Opinion
BUTLER, J. This appeal concerns the liability of the County of San Diego (County) under the rationale of the holding in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334], for damages arising out of (1) the claimed negligence of a psychiatrist employed by the County at the community mental health center (CMH) in failing to warn a wife of her husband’s known dangerous propensities for the infliction of harm upon her and (2) the claimed negligence of a deputy sheriff in failing to protect her from her husband. The damages are sought by the guardian for Mikie, whose mother was killed by his father who then committed suicide. We shall hold the psychiatrist owed a duty to exercise reasonable care to avoid harm to the wife at the hands of her husband, but the psychiatrist and thus the County are entitled to immunity. We shall also hold the deputy sheriff and thus the County are not liable in the circumstances presented and affirm the judgment.
I
We state the facts as presented in the opening statement as amplified in pretrial and motion proceedings. October 9, 1977, Michael R. L. (Michael) shot and killed his wife Cecelia and then himself with the same weapon. This murder-suicide culminated months of marital discord. Cecelia left Michael in early 1977, and filed dissolution proceedings. A reconciliation followed and they resumed living together that summer in Ramona with their son, two-year-old Michael E. L. (Mikie). Michael’s drinking and [520]irrational behavior continued. July 30, Michael repeatedly shot and eventually killed the family sheep dog, a friendly creature without dangerous propensities. Cecelia and Mikie were present.
Cecelia immediately reported the incident to the humane society. Michael told her she could leave but if she took Mikie, “you’ll be next.” Cecelia left that same day while Michael was burying the dog. Taking Mikie with her, she moved in with her parents whose residence was in county territory adjacent to El Cajon. She called the sheriff’s department and reported the shooting. After talking with Cecelia at the house, Deputy Jonathan Logan told her there was nothing he could do. The problem was domestic and she should ask her lawyer to get a restraining order.
The next day, July 31, Cecelia’s lawyer filed an amended petition for dissolution and secured an order restraining Michael from being around Cecelia. Michael was served with the restraining order August 5.
September 6, at 3 a.m., Michael called the California Highway Patrol and said he was going to shoot himself or someone else unless the police stopped him. El Cajon police officers found Michael in his parked truck. He was upset and weeping. He said he was having marital problems and wanted to talk with someone. The officers patted him down and found a shotgun and shells in the truck. Michael told them he came from Ramona, intending to shoot his wife, and had second thoughts. He wanted to speak to a psychiatrist.
The officers took Michael to the police station, compiled their report and called Cecelia to inform her of the episode. The report included Michael’s statements he wanted to kill Cecelia, the officers’ belief Michael would harm Cecelia given the opportunity and Cecelia’s recognition Michael would try to harm her.
The officers filled out an involuntary commitment form and transported Michael to the CMH operated by the County. He was admitted shortly after 6 a.m. Admitting psychiatrist Dr. Blumenstein noted Michael’s shaky appearance. Dr. Pappas examined Michael and ordered a battery of tests. Clinical psychologist Dr. Schorr administered the tests and determined Michael was an explosive paranoid with poor self-control, was emotionally immature and had a latent type of schizophrenia. He was a “walking time bomb.”
Dr. Pappas saw Michael again. This time he knew Michael had intended to kill Cecelia and was armed when picked up by the police. He knew the officers considered him a danger to Cecelia and that she was aware of and acknowledged her peril. Dr. Pappas knew about Michael’s prior violence, [521]the test results and Dr. Schorr’s diagnosis Michael was an explosive paranoid and a latent schizophrenic. During this interview, Michael was relaxed, at ease with himself and anxious to get back to work.
Dr. Pappas released Michael September 7, the day following his admittance, without further evaluation or treatment at CMH other than telling Michael to see Dr. Olenik, a psychiatrist in private practice. Michael did not contact Dr. Olenik.
