Buenavista v. City & County of San Francisco

The events leading to appellants’ injuries may be summarized as follows. Eric Jordan (Jordan), a 23-year-old paranoid schizophrenic with a history of violent behavior, sought admission to the hospital’s psychiatric unit in the early morning hours of May 10, 1982. He was escorted to the hospital by the police and upon arrival he was treated with haldol, a tranquilizer. He was then placed in an unlocked area, where he waited with his parents for a hospital employee to process his admission on a 72-hour psychiatric hold under Welfare and Institutions Code section 5150. The area was unsupervised apart from this one employee, who sat absorbed in paperwork with his back to Jordan. Jordan became increasingly agitated, began moving about in the waiting area and asked repeatedly when his room would be ready. Eventually, he walked out of the waiting area and left the hospital. A few minutes after his escape, Jordan initiated a series of brutal, random assaults on people in the neighborhood of the hospital, killing an elderly woman and injuring several others before he could be apprehended.

According to appellants’ evidence, this tragedy was the product of preexisting security problems at the hospital’s psychiatric unit, and a mishandling of Jordan on the morning in question. Appellant’s documentary and testimonial evidence in opposition to summary judgment may be outlined as follows.

Concerns over inadequate safety and security were voiced by the director and staff of the psychiatric unit as early as 1979. The staff complained about inadequate space in a 1979 memorandum to the unit’s medical and administrative directors. They stated that: “At times we may have 3 or 4 ‘hold’

It appears that the hospital was in violation of one or more state regulations by virtue of the foregoing problems. (See, e.g., Cal. Code Regs., tit.22, §§ 70209 [adequate space], 70701, subd. (a)(3) [appropriate physical resources and personnel], 70837, subd. (a) [safety services and procedures].) According to the testimony of Dr. Hopkin, the hospital modified its “elopement precautions policy and procedures” shortly after Jordan’s escape. From this it may be inferred that such procedures were inadequate on the morning in question.

It also appears from appellants’ evidence that the hospital’s staff made several mistakes in their handling of Jordan. Based on the records of a prior admission, the hospital’s personnel knew or should have known that he could be dangerous. However, rather than mollify Jordan, he was engaged in a shouting match upon arrival by one of the employees. The evidence suggests that the effects of haldol can be “unpredictable,” that haldol is known to cause a condition of restlessness in schizophrenics and that this condition can manifest in violence. However, Jordan was left unsupervised and unrestrained after this medication was administered. The evidence also suggests that Jordan was given twice the proper dosage. A doctor has opined that Jordan would not have gone on his rampage but for the injection of haldol.

The situation thus presented is that of a “disaster waiting to happen,” and a mental patient who desires confinement but is treated in a way that compels him to escape. Viewed in the light most favorable to appellants,^[2] the foregoing evidence could support findings of gross negligence or reckless disregard on the part of the city and its employees.

A. Claims Under State Law

We agree with the trial court that the city is immune from any claims under state law by virtue of section 856.2, which provides that “[n]either a public entity nor a public employee is liable for: [fl] (1) [a]n injury caused by an escaping or escaped person who has been confined for mental illness or addiction.” Since a person on a 72-hour psychiatric hold is “confined” for purposes of section 856.2 even if he or she is left unrestrained and unattended (Los Angeles County-U.S.C. Medical Center v. Superior Court (1984) 155 Cal.App.3d 454 , 461, 463 [ 202 Cal.Rptr. 222 ]), this case falls squarely within the statute and appellant’s state law claims must fail.^[3] Neither the city’s negligence nor regulatory violations associated with its facility would negate its immunity under section 856.2. (Id. at pp. 462-463; Forde v. County of Los Angeles (1976) 64 Cal.App.3d 477 , 480 [ 134 Cal.Rptr. 549 ].) A finding of gross negligence or reckless indifference would not change the result. (See Clayton v. City of Sunnyvale (1976) 62 Cal.App.3d 666 , 671 [ 133 Cal.Rptr. 306 ].) It is “assume[d] as a matter of course that there is a basis for liability to which the immunity is relevant.” (Forde v. County of Los Angeles, supra, at p. 481.)

A commentator has suggested that despite the immunity conferred under section 856.2, “liability might obtain for injuries inflicted on third parties by the escaped mental patient if an independent basis of fault existed, apart from any wrongful act or omission that made the escape possible.” (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980)

We reject this contention for three reasons. First, we are unaware of any case that has applied Tarasoff in the foregoing manner to a claim covered by section 856.2. Second, unlike the patient in Tarasoff, Jordan did not threaten any specific individual. Third, even if the above-described principle could be gleaned from Tarasoff, the evidence is that Jordan would not have escaped but for the treatment with haldol. Therefore, as noted by the trial court, administration of the drug was not “independent” of conduct that made the escape possible.

We conclude that appellants’ causes of action under state law are barred by section 856.2.

B. Claims Under Section 1983

In support of their section 1983^[4] claims, appellants alleged deprivation of their constitutional rights to life and liberty by actions and omissions of the city under color of state law. (See Ellsworth v. City of Racine (7th Cir. 1985) 774 F.2d 182 , 187 [due process “encompasses a right to be free from ‘unjustified intrusions on personal security’ ”].) The state immunity statute does not shield the city from liability under section 1983. (Martinez v. California (1980) 444 U.S. 277 , 284 [ 62 L.Ed.2d 481 , 488-489, 100 S.Ct. 553 ].) However, the evidence discloses neither a “special relationship” between the city and Jordan’s victims, nor a basis for attributing the overdosage of haldol to a municipal policy or custom. As a consequence, appellants’ section 1983 claims must also fail.

