# Allen v. Toten > California Court of Appeal · October 2, 1985 · 172 Cal. App. 3d 1079 URL: https://www.frixlaw.com/law-library/cases/9727941 ## Case - **Full name:** LINDA ALLEN, Plaintiff and Respondent, v. GENE TOTEN Et Al., Defendants and Appellants - **Court:** California Court of Appeal - **Decided:** October 2, 1985 - **Citations:** 172 Cal. App. 3d 1079; 218 Cal. Rptr. 725; 1985 Cal. App. LEXIS 2585 - **Precedential status:** Published - **Opinion:** Dissent by Carr - **Judges:** Sparks, Carr - **Cited by:** 89 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9727941 ## Opinion text CARR, J. I respectfully dissent. The majority elected to treat this appeal as one in which the sole issue is the sufficiency of the complaint to state “a cause of action against a public entity and its peace officers for their alleged negligence in bringing the plaintiff wife to the scene of her husband’s threatened suicide.” As I consider the briefs and argument, appellant’s contention was that this case fell solely within Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ], and recovery was precluded by the judgment against her husband on his cause of action for negligence. 1 However, the majority concedes Linda’s complaint encompasses not only a Dillon v. Legg, supra, cause of action but a separate cause of action for direct negligence toward her in bringing her to the scene. The majority then concludes this separate cause of action, for which harm is foreseeable, reasonably certain and connected to defendants’ conduct, is not cognizable for the public policy reasons that peace officers incur no tort liability for bringing a family member to a scene of a threatened suicide because the peace officers owe no duty to prevent the family member from witnessing what is an obvious and potential danger inherent in such situations. Having opted to determine this case solely on the sufficiency of the complaint, the majority then indulged in an unwarranted assumption of facts, which facts are necessary planks in the policy decision to disallow Linda’s cause of action but which facts are totally absent from the record. The first fallacious fact is that Linda Allen consented to going to the threatened suicide scene and freely and voluntarily accompanied the police officers there and freely and voluntarily remained at the scene until her husband was shot. In the third cause of action alleged in the complaint, that of the parents and sister, it is alleged that “the defendants Hosier and Swartzenberg picked up the plaintiifs William Allen, Bettie Allen, and Millie Hay with their consent ... in order to transport [them] to the site at which plaintiff Theodore Allen *1093 was stopped. . . .” In the fifth cause of action Linda Allen alleges in paragraph XVIII “the defendants Toten and Ashmun directed other deputies to bring . . . Linda Allen ... to the scene, whereupon . . . Linda Allen was brought to the scene . . . .” (Italics added.) Nothing in the record supports the majority conclusion that Linda consented to go to the scene or her action in going to the scene or remaining was voluntary. In fact and law, all inferences are against such factual conclusions, commencing with the hornbook rule of law that all inferences are in favor of the judgment and any condition of facts consistent with the validity of the judgment will be presumed to have existed. Though this case comes to us on a so-called judgment roll appeal, it in fact includes the entire clerk’s transcript, including the jury instructions. 2 A reading of the jury instructions given to the jury, as to which no error is urged, discloses that as to Linda Allen, the case was submitted on three separate theories: whether defendants “negligently brought [Linda] to the scene of the shooting ... or negligently retained [her] there or negligently allowed [her] to participate in the events leading to the arrest of [Theodore],” which negligence “was a proximate cause of serious emotional distress to [Linda].” The jury resolved the negligence issue in Linda’s favor on one or more of the three grounds of negligence submitted to them. In the absence of a full record, we must presume there was evidentiary support for these instructions to the jury and the resulting verdict. We may infer, in the absence of a record, that the evidence disclosed the officers compelled Linda, either by force or persuasion, to go to the scene, forcibly or negligently induced her to participate in persuading her husband to throw out his gun and/or negligently or forcibly retained her at the scene to witness the shooting after she insisted upon being removed from the scene. We could also infer that, having no duty to bring Linda to the scene, they nonetheless did so and having undertaken this mission were thereafter negligent in their conduct in having her participate in the negotiations with her husband or were negligent in retaining her at the scene with knowledge