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Court of Appeal, First District, Division 1, California.

Clifford K. THOMPSON, Jr., et al., Plaintiffs and Appellants, v. COUNTY OF ALAMEDA, Defendant and Respondent.

Civ. 41477.

Decided: January 30, 1979

Stark, Stewart, Simon & Sparrowe, Merrill J. Schwartz, Lise A. Pearlman, Oakland, for plaintiffs and appellants. Richard J. Moore, County Counsel, Crosby, Heafey, Roach & May, E. Melville McKinney, Peter W. Davis, John E. Carne, Oakland, for defendant and respondent.

Plaintiffs commenced an action against the County of Alameda (County) for damages for the wrongful death of their five-year-old son, Jonathan, based on alleged “reckless, wanton and grossly negligent” conduct of the County, through its probation department. The superior court sustained the County's general demurrer to the complaint without leave to amend, and thereafter entered judgment of dismissal. Plaintiffs have timely appealed from the judgment of dismissal.

The complaint's allegations disclose the following.

Plaintiffs with their young son resided in the City of Piedmont a few doors away from and on the same side of the street as the mother of one James, a juvenile delinquent. James, for some reason not apparent, was in the custody and under the control of the County, and was confined in a county institution under a court order. The County knew that James “had latent, extremely dangerous and violent propensities regarding young children and that sexual assaults upon young children and violence connected therewith were a likely result of releasing James . . . into the community.” Moreover, the County knew that James “had indicated that he would, if released, take the life of a young child residing in his neighborhood.” Notwithstanding such knowledge the County temporarily released James into the custody of his mother at her home. At no time did the County, or anyone, “advise and/or warn (James' mother), the local police and/or parents of young children within the immediate vicinity of (James' mother's) house,” of the danger he posed to young children in the neighborhood.

Within 24 hours of James' release to the custody of his mother by the County, he sexually assaulted and murdered plaintiffs' son. The murder was established by judicial notice of James' first degree murder conviction.

The complaint was in four counts. Their respective theories were that the proximate cause of Jonathan's death was the County's “reckless, wanton and grossly negligent” conduct in: (count 1) releasing James into the community; (count 2) failing to give warning to James' mother, to the police, and to parents of young children in the neighborhood of his criminal propensities, and as to the police and such parents, notice of the fact and place of his release; (count 3) failing to exercise reasonable care through its agent, James' mother, after his release; and (count 4) failing to use reasonable care in the selection of its agent, James' mother, to undertake his custody.

Our inquiry, of course, is whether one or more of the complaint's causes of action state grounds for judicial relief. “The judgment of dismissal, having been based upon demurrers attacking the complaint as a whole, can be affirmed only if no count of the complaint states facts sufficient to entitle plaintiffs to relief on any theory.” (Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 29, 96 Cal.Rptr. 317, 320, and see authority there collected.)

And since, on appeal from a judgment of dismissal following “an order sustaining a demurrer without leave to amend, an appellate court must treat every material, issuable fact properly pleaded as true” (Commercial Standard Ins. Co. v. Bank of America (1976) 57 Cal.App.3d 241, 246, 129 Cal.Rptr. 91, 93), we shall hereinafter, for purpose of the appeal only, refer to the pleaded facts as established facts.

The principal issue is whether Government Code sections 820.2 and 845.8, subdivision (a), extend immunity to the County from liability for the complaint's alleged tortious acts, or any of them.

Government Code section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable 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.”

Section 845.8, subdivision (a), provides: “Neither a public entity nor a public employee is liable for: (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release . . . .” A “prisoner” within the purport of section 845.8 “includes an inmate of a prison, jail or penal or correctional facility.” (Gov.Code, s 844.) And it “ ‘Includes wards of the juvenile court ’ ” (Jiminez v. County of Santa Cruz (1974) 42 Cal.App.3d 407, 409, 116 Cal.Rptr. 878, 879), such as James appears to have been.

We find it convenient first to consider the application of the two immunity statutes to counts 1, 3 and 4 of the complaint. Those counts, it will be recalled, were founded on the County's alleged “reckless, wanton and grossly negligent” conduct in releasing James into the community, in its continuing custody of James through its agent, his mother, and in its selection of that agent to take over his custody.

