress.

We hold that the defendants had a duty to exercise reasonable care in managing this critical incident, once, knowing that Joel was suicidal and had threatened the children's lives, they seized control of the house and undertook to negotiate for the children's release to the exclusion of Jennifer and the family.   We decide that defendants are not immune from liability under Government Code section 820.2 because their acts and omissions, which plaintiff contends were in breach of their duty, were purely “ministerial.”   Finally, we conclude that defendants are not liable for negligent infliction of emotional distress to the family, who heard the shots from outside the house without knowing who had fired them or who, if anyone, had been injured or killed.

FACTS 1

Plaintiff married Joel Souza in 1983.   The Souzas had two children, Nicholas, born in 1985, and Cheri, born in 1988.   In 1990, the family moved to 4745 Hunter Peak Court in Antioch, California.

By 1993, the Souzas' marriage was foundering.   After seeking counseling in January of that year Jennifer asked her husband for a divorce on May 24, 1993.   He became violent, and threatened to kill her and the children.   On the following day, armed with a gun, Joel kidnapped Nicholas and Cheri, leaving a note, which Jennifer found later.   The note read, in part:  “[Y]ou have been loved, and made a life long comitment [sic ]:  for better or worse through good times & bad-but your feelings sliped [sic ] away and you let the comitment [sic ] go with it-and now you choose to share our children through divorce which is death to me ․ my children and I will go to our resting place since our lives here would just be shatterd [sic ]-I'm sorry to have to speak for our children․”

Jennifer reported the kidnapping and turned over the note to the Antioch Police Department (APD).   She sought and was granted a temporary restraining order requiring Joel to:  return the children;  move out of the house;  and stay 100 yards away from her, Nicholas, and Cheri.   APD Detective Scott Willerford issued an all points bulletin, alerting law enforcement authorities throughout the state that Joel Souza was armed and considered to be suicidal.   After two days, with the help of Joel's brother, William, with whom Joel had a close relationship, Willerford resolved the situation and the children were returned home.

In the weeks that followed, Joel lived at his sister, Cynthia Poipao's, house.   He was upset and despondent.   He confided to his siblings that Jennifer had a boyfriend and that he was concerned about the children and certain business dealings he had with Jennifer's father.   On July 6, 1993, the Souzas had a divorce settlement hearing, after which they entered a pendente lite stipulation, imposing standard mutual restraining orders.   Under this agreement, the children would spend every other weekend with Joel under the supervision of his sister.   Joel did not ask Cynthia before the hearing if she would perform this office, or tell her afterwards that he had stipulated to her participation in his parental visits.

On Saturday, July 10, 1993, Joel appeared with Nicholas and Cheri at the Brentwood Corn Festival.   Poipao was not present.   Joel confronted Jennifer, who was there with her boyfriend.   Joel shouted obscenities at Jennifer, who reported the incident to the Brentwood Police Department.

In the first hours of Sunday, July 11, 1993, Jennifer arrived in front of the Lucky Store in Antioch to begin her work as a newspaper distributor.   Joel, in a rented blue van, met her in the parking lot.   Nicholas was in the back of the van.   Cheri was on Joel's lap, and he had a gun pointed at her head.   He told Jennifer:  “If you don't get in this car, I'll blow her head off.”   Jennifer complied, and Joel drove them all to the house on Hunter Peak Court.   He parked in the garage, and, leaving Nicholas and Cheri in the van, he ordered Jennifer into the house.   There, he held her at gunpoint for an hour while he asked her a series of personal questions.   Finally, he allowed Jennifer to go deliver her newspapers.   He dropped her off at the Lucky Store again, ordering her to return to the house when she was done, and advising her that if she told anyone or did anything stupid, he would kill the children.   For a few minutes, Joel drove back and forth past the garage where Jennifer went to bind her newspapers.   A few minutes later, he telephoned, telling her to finish her job and come home.

At the urging of her coworkers, at 4:15 a.m., Jennifer dialed 911.   She reported to the dispatcher that Joel had held a gun to Cheri's head, and that he had forced Jennifer into his van in violation of a restraining order.   She added that she was not supposed to do anything “or he's going to kill the kids.”   The dispatcher told Jennifer to return to the house to meet officers of the APD who, she stated, would “assess the situation and do what's best for everybody involved and get the kids safe and take care of him.”

Before Jennifer reached the house at around 4:30 a.m., she was met by Antioch Police Corporal Gil Conklin and defendant Officer Michael Schneider, among others.   Conklin was in command;  Schneider was a trained hostage negotiator.   From everything they knew of Joel Souza at that time, both Conklin and Schneider considered him to be severely depressed;  Schneider thought he was suicidal.   After some investigation, the police discovered that Joel had armed and locked himself with the children in the second-story master bedroom.   At about 5:30 a.m., Schneider took up a position at the head of the stairs and began talking with Joel through the closed bedroom door.

Schneider introduced himself and told Joel he was there to assure the safety of everyone present.   Joel replied that the police should not attempt to enter the bedroom if they did not want anyone to get hurt.   Schneider promised that the police would not force entry into the room.   Roughly 20 minutes later, at Schneider's request, Conklin had the bedroom telephone disconnected.

Soon afterwards, Schneider heard what sounded like a gun being opened and closed quickly inside the bedroom.   After conferring with Jennifer, and checking the garage, where she said her husband normally stored a number of hunting weapons, Conklin informed Schneider that Joel probably had five different guns with him in the bedroom.

Conklin summoned a SWAT team to the house, and Schneider began talking with Nicholas through the door.   Nicholas agreed to help his father and to reassure his sister.   Shortly after 6:34 a.m., Joel told Schneider, “I hope you guys don't do anything.”   Schneider again promised him the police would do nothing that would risk anyone's safety, and Joel replied:  “That's good;  I've got nine rapid shots ready to go so please, please cooperate.”   Some minutes later, he asked Schneider to “tell Jennifer thanks for putting all the rifles back in my closet.”   Once again, Schneider assured him the police would not enter the room, and Joel responded, “That's good because I have about 300 rounds of ammunition.”

Before 7 a.m., Joel began calling for Jennifer on the house intercom.   Minutes after Schneider told him Jennifer was not in the house, Nicholas slipped a note under the door.   He told Schneider it was for Jennifer.   Schneider said he could not retrieve the note because he had promised Joel he would not approach the door.   He asked how many guns they had, and Joel answered, “way too many!”   At this, Schneider proposed that they work a trade:  he would deliver one note to Jennifer for every gun lowered by a rope out the bedroom window.

