Vitaly TARASOFF and Lydia Tarasoff, Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.
This is an appeal from a judgment of dismissal upon an order sustaining a demurrer without leave to amend to a second amended complaint filed separately in the same action by plaintiffs Vitaly Tarasoff and Lydia Tarasoff.
By said complaints, couched in identical language, plaintiffs sought to recover damages against defendants for the wrongful death of their daughter Tatiana Tarasoff who was killed by Prosenjit Poddar, a University of California student.
The respective complaints allege that defendant Regents of the University of California, a public entity (hereinafter ‘The Regents'), is engaged in the business of the care, treatment, and supervision of patients suffering from mental disorders, and is engaged in providing the service of protecting the public from bodily harm by its campus police; that on August 20, 1969,1 Poddar was a voluntary outpatient undergoing psychotherapy at the hospital operated and maintained by the Regents; that on said day defendant Lawrence Moore, Ph.D., a clinical psychologist who was providing psychotherapy to Poddar, personally notified defendants Everett D. Atkinson and Johnny C. Teel, officers of the said campus police, that Poddar was capable of doing bodily harm to himself or some one else; that Dr. Moore told said officers that at a psychotherapy session on August 18 Poddar had informed Moore that he was going to kill ‘an unnamed girl, readily identifiable as Tatiana Tarasoff, when she returned home to Berkeley from Brazil’; that on August 20, Dr. Moore notified Atkinson and Teel that he would give the campus police a letter of diagnosis on Poddar so that the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley where ‘Dr. Moore would assign a 72-hour Emergency Psychiatric Detention’ on Poddar; that on or about said day Moore, by letter, notified defendant William Beall, chief of the campus police, that Poddar had a “paranoid schizophrenic reaction, acute and severe” and was “at this point a danger to the welfare of other people and himself”; that in said letter Moore state that “at times he appears to be quite rational, at other times he appears quite psychotic”; that defendant Stuart Gold, M.D., who initially examined Poddar at Cowell Memorial Hospital, and defendant James Yandell, M.D., assistant to the director of said department of psychiatry, concurred in the opinion that Poddar should be committed for observation in a mental hospital; that the campus police responded to said letter and took Poddar into custody; that defendants Gary L. Brownrigg, Joseph P. Halleran, and Atkinson, officers of the campus police, were satisifed that Poddar was quite rational and had changed his attitude altogether; that the campus police released Poddar when he stated he would try to stay away from Tatiana Tarasoff; that defendant D. Harvey Powelson, M.D., director of the department of psychiatry at Cowell Memorial Hospital, upon learning that his staff had made arrangements for Poddar to be placed in a 72-hour treatment and evaluation facility, requested Chief Beall of the campus police to return Moore's letter, ordered all copies destroyed, ordered Moore's therapist's notes on Poddar to be destroyed, and ordered no action to place Poddar in a 72-hour treatment and evaluation facility; and that on October 27, as a direct and proximate result of the negligence of defendants, Poddar, who was deranged and at large, shot and stabbed Tatiana Tarasoff to death.
Based upon foregoing alleged facts plaintiffs purport to plead a cause of action in four counts. In the first count they allege that defendants were negligent because, knowing of Poddar's dangerous and homicidal state, they took no action within a reasonable time to place him in a 72-hour treatment an evaluation facility. In the second count plaintiffs predicate negligence on the basis that, knowing that Poddar was mentally disturbed, dangerous and a threat to the safety of Tatiana Tarasoff, defendants permitted Poddar to be released from the custody of the campus police without the 72-hour emergency psychiatric detention and did not notify Miss Tarasoff's parents that she was in grave danger from Poddar. The third count predicates liability upon the alleged negligence of Dr. Powelson in wilfully abandoning a dangerous patient and deliberately attempting to conceal Poddar's dangerous propensities through administrative action. In the fourth count plaintiffs allege that defendants have a primary duty to safeguard the interest of a patient and the public and that, knowing of Poddar's mental condition, they negligently permitted Poddar, by administrative action, to be abandoned without further psychiatric surveillance or placement in a 72-hour treatment and evaluation facility such as that provided for in Welfare and Institutions Code section 5150; and that by so detaining Poddar, defendants could have taken individual action to prevent the anticipatory homicide.
The issue presented is whether the second amended complaints state a cause of action. ‘The essence of a cause of action is the existence of a primary right and one violation of that right, i. e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests. [Citations.] The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. [Citations.] ‘The cause of action is simply the obligation sought to be enforced.’ [Citations.]' (Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 65–66, 42 Cal.Rptr. 473, 480.)
I advert, initially, to the first and fourth counts. These allege essentially that defendants failed in their duty to have Poddar committed for a 72-hour psychiatric evaluation and that such failure was the proximate cause of Poddar's actions resulting in Miss Tarasoff's death.
The 72-hour evaluation alluded to in the complaints is that provided for in Welfare and Institutions Code section 5250.2 In 1969 the pertinent portions of that statute read as follows: ‘When any person is a danger to others, or to himself, or gravely disabled as a result of mental disorder, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, or other professional person designated by the county may, upon reasonable cause, take or cause to be taken, the person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene as a facility for 72-hour treatment and evaluation. . . .’
Pursuant to the provisions of section 5150, a person admitted to a facility for the 721–1 hour treatment therein provided may be detained for a period not exceeding 72 hours. If a person detained for 72 hours under the provisions of section 5150 has received and evaluation he may be certified for not more than 14 days of involuntary intensive treatment under certain specified conditions. (§§ 5250, 5251, 5252, 5253, 5254.) At the expiration of the 14-day period of intensive treatment a person may be confined for an additional period not to exceed 90 days upon petition to and a hearing by, the superior court where a person is a danger to himself or to others as a result of mental disorder. (§ 5300 et seq.) A court-ordered evaluation is initiated by a petition in the superior court requesting such an evaluation prepared and filed by the person or agency designated by the county. (§ 5202.) Such a petition may be applied for by any individual. (§ 5201.) Under such a procedure the person alleged to be mentally disordered may be detained for treatment and evaluation for a period not exceeding 72 hours unless the 14-day intensive treatment provided for in section 5250 and the subsequent 90-day treatment provided for in section 5300 are invoked.
Adverting to section 5150, upon which plaintiffs' first and fourth counts are based, I observe that a person may be taken or caused to be taken to a facility for 72-hour treatment and evaluation only by a peace officer, a member of the attending staff of an evaluation facility designated by the county, or by a professional person designated by the county. In this connection, I note that there are two sets of individual defendants, i. e., the named members of the campus police and the named doctors, all of whom are alleged to be employees of defendant The Regents.
Under subdivision (i) of section 5008, defining terms used in the pertinent provisions of the Welfare and Institutions Code, “Peace officer' means each of the persons specified in Sections 830.1 and 830.2 of the Penal Code.' Members of the University of California police department, while designated as ‘peace officers' pursuant to the provisions of Penal Code section 830.3, are not among the persons specified in Penal Code sections 830.1 or 830.2. (See Pen.Code, § 830.3.) Subdivision (j) of section 830.3 of the Penal Code provides that ‘Members of the University of California police department appointed pursuant to Section 23501 of the Education Code are peace officers; provided, that the primary duty of any such peace officer shall be the enforcement of the law as that duty is set forth in Section 23501 of the Education Code.’ At all times pertinent to the instant action section 23501 of the Education Code provided that the ‘peace officers' appointed by The Regents could only exercise their powers or authority upon the campuses of the University of California, in the area within one mile of the exterior boundaries of said campuses, and upon other grounds or properties owned, operated, controlled or administered by The Regents. It was not until 1971 that such powers or authority was extended ‘as provided in Section 830.2 of the Penal Code.’ I, therefore, conclude that defendant officers at all times pertinent were not ‘peace officers' within the meaning of section 5150, and, accordingly, were not empowered to take, of cause to be taken, into custody a person who was a danger to others or to himself as a result of mental disorder and to place such person in a facility designated for 72-hour treatment and evaluation.
