California Court of Appeal found that County defendants were not liable in a case where after a deputy sheriff exchanged gunfire with an armed intruder who had taken hostages, the intruder subsequently killed the hostages. In Golick v. State of California, the California Court of Appeal found that plaintiffs failed to allege facts showing that the duty to act reasonably when using deadly force encompassed an obligation to prevent the intruder from shooting his hostages. The Court also found that County defendants did not owe a duty of care under the special relationship doctrine.
The Pathway Home (“Pathway”) is a private corporation that contracted with the Department of Veterans Affairs (“CALVET”) to provide mental health services at the Veterans Home. CALVET partnered with Pathway in order to effectuate its “mission to treat traumatized war veterans with PTSD and other mental health disorders.” An agreement between CALVET and Pathway included a lease of space at the Veterans Home. During the relevant time, Christine Loeber was the executive director of Pathway and Dr. Jennifer Golick was Pathway’s clinical director.
In early 2017, Albert Wong became a patient at Pathway, where he was treated for psychological conditions following his military service in Afghanistan. In December 2017, Wong was hospitalized in a psychiatric ward after expressing plans to carry out suicidal and homicidal intentions using a gun. Although it was not known how long Wong was hospitalized, he continued as a patient of Pathway until February 2018.
On February 13, 2018, Wong was terminated from the Pathway program because he refused to comply with program policies and treatment plans and had brought weapons onto the campus. Wong expressed extreme anger and frustration at Pathway’s clinical staff due to many prior disagreements and made specific threats to kill members of the staff by coming onto the campus and shooting them with a gun.
On the morning of March 9, 2018, Wong drove to the Veterans Home and gained entry to the facility without having to pass through a gate, security check or any other physical barrier. He was armed with a .308 caliber semi-automatic rifle loaded with a 20-round magazine and a loaded 12-guage double barrel shotgun. He wore a tactical belt, earplugs, over-the-ear protection, and eye protection, and he carried approximately 100 additional rounds of ammunition. He entered the building through a boiler room door that he had propped open the previous day. He went to a “‘Group Room’” on the second floor, where 10 to 15 people were attending a party. At approximately 10:19 a.m., Wong entered the Group Room, brandishing his weapons. He ordered veterans to leave and then released some staff members, one by one. Ms. Loeber, Dr. Golick, and Dr. Gonzales Shushereba remained in the Group Room with Wong.
At 10:21 a.m., all available Napa County Sheriff deputies were dispatched to the Veterans Home pursuant to reports of an “active shooter” and “possible shooting.” Through radio updates, the dispatcher broadcast background information about Wong, reporting that he was armed with an assault rifle and much ammunition, and had taken hostages. At approximately 10:26 a.m., Deputy Sheriff Steve Lombardi of the Napa County Sheriff’s Office was the first officer to arrive at the scene. A person who had been released by Wong told Lombardi that Wong was holding three women and gave directions to the Group Room. Lombardi was also told that Wong had not fired his guns.
Lombardi came to the Group Room at approximately 10:31 a.m., partially pushed open a closed metal door and saw Wong with a rifle. Then Lombardi let go of the door, let it close, backed up and took up a position covering the doorway. At approximately 10:32 a.m., Lombardi fired his .223 caliber rifle through the closed door into the Group Room. Wong fired back. During the shooting sequence, which lasted approximately 10 seconds, Lombardi fired 13 rounds and Wong fired 22 rounds.
Law enforcement officers had no further engagement with Wong. After the shooting stopped, Lombardi held his position of cover for approximately six minutes, until other officers arrived and relieved him. Hours later, at approximately 6:30 p.m., an FBI SWAT team entered the Group Room and found Wong and the three victims dead.
A California Highway Patrol investigation concluded that Wong killed his hostages after he exchanged fire with Lombardi. According to autopsy reports, none of the bullets that Lombardi fired hit Wong or any of Wong’s victims. Plaintiffs expressly alleged that Wong shot his hostages after he exchanged gunfire with Lombardi. The Loebers alleged further that Wong killed his hostages within “seconds” after he exchanged gunfire with Lombardi.
Family members of the victims filed wrongful death actions naming multiple defendants, including the County of Napa, the Napa County Sheriff’s Office and Deputy Sheriff Lombardi (the “County defendants”). These cases were consolidated in the trial court for purposes of pretrial proceedings.