Schneider conferred with Jennifer, and had the final say, over the content of her reply to each note, and in this way, by 8 a.m., he had recovered four long rifles from inside the room.   At Joel's request, he then arranged a conversation with Jennifer through the door.   When this proved unproductive, Schneider told Joel that he would halt the conversation unless he sent Cheri out.   Joel asked for time to make up his mind.   When Schneider escorted Jennifer out of the house, she suggested he involve Joel's mother, Patricia Marin, in the negotiations.

At around 8:30 a.m., the SWAT team arrived.   Nicholas asked Schneider how many police were guarding the stairs.   Joel interrupted this conversation to say that he could hear police in the living room over the house intercom talking and planning.   Schneider told Conklin to silence the SWAT team because their presence was destroying the rapport he had built with Joel. Schneider told Joel that there were so many police only because they were changing shifts.   Nicholas told Schneider Joel was afraid to come out because he thought they would shoot him.   Schneider promised this would not happen, and offered to stand directly in front of Joel if he came out.

When a lull in the negotiations ensued, Schneider asked Conklin to have the electricity and water turned off, and the furnace turned on full.   The day was already hot, and at 8:47 a.m., Joel told Schneider, “if you don't turn off the air I am going to fire a shot.”   Schneider warned him that if he fired, he would have “a SWAT team in his lap,” but 15 minutes later, he had the heat turned off in exchange for Nicholas's promise that they would work something out.

At this time, roughly 9 a.m., Captain Edgar Keller took over command from Corporal Conklin.   Keller was off duty when he was notified of the situation at 4745 Hunter Peak Court.   He later explained that APD protocol required notification “to all command structures when there's a critical incident happening,” and that “upon notification, it is in our election to respond.”

By the time Keller arrived, the house had been cordoned off.   By Keller's own account:  “From 9:00 in the morning until the time the shots rang out, anything going into that house was under the control of the Antioch Police Department.”   Schneider met Captain Keller and another officer, Lieutenant Ponsiglione, outside.   He briefed the captain on what had transpired so far.   The three discussed setting a time limit on negotiations, but Schneider recommended against this.   He explained that, “In most incidents, time was on our side;  that we could wait, if necessary, until he fell asleep.   We could talk to him for weeks or months.”   He added that he had established some trust with Joel and had discussed his surrender, but that Joel had said he was not ready to come out yet.

At 11:07 a.m., Schneider informed Joel that his mother was on the way.   He urged him to surrender before she arrived.   Joel replied that he was not ready.   He added that he was still afraid the police would force entry, and Schneider promised for the fourth time that this would not happen.   Joel responded that that was good because he was serious about this, and he would just wait by the door with a gun to his head.

Patricia Marin arrived, along with Joel's brother and sister.   Police prevented Bill or Cynthia from entering the house.   Keller told Marin that if they felt Bill or Cynthia was needed, they would call them.   In the hours Joel's siblings were on the scene, Keller never spoke with either of them, or asked any of his officers to do so.   Throughout the ordeal, they remained outside the house as Keller instructed.

Schneider asked Marin if she wanted to try talking with Joel. When she said yes, he told her that she would have to follow certain guidelines, which he explained.   After “[s]he agreed to these conditions,” Schneider brought her inside the house.   Marin urged Joel and the children to come out.   Nicholas promised that he would.   At one point, Schneider noticed, Joel unlatched the bedroom door, but he did not open it.

After Schneider had Marin escorted out, Joel told him that he was not ready to come out just yet.   He asked what felony charges he would be facing, and Schneider tried to convince him that they would not be that serious because he had not fired the gun.   Schneider told him no matter what happened, it was not the end of the world.   To this, Joel responded that it was the end of the world for him.   Then, Schneider heard a new sound.   Nicholas explained that they were using the exercise bike.

At this, Schneider urged Nicholas to have Joel listen to how they could surrender so no one got hurt.   Nicholas said they were listening, and Schneider explained that Joel would dress in shorts without a shirt.   At Joel's knock, Schneider would ask him to put just his hands out the door so they could be seen.   When he did this, Schneider promised he would approach the door to meet him, then walk him downstairs to where he could make phone calls.   Schneider said he would not handcuff him in front of the children, and he would give them some time together downstairs.

It was around noon.   Nicholas told Schneider they understood and that they needed a few minutes to get dressed.   Schneider urged Nicholas to come out as he was, but Nicholas said there was a couch in front of the door.   Schneider could see Nicholas under the door trying to move the couch and turning the door handle.   Joel called that he could not find a pair of shorts, and Schneider told him to leave on the pants he wore, but to take off his shirt.

After a few more minutes, Nicholas told Schneider they were talking and saying their good-byes because they knew they would not see each other for a long time.   Then, Joel could be heard vomiting.   Nicholas explained to Schneider that his father had gotten sick and needed time to recover.   The children were trying to comfort and clean him up.   Joel said it was hard without water.   At 12:22, Schneider said he would bring a wet towel if they would allow him into the room.   Joel responded that he needed a few more minutes.

Schneider relented, then tried again.   Nicholas said his dad still was not feeling very good.   Schneider reminded Nicholas of the promise to his grandmother.   Nicholas said he remembered, but they needed a few more minutes.   Schneider heard the exercise bicycle again.   Cheri called that her father was not feeling very good, and needed a back rub.

At 12:50 p.m., Schneider asked again when they were coming out, and Nicholas said they would be out “in just a minute.”   When Schneider responded, “you said that before,” Nicholas told him to “give us a break.”   At that time, Nicholas “started spouting off things that his father had told him about [the APD] ․ disrespecting us as [ ] police and as adults.”   Schneider grew irritated because Nicholas was being “sassy,” and did not seem to appreciate how serious the situation was.2

Schneider, Conklin, and Keller conferred briefly at the foot of the stairs.   Keller, who had some training in hostage negotiation, ordered Schneider to “give him 10 minutes.”   Schneider had never used a deadline in a hostage situation before.   He had been instructed over 13 years of hostage negotiation training that “time deadlines were to be avoided.”   He had been taught “[n]ot to push the issue to a critical point;  to use time as an ally;  [that a] person's physiological needs are necessitated by time and can work in your favor;  those types of things.”   Schneider was not comfortable giving Joel the deadline because he did not think it was appropriate at that time.   He did not argue with Keller though he thought it was a mistake.   And at 12:58 p.m., Schneider conveyed the ultimatum to Joel because, in his words, “[Keller]'s a Captain and I'm an officer.”

