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Adam v. City of Fremont12/3/1998
y one's existence on earth." (Id. at p. 854.)
A duty arises in this case under the foregoing tests even if (as is not the case) the conduct in this case could be considered a "not doing" rather than a "misdoing." Appellants affirmatively intervened in the situation to such an extent that their negligent "omissions" produced affirmative injury , not merely the denial of a benefit, and their conduct was manifestly imprudent. Moreover, respondents' experts provided evidence that this conduct was "a substantial cause" of Patrick's death. Stated differently, absent appellants' existence, the decedent's body would not have been riddled with 27 bullets, and his survival far more likely, if not certain.
The basic idea was explained less elaborately in Williams, supra, 34 Cal.3d 18, where the Supreme Court stated that " bsence of duty [rather than statutory immunity] is a particularly useful and conceptually more satisfying rationale where, absent any `special relationship' between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. [Citations.]" (Id. at p. 23, italics added.) By the same token, absence of duty is commensurately inappropriate in cases such as this, where the special relationship results, inter alia, from police misfeasance.
C.
The majority takes me to task for urging an expansion of the special relationship doctrine. Claiming I rely on "dated commentary," they say I am "predicting a legal trend that never actually materialized." (Maj. opn. at p. 51.) This is demonstrably untrue. The expansion the majority abhors occurred in this and most other American jurisdictions long ago. As noted by our Supreme Court more than twenty years ago, this expansion was the salutary judicial response to the moral problem created by the absence in the law of a duty to rescue. In Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, the high court observed that the general common law rule that a person owes no duty to control the conduct of another "derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. [Citation.] Morally questionable, the rule [of no liability for nonfeasance] owes its survival to `the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . . .' [Citation.] Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. [Citation.]" (Id. at p. 435, fn. 5, italics added; accord, 3 Harper, James & Gray, The Law of Torts (2d ed.) § 18.6, pp. 712-732, and authorities there cited and discussed.) As pointed out in Mann (which, as earlier noted, was cited with approval by the Supreme Court in Williams), "The California Supreme Court, Prosser and the Restatement Second of Torts all recognize that `special relationship' is an expanding concept in tort law. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, fn. 5; Prosser, Law of Torts (4th ed. 1971) § 56, pp. 339-340; Rest.2d Torts (1965) § 314A, coms. a, b.) As the Restatement suggests, the law appears to be heading toward a recognition of the duty to aid or protect in any relationship of dependence or of mutual dependence. (Id. com. b; see also Fleming, Law of Torts (4th ed. 1971) p. 143.)" (Mann v. State of California, supra, 70 Cal.App.3d 773, 780; see also, 3 Harper, James & Gray, The Law of Torts, supra, § 18.6, pp. 712 et seq., an
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