Provided by Martin J. Mayer of Jones & Mayer
On October 6, 2016, the Fifth District Court of Appeal issued an opinion in the case of Doe, et al. v. City of Modesto, et al. and held that Modesto police officers created a special relationship with the family of a mentally ill woman by promising to take care of her.
The legal question posed by the Court was “whether [the daughter of the mentally ill woman] is able to allege facts . . . showing that her mother presented a foreseeable danger to herself,” thereby meeting one of the criteria needed to create a special relationship, which then creates a duty of care?
[NOTE: this case is NOT certified for publication and, therefore, cannot be cited as precedent in other matters. However, it clearly discusses how, and under what circumstances, law enforcement can create a special relationship with a member of the public and, therefore, it can be very informative and educational.]
Four-year-old plaintiff Sheila Doe lived with her 26-year-old mother Amanda Doe, who suffered from a bipolar disorder that she treated with Prozac. An incident occurred, resulting in police taking Sheila into protective custody and leaving Amanda alone in her home, where she was acting delusional. A short time later, a fire was reported at Amanda’s home, and she later died as a result of the fire.
Plaintiff appeals from a judgment dismissing her wrongful death action for failing to plead sufficient facts to establish that police officers formed a special relationship with her or her mother and, thus, owed them a duty of due care.
Amanda, herself, called 911 asking for help which resulted in two uniformed police officers responding. When the officers arrived at the home, they found Sheila wandering in the street. Sheila pointed to her home and told the officers that her mother was sick inside the home and that she had been locked out. The officers placed Sheila in protective custody in their patrol car and a ride-along explorer scout supervised the child.
The officers entered into the home based on their concern for the safety and health of Amanda and, once inside the home, the officers found it in total disarray with Amanda holding a knife in her hand. They called for assistance and an ambulance.
In response to the call for assistance, approximately 10 armed, uniformed police officers responded with guns, bullet-proof vests and other protective gear. A sergeant took command and told Amanda to drop the knife. After Amanda refused to comply or leave the home, the sergeant, retaining custody of Sheila, and the other police officers left Amanda in the house. The sergeant and officers did not advise family members that the MPD was leaving Amanda on her own.
The sergeant and the officers had crisis intervention training but did not follow crisis intervention protocols and procedures when they abandoned Amanda. They knew or should have known that, under the circumstances, it was necessary to continue talking to a delusional and mentally unstable woman until she was safe and no longer a risk to herself or others and to provide crisis intervention counseling services.
Less than one hour after MPD personnel left, Amanda, in a state of catastrophic mental distress and illness, was unable to escape from a fire in her home, which was probably started by her in her delusional state.
In July 2014, Sheila filed a complaint for the wrongful death of her mother against the City of Modesto and three named police officers. In December 2014, Sheila filed a first amended complaint, which is the operative pleading in this appeal. In January 2015, the defendants filed a demurrer on the grounds, among others, that the officers did not owe a duty to Sheila or her mother (i.e., there was no special relationship). Sheila opposed the demurrer. On May 1, 2015, the court entered a judgment in favor of defendants. Sheila filed a timely notice of appeal challenging the judgment and the underlying order sustaining the demurrer.
Creating a Special Relationship
“As a general rule, law enforcement officers do not owe a duty of care to protect members of the general public. [Williams v. State of California (1983) 34 Cal.3d 18, 24 (Williams).] Therefore, law enforcement officers have no duty to come to the aid of another unless the officers have created a peril or a special relationship exists. Sheila alleged that a special relationship was created between the police officers and herself when the officer found her wandering in the street outside her home and placed her in protective custody. Sheila also alleged that defendants created a special relationship between themselves and Sheila and her mother. . . “
Sheila’s first amended complaint alleged particular breaches when the duty of care occurred when defendants (1) failed to follow police procedures in responding to a mentally ill young mother’s plea for help to police via a 911 call; (2) failed to take reasonable steps to protect a delusional mother from harming herself; (3) failed to warn family members that the MPD was abandoning Amanda, which placed her in a position of foreseeable danger; and (4) failed to place Amanda in the care of a crisis intervention counselor.
“In this appeal, the parties agree that a special relationship between a law enforcement officer and a member of the public can be formed in two narrow circumstances. First, a special relationship is created where the officer makes a representation (express or implied) that is detrimentally relied upon and causes a foreseeable harm. Second, a special relationship is created where the officer engages in an affirmative act that increases the foreseeable risk of harm to the individual.”
The California Supreme Court has “specifically recognized that a duty of care may arise when the conduct of a patrolman in a situation of dependency results in detrimental reliance on him for protection.”
The Court of Appeal notes that “to plead detrimental reliance with the required specificity a plaintiff must identify (1) the particular actions done, or actions not done, in response to the defendant’s representations or conduct; (2) the particular individual who acted, or did not act, in reliance on the defendant’s representations or conduct; and (3) how that action or inaction resulted in a detriment.”
In the new allegations proposed by Sheila she states that “defendants, instead of notifying Sheila’s family members of her mother’s plea for help, undertook a duty to protect and rescue Sheila and her mother. Sheila’s new allegations state that Nicole [Amanda’s sister] was contacted by a social worker and instructed to go to the police station to pick up Sheila; at the station she was instructed by Officer Heilman not to attempt to talk Amanda down; and that the police would take care of Amanda.” (Emphasis in original.)
Furthermore, “defendants failed ‘to warn and advise family members that the MPD was abandoning [Sheila’s] mother to her own devices.’ Instead, the new allegations are consistent with the failure to warn family members, including Nicole, about the decision to abandon Sheila’s mother.”
“A duty of care under the special relationship doctrine ‘may arise where a person makes a specific threat against a specific person or otherwise presents a foreseeable danger to a readily identifiable potential victim.’ In other words, a specific threat made against a specific person (such as a threat of suicide) is one, but not the only, way to establish the foreseeability of both the danger and the victim.” (Emphasis in original.)
The Court allowed Sheila to amend her complaint to state that “Nicole informed Officer Heilman of Amanda’s struggle with bipolar disorder, which she treated with Prozac. Nicole then asked whether she could go to Amanda’s home to talk her down. Officer Heilman instructed her not to go and assured her that Modesto police officers would either take Amanda to behavioral health or to jail.” (Emphasis added.).
As such, the Court concluded that “Sheila’s existing and proposed allegations are sufficient to show that (1) it was foreseeable that Amanda posed a peril to herself, (2) Officer Heilman expressly represented to Nicole that the police would take Amanda to behavioral health or to jail, (3) Nicole relied on this representation by forgoing an attempt to go to the aid of Amanda, and (4) Nicole’s reliance was detrimental in that the death of Amanda would have been prevented if Nicole had gone to her aid.”
HOW THIS AFFECTS YOUR AGENCY
Technically, since this case is “unpublished” and, therefore, cannot be cited or relied upon in other matters, it has no effect on other agencies. However, the Court’s analysis of how and when law enforcement establishes a special relationship with a member of the public is very informative.
It would behoove all law enforcement agencies to review this case for the purpose of learning how that relationship can be created. The problem with creating such a relationship is that it then imposes duties of care on the law enforcement agency which didn’t otherwise exist.
The Court points out that “(w)hen the California Supreme Court articulated the special relationship doctrine . . . it cited Section 323 of the Restatement Second of Torts, which provides in full: ‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.’”
As such, it is imperative to remember that giving assurances to people that you will “take care of them,” using virtually any wording, might be construed to create a special relationship which then creates a duty of care.
As with all legal issues, it is important to seek out advice and guidance from your agency’s designated legal adviser. However, and as always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at firstname.lastname@example.org.
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