October 8, Michael telephoned Cecelia asking to see Mikie. Lying, he claimed his truck had broken down. She drove to Ramona, was threatened by Michael, submitted to his demand for sexual intercourse, rushed back to El Cajon and promptly called the sheriff. By happenstance, Deputy Logan was dispatched. Cecelia related Michael’s admission to CMH, his release and the return to him of his gun. After hearing about her visit to Michael, Logan told her “Go in the house. Lock the door. And if the man shows up, call the Sheriff’s Department and we can pursue a trespass action against him.” Logan later told a civilian employee of the department the situation was potentially dangerous but there was nothing he could do.
The next day was Sunday, October 9. That afternoon, Michael came to his mother-in-law, Isadora’s residence. Cecelia heard his truck and ran to the telephone. Her mother saw Michael who smashed a locked sliding glass door and chased Isadora, beating her with a lead pipe. She broke free and ran to a neighbor for help. Michael then shot Cecelia twice. She died instantly and he turned the gun on himself. Mikie was then in the house and for eight hours afterward, alone with the bodies of his parents while a sheriff’s SWAT team surrounded the house. After firing tear gas, the SWAT team rushed the house and released Mikie to his grandfather. His grandmother, Isadora, sued the County on his behalf, the court granted the County’s nonsuit motion following the opening statement and Isadora appeals.1
II
The court granted the nonsuit as to CMH liability on two grounds. The holding in Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, was inapplicable. If applicable, Welfare and Institutions Code2 section 5154, included within the Lanterman-Petris-Short Act (LPS Act), part 1 of [522]division 5, Community Mental Health Services, sections 5000-5550, immunized the County from liability for negligence of the psychiatrists. As to the deputy sheriff, the court concluded the opening statement did not state facts sufficient to create the special relationship between the deputy and Cecelia essential to fix County liability under Williams v. State of California (1983) 34 Cal.3d 18 [192 Cal.Rptr. 233, 664 P.2d 137].
III
A nonsuit following an opening statement is not favored. (Greenwood v. Mooradian (1955) 137 Cal.App.2d 532, 536-537 [290 P.2d 955].) Such nonsuit is warranted only when the court can conclude there will be no evidence of sufficient substantiality to support a judgment in favor of the plaintiff. (Willis v. Gordon (1978) 20 Cal.3d 629, 633 [143 Cal.Rptr. 723, 574 P.2d 794].)
IV
We first look to County liability arising out of Michael’s placement at CMH for evaluation and treatment and look to the duty horse before reviewing the immunity cart.
“Once again the immunity cart has been placed before the duty horse. (See Davidson v. City of Westminster (1982) 32 Cal. 3d 197 . . . .) We said in Davidson (pp. 201-202): ‘Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.’” (Williams v. State of California, supra, 34 Cal.3d 18 at p. 22.)
Tarasoff explains the duty of therapists who learn a patient in voluntary therapy presents a serious danger of violence to another: “We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.” (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425 at p. 431.) The opening statement as amplified by pretrial dialogue and during the nonsuit motion hearing makes [523]clear Michael’s dangerous propensities to harm Cecelia were known to her, her parents, the El Cajon police officers, Deputy Sheriff Logan, and CMH Doctors Blumenstein, Schorr and Pappas. The psychiatrists knew Michael was a walking time bomb. Other than telling him to see Dr. Olenik, the private practitioner, they did nothing. Michael departed CMH and returned to Ramona. The scene was set for the final act of this tragedy.
The County argues Tarasoff is inapplicable in the circumstances presented here. The Tarasoff killer, Prosenjit Poddar, was in voluntary therapy. Here, Michael, a person dangerous to others, was involuntarily committed to CMH for evaluation and treatment under the LPS Act.3
We are unable to perceive any distinction in Tarasoff duty of psychiatrists who deal with patients in voluntary therapy and those who evaluate and treat persons involuntarily committed under the LPS Act. The psychiatrist in private practice, putting aside the Hippocratic oath for the moment, who is consulted by a patient seeking voluntary therapy is free to accept or reject the engagement. A person seeking voluntary therapy at a public facility may be rejected if financially able to retain services elsewhere (see 54 Ops.Cal.Atty.Gen. 65 (1971)) or is not suitable for care or treatment in the public facility (§ 6000). However, once a psychiatrist takes on a patient for therapy, whether voluntary or under LPS Act compulsion, the resulting special relationship supports affirmative duties on the psychiatrist for the benefit of third persons (Tarasoff, supra, at p. 436).