that if persuasion failed, her husband would be shot. This latter liability-creating situation has generally arisen when the immunity afforded public employees for the exercise of discretionary acts by Government Code section 820.2 is asserted. (See Johnson v. State (1968) 69 Cal.2d 782 [ 73 Cal.Rptr. 240 , 447 P.2d 352 ] (state held liable for failure to disclose known propensity for viciousness of boy placed for foster care in a private home by the Youth Authority); Green v. City of Livermore *1094 (1981) 117 Cal.App.3d 82 [ 172 Cal.Rptr. 461 ] (municipality liable for negligence of police officer in failing to confiscate car keys or otherwise disable the vehicle of a drunk driver being arrested thereby permitting an intoxicated passenger to operate vehicle and collide with plaintiff’s vehicle).) Defendants herein have asserted the discretionary immunity of Government Code section 820.2. The majority has not addressed this issue but it becomes an issue, albeit a losing one for defendants, in the context of the case as I view it. In their brief defendants concede that “the action of requesting Linda Allen to come to the scene was negligent and careless.” The concession of negligence is required, also conceded by defendants, by the nature of appeal on the clerk’s transcript. Defendants however, as the majority has done, misconstrue the nature of their concession of negligence. The complaint does not allege that plaintiff Linda was “requested” to come to the scene. It alleges she was “brought.” This act of “bringing” may well be the basis of the jury’s finding of negligence. But, assuming arguendo, that the officers were engaged in a discretionary act in taking Linda to the scene, having made that decision to take her to the scene, they had á duty to act with due care, or nonnegligently, in retaining her at the scene and requiring or permitting her to participate in persuasions with her husband, which, if unsuccessful, would result in foreseeable violence and foreseeable emotional harm to Linda. This brings us to the second unwarranted assumption of fact by the majority: that “the police, acting lawfully and without negligence” brought Linda to the scene “of a standoff between the police and her armed and suicidal husband.” Linda alleged negligence in her complaint and the jury by special verdicts 3 found negligence on the part of the officers. The majority’s rejection of Linda’s cause of action can be justified only if we conclude that for policy reasons negligence of peace officers, whatever form that negligence may take, in bringing a family member to the scene of a threatened suicide in an attempt to persuade the prospective suicide victim to surrender his weapon is excusable and nonactionable because to impose liability would have a chilling effect on the performance of police officers in fulfilling their duty to prevent the commission of crime. This is somewhat analogous to asserting that denying the admission of coerced confessions, non-Mirandized statements and illegally obtained evidence would have a chilling effect on the performance of police officers in apprehending criminals. The evidence in this case may not support a finding of negligence toward Linda Allen by the officers in question. But if the sufficiency of the evidence *1095 was a viable issue, it was the responsibility of the defendants to bring to this court a record of that evidence so we could assess the sufficiency. They have failed to so do. I refuse to speculate what evidence was presented to the triers of fact, the jury, and would affirm the judgment. Respondent’s petition for review by the Supreme Court was denied January 16, 1986. A defense verdict for the husband was a predictable result, as prior to the civil case, he pled guilty to a violation of Penal Code section 245, subdivision (a), assault with intent to do great bodily injury to the person of a police officer, a felony. The trial court, as required, instructed the jury on this plea and its effect. Section 670, Code of Civil Procedure, defines a judgment roll generally as including the pleadings, the verdict, the statement of decision and orders relating to ruling on demurrers and changes of parties. However, there are two kinds of appeals which are loosely referred to as “judgment roll appeals.” The first is the true judgment roll (see [Cal. Rules of Court] rule 5(f)), the other an appeal on the clerk’s transcript, which includes material outside the formal judgment roll. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 399, p. 4368.) This appeal is not a true judgment roll appeal but an appeal on the clerk’s transcript. In a special verdict form, the jury found both Officers Toten and Ashmun to be negligent and apportioned that negligence 60 percent to Toten and 40 percent to Ashmun. Linda was found to be not negligent in any manner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9727941. Public record. Not legal advice.