With respect to defendant doctors, I conclude that as a matter of law they were not members of the attending staff of the evaluation facility or professional persons designated by the County of Alameda as persons who can take into custody and place in such facility persons suffering from the mental disorder described in section 5150. I judicially notice that at the times pertinent to the instant action the only hospitals in Alameda County, designated as evaluation facilities within the contemplation of section 5150 by virtue of a resolution adopted by the board of supervisors pursuant to section 820, title 9 of the Administrative Code, were Gladman Memorial Hospital and Herrick Memorial Hospital. Cowell Hospital, owned and operated by The Regents, is not such an evaluation facility. The term ‘attending staff’ under section 5150 ‘means any person having responsibility for the care and treatment of the patient, as designated by the Local Mental Health Director, on the staff of an evaluation facility designated by the county.’ (9 Adm.Code, § 823.) Defendant doctors were not members of the staff of either Gladman Memorial Hospital or Herrick Memorial Hospital, but as alleged by plaintiffs, members of the staff of Cowell Hospital. It is not alleged that any one of defendant doctors was a ‘professional person’ designated by the county under section 5150, and I judicially notice that the board of supervisors have not by resolution designated any person other than a member of the staffs of the designated evaluation facilities as a designee who can take, or cause to be taken, the person into custody pursuant to the provisions of section 5150.3
A demurrer reaches not only the contents of the pleading but also such matters as may be considered under the doctrine of judicial notice. (Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30; South Shore Land Co. v. Petersen, 226 Cal.App.2d 725, 745–746, 38 Cal.Rptr. 392; Holmes v. City of Oakland, 260 Cal.App.2d 378, 382, 67 Cal.Rptr. 197.) Accordingly, matters judicially noticed may be read into the complaint. (Homes v. City of Oakland, supra, at p. 384, 67 Cal.Rptr. 197.)
I observe, further, that under the language of section 5150 the persons therein designated are not required to take the mentally disordered person into custody for placement in the designated evaluation facility. The statute uses the word ‘may.’ As provided in section 15, “may' is permissive.' We also note that although no specific allegation is made that defendants had the right to initiate detention proceedings for evaluation and detention by making application therefor to the person or agency designated by the county, as provided in section 5201, this statute also used the permissive word ‘may.’ Accordingly, under the wording of both sections 5150 and 5201, there is no indication that defendants had a duty or obligation to initiate detention proceedings for evaluation and treatment. In sum, there was no mandatory duty imposed on any of defendants to take Poddar, or cause him to be taken, to an evaluation facility designated by the county, nor was there a mandatory duty imposed on them to apply for a petition requesting that an evaluation of Poddar's mental condition be made.
Assuming, arguendo, that there was a breach of duty on the part of defendants, a question remains whether their conduct or omission was a proximate cause of the damages defendants claim they have suffered. The determination of this question turns upon whether there is some reasonable connection between an act or omission of defendants and the death of Miss Tarasoff. Prosser states the question in terms of whether the defendant's conduct or omission was a material element and a substantial fact in bringing it about. (Prosser, Law of Torts (4th ed.) p. 240.) While causation is normally a fact issue it may be resolved as a question of law whether the issue is so clear that reasonable men could not differ. (Lysick v. Welcome, 258 Cal.App.2d 136, 153, 65 Cal.Rptr. 406; Ishmael v. Millington, 241 Cal.App.2d 520, 525–526, 50 Cal.Rptr. 592; Prosser, supra.)
In the instant case defendants allegedly became aware of Peddar's mental disorder on or about August 20. Poddar killed Miss Tarasoff on October 27. Had defendants been able to initiate the 72-hour treatment and evaluation proceedings under section 5150 on August 20, as alleged by plaintiffs, Poddar was subject to be released before 72 hours elapsed if, in the opinion of the professional person in charge of the facility, or his designee, Poddar no longer required evaluation or treatment. (§ 5152.) If the professional staff of the evaluation facility analyzed poddar to be a danger to himself or others as a result of mental disorder he could have been certified for the 14-day period of intensive treatment. (§§ 5250, 5251.) Here, again, Poddar's detention could be for a period no longer than 14 days if, in the opinion of the professional person in charge of the facility providing intensive treatment, Poddar had improved sufficiently for him to leave, or was prepared to accept voluntary treatment on referral or was prepared to remain in the facility on a voluntary basis. (§ 5254.) If Poddar was still a danger to himself or others proceedings could be initiated for a court-ordered evaluation. (§ 5300.) Under these proceedings he could ask for a jury trial. (§ 5303.) Upon a decision by the court or jury Poddar could have been found not to need postcertification treatment or he could be ordered detained for an additional 90-day period of intensive treatment. (§ 5304.) Assuming he was so detained, Poddar could have been released earlier if, in the opinion of the superintendent or professional person in charge of the facility, Poddar no longer constituted an imminent threat of substantial physical harm to others. (§ 5305.)
The foregoing procedures and evaluations leave it to conjecture whether Poddar would have been in involuntary detention on October 27, or, if he wa, whether upon a subsequent release he would have killed Miss Tarasoff. In the light of all of the variables and alternatives permitted by statute it must be concluded as a matter of law that any act or omission of defendants was not a material element and a substantial factor in bringing about the death of Miss Tarasoff.
I take cognizance, moreover, of Government Code section 820.2, 855.6, 855,8 and 856 providing for immunity from liability of a public entity or a public employee acting in the scope of his employment.
Government Code section 820.2 provides: ‘Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission when the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion is abused.’ As already pointed out, defendants were not authorized to place Poddar in a 72-hour evaluation facility, but assuming that they possessed such authority, that authority, at best, was a discretionary one in view of the permissive language of section 5150.
Section 855.6 provides for an immunity for failure to make an examination, or, if an examination is made, to the adequacy of the examination.4 In Kravitz v. State of California, 8 Cal.App.3d 301, 87 Cal.Rptr. 352, the defendant doctors of two state hospitals, also named as defendants, released a mental patient on the basis of their medical opinions that he had recovered his sanity. The patient committed a deadly assault upon the daughter of the plaintiffs who thereafter brought a wrongful death action against the defendants. Governmental immunity was found to exist by virtue of Government Code sections 820.2 and 855.6. (At pp. 306–307, 87 Cal.Rptr. 352.) Adverting to section 855.6, the court stated: ‘The language of that section is directed exactly at a situation in which, as the result of a faulty diagnosis, a mentally defective person is either not placed in custody or is released therefrom and thereafter causes harm to another or to himself.’ (At p. 306, 87 Cal.Rptr. at p. 356.) In defendant doctors' situation, although the diagnosis was not ‘faulty’ the ultimate judgment not to proceed with the 72-hour evaluation was, in any event, an exercise of discretion and falls within the application of Government Code sections 855.6 and 820.2.
Adverting to Government Code section 855.8, I observe that this section declares an immunity from liability for diagnosing or failing to diagnose that a person is afflicted with a condition for which he may be committed to an institution for the mentally ill or for failing to prescribe for mental illness. This section, however, does not provide immunity for malpractice where a public employee undertakes to prescribe for mental illness.5 The immunity provided by the section applies equally to a preliminary diagnosis by a physician employee of a public entity that a person may be psychotic and possibly dangerous and his recommendation that the patient be hospitalized for psychiatric observation. (Fish v. Regents of Univ. of Cal., 246 Cal.App.2d 327, 333–334, 54 Cal.Rptr. 656.) In the instant case Doctors Moore, Gold and Yandell made a diagnosis of mental illness and recommended commitment for observation in a mental hospital. None of defendant doctors undertook to prescribe for Poddar or to administer any treatment excepting the voluntary psychotherapy treatment which Poddar sought at The Regents' hospital. Plaintiffs do not allege that any of defendant doctors were guilty of malpractice.
Turning to section 856 of the Government Code, I note that this section declares an immunity from liability for determining whether to confine a person for mental illness, for determining the terms and conditions of any such confinement and for liability for carrying out with due care the discretionary determinations that are made. Liability is imposed by this section only for failure to use reasonable care in carrying out whatever determination has been made.6 As indicated by its provisions this statute does not apply to defendants. As pointed out above defendants were not under any duty to determine whether to confine Poddar for mental illness, but, at best, could only recommend the 72-hour evaluation. The determination to confine Poddar for mental illness could only be made by the designated facility after review of the application made by the persons authorized in section 5150.