This appeal presents an even stronger case for the imposition of the duty. Michael was involuntarily committed because he was a danger to Cecelia. The CMH placement itself, in contrast to Poddar’s voluntary therapy treatments in Tarasoff, affirms the probability Michael was a danger to others. We conclude the Tarasoff duty to warn third parties is applicable to CMH psychiatrists. We next consider whether the facts before us on this appeal negate that duty to warn.
Cecelia, more than anyone, knew Michael was a danger to her. A restraining order issued in the dissolution proceedings restraining him from approaching her. Deputy Sheriff Logan told her to lock the doors and call the sheriff if Michael approached her parents’ residence. She knew about his September 6 trip from Ramona with the expressed intention of killing [524]her only to have second thoughts and his subsequent placement at CMH. She was aware of the CMH release and the return of the gun to Michael.
The opening statement concedes these issues. Thus, while Dr. Pappas has an obligation to use reasonable care to protect an intended victim from the danger of serious violence he perceives in a person placed at CMH for evaluation and treatment, we are unable to determine in this case what is required in the exercise of reasonable care to discharge that duty. To say a warning to Cecelia or others or notice to the police fulfills the duty is an exercise in futility. Every player in the drama was fully informed. To “take whatever other steps are reasonably necessary under the circumstances” as advised by Tarasoff calls for a jury determination as to what the psychiatrist should be required to do.
The opening statement referred to expected psychiatric testimony listing several steps Dr. Pappas should have taken such as warning Cecelia never to be alone with Michael and always to be sure other adults were present. Direct contact with her would emphasize and underscore the peril Michael presented to her. A psychiatric label to the effect Michael was dangerous to her health might well have persuaded her to take extraordinary steps to secure her safety. We do not presume to catalogue the steps reasonably necessary for a psychiatrist to fulfill a Tarasoff duty on these facts and conclude the question whether reasonable care was exercised should be left to the trier of fact.4
V
Having examined the duty horse, we turn to the immunity cart. Section 51545 of the EPS Act at times here relevant provided: “The professional [525]person in charge of the facility providing 72-hour treatment and evaluation, his designee, and the peace officer responsible for the detainment of the person shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours pursuant to this article.” The EPS Act must be construed to promote the intent of the Legislature, among other things, to end the inappropriate, indefinite and involuntary commitment of mentally disordered persons, to provide prompt evaluation and treatment and to protect mentally disordered persons (§ 5001).
Chapter 2 of the act concerns involuntary commitment of persons in various categories, including those who are mentally disordered. Section 5150 provides for the placement at CMH of a person who, as a result of mental disorder, is a danger to others or to himself or is gravely disabled. The placement requires a written application.
During his opening statement, plaintiff’s counsel exhibited to the jury a form filled out and signed by the El Cajon police officers entitled “Involuntary Commitment.” The form outlined the circumstances under which Michael’s condition at 3 a.m. was called to their attention and a statement of probable cause to believe, as a result of a mental disorder, he was a danger to others, all consistent with section 5150 requirements. The parties stipulated CMH was a properly designated facility providing 72-hour treatment and evaluation and the psychiatrists and clinical psychologist were facility employees.
However, plaintiff’s counsel declined to stipulate those employees or any of them were a “designee” of the professional person in charge of CMH for purposes of section 5154 immunity and further declined to stipulate Michael’s placement at CMH was accomplished pursuant to the involuntary treatment provisions of chapter 2 and the detention procedures prescribed in section 5150 of that chapter of the EPS Act.