The trial court sustained demurrers to the respective third amended complaints filed by the Loebers and the Golicks (collectively, “plaintiffs”), concluding they failed to allege facts establishing a duty of care upon which to predicate the County defendants’ alleged liability for negligence. The ruling was based on three material findings. First, the trial court found that plaintiffs failed to allege facts establishing a duty of care under authority requiring law enforcement officers to act reasonably when using deadly force. Second, the court found that plaintiffs did not allege facts supporting a legal duty of care arising under the “special relationship” doctrine. Third, the court found that the facts alleged by plaintiffs do not support imposing a duty of care under factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108. Plaintiffs’ appeals from the judgments were consolidated.
The First District Court of Appeal noted that on appeal from a judgment sustaining a demurrer, the court would “‘“determine de novo whether the complaint alleges facts sufficient to state a cause of action … .”’” (San Francisco CDC LLC v. Webcor Construction L.P. (1st Dist. 2021) 62 Cal.App.5th 266, 276–277.) The “plaintiff in a negligence suit must demonstrate ‘“a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.’” (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.) “Public employees are liable for injuries resulting from their acts or omissions to the same extent as private persons, except where otherwise exempted or immunized by law. ([Government Code section] 820.)” (Adams v. City of Fremont (1st Dist. 1998) 68 Cal.App.4th 243, 264, disapproved in part on another ground in Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 222, fn. 9 (“USA Taekwondo”).) “As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434–435; see Civil Code section 1714.) However, a “[d]uty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if ‘“the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.’” (USA Taekwondo, supra, 11 Cal.5th at p. 213.) “Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.” (Ibid.) Although plaintiffs had also named CALVET and the State defendants in their lawsuits, the First District stated that the only issue presented here on appeal was whether plaintiffs alleged facts establishing the duty element of their negligence claims against the County defendants.
Duty to Act Reasonably When Using Deadly Force
On appeal, plaintiffs’ main argument for why the County defendants owed a duty of care to the decedents was that, because Deputy Lombardi breached a duty to act reasonably when he used deadly force against Wong, the County defendants could be held liable for the wrongful deaths of the hostages.
The Court noted that under California law, a peace officer “‘may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.’” (Brown v. Ransweiler (4th Dist. 2009) 171 Cal.App.4th 516, 527 (“Brown”); see Penal Code section 835a.) However, police officers have a duty in tort to act reasonably when employing deadly force against a suspect. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.) (See also Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 and Munoz v. Olin (1979) 24 Cal.3d 629.) Thus, an “officer’s lack of due care can give rise to negligence liability for the intentional shooting death of a suspect.” (Olin, 24 Cal.3d 629 at p. 634.)
The First District observed that under Brown and Koussaya v. City of Stockton (3rd Dist. 2020) 54 Cal.App.5th 909, negligence liability for an officer’s unreasonable use of deadly force may potentially extend to unintended victims whom the officer injures in the course of a deadly force incident. If a third party suffers physical injury during a deadly force incident, that person may have a negligence claim based on the officer’s duty to act reasonably when using deadly force against the suspect. (Brown, supra, 171 Cal.App.4th at p. 534; Koussaya, supra, 54 Cal.App.5th at p. 937.)
The Court explained that here, however, no one suffered a physical injury during the exchange of gunfire between Deputy Sheriff Lombardi and Wong. Instead, after Lombardi stopped engaging with Wong, Wong shot the hostages and himself. The Court stated that “[a]lthough every person generally ‘has a duty to exercise reasonable care to avoid causing injury to others’ [citation], ‘as a general matter, there is no duty to act to protect others from the conduct of third parties’ [citation].” (Barenborg v. Sigma Alpha Epsilon Fraternity (2nd Dist. 2019) 33 Cal.App.5th 70, 76.) The Court stated that plaintiffs cited no authority for their theory that, because Lombardi attempted to apply deadly force against Wong, he thereby assumed a tort duty of care to the hostages to prevent Wong from subsequently killing them.
Plaintiffs relied heavily on Hayes, in which sheriff’s deputies faced potential negligence liability for failing to exercise reasonable care when they shot and killed a suicidal man who approached them with a large knife. (Hayes, at pp. 629, 639–640.) The Hayes Court concluded that law enforcement’s pre-shooting conduct may be relevant “to the extent it shows, as part of the totality of the circumstances, that the shooting itself was negligent.” (Id. at p. 631.) However, the First District stated that Hayes was factually and legally distinguishable because the decedent in that case was killed by law enforcement officers, and there was no dispute the officers owed the suicidal person a duty in tort to act reasonably when using deadly force. Here, by contrast, the pleaded facts established that the decedents were shot by Wong, not by an officer using deadly force. The First District concluded that the case here was not a use of deadly force case because Lombardi stopped shooting and then Wong murdered his hostages. The hostages’ deaths were allegedly precipitated by law enforcement’s conduct but were not “the direct result of the [deputy’s] use of deadly force.” (Hayes, at p. 637.)