In Hernandez v. State of California, 11 Cal.App.3d 895, 90 Cal.Rptr. 205, a patient was released from confinement and thereafter assaulted and killed his mother. The heirs of the decedent brought a wrongful death action against the state and certain employees of a state hospital. A general demurrer to the complaint was sustained and the action was dismissed. The appellate court affirmed the order of dismissal on the basis that Government Code section 856 creates an absolute immunity in a public entity and its employees for injuries resulting from a determination to release an inmate from a confinement in a medical facility for mental illness. In its decision the reviewing court observed that Government Code sections 855.6, 855.8, and 856 are ‘designed to protect a patient under confinement from medical malpractice and mistreatment and not to protect the public or the patient from injuries which may follow an unwarranted release from confinement.’ (At p. 899, 90 Cal.Rptr. at p. 208.) The appellate court also placed strong reliance on the statement of the Law Revision Commission in 4 Calif.Law Revision Com. 830 (1963), which we quote in part: “. . . no tort liability should exist for determining whether to confine a person for a mental or emotional disturbance for which commitment to a public hospital is authorized, nor for determining the terms and conditions of the confinement. . . .” (11 Cal.App.3d at p. 898, 90 Cal.Rptr. at p. 208.)
I now advert to the second count based on defendants' failure to warn Miss Tarasoff's parents. No facts are alleged that a special relationship existed between defendants and Miss Tarasoff or her parents. It is a general principle of tort law that in the absence of a special relationship between the parties there is no duty to control the conduct of a third person so as to prevent him from causing harm to another. (Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23; Morgan v. County of Yuba, 230 Cal.App.2d 938, 943, 41 Cal.Rptr. 508.) An exception to this rule exists when there has been a voluntary or gratuitous undertaking. (Morgan v. County of Yuba, supra; Perry v. D. J. & T. Sullivan, Inc., 219 Cal. 384, 389–390, 26 P.2d 485; Griffin v. County of Colusa, 44 Cal.App.2d 915, 923, 113 P.2d 270; Biondini v. Amship Corp., 81 Cal.App.2d 751, 763, 185 P.2d 94.) Thus in Morgan it was held that the sheriff owed the plaintiffs the duty to warn them of the release of a prisoner where the officer had promised to warn them. The reviewing court concluded that the failure to warn the plaintiffs constituted nonfeasance giving rise to tort liability that was established when the plaintiffs placed reasonable reliance on the sheriff's promise and they suffered harm because of his failure to carry out that promise.
Defendants in the present case had no relationship with plaintiffs or plaintiffs' daughter. They had not undertaken an obligation to warn plaintiffs of any danger, did not induce reliance or lull plaintiffs into a false sense of security. Plaintiffs' cause of action as asserted in this count requires as elements an allegation of a special relationship and a reliance by plaintiffs on defendants' conduct. These elements have not been pleaded nor does it appear that they could be pleaded.
Plaintiffs' third count seeks general damages against each defendant and punitive damages against defendant Powelson, predicated on Powelson's alleged negligence in wilfully and oppressively abandoning a dangerous patient and in his alleged attempt to conceal the patient's dangerous propensity in countermanding by administrative action the medical decision of defendants Gold, Moore and Yandell, and by ordering defendant Moore's letter to the campus police and the therapists' notes to be destroyed.
These allegations, in essence, are a reiteration of those in the first and fourth counts predicated in the failure to have Poddar committed for a psychiatric evaluation. As already pointed out, Powelson was not under any duty to undertake such commitment. I observe moreover, that assuming Powelson possessed the authority to have Poddar committed for psychiatric treatment, such authority was a discretionary one for which immunity has been granted under applicable provisions of the Government Code. (Gov.Code, §§ 820.2, 855.6; § 5150.) Powelson, as the director of the department of psychiatry at Cowell Memorial Hospital, and the superior medical doctor on the psychiatric staff, was not only possessed of a discretion to determine for himself whether Poddar had a mental condition that would constitute a hazard to the health or safety of himself or others, but was entitled to conclude that under the applicable statutes he and his staff were not under any legal duty to proceed with commitment procedures.
The decision not to proceed with an application for a 72-hour evaluation was allegedly accompanied by an unexplained order for the destruction of Poddar's records and defendant Moore's letter requesting help from the campus police. No allegation is made that Powelson or The Regents were under a duty to preserve the records. The destruction of such records does not, as a matter of law, constitute a proximate cause of Miss Tarasoff's death. To the contrary, the allegations of the third count, as a matter of law under principles above discussed, fail to establish that the conduct and omission complained of were a proximate cause of the damage claimed to have been suffered by plaintiffs.
The judgment is affirmed.
I concur in the affirmance of the judgment of the superior court and for the following reasons.
I. It seems clear that the defendant campus police officers, and the defendant Regents vicariously for the acts or omissions of the officers, were immunized from liability to plaintiffs by the operation of Government Code sections 818.2, 821, and 846.
II. Nor was liability imposed on the defendant doctors Regents by Welfare and Institutions Code section 5150, or its related sections, for failure to ‘take, or cause to be taken [Poddar] into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene as a facility for 72-hour treatment and evaluation.’ Section 5150 imposed no such requirement; it simply provided that the doctor ‘members of the attending staff . . . may, upon reasonable cause’ take a person such as Poddar into custody. (Emphasis added.) Welfare and Institutions Code section 15 provides: “Shall' is mandatory and ‘may’ is permissive.' (Emphasis added.) It follows that no duty was imposed by the statute.
III. The question arises whether the doctors were under a non-statutory duty to cause Poddar to be taken into some kind of custody, thus to prevent the tragedy which later occurred. The existence of such a duty is a question of law. (See discussion, 2 Witkin, Summary of Cal.Law, Torts, § 4.)
Appellants contend that such a duty was imposed by the holdings of Vistica v. Presbyterian Hospital, 67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193, and Meier v. Ross General Hospital, 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519. In each of those cases a suicidally inclined mental patient had been accepted for care and treatment in the psychiatric ward of a hospital. In each the hospital had negligently allowed the patient access to an open, or readily openable, window through which he jumped to his death. The pertinent rule was expressed in Meier v. Ross General Hospital (p. 424, 71 Cal.Rptr. p. 906, 445 P.2d p. 522), as follows: ‘If those charged with the care and treatment of a mentally disturbed patient know of facts from which they could reasonably conclude that the patient would be likely to harm himself in the absence of preclusive measures, then they must use reasonable care under the circumstances to prevent such harm.’ Reasonably there would seem to be little doubt of the correctness of this rule. A hospital undertaking to care for a dangerous or suicidal mental patient should exercise reasonable care that opportunities for such aggressive or self-destructive conduct be not afforded.
But in the instant case we are concerned with a voluntary outpatient who applied to a hospital's medical staff for psychotherapy, thus creating a psychiatrist-patient relationship
The question appears to be one of first instance. It may be stated as whether a psychiatrist has an absolute legal duty, when a patient has expressed a homicidal intent, and he believes the patient to be a ‘danger to the welfare of other people and himself,’ to forthwith cause the patient to be placed in custody.
Without precedential guide, our principal inquiry is whether there exists any public policy related to our problem. ‘The policy of the state can be ascertained only by reference to the constitution and laws passed under it, or which is the same thing, to the principles underlying and recognized by the constitution and laws.’ (County of San Bernardino v. Creamery Co., 103 Cal.App. 367, 373, 284 P. 457, 459.) And in determining public policy recourse should also be had ‘to the decisions of the courts of last resort.’ (Maryland C. Co. v. Fidelity etc. Co., 71 Cal.App. 492, 497, 236 P. 210, 212.)
We observe, as previously noted, California's legislative consideration of the general subject matter before us, in the enactment of Welfare and Institutions Code section 5150. Although this statute does not necessarily preclude a different common-law rule, it is of aid to us. There, as has been pointed out, the Legislature provided that where a mental patient was ‘a danger to others or to himself,’ a hospital's psychiatric staff member ‘may, upon reasonable cause, take, or cause to be taken, the person into custody . . ..’ (Emphasis added.) It must be presumed that the Legislature considered, despite the obvious public danger involved, that the state's interest would best be served by a discretionary doctor's decision whether a violence prone mental patient should forthwith be placed in custody.