Plaintiff’s counsel argued the evidence would show Michael voluntarily committed himself pursuant to section 5003. As the section 5154 immunity extended solely to involuntary commitments, he argued section 5154 was inapplicable and the County was not immune from liability arising out of Michael’s activities after his release as he was a voluntarily committed person. Offered the opportunity, however, to adduce such evidence or include a remark to that effect in his opening statement, counsel candidly admitted the only evidence of a voluntary commitment was the inferences to be drawn by the jury from Michael’s phone call to the California Highway Patrol seeking help, his willingness to go to the police station with the El Cajon officers, his admissions of intent to kill Cecelia, and a statement in the police report to the effect he was voluntarily committed.
[526]The court correctly concluded as a matter of law section 5003 did not authorize an EPS Act voluntary commitment and the proffered evidence was wholly insufficient to sustain a finding Michael voluntarily committed himself under provisions other than those prescribed in the EPS Act.
Section 5003 is included in chapter 1, General Provisions, of the EPS Act. “Nothing in this part shall be construed in any way as limiting the right of any person to make voluntary application at any time to any public or private agency or practitioner for mental health services, either by direct application in person, or by referral from any other public or private agency or practitioner.” Section 5003 does not create a right to be admitted or treated at CMH. Section 5003 simply states the EPS Act does not limit the right of any person either personally or by way of referral to make a voluntary application to an agency for mental health services (see 54 Ops.Cal.Atty.Gen., supra, at p. 65). The EPS Act does not create or prescribe any procedures for a voluntary commitment. The EPS Act establishes procedures to end the inappropriate, indefinite and involuntary commitment of mentally disordered persons and to provide prompt evaluation and treatment of such persons (§ 5001). Voluntary commitments simply are not covered by the EPS Act. Instead, voluntary commitments of mentally disordered persons are provided for in division 6, sections 6000-6008 of the Welfare and Institutions Code. Division 6 is not part of the EPS Act. Section 6004 provides the person in charge of a county psychiatric hospital may receive, care for or treat any person who voluntarily makes a written application for care, treatment or observation and who is a suitable person for the same and is competent to make the application. Unlike the person involuntarily committed to CMH under the EPS Act, a voluntary adult patient may leave the facility at any time by giving notice to any staff member of desire to leave and completing normal departure procedures (§ 6005). Section 5003 saves from EPS Act preemption other provisions of law concerning the providing of mental health services to voluntary commitments. Section 5003 itself has nothing to do with such voluntary commitments.
The evidence is wholly insufficient to support a finding Michael voluntarily committed himself under other provisions of law. Plaintiff’s counsel exhibited the involuntary commitment form to the jury, read from it and admitted no other writing existed with respect to Michael’s commitment. He told the jury the circumstances of Michael’s detention by the El Cajon police, their questioning, the discovery of the gun and shells, their report, including references Michael was a danger to Cecelia, and the delivery of Michael to CMH and his placement there. Michael’s placement at CMH by the El Cajon police officers tracked the processes prescribed by and was accomplished through the involuntary procedures set out in section 5150. There is no evidence of a voluntary commitment.
[527]VI
We turn to section 5154 as effective in 1983 and its applicability here.6 Plaintiff’s counsel declined to stipulate the CMH psychiatrists were a “designee” of the professional person in charge of CMH and he did not so characterize them in his opening statement.
Counsel have not cited and we have not found any cases dealing with section 5154 immunity and the meaning of the phrase “professional person in charge of the facility” or the word “designee.” Section 5151 provides if in “the judgment of the professional person in charge of the facility . . . or his designee” a person can receive services without detention, such person shall be provided evaluation and other services on a voluntary basis. Section 5152 as effective at times relevant here provides for the release of a detained person before the elapse of 72 hours if “in the opinion of the professional person in charge of the facility, or his designee” the person no longer requires evaluation or treatment. Section 5152.1 requires the person in charge or his designee to notify the mental health director or his designee, and others, of the early release.
