RUVOLO, J.

I. Introduction

Appellants City of Fremont and Fremont Police Sergeant Steven Osawa appeal from a jury verdict awarding Patrick Adams's surviving spouse and stepdaughter approximately $4 million in this action for wrongful death and negligent infliction of emotional distress. The jury found that City of Fremont police officers negligently handled an emergency situation in which Patrick was fatally injured after threatening to commit suicide and refusing to surrender his loaded firearm to police officers. Appellants contend the verdict must be reversed as a matter of law on two major grounds: (1) appellants owed no legal duty of care to Patrick or his family; and (2) appellants were immune from liability under Government Code section 820.2. Appellants also contend the jury's findings were not supported by substantial evidence and that respondents were not entitled to damages for negligent infliction of emotional distress under a "bystander" theory as a matter of law.

We hold that police officers responding to a crisis involving a person threatening suicide with a loaded firearm have no legal duty under tort law that would expose them to liability if their conduct fails to prevent the threatened suicide from being carried out. The judgment of the trial court is reversed and the trial court is directed to enter a judgment in favor of appellants.

II. Background

During the four-week trial of respondents' claims, evidence was introduced to support the following facts. Patrick was employed as a nurse at Washington Hospital. He was married to Johnette Marie Adams. Johnette had an adult daughter, Gina, from a previous marriage. Patrick helped raise Gina, and Gina regarded Patrick as her parent.

Patrick periodically went through periods of depression in which he would withdraw and isolate himself. Patrick told Johnette he had been suicidal in the past. Johnette described Patrick as unable to "handle alcohol." When Patrick drank hard liquor, "his behavior would change dramatically." He would become "belligerent" and "argumentative."

Patrick owned a 12-gauge shotgun and a 9-millimeter Beretta handgun. In 1988, Johnette called the police for assistance after Patrick drank too much hard liquor and slapped her in the face. After the police departed, Johnette hid Patrick's firearms in the garage because she knew he had been drinking and was depressed. At some point following the 1988 incident, the firearms were returned to the house.

On April 19, 1993, Patrick, Johnette, Gina, and Gina's fiancee, Robert Gholston, attended a family dinner at Johnette's father's house. The purpose of the dinner was to introduce the family to the new girlfriend of Johnette's father. The dinner was tense and uncomfortable. Patrick drank at least two beers and some hard liquor. He became aggressive and argumentative. Gina and Robert drove Patrick and Johnette home at approximately 9 p.m.

Once they arrived at their home, Johnette and Patrick argued over Patrick's drinking. Patrick acted like he was "out of control." He broke dishes, and swept items off the counter with his hands. Johnette pushed Patrick. Patrick pushed her back, causing her to fall to the floor. Johnette telephoned Gina and asked Gina to pick her up so she could stay at Gina's house. After the telephone call, Patrick grabbed Johnette's hand and led her to the door stating, "You can wait for Gina outside."

Gina and Robert arrived to pick up Johnette at approximately 10:45 p.m. As they started to drive away, Gina became concerned that Patrick might try to drive his van while intoxicated. She asked Robert to return to the house. Robert then tried to speak with Patrick. When he returned to the car, Robert told Johnette and Gina, "We can't leave. . . . I think he's got the gun because he had his hand behind his back when he answered the door."

After discussing the situation, Johnette, Gina, and Robert drove to the corner store and called Patrick on a pay phone. Patrick did not answer. They returned to the residence and walked through the house, calling Patrick's name. Gina saw broken glass, objects on the floor, a shelf broken off the wall, and overturned furniture. Eventually, Johnette found Patrick sitting on a clothes hamper in the dark master bedroom closet. Gina entered the bedroom and asked Patrick, "What's the matter?" and "What's wrong?" Patrick replied, "Just go away. Just leave me alone." When Gina continued to initiate conversation, Patrick discharged a firearm. Gina and Johnette heard the gunshot, but could not see what direction the gun was pointed in when it was fired.

Gina, Johnette, and Robert ran out of the house. Gina testified she did not believe Patrick had fired the gun at her, but was concerned that he might have shot himself. Johnette testified that her first reaction was that Patrick had shot himself. She pulled Gina out of the house because she "didn't want Gina to see that, . . ."

Gina went to a neighbor's house and dialed 911 for assistance. At her mother's insistence, however, Gina hung up before reporting the incident. After further discussion, they decided to telephone the police from a corner store. On their way, they saw two police cars heading toward the Adams' residence. The police dispatcher had traced Gina's 911 call and sent Fremont Police Officers Kevin Moran and Gregory Pipp to the scene. Officer Pipp arrived at 11:01 p.m., and Officer Moran arrived approximately five minutes later.

Johnette testified that she approached Officer Moran and told him her husband had been drinking, he was distraught, he had fired a shot in the house, and he might have wounded himself. Several other officers arrived to assist at the scene. The dispatcher telephoned the residence several times, but no one answered.

At approximately 11:14 p.m., Sergeant Steven Osawa responded to a radio dispatch describing "a possible suicide with the use of a handgun or attempted suicide with a handgun." When he arrived at the Adams' residence, he assumed the position of "supervisor in charge" for the duration of the evening. Sergeant Osawa had extensive experience and training in the "Special Services Unit," or "SWAT." He had attended basic hostage negotiations school three to four years earlier, but did not consider himself a specialist in the field of negotiations.

Officers Moran and Pipp relayed the information provided by the family to Sergeant Osawa. Sergeant Osawa requested additional police units and the assistance of a trained negotiator, Officer Sheila Tajima-Shadle. Paramedics and an ambulance were stationed in locations approximately 150 yards away from the residence.

Approximately 15 minutes after Sergeant Osawa's arrival, he decided the police should enter the house for three reasons: (1) Patrick might be wounded and in need of medical care; (2) if Patrick was not wounded, to determine his location and the location of the gun Patrick had previously fired in the house; and (3) to disarm Patrick.

Sergeant Osawa sent Officer Moran to find out from the family what guns Patrick had access to and what Patrick's attitudes were toward the police. Sergeant Osawa received the information that Patrick had access to a Beretta 9-millimeter handgun and a 12-gauge shotgun, that he did not particularly like the police, and that he was unlikely to "take [the police officers] on."

Sergeant Osawa testified that he was concerned about the possibility that Patrick would react aggressively or fire on the officers in an attempt to commit "suicide by cop." He took measures to ensure that there were a sufficient number of officers with "superior firepower" at the scene to respond to such possibilities. Sergeant Osawa searched the house with the assistance of three other armed officers. The officers were heavily armed and their weapons were drawn. Sergeant Osawa periodically called out to Patrick, identifying himself as a member of the Fremont Police Department and asking Patrick to come out. Patrick did not respond. The officers found an expended 9-millimeter shell in the master bedroom closet and a live round on the bathroom vanity.

Upon entering the backyard, Osawa again identified himself and called for Patrick to come out with his hands up. Patrick did not respond. Osawa repeated this admonition. There was still no response from Patrick. Finally, Officer Moran found Patrick in the backyard, partially concealed by a large bush. The officers turned a picnic table on its side and kneeled behind it for cover. Sergeant Osawa and Officer Pipp spoke to Patrick for approximately five minutes. Officer Pipp was not a trained specialist in negotiations. The officers called Patrick's name, asked him if he was "okay," and asked him to come out with his hands out and visible. Patrick did not respond.

Sergeant Osawa testified that this lack of response led him to believe Patrick might be wounded. He decided to use a police dog named "Gus" to get a reaction or response from Patrick so the police would know whether Patrick was alive. He testified that he did not send Officer Tajima-Shadle to accomplish this task because he was concerned that Patrick was armed and might attempt to "engage" her. Gus's handler was Officer Mazzone. As he ran to his car to get Gus, Officer Mazzone saw Officer Tajima-Shadle gathering background information from the family. Officer Tajima-Shadle asked whether she was needed in the backyard, and Officer Mazzone replied "no" or "not yet." After receiving the proper authorization, Sergeant Holm, the canine coordinator, and Officer Mazzone brought Gus onto the scene.

Sergeant Osawa and Officer Mazzone called out several warnings to Patrick, advising him that they were going to send in a dog if Patrick did not come out. When Patrick remained mute, Mazzone gave Gus a search command. Gus went into the bushes followed by Officers Mazzone and Moran, who had their weapons drawn. As they approached the bushes, the officers observed Patrick sitting on the ground, cradling a gun with both hands, pointed at his own chest. Patrick appeared to be wearing only underpants. Officer Mazzone crouched, brought his gun up and told Patrick to "Freeze" and "Drop the gun." Gus became excited and started barking and wagging his tail. Officer Mazzone gave Gus the command to stop and Gus obeyed.