Other authority, likewise, points to such a public policy. our Supreme Court in In re Lifschutz, 2 Cal.3d 415, 421–422, 85 Cal.Rptr. 829, 832–833, 467 P.2d 557, 560–561, stated:
‘We recognize the growing importance of the psychiatric profession in our modern, ultracomplex society. The swiftness of change—economic, cultural, and moral—produces accelerated tensions in our society, and the potential for relief of such emotional disturbances offered by psychotherapy undoubtedly establishes it as a profession essential to the preservation of societal health well-being. Furthermore, a growing consensus throughout the country, reflected in a trend of legislative enactments, acknowledges that an environment of confidentiality of treatment is vitally important to the successful operation of psychotherapy. California has embraced this view through the enactment of a broad, protective psychotherapist-patient privilege.’
The ‘broad protective psychotherapist-patient privilege’ referred to in In re Lifschutz is found in Evidence Code sections 1010–1026. It extends to publicly employed psychiatrists of state hospitals. (Estate of Johnson, 200 Cal. 299, 306, 252 P. 1049.) Legislative committee comment on these statutes follows:
‘The article creates a psychotherapist-patient privilege that provides much broader protection than the physician-patient privilege.
‘. . . Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life. Research on mental or emotional problems requires similar disclosure. Unless a patient or research subject is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment or complete and accurate research depends.
‘The Law Revision Commission has received several reliable reports that persons in need of treatment sometimes refuse such treatment from psychiatrists because the confidentiality of their communications cannot be assured under existing law. Many of these persons are seriously disturbed and constitute threats to other persons in the community. Accordingly, this article establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege. Although it is recognized that the granting of the privilege may operate in particular cases to withhold relevant information, the interests of society will be better served if psychiatrists are able to assure patients that their confidences will be protected.’ (Emphasis added; see Deering's and West's Annotated Evidence Codes, annotation to § 1014.)
Little imagination is required to recognize the offense against the ‘psychotherapist-patient privilege’ which would result from the rule sought by plaintiffs. Psychiatrists would be legally compelled to divulge their patients' confidential communications of thoughts or purpose of violence. They would no longer be ‘able to assure patients that their confidences will be protected.’ And patients in great need of psychiatric help would tend to avoid doctors in the certain knowledge that disclosure of their ideas and aims of aggression would result in immediate incarceration.
These several reasons impel me to conclude that the public policy of California, as indicated by its Legislature and Supreme Court, precludes the common-law rule sought to be established by plaintiffs.
IV. I conclude also that the same policy compels the rule that doctors are under no legal duty to warn all persons against whom mental patients have expressed intent of violence. Such a duty would be grossly contrary to the psychotherapist-patient privilege. And I think it common knowledge that while mental patients' thoughts of violent intent are frequent, implementation of such subjective intent is rare. It is doubtful, at least on balance, that public good would attend the imposition of a legal duty on a psychiatrist to sound a public or private alarm whenever a patient discloses such aggressive intent. Again, subject of course to the psychotherapist-patient privilege, such decisions are best left to the doctor.
V. The judgment of the superior court is now supported by the foregoing discussion and the reasons stated by Justice Molinari. I find it unnecessary to a disposition of the appeal to consider the issues of territorial jurisdiction of the campus police officers, and of proximate cause.
I respectfully dissent from the foregoing opinion and decision, except insofar as it exonerates the defendants Moore, Gold and Yandell. It appears from the allegations of the second amended complaint that the Regents through the staff of the department of psychiatry at the Cowell Memorial Hospital, undertook to treat Prosenjit Poddar as a voluntary outpatient for a mental disorder, that as a result of that treatment he was diagnosed as a danger to the welfare of other people and himself, and more particularly that he was planning to kill an unnamed girl who was readily identifiable.1 The diagnosis included a recommendation that the patient should be committed for observation in a mental hospital. For alleged reasons which are analyzed below this recommendation was never carried out, nor were the anticipated victim or the plaintiffs, her parents, ever warned of the dangerous propensities and threats of the patient. Subsequently the young woman was murdered by the patient.
The case involves the questions of whether there was any duty owed to the victim or her parents by the staff doctors of the Regents, or by their campus police; whether there was a negligent breach of such duty; whether, if so, such breach was a proximate cause of the death of the victim; and whether the Regents and their employees enjoy immunity from suit under the circumstances set forth in the allegations of the the complaints. It is concluded that the allegations of the complaints if established by proof would entitle plaintiffs to recover for the wrongful death of their daughter from the Regents and from such of its employees who negligently failed to carry out the duties flowing from the foregoing diagnosis and recommendation.
In Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519, the court reversed a judgment entered upon verdicts for the treating hospital and the attending physician in an action to recover for the wrongful death of a psychotic patient who committed suicide by jumping headfirst through the window of his second floor room. The court held it was reversible error to refuse to qualify a res ipsa loquitur instruction by qualifying the reference to the participation of the victim in the acts leading to his death by the following phrase, “A plaintiff may properly rely on res ipsa loquitur although he [the decedent] participated in events leading to the accident if the evidence excludes his conduct as the responsible cause.” (69 Cal.2d at p. 427, 71 Cal.Rptr. at p. 908, 445 P.2d at p. 524.) In the opinion the court stated, ‘In the present case, decedent had attempted suicide and had been placed in the hospital because of his depressed state and physical injuries. Under such circumstances, we have held that those charged with the care and treatment of a patient, who know of facts from which it might reasonably be concluded that a patient would be likely to harm himself in the absence of preclusive measures, must use reasonable care to prevent such harm. (Wood v. Samaritan Inst., supra,  26 Cal.2d 847, 853, 161 P.2d 556; Vistica v. Presbyterian Hospital, supra, , 67 Cal.2d 465, 468–470, 62 Cal.Rptr. 576, 432 P.2d 193.)’ (Id.) Although in Meier the injury to be feared is referred to as harm to the patient himself, in Vistica and Wood the court referred to both harm to himself or others. (See Greenberg v. Barbour (E.D.Pa.1971) 322 F.Supp. 745, 747–748.)
Having, with the concurrence of two colleagues, made the diagnosis that the patient should be committed for observation to a mental hospital, the defendant Moore undertook to carry out the prescribed treatment. He could do no less.2 Could a general practitioner, who diagnosed gangrene and concluded an operation to remove a limb was indicated, escape responsibility if he turned his back on the patient without arranging for such an operation? The circumstances here are not as clear, but they are analogous, and in each case there is a duty to go forward as part of the course of treatment once such treatment is undertaken.
Dr. Moore had two alternatives. He could seek to have the patient taken into custody by a peace officer or the member of the attending staff of an evaluation facility designated by the county or other professional person designated by the county in accordance with the provisions of section 5150 of the Welfare and Institutions Code as operative July 1, 1969.3 He could also apply to the person or agency designated by the county for a petition to secure a court ordered evaluation as provided in sections 5200–5213 of that code. The copy of the letter attached to the complaint indicates that he purported to follow the former course.
In has been pointed out that the addressee of the letter, the chief of the campus police, was not within the definition of a ‘peace officer’ who was authorized to take a mentally disordered person into custody. (See Welf. & Inst.Code, §§ 5151 and 5008, subd. (i); Pen.Code, §§ 830.1, 830.2, subd. (d), (added Stats.1971, ch. 1469, § 6, p. 2902), and § 830.3, former subd. (j) (Stats.1968, ch. 1222, § 1, p. 2305, deleted Stats.1971, ch. 1695, § 1, p. 3636); and Ed.Code, § 23501.) Nevertheless Dr. Moore in his letter, after outlining the patient's history since June 5, 1969, and stating that he was diagnosed as a danger to the welfare of other people and himself, requested the assistance of the campus police in the matter. It is further alleged that the personally notified two officers of the campus police of that diagnosis, of the threats the patient had made to kill an unnamed but identifiable girl, and that the letter, referred to above, would be forthcoming so the police could apprehend the patient and take him to Herrick Hospital (admittedly a designated evaluation facility) for the purpose of subjecting him to a 72-hour emergency detention for evaluation.
When faced with the request, the campus police could have absolved themselves of further responsibility by advising the doctor of their lack of authority to act under section 5150.4 They apparently did not do so. It was also conceivable that they could have referred the doctor's request to the Berkeley Police Department or to the staff of the Herrick Hospital. It does not appear the either of those courses was followed.