Upon hearing the deadline, Joel asked Schneider, “Why are you playing so hard now?”   Schneider explained that he had been ordered to do so, and that the situation was out of his hands.   He pleaded with Joel to come out, and asked Marin to come and speak to him once again.   She spoke through the door and reminded him of his promise to surrender, saying he only had a couple of minutes left.   Police could be heard on the roof.   As Marin descended the stairs, at approximately 1:04, Schneider called to Joel that in three or four minutes, the SWAT team was coming into the bedroom.

When Keller heard this, he felt alarm.   He realized that Schneider had misunderstood his directive.   He had intended for him to give Joel 10 minutes to surrender;  Schneider's warning to Joel made it an “or else.”   He sent Ponsiglione to tell Schneider the SWAT team was not coming in.   According to Keller, he had “made the judgment to place a 10 minute ultimatum or condition on Joel Souza.   Thereafter, we planned a 20 to 30 minute period of silence or inactivity, during which we expected Souza to surrender or participate more fully in the negotiation process.”   The message was “passed amongst the police department members in confidence and very quietly,” but it did not “enter [Keller's] mind” to tell Joel that police would not force entry.   This was Keller's bluff on Joel Souza.

Schneider went downstairs to Keller.   He was surprised and angry to learn that the deadline was a ploy.   He felt that Keller was gambling away his rapport with Joel. At 1:07 p.m., nine minutes after Schneider issued the ultimatum, three shots were fired in the bedroom.   When Schneider called out Joel's and the children's names, he got no response.   When the SWAT team forced entry a minute later, they found Joel, Nicholas and Cheri shot dead.   Schneider noticed that Joel was wearing long pants and no shirt.

An hour earlier, both Schneider and Keller had expected to bring the crisis to a peaceful resolution.   Keller said later that he had “underestimated” Joel Souza.   Schneider came to feel that the APD had made a “terrible mistake.”

DISCUSSION

1. The Wrongful Death Action

 To prevail against police on a claim of negligent wrongful death, a plaintiff must establish that:  defendants owed her a duty of care;  defendants breached their duty;  and defendants' breach caused plaintiff's injuries.   Even once a public official's negligence is proven, he may still avoid liability by raising the affirmative defense of sovereign immunity.   (See Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 344, 268 Cal.Rptr. 309 [Wright ].)

The trial court here granted defendants' motion for summary judgment upon concluding from the facts that they owed plaintiff no duty of care.   The court held further that even if defendants owed plaintiff a legal duty of which a jury found them in breach, sovereign immunity would block their liability.   Because the questions of duty and immunity are both purely legal, we address them de novo.

a. The Duty of Care

 Police officers have no affirmative statutory duty to do anything.3  Plaintiff relies instead on principles of common law as amplified and refined by our courts to support her claim that defendants owed and breached a duty, resulting in her children's deaths.   In answering the legal question of duty, whether it exists and its scope, we rely on the common law distinction between misfeasance and nonfeasance.   Under the common law, one person owed no duty to control the conduct of another.  (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334 [Tarasoff ].)   In keeping with the traditional rule, we have been reluctant to impose a duty of care upon anyone who has the opportunity to rescue another placed at risk by a third party.   In cases where police are called to make swift judgments to mitigate the danger posed by unpredictable felons, we have been particularly hesitant do so.   The rule our courts have fashioned holds that police officers have no duty to exercise reasonable care to prevent injury to persons who are placed at risk by others except under narrow and specific circumstances providing social justification for their liability.  (See Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1396, 16 Cal.Rptr.2d 113 [Wallace ].)   Simply stated, our courts have found that the police owe no duty to crime victims in those cases where they have not acted to protect them, i.e., cases of nonfeasance.   In contrast, when the police actively involve themselves in situations where a third party threatens another, we have imposed upon them an affirmative duty, generally under the rubric of a “special relationship” with either the victim or the actor, to exercise reasonable care.

Such “[a] special relationship between the police and an individual has been found in a few narrow circumstances where the police made specific promises to undertake a particular action and failed to do so (see Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508), where the police created or increased a peril by affirmative acts (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453 [McCorkle ] ) or where the police voluntarily undertook to aid an individual, took affirmative steps to aid the individual and by the acts lulled the individual into a false sense of security (Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82 [Mann ] ).”  (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704-705, 284 Cal.Rptr. 555 [M.B.].) This case does not fall cleanly into any of these recognized categories.   To answer the question before us, then, we must examine the principles undergirding our tradition of imposing a duty in those situations where the police take affirmative steps to mitigate a foreseeable danger.

 “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.”  (Tarasoff, supra, 17 Cal.3d at p. 434, 131 Cal.Rptr. 14, 551 P.2d 334.)   The essential question is “ ‘․ whether the plaintiff's interests are entitled to legal protection against the defendant's conduct․’ ”  (Ibid.) “[F]oreseeability of risk ․ [is] of ․ primary importance in establishing [a] ․ duty.”   (Grafton v. Mollica (1965) 231 Cal.App.2d 860, 865, 42 Cal.Rptr. 306.)   “Defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent, in the first instance.   [Citations.]”  (Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912.)  “ ‘․ Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails.’ ”  (Id., quoting 2 Harper & James, The Law of Torts (1956) § 16.15, p. 1018, fns. omitted.)   So, to establish the extent of a legal duty-what it is a person ought refrain from doing-we first ask what harm might foreseeably arise from the contemplated act and whom might it foreseeably befall?

 While the job of police officer carries with it no greater obligation to others individually, “ ‘․ [a] person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people․’ ”  (Williams v. State of California (1983) 34 Cal.3d 18, 24, fn. 3, 192 Cal.Rptr. 233, 664 P.2d 137 [Williams ].)  “A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.”  (Id. at p. 23, 192 Cal.Rptr. 233, 664 P.2d 137.)   Some such relationships grow out of circumstances;  common carriers, for instance, owe a duty of care to their passengers.   Some grow out of actions.4  Police can establish a “special relationship” with a particular plaintiff by rendering such aid as induces reliance or dependency.   In doing so, albeit voluntarily, they are bound to use reasonable care.  (Id.;  see also Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5 [“though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual's reliance, it is then held to the same standard of care as a private person or organization”].)   In sum, although a defendant's failure to act, or, “nonfeasance,” generally does not give rise to liability, his lapse in performing a voluntary service may rise to the level of misfeasance, for which he may be liable.

In McCorkle, supra, 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, for example, a policeman called to the scene of a minor traffic accident assumed a duty of care by asking the plaintiff to show him the skidmarks on the road and leading him into the intersection.   He breached this duty by neglecting to mitigate the foreseeable danger that plaintiff would be hit by oncoming traffic.