Michael was not detained at CMH for 72 hours. He was released September 7, some 33 hours after his placement there. In his opening statement, plaintiff’s counsel told the jury Dr. Pappas saw Michael a second time: “Well, Dr. Pappas, next in order, sees [Michael] for a second time after the psychological tests are performed. Dr. Pappas sees [Michael] for about another fifteen minutes, comes face-to-face with the man, and he concludes that this is a nice fellow, that he’s appreciative, that he’s calm, that he wants to get back to work, so he puts him back out onto the street without taking any other affirmative steps toward protecting Cecelia . . . from this walking time bomb.” He reiterated several times the fact Dr. Pappas released Michael. He told the jury the contents of the discharge report prepared by Dr. Pappas. Plaintiff’s counsel does not contest Michael’s early release or complain about any CMH failure to follow prescribed early release procedures. In pretrial discussions between court and counsel, which the parties agreed [528]could be considered by the court on the nonsuit motion, the facts included in the opening statement were extensively discussed and plaintiff’s theory of County liability explained: “Dr. Pappas, the M.D. psychiatrist, then decided on his own to release Michael notwithstanding the conclusions of Dr. Schorr, the psychologist, because to him Michael appeared to be calm. There is a specific immunity for releasing or not releasing the patient; we agree with that. And that’s really irrelevant because our case is not in any way based on when they released him. It is only based on what duties they had under Tarasoff to take reasonable care to protect a victim, a known, identifiable victim, who was Cecelia, once they did release him.”
The opening statement supplemented as requested by plaintiff’s counsel by the pretrial court-counsel dialogue concedes Michael’s early release tracked section 5152 requirements, i.e., in the opinion of the professional person in charge of CMH, or his designee, Michael no longer required evaluation or treatment. It follows then, the admission Michael’s release was proper requires the conclusion Dr. Pappas was acting as the professional person in charge or a designee of such person and entitled to section 5154 immunity.
VII
Isadora did not claim Dr. Blumenstein or Dr. Schorr were under a duty to warn Cecelia of her danger from Michael.7 The opening statement fingers Dr. Pappas as the person chargeable with such duty. The other doctors were excluded as giving rise to any CMH liability on account of their activities. We thus examine the scope of the section 5154 immunity as to Dr. Pappas.
The section says Dr. Pappas “shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours . . . .” Isadora argues her claims against the County on Mikie’s behalf are not based on Michael’s postrelease action, i.e., killing Cecelia; as in Tarasoff, her claims are said to stem from the failure to do anything to protect Cecelia from danger at Michael’s hands.
Having defined therapist duty, Tarasoff considered therapy immunity under Government Code provisions.8 The court held Government Code [529]section 820.29 did not immunize the therapists and the university from liability for a failure to warn, pointing out Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352] limited section 820.2 immunity to the discretion exercised in the making of basic policy by legislative and executive basic policymakers to give them “sufficient breathing space in which to perform their vital policymaking functions” (Tarasoff, supra, at p. 445). The failure of the therapists to warn did not rise to that level. Government Code section 820.2 does not immunize CMH and the County in our case.
So far as failure of the therapists to confine Poddar was concerned, the court held them immune from liability under Government Code section 856. In reaching this conclusion, the court determined the section 856 immunity extended to persons authorized to request or recommend confinement and was not limited to those persons authorized to commit mentally disordered persons under EPS Act section 5150.
“The Lanterman-Petris-Short Act, in its extensive revision of the procedures for commitment of the mentally ill, eliminated any specific statutory reference to petitions by treating physicians, but it did not limit the authority of a therapist in government employ to request, recommend or initiate actions which may lead to commitment of his patient under the act. We believe that the language of [Government Code] section 856, which refers to any action in the course of employment and in accordance with any applicable enactment, protects the therapist who must undertake this delicate and difficult task. (See Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1064.) Thus the scope of the immunity extends not only to the final determination to confine or not to confine the person for mental illness, but to all determinations involved in the process of commitment. [Citation.]” (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425 at p. 448, italics added.) Government Code section 856 includes like immunity to public entities and public employees for any injury resulting from a determination “whether to parole, grant a leave of absence to, or release a person confined for mental illness or addiction.” (Gov. Code, § 856, subd. (a)(3), italics added.) The language underlined above in our quotation from Tarasoff refers to the failure of the therapists to detain Poddar and to release him without “‘notifying the parents of [the victim] that their daughter was in grave danger from . . . Poddar.’” (Id., at p. 433.) We read Tarasojf as saying a failure to warn coupled with a failure to detain is immune under Government Code section 856. Here, the [530]failure to warn was coupled with a release. Tracking the above-quoted Tarasoff language in the context of this case, the scope of the section 856 immunity extends not only to the final determination to release or not to release Michael for mental illness but also to all determinations involved in the process of release. Section 856 would appear to afford immunity from liability to CMH and the County. While this analysis of Tarasoff immunity suggests CMH and County immunity is afforded under Government Code section 856, we conclude section 5154 immunity applies.
