Hartzler v. City of San Jose

California Court of Appeal Feb 18, 1975 No. Civ. 34650Published

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Holding. The court held that the San Jose Police Department is immune from liability for its failure to provide police protection under the California Tort Claims Act and that the plaintiff failed to establish a 'special relationship' sufficient to create a duty of care.

Issues

Whether the California Tort Claims Act provides absolute immunity to police departments for failure to provide police protection.
Whether a 'special relationship' existed between the police and the decedent sufficient to create a duty of care despite statutory immunity.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The statutory scheme shows legislative intent to immunize the police function from tort liability from the inception of its exercise to the point of arrest, regardless of whether the action be labeled ‘discretionary’ or ‘ministerial.’”

“Absent an indication that the police had induced decedent’s reliance on a promise, express or implied, that they would provide her with protection, it must be concluded that no special relationship existed”

[8]

Opinion

THE COURT:

This is an appeal from a judgment of dismissal, following the sustaining of defendant’s demurrer without leave to amend.

The first amended complaint alleged in substance: On September 4, 1972, plaintiff’s decedent, Ruth Bunnell, telephoned the main office of the San Jose Police Department and reported that her estranged husband, Mack Bunnell, had called her, saying that he was coming to her residence to kill her. She requested immediate police aid; the department refused to come to her aid at that time, and asked that she call the department again when Mack Bunnell had arrived.

Approximately 45 minutes later, Mack Bunnell arrived at her home and stabbed her to death. The police did not arrive until 3 a.m., in response to a call of a neighbor. By this time Mrs. Bunnell was dead.

The San Jose police had made at least 20 calls and responses to Mrs. Bunnell’s home during the year prior to her death, allegedly related to complaints of violent acts committed by Mack Bunnell on Mrs. Bunnell and her two daughters. Prior to September 4, 1972, Mack Bunnell had been arrested once for assaulting decedent.

Appellant contends that his complaint stated a cause of action for wrongful death under Code of Civil Procedure section 377, and that the cause survived under Probate Code section 573. The claim is barred by the provisions of the California Tort Claims Act (Gov. Code, § 810 et seq.), particularly section 845, which states: “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”

Relying on

Johnson

State of California

(1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], appellant claims that although the language of the above statutes appear to establish a blanket immunity for acts or omissions of law enforcement officials and agencies, we must construe it as providing immunity only from liability for discretionary, not ministerial, acts and omissions. While such a conclusion does find some support in the Law Revision Commission comment following section 845, this

Hartzler v. City of San Jose

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