Similarly, in Mann, supra, 70 Cal.App.3d 773, 139 Cal.Rptr. 82, the Court of Appeal found misfeasance where an officer, who had stopped to assist two cars stranded on the freeway, left the scene without waiting for a tow truck to assume the protective position behind the stalled cars which his patrol car was vacating.   A few minutes after the officer left, a motorist sideswiped one of the stopped cars and struck the people standing around them.

In contrast, a long line of cases denies recovery “for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.  [Citations.]”  (Williams, supra, 34 Cal.3d at p. 25, 192 Cal.Rptr. 233, 664 P.2d 137.)   These are all considered cases of nonfeasance.

Examples abound.   In Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894 (Davidson ), Davidson was stabbed by a stranger in a laundromat.   Though, at the time, police were surveilling Davidson's attacker because they suspected him of having committed a similar crime in the same place on the day before, they were found to have no duty to prevent the assault.   The court reasoned that police were not responsible for Davidson's safety because they had not brought her or her assailant into the laundromat, they did not increase the risk to which she was otherwise exposed, and she was not relying on them for protection.

In Lopez v. City of San Diego (1987) 190 Cal.App.3d 678, 235 Cal.Rptr. 583 (Lopez ), the Court of Appeal found no special relationship where police, having arrived within minutes at the scene of a mass random shooting, delayed over an hour before moving to “neutralize” the shooter and rescue his victims.   The court explained, “The police can in no way be charged with lulling [the shooter]'s victims into a false sense of security, nor can the alleged inaction by police reasonably be said to have increased the risk of harm to which the victims were subject.”  (Id. at p. 682, 235 Cal.Rptr. 583.)

In M.B., supra, 233 Cal.App.3d 699, 284 Cal.Rptr. 555, there was no special relationship between police and a rape victim who had notified them that a workman she had hired had stolen lingerie from her bedroom and made obscene phone calls to her before he came to her house and raped her.   It was of no consequence that, after the burglary, which preceded the rape by two days, in response to the victim's call, a detective promised to send a patrol car to check on M.B. The court explained that the police's alleged negligence did not increase the harm to which M.B. was already exposed.  “Case law does not support the creation of a special relationship based solely on police response to a citizen call for assistance;  such responses are basic to police work and not ‘special’ to a particular individual․  [E]ven if we assumed the detective's offer to send a patrol car amounted to the voluntary assumption of a special protective role by the police towards M.B., that role was limited to protecting her that night by sending the patrol car.   Any negligence by the police in failing to send a patrol car that night did not result in the harm which occurred ․ two days later.”  (Id. at p. 706, 284 Cal.Rptr. 555.)

Our Supreme Court elaborated on the difference between misfeasance and nonfeasance in Williams, supra, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, where a woman injured by a passing truck sued the police who responded to the accident.   She alleged, among other things, that they had negligently failed to secure the identity of the truck driver, thus destroying her chance of recovering in tort for her injuries.   The court found no duty, explaining, “There are no allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which plaintiff alleges they should have done nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own.”  (Id. at p. 27, 192 Cal.Rptr. 233, 664 P.2d 137, fn. omitted.)

 Plaintiff argues that the facts here present a case of misfeasance;  defendants argue that they show nonfeasance.   Our reading of every precedent in this area persuades us that the Antioch police entered into a special relationship with Jennifer Souza and her children by responding to her emergency call for assistance, and then, knowing of the earlier kidnapping, Joel's threats, and his suicidal mood, taking exclusive control over the situation at 4745 Hunter Peak Court.   In doing so, they assumed a duty, not to rescue the children, but to exercise reasonable care in taking steps toward that end.

In so holding, we are not expanding the concept of duty as expounded by our courts.   First, we recognize that defendants did not create the children's peril.   It was Joel Souza who endangered Nicholas and Cheri hours before the police were called.   Second, we do not say the duty arose merely because the APD responded to plaintiff's call.   And, third, we rely on no assurance, express or implied, from the Antioch police that they would actually rescue the children.   There was a great and abiding danger that Joel Souza would kill them at any moment for any or no reason, and no one, not even expert hostage negotiators, could reliably predict, or promise to control, his actions.

 Of course, neither did the police promise to act reasonably.   But “a promise and reliance thereon are [not] indispensable elements of a special relationship.   Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection ․ [by] lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought.”  (Williams, supra, 34 Cal.3d at p. 25, 192 Cal.Rptr. 233, 664 P.2d 137.)   That is the case here.   The APD's conduct in taking control of the situation to the exclusion of plaintiff placed her in a position of dependence on them for the protection of her children, thus creating a duty on their part to exercise reasonable care in their undertaking.

The facts presented simply do not paint a picture of nonfeasance.   By the time Joel Souza fired his gun, the Antioch police had been on the scene for eight and one-half hours, actively engaged in defusing the situation.   They knew Joel was suicidal and had threatened the children;  they had established a rapport with him;  they had summoned to the house experts in disciplines as disparate as negotiating and sniping;  and, importantly, they had prevented all but their own personnel from attempting what they had undertaken to do.

By defendants' own accounts, “that house was under the control of the Antioch Police Department.”   No one could talk to Joel Souza except by their invitation.   When Joel exchanged notes with Jennifer, Schneider told her what to write.   When Joel asked to speak with Jennifer, Schneider monitored the content and duration of their talk.   He permitted Patricia Marin to speak with her son only after she agreed to certain conditions.   Keller told Joel's siblings to stay out of the house unless they were summoned.   He ordered the 10-minute ultimatum without consulting any of the Souza family.   And none of the plaintiffs was informed, much less permitted to tell Joel, that it was a ploy.   Having thus undertaken to save the children, and having forced the plaintiff's dependence on their approach to doing so, defendants were bound to exercise reasonable care.5

 We are mindful that the day was hot, the situation was tense, and the defendants were tired.   By enforcing the duty the law imposes, we do not allow the defendants' conduct to be held to an unfair standard.   The answer to the question whether conduct was negligent always depends on the circumstances of the particular case.   The standard, in other words, is “inherently situational [;  it requires] due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.”  (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997, 35 Cal.Rptr.2d 685, 884 P.2d 142.) 6

The standard then gives police a fair amount of latitude to make decisions when they are confronting critical situations.   At the same time, it allows for liability in those few cases when they act unreasonably and cause harm.   To require “due care” is not to ask the impossible.   And, even when a lack of care is proven, it is not enough to make a plaintiff's case.   She must also show that the police's actions were a substantial factor in causing the injury she sustained.