State courts look to federal law to determine what conduct will support an action under section 1983. (Bach v. County of Butte, supra, 147 Cal.App.3d at p. 560.) A host of federal precedents indicate that

“Admittedly, ‘the contours of what constitutes a “special relationship” between a municipality, acting through its officials, and its citizens are hazy and indistinct.’” (Wideman v. Shallowford Community Hosp., Inc. (11th Cir. 1987) 826 F.2d 1030 , 1035. However, “[t]he key concept is the exercise of coercion, dominion, or restraint by the state” (id. at pp. 1035-1036) over the victim, and no special relationship has been found where the state has not taken the victim into custody or otherwise assumed responsibility for his or her welfare (see Estate of Gilmore v. Buckley, supra, 787 F.2d at p. 721). Thus, the state may be responsible for a private-party attack where the victim is incarcerated (see McKenna v. County of Nassau (E.D.N.Y. 1982) 538 F.Supp. 737 ; Mayes v. Elrod (N.D.Ill. 1979) 470 F.Supp. 1188 ), or is an involuntarily committed mental patient (see Estate of Connors by Meredith v. O’Connor (9th Cir. 1988) 846 F.2d 1205 ) or a foster child (see Taylor By And Through Walker v. Ledbetter (11th Cir. 1987) 818 F.2d 791 ; Doe v. New York City Dept. of Social Services (2d Cir. 1981) 649 F.2d 134 ).^[5] But recovery under section 1983 has not been authorized where the victim is a member of the general public. (See, e.g., Estate of Gilmore v. Buckley, supra [murder by furloughed prisoner]; Jones v. Phyfer (11th Cir. 1985) 761 F.2d 642 [rape by furloughed prisoner]; Fox v. Custis, supra, 712 F.2d 84 [criminal acts of parolee]; Humann v. Wilson (10th Cir. 1983) 696 F.2d 783

The special relationship requirement is derived from the United States Supreme Court’s decision in Martinez v. California, supra, 444 U.S. 277 which rejected a section 1983 claim based on a murder by a parolee where “the parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger.” (Id. at p. 285 [62 L.Ed.2d at p. 489].)^[6] The requirement is based on two fundamental propositions. The first is that a section 1983 claimant must have “suffered a deprivation of ‘rights, piivileges or immunities secured by the Constitution and laws’ of the United States” {Wideman v. Shallowford Community Hosp, Inc., supra, 826 F.2d at p. 1032). The second is that there is no constitutional right to state services, “even so elementary a service as maintaining law and order” (Bowers v. DeVito, supra, 686 F.2d at p. 618). Thus, although there is a “constitutional right not to be murdered by a state officer .... [Citation.] . . . there is no constitutional right to be protected by the state against being murdered by criminals or madmen.” {Ibid.) “[T]o break with the Bowers . . . line of reasoning . . . would open the way for scrutiny by the federal courts of virtually every municipal decision to reallocate protective resources.” (Jackson v. Byrne (7th Cir. 1984) 738 F.2d 1443 , 1447.)

Appellants argue that the harm in this case is a less remote consequence of state action than the harm in Martinez, where the murder occurred five months after the parolee’s release. Appellants also suggest that there is a special relationship between the city and the victims because people living in the vicinity of the hospital faced a greater danger from Jordan than the general public. Such arguments were rejected in Commonwealth Bank & Trust Co., N.A. v. Russell (3d Cir. 1987) 825 F.2d 12 . Russell was a section 1983 action brought on behalf of the estates of a couple murdered by a prisoner in the vicinity of a county jail shortly following his escape. Like appellants, the victims’ executor in Russell alleged that county and municipal officials knew or should have known about “deficiencies in the internal locking mechanisms” of the facility. {Id. at p. 13.) The court upheld dismissal of the complaint in this closely related context: “Plaintiff argues that defendants’ maintenance of the jail in a

“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 , 694 [ 56 L.Ed.2d 611 , 638, 98 S.Ct. 2018 ].) Cases following Monell indicate that a municipality may be liable under section 1983 for its omissions as well as its actions. (See, e.g., Hitt v. Cox (4th Cir. 1984) 737 F.2d 421 , 425; Avery v. County of Burke (4th Cir. 1981) 660 F.2d 111 ,114; Gibralter v. City of New York (E.D.N.Y. 1985) 612 F.Supp. 125 , 130.) Memoranda outlining safety and security problems at the hospital’s psychiatric unit were addressed or copied to hospital administrative officials prior to Jordan’s escape. These memoranda permit the inference that responsible city officials were aware of such problems and failed to take remedial action. The conditions that enabled Jordan to escape might thus be attributed to a city “custom.” (See Pembauer v. Cincinnati (1986) 475 U.S. 469 , 481, fn. 10 [ 89 L.Ed.2d 452 , 464, 106 S.Ct. 1292 ].) As previously noted, however, similar omissions did not give rise to section 1983 liability in Commonwealth Bank & Trust Co., N.A. v. Russell.

In order to satisfy the requirements of Monell and distinguish Jordan’s situation from that of the escaped convict in Russell, appellants must show that Jordan’s overdose also resulted from a city policy or custom. The record indicates that, as of the morning in question, the hospital had no written policies on the use of medications in doses exceeding manufacturer’s recommendations. A hospital physician has testified that such policies are required by law and have since been established. (See Cal. Code Regs., tit.22, § 70577, subd. (d)(4)(D) [requiring guidelines for drugs administered in “unusually high” dosages].) The evidence, however, does not disclose any pattern of overdosage or medical malpractice at the hospital’s psychiatric unit.^[7] Insofar as it appears from the record, Jordan’s overdose was an isolat