We think it patent, and are therefore of the opinion, that these stated causes of action were based upon the County's probation department's determination (paraphrasing s 845.8, subd. (a)) “whether to release James, a prisoner, and fixing the terms and conditions of his release.” Such a determination by a public entity or a public employee, even though otherwise tortious, will impose no civil liability upon them. The alleged acts were “integral to the ultimate basic policy decision” to temporarily release James from the County's custody. In such a case the application of section 845.8, subdivision (a), is “mandatory.” (See Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 712-713, 141 Cal.Rptr. 189, 197; County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 757, 93 Cal.Rptr. 406.) Such a “decision to parole thus comprises the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.” (Johnson v. State of California (1968) 69 Cal.2d 782, 795, 73 Cal.Rptr. 240, 249, 447 P.2d 352, 361.)

However, we reach a different conclusion in respect of count 2 of the complaint. The conclusion is based primarily upon holdings of the state's high court in Johnson v. State of California, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, and Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334; Johnson v. State of California, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352.

In Johnson a 16-year-old youth with known homicidal tendencies was placed by the Youth Authority in the custody of foster parents without notice to them of his “ ‘dangerous propensities.’ ” His subsequent violent acts against one of the foster parents resulted in a lawsuit against the state. The issue was whether Government Code sections 820.2 and 845.8, subdivision (a), immunized the state from liability for its alleged negligent act in failing to give notice of the boy's vicious tendencies. The trial court found the statutes applicable, and entered summary judgment for the state.

On appeal the summary judgment was reversed. The court found existent a “special relationship” between the state's Youth Authority and its selected foster parents for the youth “such that its duty extended to warning of latent, dangerous qualities suggested by the parolee's history or character.” (P. 785, 73 Cal.Rptr. p. 355, 447 P.2d p. 243.) Citing broad authority, q. v., the court then stated:

“These cases impose a duty upon those who create a foreseeable peril, Not readily discoverable by endangered persons, to warn them of such potential peril. Accordingly, the state owed a duty to inform Mrs. Johnson of any matter that its agents knew or should have known that might endanger the Johnson family; at a minimum, these facts certainly would have included ‘homicidal tendencies, and a background of violence and cruelty’ as well as the youth's criminal record.” (Id., p. 786, 73 Cal.Rptr. p. 355, 447 P.2d p. 243; emphasis added, fn. omitted.)

Among the authorities relied upon was Restatement Second of Torts section 301, subdivision (2)(b), which provides: “(2) The exercise of reasonable care to give reasonably adequate warning prevents the doing of an act from being negligent, if . . . (b) the risk involved in the act, or its unreasonable character, arises out of the absence of warning.”

Having determined such a Duty to warn “endangered persons,” the Johnson court then turned its consideration to the issue whether the state nevertheless enjoyed immunity from liability for such a tortious failure to warn under Government Code sections 820.2 and 845.8, subdivision (a).

The high court held, in relation to section 820.2, that the Youth Authority's decision whether to warn of the boy's dangerous propensities was neither “A ‘discretionary’ function ” within the meaning of that statute, nor “The type of basic policy decision that the Government Code seeks to insulate from liability in section 820.2.” (69 Cal.2d, pp. 786-787, 793, 73 Cal.Rptr., p. 360, 447 P.2d, p. 248.) The court then declared: “The state does not achieve immunity in the instant case under Government Code section 845.8, which provides immunity for a determination ‘whether to parole or release a prisoner or . . . (Of ) The terms and conditions of his parole or release.’ (P) . . . Once the proper authorities have made the basic policy decision to place a youth with foster parents, for example the role of section 845.8 immunity ends; subsequent negligent actions, such as the failure to give reasonable warnings to the foster parents actually selected, are subject to legal redress.” (Id., pp. 798-799, 73 Cal.Rptr. p. 364, 447 P.2d p. 252.)

Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.

Tarasoff arose out of a somewhat different factual context. One Poddar, a mental patient at a state university hospital, had told staff doctors of his intent to kill his erstwhile friend Tatiana upon her return from abroad. Thereafter, following notice of his threat to the university's police, Poddar was released from the hospital's custody. Neither Tatiana nor her parents were given notice by the university of Poddar's threats or of his release. Then, upon the girl's return, Poddar killed her. Her parents thereafter sued the university for damages for her wrongful death. The action was predicated on the failure to warn them, or Tatiana, of Poddar's threat and of his release from the hospital's custody.

