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Souza v. City of Antioch4/30/1997
red to do so, and that the situation was out of his hands. He pleaded with Joel to come out, and asked Marin to come and speak to him once again. She spoke through the door and reminded him of his promise to surrender, saying he only had a couple of minutes left. Police could be heard on the roof. As Marin descended the stairs, at approximately 1:04, Schneider called to Joel that in three or four minutes, the SWAT team was coming into the bedroom.
When Keller heard this, he felt alarm. He realized that Schneider had misunderstood his directive. He had intended for him to give Joel 10 minutes to surrender; Schneider's warning to Joel made it an "or else." He sent Ponsiglione to tell Schneider the SWAT team was not coming in. According to Keller, he had "made the judgment to place a 10 minute ultimatum or condition on Joel Souza. Thereafter, we planned a 20 to 30 minute period of silence or inactivity, during which we expected Souza to surrender or participate more fully in the negotiation process." The message was "passed amongst the police department members in confidence and very quietly," but it did not "enter [Keller's] mind" to tell Joel that police would not force entry. This was Keller's bluff on Joel Souza.
Schneider went downstairs to Keller. He was surprised and angry to learn that the deadline was a ploy. He felt that Keller was gambling away his rapport with Joel. At 1:07 p.m., nine minutes after Schneider issued the ultimatum, three shots were fired in the bedroom. When Schneider called out Joel's and the children's names, he got no response. When the SWAT team forced entry a minute later, they found Joel, Nicholas and Cheri shot dead. Schneider noticed that Joel was wearing long pants and no shirt.
An hour earlier, both Schneider and Keller had expected to bring the crisis to a peaceful resolution. Keller said later that he had "underestimated" Joel Souza. Schneider came to feel that the APD had made a "terrible mistake."
Discussion
1. The Wrongful Death Action
To prevail against police on a claim of negligent wrongful death, a plaintiff must establish that: defendants owed her a duty of care; defendants breached their duty; and defendants' breach caused plaintiff's injuries. Even once a public official's negligence is proven, he may still avoid liability by raising the affirmative defense of sovereign immunity. (See Wright v. City of Los Angeles (1990) 219 Cal. App. 3d 318, 344, 268 Cal. Rptr. 309 [ Wright ].)
The trial court here granted defendants' motion for summary judgment upon concluding from the facts that they owed plaintiff no duty of care. The court held further that even if defendants owed plaintiff a legal duty of which a jury found them in breach, sovereign immunity would block their liability. Because the questions of duty and immunity are both purely legal, we address them de novo.
a. The Duty of Care
Police officers have no affirmative statutory duty to do anything. Plaintiff relies instead on principles of common law as amplified and refined by our courts to support her claim that defendants owed and breached a duty, resulting in her children's deaths. In answering the legal question of duty, whether it exists and its scope, we rely on the common law distinction between misfeasance and nonfeasance. Under the common law, one person owed no duty to control the conduct of another. (See Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, 435, 131 Cal. Rptr. 14, 551 P.2d 334 [ Tarasoff ].) In keeping with the traditional rule, we have been reluctant to impose a duty of care upon anyone who has the opportunity to rescue another placed at risk by a third
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