Patrick told the officers to "Get the fucking dog away from me," and asked "What are you going to do, fucking shoot me?" His speech was slurred. The officers returned to their location behind the picnic table.

The Adams' yard was enclosed and the portion behind Patrick was fenced. Patrolman Lopes was stationed on the other side of the fence in case Patrick tried to leave the yard. Additional officers were stationed in front and inside of the residence.

After Patrick reacted to Gus, Officer Mazzone radioed for the negotiator, Officer Tajima-Shadle, to come to the backyard. Before Officer Tajima-Shadle reached the backyard, Officer Pipp spoke to Patrick while his shotgun was pointed in Patrick's direction.

Officer Pipp testified that he asked Patrick different questions in an effort to establish a rapport, to find out what happened, whether he was injured, and how the incident could be resolved. He asked Patrick a variety of questions, such as "Are you okay? Are you shot? Do you need help? What do you want from this? What can we do? How can we work this out?" Patrick replied with short, terse sentences, repeatedly indicating that he wanted the police to leave.

At various points during their interactions with Patrick, Sergeant Osawa and Officer Pipp directed Patrick to surrender his weapon. Patrick consistently refused to comply with this direction. Sergeant Osawa testified that if Patrick had surrendered his weapon, and nearby paramedics determined that Patrick was a danger to himself or others, he would have involuntarily committed Patrick to an in-patient psychiatric facility under section 5150 of the Welfare and Institutions Code.

Sergeant Angel and Sergeant Holm took up positions at a bedroom window overlooking the yard with their guns drawn. They could see Patrick and the gun he was holding to his chest.

At 12:07 a.m., Officer Tajima-Shadle entered the backyard and attempted to negotiate with Patrick. She called out his name. Patrick mistook her for Gina and told her to leave in an angry voice. Officer Tajima-Shadle explained that she was Sheila with the Fremont Police Department, not Gina. Patrick replied "Get her the fuck out of here" and became extremely angry and upset.

After negotiations with Officer Tajima-Shadle failed and Patrick's level of agitation increased, Sergeant Osawa testified that he directed Patrolman Lopes to leave his position and evacuate the neighbors because they were at risk of being injured in potential crossfire. Officer Tajima-Shadle moved near Officer Pipp to guide him in communicating with Patrick. She relayed background information to him about Patrick, however, she did not caution Officer Pipp to refrain from any suggestion that Patrick should be transported to Washington Hospital.

Officer Pipp resumed his attempts to communicate with Patrick. Officer Pipp testified that he made statements such as "we can work this out; ask[ing] him to throw the gun out; we don't have to go anywhere; we can sit there if the gun is thrown out; just talk, there's no rush." At one point, he suggested Patrick could be taken to Washington Hospital for assistance.

When Officer Pipp told Patrick the police were not there to hurt him, Patrick replied that he did not intend to hurt the police either. Patrick continually told the officers to leave. Officer Pipp responded they could not leave because that would not be "doing their job." Finally, Officer Pipp, Sergeant Osawa, Officer Tajima-Shadle, Officer Mazzone, and Officer Moran all testified that Patrick told the officers "I can make you leave" or "I can do something to make you leave." This statement was followed by gunfire originating from the bush area. At this point in time, a total of eight armed police officers were either in the Adams' backyard or at the window facing Patrick. Believing Patrick had fired at them, the officers fired at Patrick. These shots occurred at 12:10 a.m., approximately one hour and nine minutes after the first police officer arrived on the scene. After the shooting, police officers retrieved Patrick's gun and pulled him out of the bushes. Paramedics attended to Patrick and he was taken to Washington Hospital, where he was pronounced dead at 12:37 a.m.

Patrick suffered from numerous bullet wounds, including a self-inflicted wound that had penetrated his heart and liver. On direct examination, Dr. Sharon Van Meter testified that an individual suffering from Patrick's self-inflicted chest wound "might well not survive for fifteen minutes." On cross-examination, she clarified that an individual suffering from such a wound will bleed "very seriously. So he might live five minutes, he might lapse into a coma and live a little bit longer, but certainly five — ten minutes probably max[imum]." While Dr. Van Meter could not "say absolutely" that Patrick would not have survived longer than ten minutes, she testified that "it could be eleven, but it would be unlikely that he would live say half an hour without medical treatment." When asked whether he could have lived as long as half an hour, she replied, "No, I think it's unlikely that he would."

Johnette and Gina were standing approximately 60 yards from the Adams' backyard while the police were negotiating with Patrick and at the time the guns were fired. When Johnette learned Patrick had been discovered in the backyard, she tried to run to him. A police officer restrained her.

From their location, Johnette and Gina heard the gunfire. They could not, however, see what was taking place in the backyard. Gina testified that she "knew" Patrick had been shot because "I just — I figured that many police officers in there with one man I just knew that it was him, . . ." Johnette testified she felt very strongly that Patrick had been shot. Gina and Johnette observed paramedics emerge from the house with a covered body on a gurney. They assumed it was Patrick on the gurney, but acknowledged that they could not see his face.

At trial, the question whether the responding police officers' conduct fell below the standard of care was the subject of sharply divided expert testimony. Peter Reedy, a retired police sergeant who taught classes in crisis management, testified on behalf of respondents. He explained that the proper use of time is an important calming factor in crisis management because "[t]ime is on [the police's] side." He emphasized that simply waiting and not doing anything can often be the most appropriate approach because the longer the situation goes on, the less volatile it will become. Reedy testified that the officers' response to this situation was too rushed, as evidenced by the eruption of gunfire 16 minutes after they located Patrick in the backyard.

Reedy also described a guideline for crisis management called the "five Cs," or "containment, control, confirm[ation], calm, and communicat[ion]." He opined that the responding officers violated this guideline in a variety of ways. Once the officers properly contained the situation by setting up a police perimeter to prevent Patrick from escaping, Reedy testified they should have "backed off," left the backyard, and then tried to "talk and negotiate and find out how Pat[rick] was and what would help him to calmly handle the situation."

Reedy concluded that Sergeant Osawa did not control the situation adequately by providing the officers with proper supervision at the scene. In Reedy's opinion, Sergeant Osawa should have directed the officers from a central command post situated away from the "action," and controlled the officers in order to decrease tension and restore calm. In this case, both the control and the calm principles were violated when armed officers yelled, shined flashlights, and used a police dog in close proximity to Patrick. These actions raised the level of anxiety surrounding the scene.

Reedy testified the officers violated the principle of confirmation by failing to gather sufficient information about Patrick and the events leading up to his threatened suicide. Reedy also believed that the officers failed to communicate with Patrick in an appropriate manner. Ideally, negotiations should be conducted in a calm manner, one on one, and in private if possible. Reedy opined that this standard was violated when untrained officers issued confrontational commands. Reedy concluded that by the time Officer Tajima-Shadle was brought to the backyard, even the best negotiator could not have talked to Patrick because the level of anxiety at the scene was too high.

In addition to the "five Cs," Reedy testified that police standards require officers responding to a threatened suicide to protect the safety of the suicidal person by refraining from taking actions that might raise his or her anxiety levels. Instead, officers are supposed to calm the suicidal individual through talking, empathy, and understanding. Reedy concluded that this standard was violated when the officers yelled, used guns, got close to Patrick, and employed a police dog instead of a negotiator.

Reedy also testified that deadly force should never be used without first attempting "lesser degree" responses such as pulling back, getting a negotiator, and talking and showing empathy. Reedy opined that this force standard was also violated, explaining "If you lock yourself in by all these officers real close with their weapons, if you lock yourself into that, you leave yourself no alternative."

Reedy buttressed his conclusions by quoting portions of "City of Fremont training bulletin 9110" dated July 1991 (the Bulletin) entitled "Guide for First Responders to Hostage Situations" that referred to suicide by the hostage taker. Although Patrick had taken no hostages, Reedy testified the Bulletin set forth applicable standards for police conduct in situations involving crisis intervention, critical incident management, and threatened suicides. The Bulletin instructed officers to "[a]void giving orders that may escalate the confrontation" and informed officers that "[y]our efforts should be directed toward decreasing anxiety and tension." The Bulletin also apparently referred to the time standard when it advised officers to ". . . allow the subject to speak further. If he is talking, you are gaining time." Reedy opined that the procedures set forth in the Bulletin were not followed in this case.