The Court of Appeal noted that if someone had been injured or killed during the exchange of gunfire between Lombardi and Wong, the question of Lombardi’s civil liability might be different. The Court explained that risk of injury of that kind is what makes an officer’s use of deadly force so dangerous. (See Tarasoff, supra, 17 Cal.3d at pp. 434–435 [duty of care owed “‘to all persons who are foreseeably endangered by [defendant’s] conduct, with respect to all risks which make the conduct unreasonably dangerous’”].) Plaintiffs alleged a different kind of injury, one in which Lombardi’s use of force was almost incidental. They alleged that Wong threatened to kill Pathway employees and subsequently acted on that threat, by arming himself, taking hostages, and—after exchanging shots with Lombardi—killing the hostages and himself. These pleaded facts precluded plaintiffs from relying on Deputy Lombardi’s duty to refrain from the unreasonable use of deadly force as a basis for holding the County defendants civilly liable for the wrongful deaths of Plaintiffs’ loved ones.
Duty to Prevent Third Party Harm
Plaintiffs also argued that even if Deputy Lombardi’s use of a firearm was not a sufficient basis for holding the County defendants liable for the wrongful deaths of the hostages under Hayes, other tort principles established that the County defendants owed a tort duty to protect the hostages from Wong.
The First District observed that under California law, the general duty to exercise due care for the safety of others applies “only when it is the defendant who has ‘“created a risk”’ of harm to the plaintiff, including when ‘“the defendant is responsible for making the plaintiff’s position worse.”’” (USA Taekwondo, supra, 11 Cal.5th at p. 214.) However, a defendant is generally not liable in tort for failing to protect another from a peril that the defendant did not create because the law does not impose a general duty to protect others from the conduct of third parties. (Ibid.; see, e.g., Williams v. State of California (1983) 34 Cal.3d 18, 23 [there is no general “duty to come to the aid of another”].) Law enforcement officers, “like other members of the public, generally do not have a legal duty to come to the aid of [another] person.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 717.)
However, there are settled exceptions to the no-duty-to-protect rule. In USA Taekwondo, the California Supreme Court set forth the legal framework for deciding whether an exception to the no-duty-to-protect rule applies. (USA Taekwondo, supra, 11 Cal.5th at pp. 209 & 211.) “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland to determine whether relevant policy considerations counsel limiting that duty.” (USA Taekwondo, at p. 209, citing Rowland, supra, 69 Cal.2d 108.)
Plaintiffs argued the either of two exceptions applied in this case. First, they contended that Deputy Lombardi owed plaintiffs a duty of reasonable care because his conduct increased the risk that Wong would harm his hostages. Under the negligent undertaking doctrine, “one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 558–559.)
The First District stated that the negligent undertaking doctrine did not apply because “the scope of any duty assumed depends upon the nature of the undertaking.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249.) Here, plaintiffs alleged that Lombardi was the first officer to respond to a call for emergency assistance, and that he attempted to restrain Wong. The Court found these allegations demonstrated that Lombardi undertook to discharge his duty to protect the public. The Court noted that “[a] law enforcement officer’s duty to protect the citizenry is a general duty owed to the public as a whole.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 799.) “[L]aw enforcement is not legally responsible to individual citizens to prevent their victimization by crime because this responsibility is ‘“a public duty, for neglect of which’” an officer is not liable in tort. (Adams, supra, 68 Cal.App.4th at p. 275.) The Court determined that Plaintiffs did not allege facts indicating that Lombardi assumed a duty toward the hostages that was distinct from or greater than his duty to other members of the public.
Moreover, the Court found that Plaintiffs failed to plead facts linking Deputy Lombardi’s conduct to the hostages’ murders. The Court explained that in order to state a claim for affirmatively increasing a risk of harm, plaintiffs must allege a “direct connection” between the challenged conduct and some risk of harm or heightened risk of harm that would not otherwise have arisen if not for the defendant’s conduct. (Lopez, supra, 190 Cal.App.3d at p. 683.) Here, Plaintiffs alleged that Deputy Lombardi’s conduct prompted Wong to kill his hostages; that his failure to enter the Group Room and kill Wong after making his presence known further agitated Wong and caused him to consider shooting his hostages, thus precluding others from negotiating with Wong; and that Lombardi further “agitated and provoked” Wong and “exacerbated the problem” by firing bullets through a closed door and hitting nobody.