Our Supreme Court counsels us to consider the policy implications of our decision.  (See Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 828, 59 Cal.Rptr.2d 756, 927 P.2d 1260.)   Amici do the same.7  By recognizing a duty in this case, we do not require police to foresee the unforeseeable.   The defendants in this case knew Joel Souza was suicidal;  they knew he had threatened the children;  and they knew he was armed.   If this was not enough, Souza had told Schneider three times that if the SWAT team forced entry of the bedroom, he would shoot.

We do not force police departments to incur the costs of retaining personnel with obscure expertise.   The APD already had a trained hostage negotiator, defendant Schneider, who was on the scene, who had been taught that an ultimatum could backfire.8

We do not impose on police departments a burden they have never carried to insure against liability in cases like this.   The risk that a public entity will be made to pay for 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.9

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 not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.’ ”  (Id. at p. 788, 73 Cal.Rptr. 240, 447 P.2d 352, quoting Ham v. County of Los Angeles (1920) 46 Cal.App. 148, 162, 189 P. 462.)   The Johnson court announced that instead of looking in the dictionary for guidance, it would look at the policy considerations relevant to the purposes of granting immunity in the first place.10

 The court settled on a separation-of-powers rationale for immunizing some acts and not others, recognizing that “ ‘[m]uch of what is done by officers and employees of the government must remain beyond the range of judicial inquiry’ (3 Davis, Administrative Law Treatise (1958) § 25.11, p. 484);  obviously ‘it is not a tort for government to govern’ (Dalehite v. United States (1953) 346 U.S. 15, 57 [73 S.Ct. 956, 979, 97 L.Ed. 1427] (Jackson, J., dissenting)).”  (Johnson, supra, 69 Cal.2d at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352.)  “Discretionary” acts, then, were judged to be those reflecting “quasi-legislative policy” choices, assuring “judicial abstention in areas in which the responsibility for [such] decisions has been committed to coordinate branches of government.”  (Id. at pp. 793, 795, 73 Cal.Rptr. 240, 447 P.2d 352.)   The upshot of this reading of “discretionary” is that the benefit of immunity has been confined, “for the most part, to relatively high-ranking public employees ․ [who] enjoy authority to carry out duties that include the making of decisions requiring a substantial degree of judgment based on the weighing and balancing of competing risks and advantages.”  (Cal. Government Tort Liability Practice (Cont.Ed.Bar 1992) General Liability and Immunity Principles, § 2.118, p. 220.)   The insulated act must not only effect the discretion conferred as a fairly high-level policy choice;  it must also reflect a conscious exercise of that discretion in the particular case.  (See Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 134 Cal.Rptr. 402, 556 P.2d 764.)

 In deciding which acts are discretionary and which ministerial, we are guided by the “distinction ․ between the ‘planning’ and ‘operational’ levels of decision-making.”  (Johnson, supra, 69 Cal.2d at p. 794, 73 Cal.Rptr. 240, 447 P.2d 352.)  “[A]lthough a basic policy decision ․ may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.”  (Id. at p. 797, 73 Cal.Rptr. 240, 447 P.2d 352;  and see cases there cited at fn. 10.)   Thus, the liability for ministerial functions has also been called “ ‘subsequent negligence’ liability ․ [because i]t refers to negligence which occurs after discretion has been exercised and holds that such negligence is not excused.”  (Sava v. Fuller (1967) 249 Cal.App.2d 281, 289-290, 57 Cal.Rptr. 312 [Sava ].)

 By way of illustration, Johnson offered the case of Sava, supra, 249 Cal.App.2d 281, 57 Cal.Rptr. 312, in which a state-employed botanist was sued for malpractice after he informed parents of an ailing four-year old that a plant she had ingested was poisonous.   The child died of pneumonia, which had gone untreated owing to the botanist's mistake.   The court in that case held the botanist subject to liability, explaining, “Dr. Fuller had already exercised discretion by agreeing to analyze the possibly ingested plant substance to determine its toxicity․  [E]xercise-of-discretion had ended at that point and thereafter the inquiry would be limited to whether there had been an exercise of due care under a duty assumed․  [O]nce the determination has been made that a service will be furnished and the service is undertaken, then public policy demands ․ that government be held to the same standard of care the law requires of its private citizens in the performance of duties imposed by law or assumed.”  (Id. at p. 290, 57 Cal.Rptr. 312.) 11  “In other words, immunity [applies] if the injury to another results ․ from a public employee's exercise of discretion to undertake the act, but [not] from his or her negligence in performing it after having made the decision to do so.”  (Levy, op. cit. supra, § 60.42[2][f], p. 60-43.)

More recently, in Wallace, supra, 12 Cal.App.4th 1385, 16 Cal.Rptr.2d 113, the Court of Appeal reversed a judgment of nonsuit in a case where a police detective had plaintiff's decedent subpoenaed to testify at a preliminary hearing concerning a murder she had witnessed.   The detective took no steps to protect the witness, even after he learned that an anonymous caller had threatened to blow her head off if she testified.   The detective also neglected to warn her that the suspect against whom she was testifying had been implicated in other murders, and had threatened other witnesses.   Instead, he assured her there was no immediate danger.   The witness was shot and killed before she ever testified.

The Court of Appeal determined that the defendant detective “did not engage in discretionary acts when he (1) minimized the importance of the threatening phone call which plaintiff received, (2) determined at various points in his investigation of the ․ murder that he would not inform [the witness] or her mother about [the suspect's] possible involvement in other murders nor inform them about [his] other threats against witnesses, (3) determined that he would not inform them he considered [the suspect] to be a threat to the community at large and especially to persons who might testify against [him], and (4) determined that he would not offer protection to [the witness] despite what he knew about the phone call and about [the suspect].”  (Id. at p. 1403, 16 Cal.Rptr.2d 113.)   These decisions, the court held, were not immune from liability “ ‘․ because the failure to warn does not involve those basic policy decisions which this immunity provision was meant to protect.   [Citations.]’ ”  (Id. at p. 1404, 16 Cal.Rptr.2d 113.)

 Applying these principles to the case at hand, we must conclude that although the police's decision to take affirmative action to defuse the situation may have been discretionary, their subsequent choices in effecting that decision were not.   Our precedent clearly establishes that police have no duty to respond to every call for assistance (see, e.g., M.B.;   supra, 233 Cal.App.3d 699, 284 Cal.Rptr. 555), or, having responded to a call, to bring a situation under their control (see, e.g., Lopez, supra, 190 Cal.App.3d 678, 235 Cal.Rptr. 583).   It establishes, however, with equal clarity, that, once police have exercised their discretion to respond and to act, their choices are no longer immunized from liability.

The plaintiff here alleges negligence in acts defendants committed hours after they had decisively exercised their discretion to respond to Jennifer Souza's call and to take control over the situation with Joel.12 Sovereign immunity does not bar a jury from deciding whether the defendants' ministerial actions effecting this choice were negligent.