Respondents also introduced the expert testimony of psychiatrist Dr. Robert E. Litman, who described himself as an expert on "suicidology." Dr. Litman testified that "all suicides have multiple and complex causes but the police were a major cause, a substantial cause [of Patrick's suicide.]" Dr. Litman based his conclusion on the following reasons: (1) Patrick was alone with a gun for more than an hour but he did not use it to commit suicide; (2) Patrick had no underlying motive for committing suicide; (3) previous episodes of drinking and depression had "de-escalated" and Patrick had "sle[pt] it off"; (4) approximately 95 percent of suicides occur when those people are alone, while less than 5 percent of suicides are committed in the presence of others; and (5) suicides committed in the presence of others occur "nearly always when the other people provoke it." Dr. Litman also testified that Patrick's suicide had additional causes such as his drinking, his possession of a gun and his history of considering suicide as an option.

In Dr. Litman's opinion, the best approach would have been to send Patrick's best friend, Alan Kirshner, unarmed into the backyard to speak quietly with Patrick. He acknowledged that this approach included a risk that Patrick would have shot Kirshner, but concluded that "there would have been a reasonable probability that he would not." Dr. Litman also testified that this approach included a risk that Patrick would have shot himself if Mr. Kirshner approached him, but opined that "[Patrick] would not" and characterized the risk as "reasonable." If Mr. Kirshner was not available, Dr. Litman testified that he would have waited a while, and then would possibly have tried sending Officer Tajima-Shadle alone and unarmed to the backyard to attempt further negotiations.

Appellants contested the testimony of respondents' experts through the testimony of experts Joseph Callahan and Dr. Donald Lunde. Joseph Callahan, a law enforcement consultant and trainer, testified that the conduct of the responding officers did not fall below the standard of care. He explained that the officers were responding to a high risk situation because Patrick not only possessed a gun, but had recently fired it. This scenario implicated compelling safety issues such as the safety of the officers, Patrick, and the surrounding community.

In Callahan's opinion, the armed search of Patrick's residence and backyard was necessary and appropriate. The officers properly conducted this search with their weapons drawn to enable them to protect themselves and others and "repel any type of assault that they might reasonably expect under these conditions including the notion [that] a person may force a fire fight for the purpose of . . . committing suicide." He explained that suicidal people present a significant threat to police officers because incidents regularly occur in which the police are engaged in order to commit "suicide by cop."

In Callahan's opinion, the officers' top priority was to "isolate and contain" Patrick, and that they employed proper tactics to accomplish this goal. Negotiations were secondary, and could not have even taken place without first "put[ting] a cap" on the situation through isolation and containment of Patrick.

Callahan did not agree that the officers should have retreated after locating Patrick because any repositioning of the officers increased their vulnerability to aggressive gunfire. Additionally, the officers' close proximity to Patrick offered strategic advantages. In the event Patrick separated himself from the gun, the officers would have been able to move swiftly to physically prevent Patrick from retrieving his weapon.

Callahan opined that the officers' use of the police dog was proper "because the dog offers . . . a non-lethal force option to probe the condition of [a] subject. It may get a response that helps [officers] solve the problem." He did not agree that too many officers were employed at the scene, nor did he feel that the officers' insistence on Patrick surrendering his weapon was improper. Instead, Callahan testified that the officers' demands that Patrick put down the gun were consistent with good police practice. He explained that "[t]he gun is the problem. If we can get the gun put down and more importantly, if we can separate the gun from the subject, we can go from a high-risk operation down to something that's got moderate risk."

Callahan also testified that waiting to summon Officer Tajima-Shadle until Patrick was communicative was consistent with good police practice. He explained that "If you're not having a dialogue, then the negotiator is useless. It's just more noise. It doesn't mean anything is happening. It's just somebody else talking. I'd save it [for] where I believe it would be most effective." In sum, Callahan opined that the responding officers acted in a manner that was consistent with "good police practice" throughout the incident.

Appellants also presented the expert testimony of psychiatrist Dr. Donald Lunde. Dr. Lunde disagreed with Dr. Litman's testimony that the police were a major or significant cause of Patrick's suicide. In his opinion, Patrick presented virtually all of the recognized suicide risk factors, including Patrick's age and gender, his previous episodes of depression and talk of suicide, his refusal to get professional help for depression, his intoxication, and his possession and recent use of a firearm. Dr. Lunde referred to Patrick as "a time bomb waiting to go off." He testified that given "all the major and substantial risk factors that contributed to [Patrick's] suicide that night . . . there simply isn't room logically for some other substantial or major factor."

On March 25, 1996, after the defense rested their case, the court granted appellants' motion for nonsuit and/or directed verdict as to certain causes of action, and denied it as to others. The court dismissed all of respondents' claims with the exception of Johnette's cause of action for wrongful death, and Johnette and Gina's causes of action for negligent infliction of emotional distress as bystanders to the shooting. However, the court rejected appellants' contention that a nonsuit or directed verdict should be granted as to the remaining causes of action on the grounds that: (1) appellants owed no legal "duty" of care to Patrick or his family; and (2) appellants were immune from civil liability for their acts under Government Code section 820.2.

At the hearing on the motions for nonsuit and/or directed verdict, the court entertained oral argument concerning the wording of the special verdict and/or any special interrogatories that would be submitted to the jury. Appellants contended that the special verdict should require the jury to identify the specific acts on which it based any finding of police negligence. Respondents contended that the jury should only be required to state whether negligence occurred. At several points during the argument, the court expressed its belief that if the jury found negligence occurred, special interrogatories should be submitted to ensure the validity of the verdict. The matter was submitted to the jury on March 27, along with a special verdict form that did not include the special interrogatories.

On April 1, 1996, the jury found that each of the police officers at the scene were negligent, that this negligence was a cause of Patrick's death, and that this negligence resulted in Johnette and Gina suffering serious emotional distress as bystanders at the scene. The jury awarded Johnette $1,288,804 for the wrongful death of Patrick and $2,500,000 for the negligent infliction of emotional distress. Gina was awarded $1,500,000 in emotional distress damages. The jury found that Patrick was 25 percent contributorily negligent.

After this verdict was rendered, appellants renewed their request for the special interrogatories discussed at the March 25 hearing. Respondents opposed the request, arguing that the special interrogatories would be invalid because the jury had already returned its verdict. The court rejected respondents' timeliness argument, stating that this argument should have been raised at the March 25 hearing when the court indicated its intention to submit the special interrogatories to the jury in the event it found the officers were negligent.

The jury was recalled and the court submitted the special interrogatories to the jury. In response, the jury identified 13 ways in which they believed the police officers negligently handled the incident. The jury listed the factual bases of its negligence findings as follows: (1) "Lacked control of the officers"; (2) "Insufficient communications"; (3) "Lack of information"; (4) "Did not respond to suicide call as such. It was an assault response rather than assist"; (5) "Did not follow Fremont Police Dep[artment] procedures for dealing with a critical incident"; (6) "Delayed calling in medical help"; (7) "Decision to use dog prior to using a negotiator"; (8) "Allowed untrained officer to attempt negotiation"; (9) "Did not evacuate all the neighbors"; (10) "Did not maintain the psychological sanctity of the family members at the scene"; (11) "The use of [seven] armed officers left no option but force"; (12) "Once location of Pat[rick] was known, did not back down to allow calming of situation"; and (13) "Yelling and shouting at Pat[rick] did not allow for calm."

On April 19, 1996, the court entered a judgment in favor of Johnette for $2,841,603 and in favor of Gina for $1,125,000, resulting in a total judgment against appellants of $3,966,603 plus costs.

On May 7, 1996, appellants timely moved for a judgment notwithstanding the verdict and/or for new trial contending: (1) the police officers owed no legal duty to Patrick or his family; (2) the police officers and the city were immune from liability; (3) insufficient evidence was introduced to support the verdict; and (4) the awarded damages were excessive. On June 11, 1996, the court denied the motion for a judgment notwithstanding the verdict, but granted the motion for a new trial in part on the ground that emotional distress damages awarded to Johnette and Gina were excessive. The new trial was conditioned on Johnette and Gina's refusal to accept a reduction in the emotional distress damages of $750,000 and $375,000 respectively. Respondents refused to consent to this reduction.

On June 25, 1996, appellants filed this timely appeal from the April 19, 1996, judgment. Respondents have cross-appealed from the June 11, 1996, order granting a new trial on emotional distress damages.

III. Discussion

A. Overview

Appellants contend that the jury's verdict must be reversed because the police officers on the scene owed no legal duty to Patrick or his family to act with reasonable care in order to prevent Patrick's suicide. Appellants raised this issue of "duty" in their motion for nonsuit and/or directed verdict at the close of trial. Thus, we review the trial court to determine whether it erred in denying the requested nonsuit or directed verdict.