Understandably (see fn. 4 above) the campus police allegedly responded to the letter as though they were authorized to act under section 5150. It is alleged that three officers conducted their own investigation, took the patient into their custody and released him when he stated he would stay away from the threatened victim who by that time had been identified.
If the officers had been authorized to act and were acting under the power conferred upon ‘a peace officer’ by section 5150, they and their employer would be immunized from the alleged negligent omission to take the patient into custody by the provisions of Government Code section 856 which read in pertinent part, ‘(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for any injury resulting from determining in accordance with any applicable enactment: [¶] (1) Whether to confine a person for mental illness or addiction.’ In Hernandez v. State of California (1970) 11 Cal.App.3d 895, 90 Cal.Rptr. 205 the court upheld the dismissal of a complaint which sought to hold the state answerable for damages for the death of the mother of a former mental patient who was killed by her condition. The court concluded that the provisions of paragraph (3) of subdivision (a) of section 856, which give immunity with respect to a determination to parole or release a person confined for mental illness, created an absolute immunity. (11 Cal.App.3d at pp. 898–899, 90 Cal. Rptr. 205. See also County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 482–483, 105 Cal.Rptr. 374, 503 P.2d 1382 [§ 845.8, subd. (b), liability for tort of prisoner allegedly negligently permitted to escape]; County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 756, 93 Cal.Rptr. 406 [§§ 845.8 and 846 liability for tort of arrestee allegedly negligently released without bail]; Kravitz v. State of California (1970) 8 Cal.App.3d 301, 306–307, 87 Cal.Rptr. 352 [§§ 820.2 and 855.6 liability for tort of criminally insane patient released by court under Penal Code, § 1026a]; Fish v. Regents of Univ. of Cal., supra, 246 Cal.App.2d 327, 332–334, 54 Cal.Rptr. 656 [§ 855.8 liability of city physician for false imprisonment based on faulty diagnosis]; and Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 142, 43 Cal.Rptr. 294 [§§ 820.2 and 845.8 liability for tort of escaped arrestee].)
Although the officers may not be entitled to the immunity conferred by Government Code section 856, subdivision (a)(1) because they were not authorized to act under section 5150 of the Welfare and Institutions Code (see Fish v. Regents of Univ. of Cal., supra, 246 Cal.App.2d 327, 333, 54 Cal.Rptr. 656), they and their employee may be entitled to the immunity covered by sections 818.2, 821 and 846 of the Government Code which furnish immunity to the public entity and the public employee for injury caused by the failure to enforce a law or make an arrest. (See Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d 67, 69–70, 336 P.2d 968 and cases last cited above.)
It may be concluded that neither the officers nor the Regents can be held liable for injuries proximately resulting from the failure of the officers to detain the patient, even if they were negligent in so acting. This conclusion, however, does not dispose of their liability. Before analyzing whether the negligent, although unactionable, release of the patient gave rise to a further duty of care, namely, to warn the prospective victim, the course of the patient's treatment or lack of it should be traced.
It may be inferred from the allegations of the complaint that the department of psychiatry at Cowell Memorial Hospital learned that the campus police had not executed Dr. Moore's request, and therefore knew that a patient, diagnosed by three members of the staff as dangerous to himself and others, specifically to a then identified young woman, was at large. Certainly the diagnosis of the untrained, unauthorized and allegedly negligent campus police could not insulate the treating physicians from the duty of either treating the patient in the manner they had recommended, or, at least, reevaluating their former diagnosis.
The complaint alleges that defendant Powelson as director of the department, ordered that no action be taken to place the patient in a facility for a 72-hour evaluation despite the fact the at that time, following the release of the patient by the campus police, all of the alternatives originally open to Dr. Moore were available. If Dr. Powelson made a diagnosis that the patient was not afflicted with mental illness, or that he was not in fact a danger to the welfare of other people or himself, he and the Regents would be immunized from liability, despite the impropriety of such a diagnosis, by the provisions of section 855.8 (See fn. 2 above.)
According to the allegations of the complaint Dr. Powelson did not undertake to furnish the diagnosis or treatment which the patient was entitled to expect from the clinic from which he had sought medical psychiatric assistance. It is alleged that Dr. Powelson never examined the patient. On information and belief it is alleged that Dr. Powelson requested the chief of the campus police to return Dr. Moore's letter; that he ordered that all copies of that letter, and all copies of Dr. Moore's notes on the patient be destroyed; and that he ordered that no action be taken to place the patient in a 72-hour treatment and evaluation facility. It is further alleged that Dr. Powelson abandoned a dangerous patient and deliberately attempted to conceal the patient's dangerous propensity by ordering the destruction of the letter and records. These allegations, strictly construed in favor of the pleader, do not permit the inference that Dr. Powelson's actions were an exercise of discretion or part of a course of diagnosis or treatment. (See Biggers v. Sacramento City Unified Sch. Dist. (1972) 25 Cal.App.3d 269, 274–275, 101 Cal.Rptr. 706 (Whether or not the true facts will show that such was the case, is not before the court at this time.5 ) Therefore, neither Dr. Powelson nor his employer, the public entity, is entitled to the immunity conferred by section 820.2 or by subdivision (a) of section 855.8.6 From the allegations of the complaint it appears that the department of psychiatry had undertaken to treat the patient, had diagnosed that he was afflicted with mental illness which rendered him a danger to himself and others, and had prescribed and indicated treatment consisting of his apprehension and detention in a designated facility for 72-hour treatment and evaluation, and that Dr. Powelson arbitrarily terminated the relationship with the patient at that point. The situation is governed by subdivision (d) of section 855.8 which withholds immunity for liability for injury proximately caused by a ‘negligent or wrongful act or omission in administering any treatment prescribed for mental illness . . ..’ (See fn. 2 above, emphasis added.)
The first cause of action is entitled ‘Failure to Detain a Dangerous Patient.’ As such it must fail as against the doctors and their employer because as is evident, the only persons who can detain a dangerous patient are those named in the Welfare and Institutions Code (see §§ 5150 and 5206; and cf. Gov.Code, § 856). The complaint indicates that the campus officers were negligent in attempting to exercise judgment on Dr. Moore's request. Whether or not they were authorized to do so, they, as public employees, and the Regents, as a public entity, have been granted immunity. It does appear, however, that the allegations are sufficient to establish, with respect to Dr. Powelson, a negligent omission to administer a prescribed treatment. As in the Watergate case, the attempts to conceal may have greater consequences than the original error (here the immunized negligence of the campus police).
The allegations of the complaint exonerate the defendants Moore, Gold and Yandell because it affirmatively appears that Dr. Moore did all within his power to attempt to effect the treatment prescribed by their diagnosis and was prevented from accomplishing that action by the acts and omissions of the campus police and Dr. Powelson. Plaintiffs suggest that any of these defendants could have filed a petition under section 5201 so as to effect the apprehension, detention, treatment as evaluation of the patient. The question is not whether any of them could have filed a petition, but whether there was a duty imposed to go over the head of their superior. The responsibility for carrying out the prescribed treatment was that of the clinic not the individual doctors who were subject to Powelson's directives. The judgments of dismissal should stand as to those defendants.
The third cause of action ‘Abandonment of a Dangerous Patient’ adds nothing to what has been said about the negligent omission to furnish treatment. It is alleged that Dr. Powelson ‘wilfully and oppressively abandoned’ the patient and ‘deliberately’ attempted to conceal his dangerous propensity, and that his acts were done ‘maliciously and oppressively.’ The plaintiffs each seek exemplary damages in the sum of $100,000. Whatever may be said as to that doctor's acts with respect to the patient himself, it is difficult to infer that his wilfulness, oppression, or malice was directed at the victim or her parents. Although that defendant's attempts to destroy the records cannot be condoned, plaintiffs' claims must stand or fall on the doctor's negligent failure to carry out the prescribed treatment, and bear no relation to his alleged attempts to conceal the nature of that prescribed treatment or his motives in so doing. The descriptive words characterizing his acts give the plaintiffs no greats rights. (See Civ.Code, § 3294; Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526–530, 322 P.2d 933; and McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 299–302, 279 P.2d 138. Cf. Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 711–715, 60 Cal.Rptr. 398.)