We do not worry that our decision will discourage police from performing their jobs with zeal.   As the Supreme Court observed in Johnson, mandatory indemnification and defense at public expense reduces to insignificance the risk of chilling official ardor.  (Johnson, supra, 69 Cal.2d at pp. 791-792, 73 Cal.Rptr. 240, 447 P.2d 352.)   At the same time, it encourages public employers to hire, train, and supervise public officials with care.   Moreover, we are satisfied that our decision fairly allocates liability, should any arise, from this incident.  “Since the entire populace of California benefits from the activity of the [police], it should also share equally the burden of injuries negligently inflicted on individual citizens;  suits against the state provide a fair and efficient means to distribute these losses.”  (Id., 69 Cal.2d at pp. 797-798, 73 Cal.Rptr. 240, 447 P.2d 352.)

2. Negligent Infliction of Emotional Distress

 Patricia Marin and her children appeal the trial court's grant of summary judgment foreclosing their action against defendants for negligent infliction of emotional distress.   The sole issue on appeal is whether the family had the awareness that their relatives were being harmed when they heard gunshots from inside the house at 4745 Hunter Peak Court, which our law requires to enable them to recover in tort as bystanders.   We conclude that they did not, and affirm the grant of summary judgment.

Our Supreme Court has striven to curtail a defendant's liability to those who naturally suffer when their relatives are killed or injured through negligence.  (See Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 [Thing ].)   In Thing, a mother was told by her daughter that her son had been hit by a car.   Mrs. Thing rushed to the scene, where she saw her son, bloody and unconscious.   In denying her the right to recover for negligent infliction of emotional distress, the Thing court explained, “ ‘[A] distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress.   While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common.   By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved․’ ”  (Id. at p. 666, fn. 9, 257 Cal.Rptr. 865, 771 P.2d 814, quoting Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 6, 216 Cal.Rptr. 661, 703 P.2d 1.)

The rules Thing established have been called “harsh” (Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 156, 276 Cal.Rptr. 470 [Schwarz ] ), but they were deemed necessary both to bring certainty to the law (Thing, supra, 48 Cal.3d at p. 647, 257 Cal.Rptr. 865, 771 P.2d 814) and “to avoid limitless liability out of all proportion to the degree of a defendant's negligence․”  (Id. at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814).   Toward these ends, Thing announced “that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff:  (1) is closely related to the injury victim;  (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim;  and (3) as a result suffers serious emotional distress․”  (Id. at pp. 667-668, 257 Cal.Rptr. 865, 771 P.2d 814, fns. omitted, italics added.)

Our courts have hewn to these guidelines ever since, allowing for recovery “only in strictly limited circumstances.”  (Schwarz, supra, 226 Cal.App.3d at pp. 158-159, 276 Cal.Rptr. 470.)   In Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 273 Cal.Rptr. 270, parents sued a hospital where their son was negligently given a fatal overdose of radiation during treatment for a curable cancer.   The hospital demurred, the trial court sustained the demurrer, and the Court of Appeal denied plaintiffs' petition to reinstate their action.   The parents conceded they were not aware during the treatment that their son was being overexposed, and the court noted they could not have observed the overdose in any case.   The court concluded that where an injurious event cannot be perceived, distress recovery is not allowed.

In Fife v. Astenius (1991) 232 Cal.App.3d 1090, 284 Cal.Rptr. 16 (Fife ), the parents and brothers of Meghan Fife sued Jennifer Astenius, who was driving the truck in which Meghan was riding when it collided with another car.   The accident happened on the street directly behind Meghan's house.   Her family members heard the crash and saw debris fly above a wall separating their yard from the street, but they did not know Meghan was involved in the accident until seconds later, when Meghan's father and brothers climbed the wall and found her still inside the truck.   The Court of Appeal affirmed the trial court's grant of summary judgment in Astenius's favor, explaining, “recovery for NIED is possible only if a plaintiff is present at the scene of an accident and is then aware a family member is being injured.   Recovery is precluded when a plaintiff perceives an accident but is unaware of injury to a family member until minutes or even seconds later.   Therefore, the Fifes, even if considered present at the scene, cannot recover because they did not know Meghan was involved in the accident at the time they heard the collision.”   (Fife, supra, 232 Cal.App.3d at p. 1093, 284 Cal.Rptr. 16, fn. omitted.)

In contrast, the Court of Appeal reversed a judgment of nonsuit in Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, 285 Cal.Rptr. 728 (Ortiz ).   There, Mrs. Ortiz came upon her husband, bleeding, caught in a machine at the factory where they both worked.  “In this case,” the court noted, “the injury-producing event continued for a period of time, and the plaintiff personally observed the event while it still was occurring.   We do not believe that the bright line drawn in Thing v. La Chusa was intended to deny recovery to a plaintiff who personally observes an injury-producing event in progress.   The limitation, instead, excludes those plaintiffs who come upon the scene after the event, and whose observation is solely of the consequences of the occurrence.  (See, e.g., Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 169 Cal.Rptr. 435, where recovery was denied to parents who came upon their child one minute after he received an electrical charge, since they observed only the dreadful consequences of the accident, not the accident itself;  and Parsons v. Superior Court (1978) 81 Cal.App.3d 506, 146 Cal.Rptr. 495, where recovery was denied to a mother and father who, while driving in the same direction as their daughters, came upon the wreckage of their daughters' car ‘before the dust had settled’ and found their mangled bodies, already dead or dying.)”  (Ortiz, supra, 234 Cal.App.3d at p. 185, 285 Cal.Rptr. 728.)

In Wilks v. Hom (1992) 2 Cal.App.4th 1264, 3 Cal.Rptr.2d 803 (Wilks ), a mother was allowed to recover against the landlord of a residence where an explosion occurred, killing one of her children.   Mrs. Wilks had called to her seven-year-old daughter, Virginia, to pull the vacuum cleaner plug from the socket in Virginia's bedroom.   As Virginia pulled the plug, there was an immediate explosion in her bedroom, which blew Wilks out of the house.   Although Wilks did not see or hear her daughter being injured, the court allowed recovery because under the circumstances, she “had to have known at the time of the explosion that [Virginia was] experiencing injury.”  (Id., 2 Cal.App.4th at 1273, 3 Cal.Rptr.2d 803.)