We deal here with a specific statute creating immunity for the actions of an early-released person. Unlike the immunities of Government Code sections 820.2 and 856 discussed in Tarasoff, section 5154 is narrow and limited in scope and directed precisely at actions of persons who are released early.
As we have seen, the EPS Act seeks to end the inappropriate, indefinite and involuntary commitment of mentally disordered persons and others. A 72-hour involuntary placement for evaluation can be terminated and a detained person can be earlier released. The act thus assures a person properly detained the opportunity for early release. In recognition of the uncertainties implicit in the evaluation and treatment of mentally disordered persons involuntarily committed and the nature and character of their postrelease activities, the act recognizes some early-released persons may offer harm to others. Balancing the straitjacket of CMH commitment and resultant assurance the committed person will not harm others beyond CMH walls against the aim of the act itself to end indefinite confinements, we conclude the freedom of the committed person outweighs the shackles. The corollary to the early release and future conduct uncertainties is the immunity provided in section 5154—no liability for any actions by a person released at or before the end of 72 hours.
While Isadora’s claim against the County rests on a CMH failure to warn or otherwise use reasonable care to protect Cecelia, that claim necessarily arises out of the murder by Michael, a postrelease activity. As that action is immune under section 5154, it follows that the claimed failure to warn is also immune. Free of CMH confinement, Michael was a gun pointed at Cecelia which fired the fatal shots. To immunize the shooting without including the activities which loaded the gun defeats the purposes of the act encouraging early release. The conduct of Dr. Pappas in the evaluation of Michael and his early release is entitled to the section 5154 immunity to postrelease activities.10 The County shares that immunity. The nonsuit as to the CMH activities of the County was correct.
[531]VIII
Isadora’s complaint on Mikie’s behalf also sought damages for Cecelia’s death for failure of the sheriff’s department to act with reasonable care in protecting Cecelia from harm. She claims the statements by Deputy Sheriff Logan while responding to the calls from Cecelia created a special relationship with the sheriff’s department; a duty to protect Cecelia arose and the failure of the sheriff to carry out that duty imposes liability. (Williams v. State of California, supra, 34 Cal.3d 18 at p. 24.) An officer who directs a person to follow him into an intersection may be liable for negligence when that person is struck by a car. (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 [74 Cal.Rptr. 389, 449 P.2d 453].) When a deputy sheriff promised to warn a victim upon release of a prisoner and failed to do so, the failure to warn constituted negligence giving rise to liability when the released prisoner killed the victim. (Morgan v. County of Yuba (1964) 230 Cal.App.2d 938 [41 Cal.Rptr. 508].)
Here, Deputy Sheriff Logan did not create a special relationship when he talked with Cecelia on the two occasions. The murder did not result from any failure to investigate or to respond to the calls or from any promise or representation (Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6 [120 Cal.Rptr. 5]) or any delay in broadcasting an alert (Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588 [114 Cal.Rptr. 332]) or failure to render aid (McCarthy v. Frost (1973) 33 Cal.App.3d 872 [109 Cal.Rptr. 470]).