The First District considered these arguments speculation. The Court explained that the fact that Lombardi’s attempt to subdue Wong was unsuccessful was not proof that Lombardi increased or materially altered the risk that Wong would shoot the hostages and himself, as he had threatened to do. Failing to eliminate a preexisting risk of harm did not constitute the increased risk required to establish a negligent undertaking. (Hanouchian v. Steele (2nd Dist. 2020) 51 Cal.App.5th 99, 115; Paz, supra, 22 Cal.4th at p. 560.) The Court added, “[n]or should we be distracted by the question of whether Lombardi placed the hostages at risk of becoming accidental victims of the shots he fired from behind the closed door—or of being caught in crossfire as Wong shot back at Lombardi—as neither of these risks materialized.”
The Court explained:
“In volatile situations, one can always argue that the arrival of police officers caused an incremental increase in tension at the scene, and thus increased the risk of injury occurring” (Adams, supra, 68 Cal.App.4th at p. 284), and whenever tragedy ensues one can argue that a different police response would have produced a better outcome. But this sort of speculative, after-action critique falls short. “[N]o authority exists imposing a duty where police conduct only incrementally increased the risk to which the injured person was already exposed.” (Ibid.) Subjecting an officer to tort liability based on nothing more substantial “would eviscerate … the public duty rule, which protects police officers from the burden of assuming greater obligations to others by virtue of their employment.” (Id. at p. 285.) It would also place officers in the impossible position of having “to choose between refusing to offer assistance” and “assuming full responsibility for the … welfare” of potential victims of violent crime. (Id. at p. 273.)
As a second exception to the no-duty-to-protect rule, Plaintiffs contended that Deputy Lombardi and the County defendants had a special relationship with the decedents that gave rise to a duty to protect them from Wong. The Court of Appeal observed that a duty of care to protect a victim from third party harm may arise when the defendant has a special relationship with either the victim or the third party. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129.) “A special relationship between the defendant and the victim is one that ‘gives the victim a right to expect’ protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that ‘entails an ability to control [the third party’s] conduct.’ [Citation.] …The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.” (USA Taekwondo, supra, 11 Cal.5th at p. 216.)
The Court explained that cases finding a special relationship based on the performance of police duties are rare and involve situations in which the victim detrimentally relied on some conduct or representation by the officer. (Adams, supra, 68 Cal.App.4th at p. 279 [collecting cases]; Lopez, supra, 190 Cal.App.3d at p. 681.) “The reliance must have exposed the victim to a risk of harm which was greater than the harm to which the victim was already exposed.” (City of Santee v. County of San Diego (4th Dist. 1989) 211 Cal.App.3d 1006, 1016.) Here, plaintiffs did not allege that the hostages detrimentally relied on anything that Deputy Lombardi said or did. Moreover, plaintiffs did not allege objective facts establishing that Lombardi’s conduct increased the danger Wong would kill his victims. The First District thus concluded that Plaintiffs’ allegations regarding Lombardi’s conduct at the crime scene did not show that he had a special relationship with the hostages.
For these reasons, the First District Court of Appeal affirmed.
HOW THIS AFFECTS YOUR AGANCY
In discussing the issue of the duty to act reasonably when using deadly force, the Court emphasized that no one was injured or killed during the exchange of gunfire between Deputy Sheriff Lombardi and Wong; if they had, the question of Lombardi’s civil liability might have been different. Instead, after Deputy Sheriff Lombardi stopped engaging with Wong, Wong shot the hostages and himself. This decision also thoroughly discusses the potential avenues of civil liability in hostage situations and provides guidance concerning risk mitigation. While this situation undoubtedly resulted in a tragic outcome, such circumstances do not always result in liability for a peace officer’s actions.
The Court’s decision in this case also carefully considered the public policy underlying limitation of legal duties imposed upon peace officers, considering the fact that officers owe a duty of care only to the public at large, as opposed to an individual, absent exceptional circumstances, none of which were demonstrated by the plaintiffs in this case. An alternative outcome would be to discourage officers from taking action to fulfill their primary duty – protection of the public – for fear of exposing themselves to civil liability.
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 82 Cal. App. 5th 1127 (1st Dist. 2022).
 According to the Court of Appeal, its factual summary was based on allegations in the complaints because judgments were entered at the demurrer stage.
 Foreshadowing the disposition to some degree, the First District noted in a footnote that it did not reach issues of immunity, as these would arise only after a court determines that the defendant otherwise owes a duty of care. Davidson v. City of Westminster, 32 Cal.3d 197, 201–202 (1982).