At issue was the applicability of the state's proffered immunity defense, under Government Code sections 820.2 and 856. The latter section immunizes a public entity from liability on account of its determination whether “to parole, grant a leave of absence to, or release a person confined for mental illness or addiction.”

Closely following Johnson, the Tarasoff court concluded that neither section 856, nor any statute, shielded the state university or its medical staff “from liability based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code section 820.2 does not protect such failure as an exercise of discretion.” (17 Cal.3d, p. 431, 131 Cal.Rptr., p. 20, 551 P.2d, p. 340.)

Holding that the alleged facts stated a cause of action against the state university, the court continued:

“Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965) s 315), nor to warn those endangered by such conduct (Rest.2d Torts, Supra, s 314, com. c; Prosser, Law of Torts (4th ed. 1971) s 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, Supra, ss 315-320). ([FN1] ) Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, ([FN2] ) a duty of care may arise from either ‘(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation . . . between the actor and the other which gives to the other a right of protection.’ ” (Id., p. 435, 131 Cal.Rptr. p. 231, 551 P.2d p. 343; fn. omitted.)

Although we recognize broad differences of opinion as to the propriety of the policy expressed in Johnson and Tarasoff (see conc. and dis. opns. therein), we are bound by that authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

By Johnson and Tarasoff we are told that where, as in the case before us, a public entity “stands in some special relationship to . . . the person whose conduct needs to be controlled,” it is under a Duty, before itself creating a foreseeable peril by such person “not readily discoverable by endangered persons,” to give reasonable warning of that peril to its “ foreseeable victims.” And the public entity enjoys no immunity from tort liability for a breach of that duty.

From the rationale of Johnson and Tarasoff and the authority there relied upon we conclude, as a matter of law, that a “special relationship” existed between the County and James which imposed a “duty”[FN3] on the County to exercise reasonable care so “as to prevent him from causing physical harm to another . . . .” That duty extended to the giving of Reasonable warning of James' homicidal tendencies and threats, to known “endangered persons” or “foreseeable victims” or to those who might reasonably be expected to act to protect such persons from the threatened harm.

The above noted duty was imposed upon the County as a Matter of law. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342, 134 Cal.Rptr. 375, 556 P.2d 737; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Keene v. Wiggins (1977) 69 Cal.App.3d 308, 312, 138 Cal.Rptr. 3; Fuller v. State of California (1975) 51 Cal.App.3d 926, 946, 125 Cal.Rptr. 586.) Whether or not the duty was negligently breached was a Question of fact to be determined by the court, or jury, upon a trial. (Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183, 258 P.2d 834; Romo v. Southern Pac. Transportation Co. (1977) 71 Cal.App.3d 909, 915, 139 Cal.Rptr. 787; Starr v. Mooslin (1971) 14 Cal.App.3d 988, 998, 92 Cal.Rptr. 583.)

We have, of course, considered the County's argument that panic would inevitably have ensued from a widespread warning that James, a potential and avowed homicidal person, was at large nearby in the community. In such a case the trier of fact might properly conclude that a public warning was not reasonable. But it might nevertheless be found that a warning should reasonably have been given to the dangerous person's custodian, or to the police, who would probably thereupon watch him more closely, or to the lesser number of Nearby parents of young children.[FN4] Considering a similar contention Tarasoff concluded, as must we, that: “The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved.” (17 Cal.3d, p. 440, 131 Cal.Rptr., p. 26, 551 P.2d, p. 346.)

Johnson answered an argument, such as is also here made, that its rule would cause public employees, subject to civil action for negligence in such cases, to be unwilling to chance rehabilitation by parole of possibly dangerous persons in their custody. California, the court said, had substantially taken care of the problem by statutory provision for indemnification and defense of its employees who are subjected to suit because of an official act done without “fraud, corruption, or malice.” “To the extent that the ardor of public employees might be affected by the threat of personal liability, these fears will be allayed by the indemnification provisions.” (69 Cal.2d, p. 792, 73 Cal.Rptr., p. 359, 447 P.2d, p. 247; fn. omitted.)