"A defendant is entitled to nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] `In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff'[s] favor. "'[Citation.] A mere "scintilla of evidence" does not create a conflict for the jury's resolution; `there must be substantial evidence to create the necessary conflict.' [Citation.]" ( Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 [ 253 Cal.Rptr. 97, 763 P.2d 948] ( Nally), quoting 7 Witkin, Cal. Procedure (3d. ed. 1985) Trial, § 410, p. 413, original italics.) The trial court is governed by the same standard in ruling on a motion for directed verdict. ( Estate of Fossa (1962) 210 Cal.App.2d 464, 466.)

In reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. ( Nally, supra, 47 Cal.3d at p. 291.) Reversal of the denial of a motion for nonsuit or directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiff's case.

Appellants contended at trial, and do so here, that they could not be liable to respondents because they had no legal duty to prevent harm to them, and because appellants' acts or omissions are protected from liability by the statutory immunity for discretionary acts set forth in section 820.2.

2. Scope of Review

Although related, the concepts of duty and immunity invoke separate analyses. Where no legal duty is found to be owing the injured party, the court need not determine if one or more statutory immunities apply so as to insulate the entity and employee from liability. (See, e.g., Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 948 ( Stout); Allen, supra, 172 Cal.App.3d at pp. 1091-1092, fn. 11.) "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." ( Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202 ( Davidson).) So deeply rooted is this decision tree that the Supreme Court in Williams v. State of California (1983) 34 Cal.3d 18 ( Williams), chided trial and intermediate appellate courts that "[o]nce again the immunity cart has been placed before the duty horse." ( Id. at p. 22.) Because we find no legal duty was owed to respondents by appellants under the facts of this case, we allow ourselves to be moved by the high court's nudge in the direction of judicial restraint. Accordingly, we do not decide the question of whether the appellants also fell within the immunity for discretionary acts provided for in section 820.2.

We turn then to the law and analysis on the limited question of duty.

3. Doctrinal Bases for Determining Tort Liability of Appellants

Until 1961, when the Supreme Court decided Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213, absent a waiver of sovereign immunity, the state and its political subdivisions had no tort liability to private persons. In response to the Muskopf decision, two years later the Legislature enacted a comprehensive statutory scheme known as the California Tort Claims Act, which reinstated the general rule of nonliability while defining the circumstances under which public entities and their employees may be sued for damages arising from tort injuries or death. Since 1963, where recovery is sought against public entities or their employees for injuries or death resulting from alleged negligent conduct, the right to recover is now defined by statute. (§ 815; Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)

Public employees are liable for injuries resulting from their acts or omissions to the same extent as private persons, except where otherwise exempted or immunized by law. (§ 820.) Public entities are correspondingly liable for the negligent acts or omissions of their employees acting within the scope of their employment except where either the employee or the public entity is immunized from liability by statute. (§ 815.2.) However, "[t]he exclusive sway of statutory rules does not foreclose the aid of common law tort doctrines and analogies in ascertaining and achieving imperfectly expressed statutory objectives. [Citations.]" ( Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831.) Where a legal duty is not created by statute, the question of whether a legal duty exists is analyzed under general principles of tort law. (See, e.g., Brenneman v. State of California (1989) 208 Cal.App.3d 812, 818.)

"`A tort, . . . involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is "damnum absque injuria" — injury without wrong. [Citations.]' [Citation.] Thus, in order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]" ( Nally, supra, 47 Cal.3d at pp. 292-293, italics omitted.)

The existence of a duty of care is a question of law to be determined by the court alone. ( Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6; Stout, supra, 148 Cal.App.3d at p. 942; Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 822; Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8.) This is because "legal duties are . . . merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." ( Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.) Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection. ( Dillon v. Legg (1968) 68 Cal.2d 728, 734.)

Examining whether a legal duty exists and whether a particular defendant was negligent are not coterminous exercises. Fulfilling the court's responsibility to determine if a legal duty exists necessarily requires consideration and balancing of sometimes competing public policies which may be irrelevant to the factual determination of whether the challenged conduct fell below the prevailing standard of care.

Despite superficial similarities, the roles of the court in resolving questions of law and of the jury as factfinder, are separate and distinct. For example, the question of foreseeability is germane to the functions of both the court in determining the presence or absence of a legal duty, and also to the role of the jury in determining whether a legal duty was breached and caused harm to the plaintiff. It is "part of the calculus to which a court looks in defining the boundaries of `duty.' . . . [¶] . . . [¶] The jury, by contrast, considers `foreseeability' in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury." ( Ballard v. Uribe, supra, 41 Cal.3d at pp. 572-573, fn. 6.) Therefore, we must discharge our responsibility to decide if a legal duty exists independent of the findings by the jury that appellants failed to exercise due care and proximately caused Patrick's suicide. We may not abdicate our distinct role based on the inapposite findings of the jury.

For this reason we are also not constrained by the opinion testimony of respondents' expert witnesses, who testified that the police caused Patrick's suicide and violated the applicable standard of care by increasing the anxiety level at the scene or rushing the situation. Opinion testimony is inadmissible and irrelevant to adjudging questions of law. ( Sheldon Appel Co. v. Albert Oliker (1989) 47 Cal.3d 863, 884; Evid. Code, § 801, subd. (b).) For example, expert opinion testimony that a driver was "`most responsible'" for causing an accident was ruled to be an inadmissible legal conclusion in Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432.

Similarly, in Williams v. Coombs (1986) 179 Cal.App.3d 626 disapproved on another point in Sheldon Appel Co. v. Albert Oliker, supra, 47 Cal.3d at pp. 881-884, the court refused to consider expert declarations expressing an opinion on whether "probable cause" existed as a defense to a malicious prosecution claim. The court explained: "`[I]t is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide.' [Citation.] Consequently, the `opinion of a witness on a question of law is obviously incompetent.' [Citations.]" ( Id. at p. 638.) Thus, we must determine whether appellants had a duty to prevent Patrick's suicide and whether a "special relationship" was formed between the parties without relying on the expert testimony presented at trial.

In arguing in favor of a duty in this case, respondents primarily contend a duty of care exists under a Rowland v. Christian analysis. ( Rowland v. Christian (1968) 69 Cal.2d 108 ( Rowland). They also assert two alternative claims: (1) liability may be based on the "well-recognized duty" to prevent suicide allegedly espoused in Allen, supra, 172 Cal.App.3d 1079, and (2) a duty may be imposed based on a "special relationship" that was created as a result of the "control" exercised by appellants once they responded to the 911 call for assistance.

In assessing the question of duty in cases challenging the conduct of law enforcement personnel generally, appellate courts in this state over the last 20 years have employed a variety of standards drawn from broad principles of tort law. Arguably, the more common approach has been to apply the multi-factor duty analysis first articulated in the landowner liability case of Rowland, supra, 69 Cal.2d 108. (See, e.g., Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175-1176 ( Dutton); Allen, supra, 172 Cal.App.3d at pp. 1087-1091; Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 616-619.) Other courts have relied on the more amorphous "special relationship" doctrine which appears to have first been applied to public entities in McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 ( McCorkle), following enactment of the California Tort Claims Act, and which has been used to explain cases that imposed a duty on police officers to protect individual members of the citizenry in some contexts. (See Williams, supra, 34 Cal.3d at p. 24 discussing McCorkle, supra, 70 Cal.2d 252; Davidson, supra, 32 Cal.3d at p. 208 discussing Mann v. State of California (1977) 70 Cal.App.3d 773 ( Mann).)

In some instances, our Supreme Court has engaged in a duty analysis under both standards (see, e.g, Davidson, supra, 32 Cal.3d at pp. 203-209; Nally, supra, 47 Cal.3d at pp. 293-300; see also Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1498-1505; Harris v. Smith (1984) 157 Cal.App.3d 100, 107-109.) However, the interrelationship between the traditional duty analysis and the "special relationship" doctrine has never been clearly defined. Moreover, the Supreme Court has yet to determine whether, or to what extent, a common law duty of care to control another's conduct is owed to individual members of the public by public safety professionals engaged in tactical field operations resulting from a citizen's request for crisis intervention.

In reversing the judgment in this case, we examine the question of duty utilizing both standards. As we proceed, we note to some extent the two are in conflict. Most problematic is harmonizing the policies underlying each standard and examining the applicability of each to factual circumstances not heretofore addressed in the cases from which California's duty analysis has evolved.

B. Duty of Care Analysis Under "Traditional" Rowland Factors

Since Rowland was decided, its innumerable judicial descendants have adopted the Rowland court's multi-element duty assessment in determining whether a particular defendant owed a tort duty to a given plaintiff. These factors include: (1) the foreseeablility of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the defendant's conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm, (6) the extent of the burden to the defendant; (7) the consequences to the community of imposing a duty to exercise care with resulting potential liability. ( Rowland, supra, 69 Cal.2d at pp. 112-113.) Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency's powers; the role imposed on it by law; and the limitations imposed on it by budget. ( Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750; Dutton, supra, 35 Cal.App.4th at p. 1175; Allen, supra, 172 Cal.App.3d at pp. 1086-1087.)

In Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456 ( Parsons), our Supreme Court has recently reiterated that in analyzing duty under the Rowland standard, "`[d]uty' is not an immutable fact of nature"`" but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. "'[Citation.]" ( Id. at p. 472, original italics.) Seeming to presage the very analysis involving the activities of law enforcement we are called upon to make in this case, the high court went on to declare: "In addition, when addressing conduct on the part of a defendant that is `deliberative, and . . . undertaken to promote a chosen goal, . . . [c]hief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.' [Citations.]" ( Id. at p. 473, original italics.) Thus, we examine the multi-part Rowland test as it applies to the circumstances before us, exploring the policies endemic to each prong of that standard while remaining mindful of the Supreme Court's pronouncement that the first policy consideration in duty analysis is " [ `[t]he social utility of the activity out of which the injury arises.'] " ( Ibid., fn. omitted.)

1. Foreseeability

Unquestionably, it is foreseeable that when police officers respond to a person threatening suicide with a loaded firearm in a confrontational manner, that person may ultimately commit suicide. It is also foreseeable that suicide could result from a decision to delay any police intervention until the arrival of a trained negotiator, or adopting a "wait and see" approach that does not focus on requiring the suicidal individual to disarm. Moreover, injury to the police or third parties foreseeably might result from approaching an armed suicidal individual without sufficient fire power or police backup.

Indubitably, the low threshold for foreseeability is met here, yet in this highly charged, volatile situation frozen in time by the record, almost any result was foreseeable with the benefit of hindsight. We are mindful that imposing liability retrospectively lends itself to "`typical Monday-morning quarterbacking'" ( Dutton, supra, 35 Cal.App.4th at p. 1175, quoting Williams, supra, 34 Cal.3d at p. 30 (conc. and dis. opn. of Mosk, J.).) Our Supreme Court has remarked "[T]here are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury." ( Thing v. La Chusa (1989) 48 Cal.3d 644, 668.) Because the bar of foreseeability is set so low, foreseeability alone is insufficient to create a legal duty to prevent harm. ( Id. at p. 668, fn. 11; Nally, supra, 47 Cal.3d at p. 297.)

2. Degree of Certainty That the Plaintiff Suffered Injury and Closeness of the Causal Connection

The nexus between the acts or omissions of appellants and the harm suffered by respondents contemplated by a duty analysis is significantly different from that needed to satisfy a factual determination of proximate cause. Proximate causation requires simply that the act or omission of the defendant be a "substantial [contributing] factor" to the harm suffered. ( Mitchell v. Gonzales (1991) 54 Cal.3d 1041.) In determining the existence of a duty, we must assess not only the fact that a causative relationship exists but also we must quantify that connection in balance with the other Rowland factors.

Undoubtedly, Patrick suffered injury. The more troubling question is why. To what extent was it inexorably linked to the conduct of appellants? Undisputed testimony established that Patrick had been depressed and had considered suicide in the past. Immediately preceding the arrival of the police officers, Patrick had a significant altercation with his wife, secreted himself in a closet with a gun, and responded to his stepdaughter's efforts at communication by discharging his weapon. When the police located Patrick, he was clad only in his underwear, sitting in his backyard with a gun clutched to his chest.

To the extent the actions of appellants are linked to Patrick's tragic decision to end his life, they are indirect and inferential. None of the evidence presented at trial demonstrates that the police suggested or encouraged Patrick to turn the gun on himself. On this record, the degree of certainty between the manner in which the police officers responded to the incident and Patrick's suicide is weak, and the closeness of the connection is remote.

3. Moral Blame

Moral blame has been applied to describe a defendant's culpability in terms of the defendant's state of mind and the inherently harmful nature of the defendant's acts. To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of the Rowland factors in favor of liability. (See, e.g., Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 10-11.) Instead, courts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result (see, e.g., McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 1005); (2) had actual or constructive knowledge of the harmful consequences of their behavior (see, e.g., Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1098); (3) acted in bad faith or with a reckless indifference to the results of their conduct (see, e.g., Dutton, supra, 35 Cal.App.4th at p. 1176; Merenda v. Superior Court, supra, 202 Cal.App.3d at p. 11); or (4) engaged in inherently harmful acts (see, e.g., Scott v. Chevron, U.S.A. (1992) 5 Cal.App.4th 510, 517).

The conduct of the police officers in this incident was not morally blameworthy, as this term is understood in its legal context. The police officers promptly and dutifully responded to a citizen's call for help. Knowing little about the circumstances they would be facing, they went to the scene and encountered Patrick, who was armed with a loaded firearm and who had been engaging in behavior that was decidedly both suicidal and assaultive. They became aware that earlier in the evening he had broken dishes, knocked items off shelves, and overturned furniture, armed himself with a 9-millimeter Beretta, and fired off a round of ammunition in the house, causing respondents to flee the family home late at night. Throughout the incident, Patrick adamantly refused to do the one thing that would have alleviated the police officers' safety concerns — surrender his weapon.

Police officers often act and react in the milieu of criminal activity where every decision is fraught with uncertainty. ( Morgan v. District of Columbia (D.C.App. 1983) 468 A.2d 1306, 1311.) Although appellants could have responded to this situation in a less confrontational manner, there is certainly no evidence that appellants intended or planned to precipitate Patrick's suicide, had actual or constructive knowledge that their behavior would cause Patrick's suicide, or acted with bad faith or a reckless indifference to the consequences of their actions. Nor can the officers' attempts to investigate the situation, disarm Patrick, and dissuade him from attempting suicide be described as inherently harmful acts. Under these facts, there was no moral blame attendant to the conduct of appellants.

4. Policy of Preventing Future Harm, Extent of Burden to Appellants, and Consequences to the Community

Respondents contend that imposing liability is "necessary to send the message that it is important to deal sensitively and appropriately with a troubled person who is considering ending his own life." They argue that the present case implicates "only one policy consideration: that of preventing a needless death." Thus, they contend the prevention of future harm can only be furthered by imposing a legal duty on law enforcement to act non-negligently in handling emergency suicide calls. Although we agree that encouraging police officers to deal with a suicidal person in a sensitive and appropriate manner is an important goal, we question whether the public policy of preventing future harm will actually be furthered by imposition of liability.

In Allen, supra, 172 Cal.App.3d at pages 1084-1091, the court considered whether to impose a duty on police officers to use reasonable care to prevent family members brought to the scene of a threatened suicide from sustaining emotional distress. The court observed that police officers responding to the scene of a potential suicide must consider three separate interests. ( Id. at p. 1089.) In order of their importance, these interests are: (1) the physical safety of the community, including themselves, other citizens, and family members; (2) the physical safety of the potential victim (the threatened suicide); and (3) the psychological sanctity of a family member at the scene.

We agree with the Allen court's conclusion that police officers providing assistance at the scene of a threatened suicide must concern themselves with more than simply the safety of the suicidal person. Protection of the physical safety of the police officers and other third parties is paramount. ( Allen, supra, 172 Cal.App.3d at p. 1089.)

The Allen court explained its reference to the need to protect the physical safety of police officers and others by noting: "`Statistically, the homicide rate is higher among persons with a history of suicide attempts, and the converse is also true: the rate of suicide attempts is higher among persons with assaultive histories . . . The police officer should be particularly wary in cases where an individual has locked himself in his house or car and is threatening to kill himself with a gun. It only takes a moment of turning his resentment over feeling unloved outward, instead of inward, for him to begin firing at the officer.' (Cooke, Training Police Officers to Handle Suicidal Persons (Jan. 1979) 24 J. Forensic Sci. 227, 232.)" ( Allen, supra, 172 Cal.App.3d at p. 1089, fn. 8.)

The Allen court concluded that the burden to the defendant weighed against the imposition of a duty of care to family members at the scene because imposing liability for emotional distress would elevate a family member's psychological sanctity above the safety and wellbeing of the community, the police, and the person who is threatening suicide. ( Allen, supra, 172 Cal.App.3d at p. 1089.) The consequences to the community of protecting family members from the chance of witnessing a suicide, would be "the occurrence of greater numbers of suicides, homicides and woundings." ( Id. at p. 1090.)

In keeping with the analysis employed by the Allen court, we conclude that imposing liability for the negligent handling of a threatened suicide improperly elevates the interests in preserving the life of the person threatening suicide over the interests of public safety and the physical safety of police officers.