The deputy sheriff did not create the peril in which Cecelia found herself. He took no affirmative action which contributed to, increased, or changed the risk. He did not assume any responsibility to protect Cecelia and there is no evidence of any detrimental reliance by her on any of his statements. (Williams v. State of California, supra, 34 Cal.3d 18 at pp. 27-28.)
We conclude Deputy Sheriff Logan did not create or assume a special relationship as to Cecelia and the County incurred no liability on these counts by reason of her death.
Judgment affirmed. County to have its costs on appeal.
Work, J., concurred.
The parties stipulated the County was the sole defendant and Isadora as guardian the only remaining plaintiff and the negligence of the CMH employees and sheriff’s deputies, if any, was attributable to the County. We thus ignore other party plaintiffs and defendants and look solely to the causes of action pleaded on Mikie’s behalf.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
For purposes of analyzing Tarasoff duty in an LPS Act setting, we shall assume without discussion Michael was involuntarily committed under section 5150. Later, we address this issue as a part of our section 5154 immunity analysis in which we conclude Michael’s placement at CMH was indeed an involuntary commitment under section 5150.
The Legislature apparently anticipated this dilemma in enacting Civil Code section 43.92, effective January 1, 1986, which provides a psychotherapist as defined in Evidence Code section 1010 has no monetary liability and a cause of action shall not arise as to the psychotherapist for failure to warn of and protect from a patient’s violent behavior unless the patient communicates to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim. The duty to warn and to protect in that event is said to be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim and to a law enforcement agency. While the CMH doctors here are psychotherapists as defined in Evidence Code section 1010, Civil Code section 43.92, effective January 1, 1986, is not applicable to these events which occurred in 1983 and we do not consider it in our analysis.
Neither the court nor the parties addressed section 5113 immunity which concern articles 1, 1.5, 4, 4.5 and 6. Sections 5150-5154 are included in article 1. As section 5154 is specifically directed at releases of persons made pursuant to article 1, and tracks section 5113, we conclude section 5154 as effective at times relevant here is the immunity applicable to early release. Section 5113 was amended by urgency statute effective September 30, 1985. As amended, section 5113 applies to LPS criminal or civil liability except as provided in sections 5154, 5173, 5259.3 and 5306. Civil and criminal immunities for 72-hour or earlier release are now specified by section 5154 which was likewise amended as we later discuss in footnote 6, post.
While not controlling on this appeal, we note amendments to section 5154 by an urgency statute effective September 30, 1985, to cause civil and criminal immunity for 72-hour or earlier release track an amendment to section 5152 setting out procedures for and the designations of professional persons responsible for the early release of a person admitted to an LPS facility. This section 5152 amendment elaborates upon the designations of releasing authorities to include the psychiatrist directly responsible for the treatment and his or her personal observations and other professional persons authorized to release. Conflicts as to release between such person and the psychiatrist are resolved by the medical director or his or her designee who shall be a psychiatrist if the director is not a psychiatrist. Early release is authorized only if the psychiatrist making the final decision is satisfied, based on personal observation, the committed person no longer requires evaluation or treatment.
Her opening brief on appeal, however, refers to Dr. Schorr’s failure to warn Cecelia, and includes him with Dr. Pappas in her brief argument neither was a “designee.”
Inscrutably, Tarasoff grants section 5154 immunity to the campus police (deemed to be peace officers) who briefly detained and then released the killer Poddar. Apparently, the court considered the detainment was accomplished under section 5150 although the opinion is careful to exclude the LPS Act as a basis for its conclusions (see pp. 442-443, 450).
Government Code section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
We appreciate our holding suggests voluntary commitments may be converted into LPS Act involuntary commitments to insure section 5154 immunity for failure to warn third [531]persons of postrelease potential of dangerous proclivities of released persons. The suggestion assumes an LPS Act commitment for improper purposes without regard to the section 5150 placement procedures and an early release within the 72-hour period. While we need not now decide the issue, we doubt section 5154 immunity would be available to shield such commitment and early release from Tarasoff liability. Moreover, Civil Code section 43.92 arguably affords a defense for a failure to warn in voluntary commitment circumstances.