We have read and considered the recent cases of J. A. Meyers & Co. v. Los Angeles County Probation Dept. (1978) 78 Cal.App.3d 309, 144 Cal.Rptr. 186 and Martinez v. State of California (1978) 85 Cal.App.3d 430, 149 Cal.Rptr. 519, cited by the parties at oral argument of the appeal. Neither, in our opinion, tends to impugn the conclusions we have reached.

For these several reasons we conclude that the complaint's count 2 stated a cause of action. As to that count the County's demurrer should have been overruled, and the judgment of dismissal was accordingly erroneously entered.

The judgment of dismissal is reversed; the plaintiffs will be permitted to amend their complaint if they shall so elect, and the superior court will take such further proceedings as are not inconsistent with the views we have expressed.

I have been moved by the appalling circumstances of this case to add, while concurring in the conclusion reached by the majority, that perhaps the time has come to reconsider the rehabilitative purpose of our juvenile laws with respect to minors with Known violent propensities and a background of violent behavior.

We have recently seen how in its attempts to deal with an ever-increasing level of violence, the Legislature has expressly abandoned the concept of rehabilitation in favor of punishment by enacting the Determinate Sentencing Act, at the same time revising the law to provide that certain juveniles in the 16-and 17-year-old group shall be treated as adult offenders, where a finding is made that the minor is not “amenable to the care, treatment and training program available through the facilities of the juvenile court, . . .”[FN1]

The balancing of “the public interest in safety from violent assault” (Tarasoff v. Regents (1976) 17 Cal.3d 425, 440, 131 Cal.Rptr. 14, 26, 551 P.2d 334, 347) against public policy favoring innovative rehabilitation programs is a delicate one. (Cf. State of California v. Superior Court (1974) 37 Cal.App.3d 1023, 112 Cal.Rptr. 706; County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 93 Cal.Rptr. 406.) I question, however, whether the newly expressed legislative intent has not mandated an imbalance in favor of the public safety, at least where there is, as appears to be the case here, a known and substantial danger of physical injury to other persons as a result of release.

The salutary purpose of our juvenile law as described in section 502 of the Welfare and Institutions Code is in part, “to (secure) the spiritual, emotional, mental and physical welfare of the minor.”

In 1961 a Governor's commission found that “the protective and rehabilitative philosophy of the juvenile court law is sound and should remain unchanged.” (Cf. 6 Witkin, Summary of Cal. Law (1974) Parent and Child, s 246, p. 4749.) Since that time, however, a legislative shift has occurred, and a new emphasis has been placed upon the purely protective aspect of punishment for adult offenders.

A consideration of this new policy leads me to think that the reasons which caused its creation apply with equal urgency at least to those juveniles who have been placed on a parity with adult offenders in the criminal process, Because of the seriousness of the threat they present to the public safety.

I do not mean to imply that we ought not to continue, indeed to intensify, efforts to rehabilitate the juvenile offender grave though my doubts as to the efficacy of such attempts may be because, of course the practical alternatives to such programs are virtually nonexistent, and because common humanity dictates that these efforts should continue. Neither do I mean to suggest a moral judgment blaming certain juveniles for a sense of savagery so often instilled in squalid environments by brutal parents and guardians. Rather, I raise the question of how the juvenile authority, confronted by a policy mandating rehabilitative efforts on the one hand and a new policy permitting adult offender treatment on the other, can deal on a pragmatic basis with the juvenile offender who has a record of felonious and assaultive behavior?


1.  See footnote 3, Post.

2.  Section 315: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.”

3.  Any doubt whether such a “special relationship” and “duty” existed between the County and James would seem to be dispelled by Restatement Second of Torts section 319 (relied upon by Tarasoff ), as follows: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

4.  We are asked to take judicial notice (see Evid.Code, s 452, subds. (c), (d)) of the records of the superior court proceedings resulting in James' first degree murder conviction. We are advised that they indicate Jonathan's violent death occurred several hours after his parents, and the police, commenced a search for him without knowledge of James' propensities or nearby presence. Such a factual context, if established, would seem to illustrate the argument that at least some lesser form of notice would have been reasonable under the circumstances.

1.  Welfare and Institutions Code section 707.

ELKINGTON, Associate Justice.

RACANELLI, P. J., concurs.Hearing granted; BIRD, C.J., did not participate.