Souza v. City of Antioch4/30/1997
California Court of Appeals
A071686
54 Cal.App.4th 1009, 62 Cal.Rptr.2d 909, 1997.ca.1
April 30, 1997
JENNIFER LEE SOUZA, PLAINTIFF AND APPELLANT,
v.
CITY OF ANTIOCH ET AL., DEFENDANTS AND RESPONDENTS.
Contra Costa Superior Court. Contra Costa County. Super. Ct. No. C94-00194 consolidated with Super. Ct. No. C94-02759. Trial Judge: Ignazio J. Ruvolo.
Rehearing Denied May 29, 1997, Review Denied July 23, 1997 and the Reporter of Decisions is directed not to publish this opn. in the Official Reports (Cal. Const., art. VI, § 14; rule 976, Cal. Rules of Ct.),
Counsel for appellants: Michael J. Appel, Joseph J. Appeal, Law Offices of Appel & Appel, Philip R. Weltin, Law Offices of Philip R. Weltin.
Counsel for respondents: James V. Fitgerald, William E. Manning, Sellar, Hazard, Snyder, Fitzgerald, McNeely & Alm.
Counsel for amici curiae Martin J. Mayer on behalf of respondents: John L. Simonson, Law Offices of Mayer, Coble & Palmer.
Walker, J. I concur: Corrigan, Acting P. J. Concurring Opinion by Parrilli, J.
The opinion of the court was delivered by: Walker
Plaintiff Jennifer Lee Souza (hereafter "plaintiff" or "Jennifer") appeals the summary judgment entered against her in an action for the wrongful death of her children, Nicholas and Cheri, and in favor of the defendants City of Antioch and its police officers, Edgar Keller and Michael Schneider. Plaintiff's husband, Joel Souza, shot and killed their children on July 11, 1993, nine minutes after the individual defendants informed him that in ten minutes a SWAT team would force entry of the bedroom in which he had barricaded himself and the children.
In the companion case, summary judgment was granted against Patricia Marin, William Souza, and Cynthia Poipao, respectively, the mother, brother, and sister of Joel Souza (hereafter "the family"). The family sought damages from the defendants for the emotional distress they suffered when they heard three shots fired within the house where they knew Joel and the children were barricaded.
In these consolidated appeals we are asked to consider three issues relating to the potential liability of the defendants. In Jennifer's case, we first decide whether the police had a duty to exercise reasonable care to prevent Joel Souza from harming the children. Next, we examine whether the defendants' allegedly negligent acts were "discretionary" within the meaning of Government Code section 820.2, and thus immune from liability. Lastly, we consider whether defendants may be liable to the family, who sued as bystanders to the tragedy, upon a theory of negligent infliction of emotional distress.
We hold that the defendants had a duty to exercise reasonable care in managing this critical incident, once, knowing that Joel was suicidal and had threatened the children's lives, they seized control of the house and undertook to negotiate for the children's release to the exclusion of Jennifer and the family. We decide that defendants are not immune from liability under Government Code section 820.2 because their acts and omissions, which plaintiff contends were in breach of their duty, were purely "ministerial." Finally, we conclude that defendants are not liable for negligent infliction of emotional distress to the family, who heard the shots from outside the house without knowing who had fired them or who, if
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