The fourth cause of action entitled ‘Breach of Primary Duty to Patient and the Public,’ is a restatement of the facts set forth before. It seeks to impose a general obligation on the psychiatric staff, campus police and Regents, defined as ‘a primary duty to safeguard the interest of the patient and public, so that no administrative action should be undertaken for which the welfare of the patient or public is jeopardized.’ It is unnecessary to determine whether there is such a broad general duty, and, if so, what immunities attend it. The primary duty of treatment has been exposed above.
The second cause of action is entitled ‘Failure to Warn on a Dangerous Patient.’ Plaintiffs rely upon principles promulgated in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352. There the court overturned a summary judgment in favor of the state and against a foster mother, who, with her husband, had undertaken to provide a foster home for a ward of the Youth Authority, and was subsequently assaulted and injured by the ward. On the record the reviewing court assumed: ‘. . . that the youth had demonstrated dangerous propensities, that the state's agents knew or should have known of the existence of these dangers, and that they nevertheless failed to give adequate warning to the plaintiff.’ (69 Cal.2d at p. 785, fn. 1, 73 Cal.Rptr. at p. 243, 447 P.2d at p. 355.)
The principal issue was whether or not the state had statutory immunity, as will be reviewed below. In answer to the contention that the state had no duty of care the court observed, ‘At the outset, we can dispose summarily of the contention, not strenuously pressed by defendant, that the judgment should be affirmed because the state owed no duty of care to plaintiff. As the party placing the youth with Mrs. Johnson, the state's relationship to plaintiff was such that its duty extended to warning of latent, dangerous qualities suggested by the parolee's history or character. (Cf. Langley v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 655, 661, 262 P.2d 846; Crane v. Smith (1943) 23 Cal.2d 288, 296, 144 P.2d 356; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 650–651, 55 Cal.Rptr. 94; Crane v. Sears Roebuck & Co. (1963) 218 Cal.App.2d 855, 859, 32 Cal.Rptr. 754; Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 317, 253 P.2d 675, Rest.2d Torts, § 301(2)(b).) 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., at pp. 785–786, fn. omitted, 73 Cal.Rptr. at p. 242, 447 P.2d at p. 355.7
In the Johnson case the placement of the ward with demonstrated dangerous propensities in the foster parents' home created the foreseeable peril. There was no such placement in this case. It is alleged that on or about September 1, 1969 the patient persuaded the brother of his intended victim to share an apartment very near the home of the plaintiff parents to which the intended victim was expected to return later that month. None of the defendants was directly responsible for that placement. The duty of warn, if any there was, arose before that time.
In each of the cases relied upon in Johnson, as well as in that case itself, there was a prior relationship between the party injured and the party who negligently failed to warn of the danger which resulted in the injury, to wit, customer of power company who had requested notice of power failure (Langley v. Pacific Gas & Elec. Co.); customer in store where hazardous condition existed (Crane v. Smith); contemplated user of a dangerous product (Gherna v. Ford Motor Co., and Crane v. Sears Roebuck & Co.); and employer of babysitter for a violent child (Ellis v. D'Angelo).8 In Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, the court recognized that the failure to warn a complaining witness that the accused was released on bail would give rise to a cause of action for her wrongful death by the hand of the accused, against the public entity which employed the sheriff, who, with knowledge of the accused's threats against the complainant, had undertaken to warn the complainant if the accused was so released. Here again there was some prior relationship between the party injured and the party who negligently failed to warn.
Johnson makes it clear that there is no requirement that there be, as in Morgan, an express assurance that a warning be given, and that the issue is whether there is a foreseeable latent danger to the party to be warned. (69 Cal.2d at p. 797, fn. 10, 73 Cal.Rptr. 240, 447 P.2d 352 and accompanying text.) The lack of an express prior relationship between the victim and her parents, on the one hand and the employees of the Regents, on the other, is not determinative in this case, because the peculiar circumstances of the case in themselves supply a relationship, which although then unknown to the victim and her parents, was obvious to and recognized by those acting on behalf of the Regents.
The Welfare and Institutions Code itself recognizes that a person may be a danger to others as a result of mental disorder (§§ 5150, 5201 and 5206). As of August 20, 1969, Poddar allegedly was diagnosed as a danger to the welfare of other people and himself, and more specifically it was known that the had been threatening to kill an unnamed girl whom he irrationally felt had betrayed him and had violated his honor. Allegedly the campus police undertook to investigate on the basis of that diagnosis, and it was their alleged negligent, although immunized, decision to release him. In so doing, however, they did not purport to dismiss the charges as utterly groundless. It is alleged, ‘The campus police released . . . Poddar when Poddar stated he would try to stay away from Tatiana Tarasoff.’ From that allegation it clearly may be inferred that the campus police had not only ascertained the identity of the object of Poddar's paranoid delusions, but also believed it was necessary to keep the patient and the victim apart. If the campus police arrived at that decision and exacted a promise from Poddar to stay away from Tatiana, a court or jury could well find that it was predicated on the foreseeability that contact between the two would lead to the very peril which had been pointed out by the psychiatric staff, and which ultimately in fact did cause the death of the victim. Under those circumstances the finders of fact would be entitled to find that there was a lack of due care in failing to warn the threatened victim directly, or indirectly, through her parents, that she should likewise stay away from the patient. This negligence not only marked the omission of the campus police to give a warning, but also may be attributed to Dr. Powelson, if, as alleged, he arbitrarily without rediagnosis, failed to pursue the course of treatment prescribed by his staff. In fact such warning, if given, might not only have led the victim to stay away from the patient, but also might have enabled the victim or her family to take appropriate action under section 5201.
In Richards v. Stanley (1954) 43 Cal.2d 60, 271 P.2d 23 the court refused to permit a person, who suffered injuries as the result of the negligent operation of a vehicle by a thief, to recover against owners who had left the keys in the ignition in violation of a city ordinance. The court stated, ‘Ordinarily . . . in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another. [Citations.]’ (43 Cal.2d at p. 65, 271 P.2d at p. 27. See also Morgan v. County of Yuba, supra, 230 Cal.App.2d 938, 943, 41 Cal.Rptr. 508.) Nevertheless a few years later the court, in a case of like import, examined all of the circumstances which gave rise to the theft of the vehicle, and reversed a judgment notwithstanding the verdict for the owner and original operators of the stolen vehicle, and ordered judgment on the verdicts for plaintiffs injured by the negligent driving of an unidentified thief. The court stated, ‘. . . Richards would not bar the door to recovery in all cases. Special circumstances which impose a greater potentiality of foreseeable risk or more serious injury, or require a lesser burden of preventative action, may be deemed to impose an unreasonable risk on, and a legal duty to, third persons.’ (Hergenrether v. East (1964) 61 Cal.2d 440, 444, 39 Cal.Rptr. 4, 6, 393 P.2d 164, 166.) So here a balancing of the potentiality of the fore-seeable risk and the fact that the injury, if resulting, would be fatal, with the preventative action involved in ‘the simple act of reaching for a telephone or of dispatching a messenger’ (see Morgan v. County of Yuba, supra, 230 Cal.App.2d at p. 942, 41 Cal.Rptr. at p. 511) authorizes the imposition of a legal duty to one who would be directly endangered by the threatened action.
In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, Justice Tobriner, in the exercise of a rarely occurring prerogative to reestablish a principle once rejected by a court to which he later was elevated (cf. Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 with vacated opinion (1962) 23 Cal.Rptr. 131), had occasion to analyze the concept of duty as it tends to define the perimeter embracing cognizable tort claims (see 68 Cal.2d at pp. 733–735, 69 Cal.Rptr. 72, 441 P.2d 912). The majority opinion points out, ‘In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.’ (Id., at p. 739, 69 Cal.Rptr. at p. 79, 441 P.2d at p. 919.) It concluded, ‘Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future.’ (Id., at p. 740, 69 Cal.Rptr. at p. 80, 441 P.2d at p. 920.)
After defining the guidelines to be applied in a case in which the plaintiff suffered a shock which resulted in physical injury from witnessing the negligent infliction of death or injury to her child, the opinion continues, ‘In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular plaintiff [sic, form context ‘defendant’] as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.' (Id., at p. 741, 69 Cal.Rptr. at p. 81, 441 P.2d at p. 921.)
