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Souza v. City of Antioch4/30/1997
victim who had notified them that a workman she had hired had stolen lingerie from her bedroom and made obscene phone calls to her before he came to her house and raped her. It was of no consequence that, after the burglary, which preceded the rape by two days, in response to the victim's call, a detective promised to send a patrol car to check on M.B. The court explained that the police's alleged negligence did not increase the harm to which M.B. was already exposed. "Case law does not support the creation of a special relationship based solely on police response to a citizen call for assistance; such responses are basic to police work and not 'special' to a particular individual. . . . Even if we assumed the detective's offer to send a patrol car amounted to the voluntary assumption of a special protective role by the police towards M.B., that role was limited to protecting her that night by sending the patrol car. Any negligence by the police in failing to send a patrol car that night did not result in the harm which occurred . . . two days later." ( Id. at p. 706.)
Our Supreme Court elaborated on the difference between misfeasance and nonfeasance in Williams, (supra) , 34 Cal. 3d 18, where a woman injured by a passing truck sued the police who responded to the accident. She alleged, among other things, that they had negligently failed to secure the identity of the truck driver, thus destroying her chance of recovering in tort for her injuries. The court found no duty, explaining, "There are no allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which plaintiff alleges they should have done nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own." (Id. at p. 27, fn. omitted.)
Plaintiff argues that the facts here present a case of misfeasance; defendants argue that they show nonfeasance. Our reading of every precedent in this area persuades us that the Antioch police entered into a special relationship with Jennifer Souza and her children by responding to her emergency call for assistance, and then, knowing of the earlier kidnapping, Joel's threats, and his suicidal mood, taking exclusive control over the situation at 4745 Hunter Peak Court. In doing so, they assumed a duty, not to rescue the children, but to exercise reasonable care in taking steps toward that end.
In so holding, we are not expanding the concept of duty as expounded by our courts. First, we recognize that defendants did not create the children's peril. It was Joel Souza who endangered Nicholas and Cheri hours before the police were called. Second, we do not say the duty arose merely because the APD responded to plaintiff's call. And, third, we rely on no assurance, express or implied, from the Antioch police that they would actually rescue the children. There was a great and abiding danger that Joel Souza would kill them at any moment for any or no reason, and no one, not even expert hostage negotiators, could reliably predict, or promise to control, his actions.
Of course, neither did the police promise to act reasonably. But "a promise and reliance thereon are indispensable elements of a special relationship. Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection . . . lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought." (Williams, (supra) , 34 Cal. 3d at p. 25.) That is the case h
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