Moreover, at a minimum, imposition of a tort duty on public safety officers engaged in disarming suicidal persons is certainly likely to result in a more tentative police response to such crises. A suicide crisis involving a loaded firearm is an unstable situation in which the police must be free to make split-second decisions based on the immediacy of the moment. Knowledge that any unsuccessful attempt at intervention will be subjected to second-guessing by experts with the 20/20 vision of hindsight years following the crisis is likely to deter the police from taking decisive action to protect themselves and third parties. (Cf. Scott v. Henrich (9th Cir. 1994) 39 F.3d 912; see also Rayano v. City of New York (1955) 138 N.Y.S.2d 267 [imposing liability for police judgments exercised under conditions of peril and stress is likely to result in unduly hesitant police responses to emergency situations].) Certainly, the risk of inhibiting law enforcement intervention necessary for the preservation of community welfare and peace outweighs the importance of ensuring nonnegligent treatment of persons threatening suicide — a consideration we readily acknowledge and which is only minimized by its comparison to the greater public interest.

Furthermore, exposing police officers to tort liability for inadequate or unreasonable assistance to suicidal individuals could inhibit them from providing intervention at all. The resulting loss of an important resource in dealing with threatened suicides would be devastating to such affected communities.

In this respect our view is similar to the analysis employed by Division One of this district in Dutton, supra, 35 Cal.App.4th 1171. In Dutton, the court held that a police officer owed no duty of care to a teenager whom the officer had instructed to leave a public park after curfew, and ordered to ride in the back of a truck driven by another minor. In analyzing the public policy implications of imposing such a duty, the court concluded "Were we to impose a duty in this case, a police officer confronting a group of loitering teenagers would be left with only two options — leaving the teenagers alone (thereby compromising the officer's ability to protect both the teenagers and the public generally) or assuming full responsibility for their welfare (thereby compromising the officer's ability to protect the remainder of the public)." ( Id. at p. 1176.)

Like the Dutton court, we will not impose a duty that requires police officers to choose between refusing to offer assistance at the scene of a threatened suicide or assuming full responsibility for the suicidal individual's welfare. This choice discourages police officers from rendering assistance in these inherently unpredictable situations in which even highly trained mental health professionals cannot guarantee success. Any reduction in the availability of police assistance at the scene of threatened suicides would severely compromise public safety and likely result in more deaths or injuries.

Yet, respondents correctly point out that not imposing a legal duty on police officers to take reasonable measures to prevent a threatened suicide correspondingly diminishes the benefits to the public gained by requiring law enforcement personnel to be accountable for their unreasonable conduct. While this is so to some extent, we conclude on balance the interests to the public in protecting against future harm and the detrimental consequences to the public in imposing a tort duty under such circumstances, outweigh the partial loss of legal accountability occasioned by a rule of nonliability. Moreover, our decision does not insulate police misconduct from all legal and internal scrutiny. Plaintiffs may still pursue a legal action when police misconduct constitutes an intentional tort or a violation of an individual's constitutional or other federally protected rights. ( 42 U.S.C. § 1983). Furthermore, citizens may obtain internal review of police conduct by filing a citizen complaint (§ 832.5), and police officers may be sanctioned as a result of internal disciplinary proceedings. (See Warren v. District of Columbia (D.C.App. 1981) 444 A.2d 1, 8 ( Warren).) The existence of these other avenues for redress undercuts the need for additionally imposing tort liability to deter police officers from responding to a threatened suicide in an unreasonable manner.

5. The Availability, Cost, and Prevalence of Insurance for the Risk Involved

Insurance may be available to cover public entities for the negligence of their employees, yet this factor has "little relevance" where significant policy considerations militate against the imposition of a duty of care. ( Allen, supra, 172 Cal.App.3d at p. 1090.) Like the Allen court, we believe that the risk of liability will affect police conduct regardless of whether an adverse judgment is covered by insurance. Only the most irresponsible police officer would shrug off the possibility of a judgment holding them personally liable for another's suicide solely because monetary damages would not be coming out of their own pocket. Moreover, an inordinate amount of public time, and thus money, would be consumed in the litigation of such private claims that otherwise could be utilized in increasing the quality of police services provided to the public. (Cf. Warren, supra, 444 A.2d at p. 8.)

6. The Extent of the Agency's Powers, the Role Imposed Upon It By Law and the Limitations Imposed Upon It By Budget

Our Supreme Court has acted to dispel "widely held misconceptions" that law enforcement's public safety function imposes a duty on police officers to protect individual constituents as opposed to the general public. ( Williams, supra, 34 Cal.3d at pp. 23-24.) Although police officers regularly respond to third parties' requests for assistance, they are not professional good Samaritans subject to a "`novel'" claim of malpractice whenever their response falls short of "`what reasonably prudent police employees would have done in similar circumstances.'" ( Id. at p. 24, fn. 3, quoting with approval Warren, supra, 444 A.2d at p. 8.) "`A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.'" ( Ibid., original italics.)

The so-called public duty rule adopted by the court in Williams is believed to be derived from the early case of South v. Maryland (1855) 59 U.S. (18 How.) 396, 403 in which the United States Supreme Court stated that law enforcement is not legally responsible to individual citizens to prevent their victimization by crime because this responsibility is "`a public duty, for neglect of which he is amenable to the public and punishable by indictment only.'" (Bonnett, Holsten v. Massey: The Coexistence of the Public Duty Doctrine and the Governmental Tort Claims and Insurance Reform Act (1997) 100 W.Va. L.Rev. 243, 249, fn. omitted.) It is based on policy concerns that the establishment of a privately enforceable duty to use reasonable diligence in the performance of public functions would "effectively bring the business of government to a speedy halt, . . ." ( Warren, supra, 444 A.2d at pp. 8-9.) As the Warren court reflected, "A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order. The extent and quality of police protection afforded to the community necessarily depends upon the availability of public resources and upon legislative and administrative determinations concerning allocation of those resources. [Citation.] The public, through its representative officials, recruits, trains, maintains and disciplines its police force and determines the manner in which personnel are deployed. At any given time, publicly furnished police protection may accrue to the personal benefit of individual citizens, but at all times the needs and interests of the community at large predominate." ( Id. at p. 4.)

Admittedly, law enforcement largely acts to preserve the peace by its interactions with individual members of the public. Nevertheless, the role of law enforcement in society is to act in the general public interest. Permitting potential suicide victims and their families to hold police officers personally liable for the negligent handling of a suicide crisis conflicts with the public nature of protection services police officers provide to the community at large.

Moreover, imposing a duty on law enforcement to take reasonable steps to prevent a threatened suicide would have significant budgetary implications, and improperly insinuates the civil justice system into the allocation of law enforcement resources. The degree of training devoted to suicide intervention and prevention would be dictated by events in the civil courtroom, and not necessarily by the needs of the community. Compelling the reallocation of finite public resources may serve to benefit individuals in a suicidal crisis, but that benefit may be at the expense of other, more pressing law enforcement needs and programs.

7. Balancing

On balance, the relevant public policy considerations militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened suicide from being carried out. The foreseeability and certainty of harm suffered are factors which favor imposing a duty. The absence of moral blame, the remoteness of the connection between the conduct of appellants and the harm suffered, the policy of preventing future harm, consequences to the community, the role of law enforcement in society, and the potential detriment to the public in imposing judicial allocation of resources all heavily favor shielding law enforcement personnel from tort liability in instances such as this.

Moreover, the majority of the disputed conduct in this case was the product of Sergeant Osawa's deliberate tactical decisions designed to maximize the safety of the responding officers. Therefore, under Parsons, supra, 15 Cal.4th at page 472, we must also consider the social value of the interest Sergeant Osawa sought to advance. ( Ibid.) The social value of protecting the lives of police officers involved in a standoff with an armed individual is extremely high. Accordingly, after balancing the relevant considerations, we conclude that appellants owed respondents no duty of care under this analysis.

C. Duty of Care Analysis Under the Special Relationship Exception

1. The Nature of the Special Relationship Exception and Its Application to Suicide Prevention

States adopting the public duty rule often permit a "narrow exception" for unusual police conduct that creates a "special relationship" between the police officer and an individual member of the public. (See generally, Comment, Washington's Special Relationship Exception to the Public Duty Doctrine (1989) 64 Wn.L.Rev. 401.) This special relationship exception to the public duty rule has been adopted in California as well. In the case of law enforcement officers, a special relationship only has been found in a " few narrow circumstances." ( M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704-705 (italics added) ( M.B.).) Absent a special relationship creating a special duty, the police have no legal duty to control the conduct of others. ( Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 1122 ( Von Batsch).)