Similarly, in In re Air Crash Disaster Near Cerritos, Cal. (1992) 967 F.2d 1421 (Air Crash Disaster ), the Ninth Circuit interpreted California law to allow recovery to a widow whose house was destroyed by fire after a jetliner crashed into it.   When the plaintiff left her home to buy provisions at a nearby store, her husband was reading the newspaper in the living room, and her three children were still in bed.   Returning home from the store, she saw, heard, and felt a big explosion.   Minutes later, she arrived to find her home engulfed in flames.   In a ruling consistent with the holdings of both Ortiz and Wilks, the court held that the plaintiff did not need to have witnessed the crash or the actual injuries being inflicted on her family to recover.   The fatal event, the court ruled, the fire that ensued from the crash, was ongoing.   And, knowing that her family members were inside the house, plaintiff had to have known they were experiencing injury while she watched the house burn.

 While these cases plainly show that a successful plaintiff need not “actually have witnessed the infliction of injury to her [relative]” (Wilks, supra, 2 Cal.App.4th at p. 1271, 3 Cal.Rptr.2d 803), they also show that fearing the worst is different from knowing the worst, and is not enough for bystander recovery.   As the Fife court stated, “recovery ․ is possible only if a plaintiff is present at the scene ․ and is then aware a family member is being injured.”  (Fife, supra, 232 Cal.App.3d at p. 1093, 284 Cal.Rptr. 16, original italics.)   Or, as the Wilks court put it, the plaintiff must be “at the scene of the accident and ․ sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her [relative.]”  (Wilks, supra, 2 Cal.App.4th at p. 1271, 3 Cal.Rptr.2d 803, italics added.)

Patricia Marin and her children have not made such a case.   Each of their depositions shows that when they heard the shots that killed their family members, they did not know who, if anyone, had been injured.   At worst, they imagined what anyone in their shoes would imagine:  that something terrible had happened to someone they loved.   Marin, in deposition, testified that, when she heard the shots that killed her family, she thought “that the police broke in and killed them.”   William Souza testified, “You just get this feeling that goes over you like, ․ something bad has happened.”   Cynthia Poipao testified that although she heard the shots and doors crashing, she could not tell from what part of the house the sounds came.   Like her brother, she conceded it was “fair to say” that when she first heard the shots she did not know what had happened.   She amplified, “I probably thought that [Joel]-that somebody shot him or he shot himself.   I mean, I knew he was in danger.”

These statements do not establish that, when they heard the shots, Joel Souza's family was “then aware” that he or the children had been injured.   (Fife, supra, 232 Cal.App.3d at 1093, 284 Cal.Rptr. 16.)13  And, unlike the explosion in Wilks or the fire in Air Crash Disaster, the gunshots in this case were not enough to enable a bystander to conclude that their loved ones were “necessarily” injured.  (Wilks, supra, 2 Cal.App.4th at p. 1271, 3 Cal.Rptr.2d 803.)   There were many people with guns in the house.   From outside, it was impossible to tell which of them had fired the shots or at whom, if anyone.   By their own accounts, until they saw Nicholas's body being taken from the house, none of the family members knew what had happened.   Their testimony describes suspense, not surprise.   And for that reason, their anguish, though very real, is different from that of one “forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved.”   (Thing, supra, 48 Cal.3d at p. 666, fn. 9, 257 Cal.Rptr. 865, 771 P.2d 814.) Their distress is not compensable.

CONCLUSION

We affirm the trial court's grant of summary judgment in the family's case against the defendants.   In the plaintiff's action for wrongful death, we reverse the court's rulings on duty and immunity, and remand for further proceedings.   Respondents are entitled to their costs of opposing the family's appeal.   The plaintiff is entitled to her costs of appeal.

I concur in the result reached by the majority because it is consistent with binding Supreme Court precedent.   Our Supreme Court has recently reaffirmed the line drawn in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (Johnson ), between basic policy decisions, which are protected by discretionary immunity under Government Code, section 820.2, and ministerial decisions implementing policy, which are not protected.  (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980-982, 42 Cal.Rptr.2d 842, 897 P.2d 1320.)   In another recent case, involving liability for property damage caused by police efforts to capture a felony suspect who took refuge in a store and refused to surrender, the court noted, “we have not resolved whether the selection of the means employed to effectuate an arrest is such a ‘basic policy decision’ to which the immunity applies.”  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 392, 41 Cal.Rptr.2d 658, 895 P.2d 900 (Customer Co.) [rejecting plaintiff's inverse condemnation claim, and holding that proper avenue of relief was through Tort Claims Act].)

I agree with the majority that under the case law following Johnson, the actions of the police in attempting to resolve the familial hostage crisis in this case are most plausibly considered “ministerial” rather than “discretionary.”   I write separately only to urge the Supreme Court to resolve the open question it identified in Customer Co. by holding that when an arrest or rescue is attempted under exigent circumstances like those faced by the police here, the choice of strategy is a “basic policy decision” entitled to immunity.   In this kind of situation, the distinction between “planning” and “operational” decisions is artificial and inappropriate.   The plan must be conceived on the spot in response to the particular circumstances, and after a plan is chosen it is likely to be altered during implementation.   The scene is infused with tension and demands improvisation.   Police confronted with such choices should not be exposed to liability unless their actions are so unreasonable as to exceed the scope of the discretion vested in them to conduct their law enforcement duties.   They should not be hampered in the performance of those duties by the prospect of litigation for their imperfect judgments.   When officers respond to a crisis such as that created by Joel Souza, they should be able to proceed with certainty that the law will protect their good faith efforts to resolve the crisis, and not shift the blame to them when things go awry.   Actions they take in the proper exercise of their duties should not be subject to the 20-20 vision of hindsight.

FOOTNOTES

1.   We detail the facts established through extensive discovery and filed in conjunction with defendants' motion for summary judgment as the basis for determining the existence of a duty of care.

2.   Nicholas was eight years old at the time.

3.   What they have is the statutory authority to enforce the law.   (See Pen.Code, § 830 et seq.)

4.   “ ‘The assertion that liability must ․ be denied because the defendant bears no “duty” to plaintiff “begs the essential question-whether the plaintiff's interests are entitled to legal protection against the defendant's conduct․  [D]uty is not sacrosanct in itself, but 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.”   [Citation.]’ ”  (Tarasoff, supra, 17 Cal.3d at p. 434, 131 Cal.Rptr. 14, 551 P.2d 334.)   We, therefore, do not labor over the question whether defendants' duty was owed to Jennifer Souza or to Nicholas and Cheri.   It is obvious that it was the children whose safety was at risk, and that, in light of their youth and their circumstances, Souza summoned the police on their behalf.   It is, however, equally obvious-and enshrined in our legal tradition-that a mother has a protectable interest in her children's survival, having a statutory action predicated on negligence for their wrongful death.

