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Souza v. City of Antioch4/30/1997
ere. The APD's conduct in taking control of the situation to the exclusion of plaintiff placed her in a position of dependence on them for the protection of her children, thus creating a duty on their part to exercise reasonable care in their undertaking.
The facts presented simply do not paint a picture of nonfeasance. By the time Joel Souza fired his gun, the Antioch police had been on the scene for eight and one-half hours, actively engaged in defusing the situation. They knew Joel was suicidal and had threatened the children; they had established a rapport with him; they had summoned to the house experts in disciplines as disparate as negotiating and sniping; and, importantly, they had prevented all but their own personnel from attempting what they had undertaken to do.
By defendants' own accounts, "that house was under the control of the Antioch Police Department." No one could talk to Joel Souza except by their invitation. When Joel exchanged notes with Jennifer, Schneider told her what to write. When Joel asked to speak with Jennifer, Schneider monitored the content and duration of their talk. He permitted Patricia Marin to speak with her son only after she agreed to certain conditions. Keller told Joel's siblings to stay out of the house unless they were summoned. He ordered the 10-minute ultimatum without consulting any of the Souza family. And none of the plaintiffs was informed, much less permitted to tell Joel, that it was a ploy. Having thus undertaken to save the children, and having forced the plaintiff's dependence on their approach to doing so, defendants were bound to exercise reasonable care.
We are mindful that the day was hot, the situation was tense, and the defendants were tired. By enforcing the duty the law imposes, we do not allow the defendants' conduct to be held to an unfair standard. The answer to the question whether conduct was negligent always depends on the circumstances of the particular case. The standard, in other words, is "inherently situational[; it requires] due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances." ( Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, 997, 884 P.2d 142.)
The standard then gives police a fair amount of latitude to make decisions when they are confronting critical situations. At the same time, it allows for liability in those few cases when they act unreasonably and cause harm. To require "due care" is not to ask the impossible. And, even when a lack of care is proven, it is not enough to make a plaintiff's case. She must also show that the police's actions were a substantial factor in causing the injury she sustained.
Our Supreme Court counsels us to consider the policy implications of our decision. (See Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 828, 927 P.2d 1260.) Amici do the same. By recognizing a duty in this case, we do not require police to foresee the unforeseeable. The defendants in this case knew Joel Souza was suicidal; they knew he had threatened the children; and they knew he was armed. If this was not enough, Souza had told Schneider three times that if the SWAT team forced entry of the bedroom, he would shoot.
We do not force police departments to incur the costs of retaining personnel with obscure expertise. The APD already had a trained hostage negotiator, defendant Schneider, who was on the scene, who had been taught that an ultimatum could backfire.
We do not impose on police departments a burden they have never carried to insure against liability in cases like this. The risk that a public entity will be made to pay for
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