Respondents argue that such a special relationship arose between Patrick and appellants, thereby creating a duty to exercise reasonable care to prevent Patrick's suicide. In cases involving suicide, courts have been extremely reluctant to impose liability based on the special relationship exception. (See, e.g., Nally, supra, 47 Cal.3d 278; see also Lee v. Corregedore (1996) 83 Haw. 154; Donaldson v. YMCA (Minn. 1995) 539 N.W.2d 789, 792.) In Nally, our Supreme Court explained that a special relationship giving rise to a duty to exercise due care in order to prevent suicide has only been imposed "in the limited context of hospital-patient relationships where the suicidal person died while under the care and custody of hospital physicians who were aware of the patients' unstable mental condition." ( Id. at pp. 293-294 citing Meier v . Ross General Hospital (1968) 69 Cal.2d 420 ( Meier); Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465 ( Vistica).) The Supreme Court described Meier and Vistica as "carefully limited precedent" that "severely circumscribe the duty they create," and declined to extend this duty of prevention to nontherapist counselors. ( Nally, supra, 47 Cal.3d at pp. 293-296.) The Nally court held "Neither [ Meier nor Vistica] suggested extending the duty of care to personal or religious counseling relationships in which one person provided nonprofessional guidance to another seeking advice and the counselor had no control over the environment of the individual being counseled." ( Id. at p. 294.)

The Supreme Court also rejected an argument that nontherapist counselors have a duty to prevent foreseeable suicides based on dictum from Bellah v. Greenson (1978) 81 Cal.App.3d 614, 620-623 that appeared to extend the duty to prevent suicide to treating psychiatrists in the out-patient context. ( Nally, supra, 47 Cal.3d at pp. 294-296.) The Nally court concluded: "Rather than create a duty to prevent suicide, Bellah (and Meier and Vistica) recognized that a cause of action may exist for professional malpractice when a psychiatrist's (or hospital's) treatment of a suicidal patient falls below the standard of care for the profession, thus giving rise to a traditional malpractice action." ( Id. at pp. 295-296, fn. omitted, original italics.)

Respondents contend, however, that Meier and Vistica support imposing a duty on police officers to prevent threatened suicides because police officers have even more ability to control suicidal individuals than the staff at an in-patient psychiatric facility. They observe that police responding to a threatened suicide have the ability to surround and control the suicidal individual, whereas mental health professionals will not always be in the immediate vicinity of a confined patient when they make a suicide attempt. This contention has no merit.

The Nally court's reasons for refusing to extend the duty to prevent suicide discussed in Meier, Vistica, and Bellah to nontherapist counselors are equally applicable to this case. Hospitals providing mental health services to suicidal in-patients function within an institutional setting of their own making. Every aspect of the patients' environment may be regulated. Hospitals may restrict a suicidal patient's access to weapons or other items that may be used as a means of carrying out the threatened suicide. The very raison d'être of such facilities is therapeutic. These medical institutions provide treatment programs specifically designed to manage and treat the patient's self-destructive impulses.

In contrast, law enforcement personnel render assistance to suicidal individuals at the scene, virtually always in response to emergency calls. They must take the individual and their environment as they find them. Despite police officers' ability to surround a suicidal person physically, they cannot "control" him or her. Often the person threatening suicide already possesses the means by which to end his or her life. The suicidal individual may be barricaded in a building, holding others hostage, or threatening to end their life in any number of dangerous environments. Furthermore, like nontherapist counselors, police officers do not render professional counseling in the context of a supervised medical relationship, and have no duty to prevent foreseeable suicides based on traditional notions of professional malpractice. Because nontherapist counselors and police officers share a similar inability to control the suicidal individual's environment, it would be equally inappropriate to extend the "previously carefully limited precedent" set forth in Meier and Vistica to police officers at the scene of a threatened suicide. Thus, application of the special relationship exception to police officers at the scene of a suicidal standoff is not supported by Nally, Meier, or Vistica.

2. The Special Relationship Exception as Applied to Law Enforcement

A long line of cases have held that a special relationship with a person in peril is not established simply because police officers responded to a call for assistance and took some action at the scene. (See, e.g., Lopez, supra, 190 Cal.App.3d at p. 681 [no special relationship between police responding to restaurant massacre scene and victims of massacre where police delayed acting on plan to "`neutralize'" murderer]; Von Batsch, supra, 175 Cal.App.3d at p. 1122 [no special relationship between county and decedent's surviving wife when county's officers responded to a burglar alarm, searched the premises, and erroneously advised decedent's co-employees that no intruders were on the premises]; Williams, supra, 34 Cal.3d at p. 24 [no special relationship between stranded or injured motorist and police based on fact that police stopped to aid her]; Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 621 [no special relationship between parents filing missing person report and police undertaking investigation of son's whereabouts]. Responding to a citizen's call for assistance is "basic to police work and not `special' to a particular individual." ( M.B., supra, 233 Cal.App.3d at p. 706.)

In keeping with this notion that police officers are not ordinarily personally accountable to individual citizens in need of assistance "[r]ecovery has been denied, . . . for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. [Citations.]" ( Williams, supra, 34 Cal.3d at p. 25.)

Perhaps fortified by the recognition that the special relationship exception is reserved for a limited class of unique cases, precious few courts have actually imposed a duty of care on law enforcement officers under this doctrine. Of the legion of cases addressing this issue, our research has uncovered only five such cases. These cases involved police officers who made misrepresentations that induced a citizen's detrimental reliance ( Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298 ( Johnson), placed a citizen in harms way ( Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923 ( Carpenter), Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385 ( Wallace); McCorkle, supra, 70 Cal.2d 252, or lulled a citizen into a false sense of security and then withdrew essential safety precautions ( Mann, supra, 70 Cal.App.3d 773).

Importantly, the challenged conduct in these decisions did not involve deliberate tactical choices made by police officers while intervening in an unfolding life-threatening crisis. In our view, they were never intended to apply when an officer's strategic response to a citizen's request for assistance fails to prevent the occurrence of a preexisting risk. Yet, respondents argue that Johnson, supra, 143 Cal.App.3d 298 supports their contention that police officers enter into a special relationship with a citizen in need of assistance whenever "police take control of the situation." We are not persuaded.

In Johnson, county sheriffs arrested Michael Johnson because he was driving the wrong direction on the freeway. ( Johnson, supra, 143 Cal.App.3d at p. 304.) He told the sheriffs that he was attempting to commit suicide because "`people'" were trying to torture and kill him, and pleaded with the sheriffs to kill him. ( Ibid.) The sheriffs took Johnson into custody, charging him with assault with a deadly weapon. ( Ibid.) Shortly thereafter, Johnson's wife informed the sheriffs that her husband was a paranoid schizophrenic who had been repeatedly hospitalized and required medication to control his suicidal tendencies. ( Ibid.) The sheriffs promised to hospitalize and medicate Mr. Johnson and told his wife not to worry or interfere. ( Ibid.) Despite this promise, Johnson was not medicated or involuntarily committed. Instead, the sheriffs released Johnson three days after his arrest without notification to his wife. ( Ibid.) He committed suicide two days after his release. ( Ibid.) The Johnson court held the sheriffs had a duty to warn Johnson's wife before his release that the promised medical care had not been provided because a "special relationship" existed between the sheriffs, Johnson and his wife. (143 Cal.App.3d at p. 311.)

Johnson is manifestly distinguishable from the facts of this case. At the outset, the Johnson court did not impose a duty on police officers to take measures to prevent the threatened suicide. Rather, the court held that the police officers had a duty to warn Johnson's wife so she could make arrangements to provide him with necessary treatment. Moreover, the holding in Johnson was not based on the fact that police officers had "take[n] control of the situation." Instead, it resulted from a combination of the following factors: (1) the breach of an express promise to medicate and/or obtain medical attention for Johnson; (2) the fact that this promise lulled Johnson's wife into a false sense of security that treatment was being provided for Johnson; and (3) Johnson's wife's detrimental reliance on this promise that caused her to refrain from making her own arrangements for Johnson's care. Thus, the Johnson case fell within established exceptions to the general rule that police have no duty to control a third party's conduct that are not applicable to this case. (See, e.g., Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 946; Mann, supra, 70 Cal.App.3d 773.)

Here, the responding officers made no express or implied promises that they would prevent Patrick's suicide or that they would approach Patrick in a nonconfrontational manner. Nor have respondents alleged that detrimental reliance occurred. While our Supreme Court has held that "a promise and reliance thereon are not indispensable elements of a special relationship," the plaintiff must still plead and prove that police conduct in a situation of dependency lulled the plaintiff into a false sense of security, thereby inducing the plaintiff's detrimental reliance on the police for protection. ( Williams, supra, 34 Cal. 3d at p. 25.) Unlike the plaintiffs in Johnson, respondents in this case have neither alleged the existence of a duty under this theory in their complaint, nor briefed the matter in this appeal. (See, e.g., Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p. 1502; Stout, supra, 148 Cal.App.3d at p. 945.)