When viewed in the light of the foregoing principles the allegations of the complaint disclose circumstances which establish a duty of warn the designated victim of the patient's demented ire. If the officers sought his promise to keep away from her, it cannot be considered remote or unexpected, if she, unwarned, later was exposed to the fulfillment of his demented purpose.
In both Johnson and Morgan it was determined that the negligent failure to warn one to whom that duty is owed is not protected by governmental immunity. In Johnson v. State of California, supra, the court rejected the contention that the decision to warn or not to warn the foster mother of the ward's dangerous propensities was an act of discretion protected under section 820.2 of the Government Code (see fn. 2 above). After reviewing numerous cases in the field the court concluded: ‘These cited cases establish the principle that, although a basic policy decision (such as standards for parole) 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. Indeed, most of these cases, like the instant situation, involve failure to warn of foreseeable, latent dangers flowing from the basic, immune decision.
‘In sum, the instant fact situation presents no reason for sovereign immunity; not only does the officer's decision as to warnings fail to rise to the level of governmental decisions calling for judicial restraint, but also the state failed to prove that the officer consciously considered the risks to plaintiff and determined that other policies justified them . . . this is a classic case for the imposition of tort liability. Defendant failed to warn plaintiff of a foreseeable, latent danger, and this failure led to plaintiff's injury from precisely the expected source; courts encounter this type of allegation daily and are well suited to resolve its validity under traditional tort doctrine.’ (69 Cal.2d at p. 797, fn. omitted, 73 Cal.Rptr. at p. 250, 447 P.2d at p. 362.)
The court also rejected the contention that the state could find shelter under provisions of section 845.8 of the Government Code which grant immunity to the public entity and the public employee for ‘Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release . . .’ (Id., at pp. 798–799, 73 Cal.Rptr. at p. 252, 447 P.2d at p. 364.) By the same token, the defendants here can find no immunity for failure to warn under those sections reviewed above dealing with failure to enforce a law or make an arrest (Gov.Code, §§ 818.2, 821 and 846) or those sections dealing with the diagnosis or failure to diagnose mental illness or the determination to confine or not to confine a person for mental illness (§§ 855.8 and 856).
In Morgan v. County of Yuba, supra, the court recognized a distinction between the decision to give a warning and the carrying out of that decision. It makes clear that if there is an obligation to warn, the act of giving the warning is purely ministerial, and the failure to do so is not immunized as a discretionary act. (230 Cal.App.2d at pp. 942–943, 41 Cal.Rptr. 508. See also Ramos v. County of Madera (1971) 4 Cal.3d 685, 692–696, 94 Cal.Rptr. 421, 484 P.2d 93; Connelly v. State of California (1970) 3 Cal.App.3d 744, 749–752, 84 Cal.Rptr. 257; and Sava v. Fuller (1967) 249 Cal.App.2d 281, 284–292, 57 Cal.Rptr. 312.)
‘The 1963 Tort Claims Act did not alter the basic teaching of Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 94, 359 P.2d 457, 465: ‘when there is negligence, the rule is liability, immunity is the exception.’ Accordingly, courts should not casually decree governmental immunity; through a literal interpretation of ‘discretionary’ or otherwise, section 820.2 should not be made a ‘catchall section broadly encompassing every judgment exercised at every level. . . . [That,] to borrow the language of Justice Frankfurter . . . [would be] to make the act ‘self-defeating by covertly imbedding the casuistries' of some of the pre-Muskopf cases.’ (Sava v. Fuller, supra, 249 Cal.App.2d 281, 291, 57 Cal.Rptr. 312, 318.)' (Johnson v. State of California, supra, 69 Cal.2d at p. 798, 73 Cal.Rptr. at p. 251, 447 P.2d at p. 365.)
It is concluded that plaintiffs have alleged facts which disclose circumstances giving rise to a duty to warn the victim of the patient's demented ire, a negligent failure to perform that duty, and an absence of any specific or general immunity from liability for injuries resulting from that negligence. There remains the issue of proximate cause.
Plaintiffs have alleged, ‘On or about October 27, 1969, as a direct and proximate result of said negligence of defendants, Prosenjit Poddar, deranged and at large, did shoot and stab to death Tatiana Tarasoff on the porch of her Berkeley home.’ They further allege that the damages from the deprivation of the society, comfort, care and custody, protection, love and affection of their daughter, and the funeral and burial expenses were all a proximate result of the negligence of the defendants.
In Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 the court overruled prior cases and held that civil liability may be imposed upon a vendor of alcoholic beverages for providing alcoholic drinks to a customer who, as a result of intoxication, injures a third person (see 5 Cal.3d at p. 167, 95 Cal.Rptr. 623, 486 P.2d 151). With respect to the issue of proximate cause the unanimous court concluded as follows: ‘To the extent that the common law rule of nonliability is based on concepts of proximate cause, we are persuaded by the reasoning of that cases that have abandoned that rule. The decisions in those jurisdictions which have abandoned the common law rule invoke principles of proximate cause similar to those established in this state by cases dealing with matters other than the furnishing of alcoholic beverages. [Citations.] Under these principles an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. [Citations.] Moreover, ‘If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.’ (Rest.2d Torts, § 449 . . ..)' (Id., at pp. 163–164, 95 Cal.Rptr. at p. 630, 486 P.2d at p. 158.)
It is suggested that because of the long interval of time between the failure to treat and the failure to warn around August 20, 1969, and the execution of the patient's demented plan on October 27, 1969, there can be no proximate cause as a matter of law. It is true that under the provisions of section 5150 and sections 5206 and 5213 a person may only be detained for 72 hours, and may be released earlier under section 5152 if a determination is made that he no longer requires evaluation or treatment, and under section 5213 if he is not found to be in need of treatment because he is, as a result of mental disorder, a danger to others, or to himself. If it is found that the person is, as a result of mental disorder or impairment, a danger to others or to himself, he may be certified for not more than 14 days of involuntary intensive treatment under the provisions of section 5250. In the absence of further proceedings, section 5254 directs the patient's release from involuntary treatment at the end of 14 days, and the patient may secure his release by habeas corpus during that period under the provisions of sections 5275–5277 if the court finds he is not disordered as certified. On petition and order, however, a person may be confined for further treatment for an additional 90 days after the 14-day period of intensive treatment, ‘if he (a) has threatened . . . physical harm upon the person of another after having been taken into custody for evaluation and treatment, and [is one] who as a result of mental disorder, presents an imminent threat of substantial physical harm to others.’ ‘(§ 5300–§ 5304.) Nevertheless the patient may be released earlier if the person in charge of the treatment is of the opinion ‘the person being involuntarily treated no longer constitutes an imminent threat of substantial physical harm to others.’ (§ 5305.)'
The foregoing analysis of the provisions for confinement make it highly conjectural whether Poddar would have been confined from August 20, through October 27, 1969, if the psychiatric clinic had followed up their diagnosis of the indicated treatment for him, or if the campus police, or the director of the clinic had advised the victim's family so that someone on her behalf could have instituted appropriate proceedings. It is not, however, sufficient to say that Poddar would not have been confined for that period. The facts alleged indicate that despite the diagnosis, allegedly concealed but never revoked, the patient was permitted to go untreated. Under the pleadings plaintiffs should be able to establish that under reasonable psychiatric standards the patient would have been either confined, or, in the alternative, treated to the extent that his mental disorder would no longer encompass the deranged hostility to the potential and ultimate victim. It cannot be determined in these proceedings whether or not such evidence exists.9 It cannot be concluded that there was no proximate cause as a matter of law.
In my opinion the judgment should be affirmed as to the defendants Moore, Gold and Yandell; the judgment should be reversed as to the defendants the Regents of the University of California and Powelson; and the case should be remanded with leave to plaintiffs to file an amended complaint consistent with the views expressed herein.
1. All dates herein referred to have reference to the year 1969.
2. Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
3. Under section 541 of the Evidence Code judicial notice must be taken, among other things, of the public statutory law of this state and any matter made the subject of judicial knowledge by section 11384 of the Government Code. Under the latter statute courts shall take judicial notice of the contents of each regulation printed in the Administrative Code. Under section 542, subdivision (b), of the Evidence Code, judicial notice may be taken of regulations and legislative enactments issued by or under the authority of any public entity in the united States to the extent that they are not embraced within section 541 of the Evidence Code. In the instant case the trial court was furnished sufficient information to enable it to take judicial notice of the applicable resolution of the Board of Supervisors of Alameda County and plaintiffs were given sufficient notice of the request to take judicial notice in order to meet such request. (See Evid.Code. § 453.) As a reviewing court we are required to take judicial notice of each matter properly noticed by the trial court, and of each matter the trial court was required to judicially notice. (See Evid.Code, § 459.)