5.   We do not decide that any modicum of police-rendered assistance gives rise to a duty.   We are not faced with that question.   We simply observe that the extent and duration of the APD's involvement in and control over the situation at 4745 Hunter Peak Court makes a verdict of “nonfeasance” wholly untenable.  (See Dillon v. Legg, supra, 68 Cal.2d at pp. 730-731, 69 Cal.Rptr. 72, 441 P.2d 912, criticizing courts for denying “liability [a]s the only realistic alternative” where “definition of liability [is] impossible ․ [¶] [T]he alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case.”)

6.   Thus, a person faced with a sudden danger “is not expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments.”  (BAJI No. 4.40 (8th ed.1994).)   The standard California jury instruction elaborates:  “[His][Her] duty is to exercise the care that an ordinarily prudent person would exercise in the same situation.   If at that moment [he][she] does what appears to [him][her] to be the best thing to do, and if [his][her] choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, [he] [she] does all the law requires of [him][her].   This is true even though in the light of after-events, it should appear that a different course would have been better and safer.”  (Ibid.)

7.   A brief amicus curiae was filed in support of defendants and respondents by the California State Sheriffs' Association, California Police Chiefs Association, California Peace Officers' Association and 100 California Cities.

8.   If plaintiffs had alleged simply that the city's police staff was inadequate, defendants' immunity would be absolute.  Government Code section 845 provides:  “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”

9.   Samaritans who voluntarily undertake the duties of police have to know what they are doing.   This obligation is expressed in the following jury instruction:  “ ‘It is the duty of one who undertakes to perform the services of a police officer ․ to have the knowledge and skills ordinarily possessed and to exercise the care and skill ordinarily used in like cases by police officers ․ in the same or similar locality and under similar circumstances.   A failure to perform such duty is negligence.’ ”  (Wright, supra, 219 Cal.App.3d at p. 343, 268 Cal.Rptr. 309.)

10.   While the Courts of Appeal have occasionally lapsed into the semantic approach without acknowledging Johnson (see examples at fn. 13, infra ), our Supreme Court has never repudiated Johnson 's explication of “discretionary.”

11.   “Many cases involve adjudication on the question of negligence in the performance of a ministerial action immediately subsequent to a basic policy decision.   In Johnson v. State of California [ (1968) 69 Cal.2d 782, 795-796, 73 Cal.Rptr. 240, 447 P.2d 352] for example, the ministerial act of failing to warn foster parents of the dangerous propensities of a juvenile parolee placed with the parents arose out of the basic policy decision of whether to parole the juvenile.   Likewise, the ministerial act of a psychotherapist's warning or failure to warn identifiable victims of known or knowable specific threats of a mental patient about to be released arose out of the initial discretionary decision to release him.  [Tarasoff, supra, 17 Cal.3d 425, 447-448, 131 Cal.Rptr. 14, 551 P.2d 334.]   In Elton v. County of Orange [ (1970) 3 Cal.App.3d 1053, 84 Cal.Rptr. 27], the immune basic policy decision of a county probation department, recommending that a child be declared a dependent child of the court, was followed by the non-immune ministerial decisions with respect to the maintenance, care, and supervision of the child and her placement in a particular foster home.“............................................................ .․“Furthermore, a police officer's decision of whether or not to investigate an incident is discretionary, but once he or she decides to investigate, any negligence in the ministerial performance of the investigation is beyond the protection of discretionary immunity.62” (5 Levy et al., Cal. Torts (Matthew Bender, Mar. 1997), General Public Entity Liability, §§ 60.42[2][f]-60.42[3][a], pp. 60-43 to 60-45, some fns. omitted [Levy].) Footnote 62 provided:  “Green v. City of Livermore (1981) 117 Cal.App.3d 82, 88, 172 Cal.Rptr. 461 (public entity not immune from legal consequences of alleged negligence of police officers who left keys in occupied automobile after placing driver under arrest for drunk driving) [implicitly overruled on other grounds, see Harris v. Smith (1984) 157 Cal.App.3d 100, 106, 203 Cal.Rptr. 541];  see Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651, 660, 148 Cal.Rptr. 68 (initial decision to pursue vehicle was discretionary, but trier of fact must determine whether ministerial action of actual pursuit was negligence);  Bratt v. City and County of San Francisco (1975) 50 Cal.App.3d 550, 553-554, 123 Cal.Rptr. 774 (public entity immune when plaintiff's sole allegation of negligence was police officers' decision to pursue vehicle, not actual pursuit);  ․” (Id. at p. 60-45, fn. 62.)None of the cases defendants cite is to the contrary.   The court in Thompson v. County of Alameda (1980) 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 expressly relied on Johnson in holding that the decision to release a dangerous juvenile offender into his mother's custody was discretionary, and therefore immune.   Both Michenfelder v. City of Torrance (1972) 28 Cal.App.3d 202, 104 Cal.Rptr. 501 and Watts v. County of Sacramento (1982) 136 Cal.App.3d 232, 186 Cal.Rptr. 154, took a “semantic approach” to the question of immunity without ever citing Johnson.  McCarthy v. Frost (1973) 33 Cal.App.3d 872, 109 Cal.Rptr. 470, a case in which highway patrolmen were sued for failing to search for, failing to find, and failing to render medical aid to, someone who died in his car from unspecified causes, appears to confuse nonfeasance with immunity.   Like Michenfelder and Watts, McCarthy does not mention Johnson.   Finally, defendants cite Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 235 Cal.Rptr. 844 (Sullivan ), in which a police dispatcher allegedly telephoned the victim of an ongoing crime and berated and badgered her.   The victim alleged negligent infliction of emotional distress.   While that case was resolved as one of nonfeasance, the court went on to analyze the immunity issue.   Again, without acknowledging Johnson, the court took the “semantic approach” to defining discretionary, concluding that even if a duty were owed, the dispatcher would be shielded from liability because his choice to telephone the plaintiff reflected his “ ‘ “personal deliberation, decision and judgment” ’ [citation]․”  (Sullivan, 190 Cal.App.3d at 1081, 235 Cal.Rptr. 844.)

12.   On this point, the defendant who ordered the ultimatum, Captain Keller's, deposition is explicit:  “[U]pon notification [of a critical incident], it is in our election to respond.”

13.   This is not owing to a lack of care in their wording.   Under the circumstances of this case, we do not see how the Souza family or anyone outside of the locked bedroom could have had the contemporaneous awareness that Joel was killing himself and the children when he fired his gun three times.

WALKER, Associate Justice.

CORRIGAN, Acting P.J., concurs.

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