4. Government Code section 855.6, in relevant part, provides: ‘Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a . . . mental examination, or to make an adequate . . . mental examination, of any person for the purpose of determining mental condition that would constitute a hazard to the health or safety of himself or others.’
5. Government Code section 855.8, in pertinent part, provides: ‘(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness . . . or from failing to prescribe for mental illness . . .. (b) A public employee acting within the scope of his employment is not liable for administering with due care the treatment prescribed for mental illness . . .. (c) Nothing in this section exonerates a public employee who has undertaken to prescribe for mental illness . . . from liability for injury proximately caused by his negligence or by his wrongful act in so prescribing. (d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or mission in administering any treatment prescribed for mental illness . . ..’
6. Government Code section 856, in pertiment part, provides as follows: ‘(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for any injury resulting from determining . . . (1) Whether to confine a person for mental illness . . . (b) A public employee is not liable for carrying out with due care a determination described in subdivision (a). (c) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission in carrying out or failing to carry out: (1) A determination to confine or not to confine a person for mental illness . . ..’
1. It is alleged that the investigating officers ascertained from the patient the name of the object of his demented wrath. That plaintiffs are prepared to offer proof in support of this allegation is manifest from the copies of campus police reports, which are referred to in appellants' reply brief.
2. At this stage in the proceedings the doctor and the Regents were protected in his diagnosis and any action taken thereunder. Government Code section 820.2 provides as follows: ‘Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act of the discretion vested in him, whether or not such discretion be abused.’Section 821.6 reads: ‘A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.’Section 855.8 provides: ‘(a) Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction.‘(b) A public employee acting within the scope of his employment is not liable for administering with due care the treatment prescribed for mental illness or addiction.‘(c) Nothing in this section exonerates a public employee who has undertaken to prescribe for mental illness or addiction from liability for injury proximately caused by his negligence or by his wrongful act in so prescribing.‘(d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission in administering any treatment prescribed for mental illness or addiction.’Section 815.2, subdivision (b) states: ‘(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.’In Fish v. Regents of Univ. of Cal. (1966) 246 Cal.App.2d 327, 54 Cal.Rptr. 656, these sections were reviewed and it was concluded that they gave immunity to the Regents and to a doctor employed by them who, after observing a patient for several days, had recommended the filing of a mental illness petition which resulted in the alleged unwarranted detention of the patient, and, as well, to a second university doctor who in good faith had initiated a report of the patient's alleged derangement. (246 Cal.App.2d at pp. 330–332, 54 Cal.Rptr. 656. See also Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805, 51 Cal.Rptr. 767.)
3. Section 5150 then read: ‘When any person is a danger to others, or to himself, or gravely disabled as a result of mental disorder, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, or other professional person designated by the county man, upon reasonable cause, take, or cause to be taken, the person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene as a facility for 72-hour treatment and evaluation.‘Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person believes as a result of his personal observations that the person is, as a result of mental disorder, a danger to others, or to himself, or gravely disabled.’ (Stats.1968, ch. 1374, § 16, pp. 2643–2644, emphasis added.) In 1970 the words ‘as a result of mental disorder’ were transposed to follow the phrase ‘When any person.’ Stats.1970, ch. 516, § 7, p. 1005), and in 1971 ‘Health’ was substituted for ‘Mental Hygiene’ (Stats.1971, ch. 1593, § 368, p. 3338).
4. Although the governing law (§ 5008, subd. (i)) was only effective August 8, 1969, 12 days before the alleged request, it seemingly made no change in the law as effective July 1, 1969. The section as added in 1967, operative July 1, 1969, provided: ‘(i) ‘Peace officer’ means a general police peace officer as described in the first paragraph of section 817 of the Penal Code.' (Stats.1967, ch. 1667, § 36, p. 4077.) Section 817 of the Penal Code (Stats.1959, ch. 871, § 2, p. 2905, repealed Stats.1968, ch. 1222, §58, p. 2322) did not mention, in the first paragraph or elsewhere, members of the University of California Police Department appointed pursuant to section 23501 of the Education Code. The 1968 legislation did contain such a reference in Penal Code section 830.3, and the 1971 amendments (see text above) transferred the reference to section 830.2. Former section 817 did provide in a fourth paragraph, ‘When in any law a public officer or employee is designated as, given the powers of, or determined to be, a peace officer, such officer or employee shall be deemed to be a peace officer but only for the purpose of that law.’ Education Code section 23501 did provide, ‘. . . Persons employed and compensated as members of said police department, when so appointed and duly sworn, are peace officers; provided, that such officers shall not exercise their powers or authority except (a) upon the campuses of the University of California and an area within one mile of the exterior boundaries of each thereof, and (b) in or about other grounds or properties owned, operated, controlled or administered by the Regents of the University of California.’ In 1971 there was added to the foregoing, ‘and (c) as provided in Section 830.2 of the Penal Code.’ (Stats.1971, ch. 631, § 1, p. 1231. See also Stats.1971, ch. 1469, § 6, p. 2902, amending Penal Code, § 830.2.)The law in effect prior to July 1, 1969 did not purport to define the type of ‘peace officer’ who could effect an emergency apprehension. (See former § 5050.3, Stats.1951, ch. 1188, § 1, p. 3001, and amendments thereto prior to its repeal by Stats.1956, ch. 391, § 3, p. 1630; and former § 5880, Stats. 1965, ch. 391, § 5, p. 1680, effective May 25, 1965 and amendments thereto prior to its repeal, operative July 1, 1969, by Stats.1968, ch. 1374, § 85, p. 2674.)
5. Plaintiffs suggest that at the trial of Poddar, Moore testified: ‘Doctor Powellson [sic] had been out of the clinic at the time that I wrote the letter. When he returned, we discussed the letter, and he told me that the police had to be free to use their own judgment, and for their protection he ordered me to destroy the letter and to telephone Chief Beall and ask him to destroy his copy of the letter.’
6. Dr. Powelson and the Regents are not protected by the provisions of section 855.6 which gives immunity to the public entity and public employee ‘for injury caused by the failure to make a . . . mental examination, or to make an adequate . . . mental examination, of any person for the purpose of determining whether such person has a . . . mental condition that would constitute a hazard to the health or safety of himself or others.’ (See Kravitz v. State of California, supra, 8 Cal.App.3d 301, 306–307, 87 Cal.Rptr. 352.) That section expressly excludes the responsibility which attaches when the public entity undertakes to furnish treatment. It begins ‘Except for an examination or diagnosis for the purpose of treatment . . ..’
7. The omitted footnote reads, ‘Since the question of whether a party owes a ‘duty’ of care to a particular plaintiff often intermeshes with, and overlaps into, the question of whether a party acted carelessly or negligently, both involving the degree of foreseeability of various risks [citation], the statement in the text may be subject to some qualification for example, in cases in which sufficiently important policy objectives, achievable only by silence, outweigh the obvious interest in cautioning person exposed to danger. We need not dwell on this question at length, however, because the state offered no such justification for its failure to warn in the instant situation; indeed, at the summary judgment stage of the proceedings it could not do so.' (69 Cal.2d at p. 786, fn. 2, 73 Cal.Rptr. at p. 242, 447 P.2d at p. 355.)
8. It may be noted that the existence of a prior relationship may not only make a warning necessary, but also may render a warning inadequate and impose a requirement of positive action to defend the potential victim from harm. (See Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121–124, 52 Cal.Rptr. 561, 416 P.2d 793.)
9. In the vacated opinion of the Court of Appeal in People v. Poddar (103 Cal.Rptr. 84, hearing in Supreme Court granted September 7, 1972) the court observed: ‘At this point, we remark that three psychiatrists and one clinical psychologist agreed that appellant suffered from chronic schizoid paranoia. One of these, Dr.
MOLINARI, Presiding Justice.