Accordingly, those authorities which imposed a duty under the special relationship exception involved materially different facts from the circumstances of this case. They do not support the imposition of a tort duty here.

3. Basing the Special Relationship Exception on an Increased Risk of Harm

An alternative argument advanced to support a legal duty, which is made only obliquely by respondents but embraced by the dissent, is that a special relationship arose because the police officers engaged in affirmative conduct that increased the risk of harm to Patrick.

The notion that the special relationship exception may be expansively interpreted to impose a duty of care whenever a law enforcement officer's affirmative conduct increases a preexisting risk of harm is derived from McCorkle, supra, 70 Cal.2d 252 and Mann, supra, 70 Cal.App.3d 773. In McCorkle, Officer Lombardo was dispatched to the scene of an automobile accident from which the plaintiff received minor injuries. ( McCorkle, supra, 70 Cal. 2d at p. 259.) After his arrival, he discussed the events leading up to the accident with the plaintiff while they stood at the corner of an intersection. Then Officer Lombardo directed the plaintiff to follow him into the intersection to show him where the accident occurred. ( Ibid.) The officer did not set out flares to direct other motorists to avoid driving through the scene of the accident. ( Ibid.) While in the intersection, the light changed and the plaintiff was hit by oncoming traffic. ( Id. at pp. 260-261.)

Although the McCorkle opinion never addressed the question of duty or even mentioned the special relationship doctrine, McCorkle is routinely cited for the proposition that liability may be imposed upon police officers where their affirmative conduct places a person in peril or increases an individual's risk of harm. (See, e.g., Williams, supra, 34 Cal.3d at p. 24; Davidson, supra, 32 Cal.3d at p. 206; M.B., supra, 233 Cal.App.3d at pp. 704-705.)

Despite this broad dictum, not one of the cases in which courts have imposed a duty on police officers based on the special relationship exception relied solely on affirmative police conduct that increased a preexisting risk of harm. For example, in McCorkle, the plaintiff was speaking with the investigating police officer from the safety of the corner when Officer Lombardo directed the plaintiff into the middle of the intersection. By directing the plaintiff into a dangerous intersection, he actually exposed the plaintiff to a new risk of injury by placing the plaintiff in harm's way.

Similarly, the remaining cases in which a duty was imposed under the special relationship exception based on the impact of a defendant's conduct on the plaintiff's risk of harm have all involved instances where law enforcement officers placed the plaintiff in a position of peril. ( Carpenter, supra, 230 Cal.App.3d 923; Wallace, supra, 12 Cal.App.4th 1385; see also Johnson v. State of California (1968) 69 Cal.2d 782 [probation officer placed juvenile in foster parents' home without warning foster parents of child's homicidal tendencies].)

Neither are we persuaded that the 1977 decision in Mann, supra, 70 Cal.App.3d 773 relied upon by the dissent warrants a different conclusion. In Mann, the court found that a special relationship was formed where highway patrolmen came to the aid of a stranded motorist by positioning their police car behind two stalled cars and activating their lights, but later withdrew this protection without warning.

Our Supreme Court has cited Mann with approval, describing it as a case in which "the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection." ( Williams, supra, 34 Cal.3d at p. 25, italics omitted.) The high court explained that a duty was rightfully imposed in Mann because "the officers' conduct contributed to, increased, and changed the risk which would have otherwise existed. They stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought." ( Williams, supra, 34 Cal. 3d at p. 25.)

This rationale reveals that the cornerstone of the Mann decision was not simply police conduct that increased a preexisting risk of harm. Rather, the Supreme Court's approval of the result in Mann rested on a variety of factors including: (1) police conduct that not only contributed to and increased the preexisting risk, but also changed the risk that would otherwise have existed; (2) the motorists' situation of dependency; (3) the motorists' detrimental reliance on the officers' conduct that prevented them from seeking other assistance; and (4) the fact that the officers' conduct lulled the motorists into a false sense of security.

Even if respondents had properly alleged a theory of liability under Mann, none of the Mann factors are present in this case. First, while the officers' conduct arguably increased the preexisting risk that Patrick would commit suicide, it did not change the preexisting risk that Patrick would do so. Second, Patrick was not in a comparable situation of dependency. Unlike the stranded motorists in Mann, who were injured when the police abruptly withdrew their only source of protection, Patrick was not a helpless or dependent victim relying on police protection. Patrick was armed with a loaded firearm and presented a threat to the lives of the responding police officers. Rather than relying on police efforts, he was uncooperative and continually requested police to leave the area. Patrick was not lulled into a false sense of security by the protective measures undertaken by the police. Although police officers wanted to assist Patrick by taking him into custody for mental health evaluation and treatment, their efforts were thwarted by Patrick's refusal to surrender his firearm or cooperate with the responding officers. Thus, none of the factors that the Supreme Court identified as justifying the Mann decision are present in this case.

Moreover, even if we assume that the creation of a special relationship bears some association to the degree to which the conduct increases a risk of harm, no authority exists imposing a duty where police conduct only incrementally increased the risk to which the injured person was already exposed. In volatile situations, one can always argue that the arrival of police officers caused an incremental increase in tension at the scene, and thus increased the risk of injury occurring Yet, despite the fact that basic police work often involves anxiety-producing conduct such as the display of weapons, the shining of flashlights, or the shouting of orders, the social utility of involving police in suicidal standoffs weighs against the imposition of liability. To expansively construe the special relationship doctrine to encompass such incremental increases in a preexisting risk would eviscerate our Supreme Court's adoption in Williams, supra, 34 Cal. 3d at page 23 of the public duty rule, that protects police officers from the burden of assuming greater obligations to others by virtue of their employment.

In addition, if a duty of care was imposed in each case where there was some progressive, increased chance of injury stemming from a preexisting harm, the special relationship doctrine would be in irremediable conflict with the traditional duty analysis derived from Rowland discussed ante. Where police conduct results in some increase in a preexisting risk of harm, but an analysis of the traditional Rowland factors weighs against the imposition of a duty, we conclude that no special relationship duty may be imposed. (Cf. Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 646 [resolution of the question whether a special relationship gives rise to a duty of protection requires consideration of the same Rowland factors underlying any duty of care analysis].)

Our conclusion that the question of duty must not ignore matters of policy regardless of whether the duty purportedly arises under the special relationship doctrine is supported by the commentators. For example, in a 1991 law review article, Professor John M. Adler examined the historic attempts in California case law to alternatively anchor special relationship analysis in terms of the misfeasance/nonfeasance dichotomy, "dependency" relationships, as well as those based on "control," concluding that relying on any of these distinctions to impose a legal duty is problematic: "For these reasons, special relationship analysis is of little predictive value and may not even accurately describe the concerns that determine the outcome of a significant number of cases." ( Relying Upon the Reasonableness of Strangers, supra, p. 886, fn. omitted.) After reviewing the decisions imposing a duty under the special relationship exception, Adler concluded that courts have substituted the rubric of "dependency," "control," or "misfeasance" for traditional policy analysis in determining legal duty. Instead of engaging in this type of "distortion," Adler proposes a definition of the special relationship exception that embodies the very factors employed in a Rowland analysis. ( Id. at pp. 869, 900-911.)

Indeed, pedantic use of the Restatement (Second) of Torts to establish the parameters of tort duty, while eschewing public policy concerns, is contrary to modern jurisprudential duty analysis. "Although the evolution of `duty' is still in progress, it is now fair to say that an overwhelming majority of American jurisdictions treat questions of duty in negligence law substantially in terms which I will refer to as the Prosser (Green) approach. The Prosser (Green) approach often appears in American decision law via the policy-based, multi-factor balancing tests made popular largely through several critical California Supreme Court decisions, particularly, Tarasoff v. Regents of the University of California [(1976) 17 Cal.3d 425], Rowland v. Christian [(1968) 69 Cal.2d 108], Dillon v. Legg [(1968) 68 Cal.2d 728], and Biakanja v. Irving [(1958) 49 Cal.2d 647] . American courts have had little use for the relevant sections of the Restatement (Second) of Torts when dealing with general or abstract questions of duty; American courts basically prefer Prosser's professed approach . . ." (Lake, Common Law Duty in Negligence Law: The Recent Consolidation of a Consensus on the Expansion of the Analysis of Duty and the New Conservative Liability Limiting Use of Policy Considerations (1997) 34 San Diego L.Rev. 1503, 1505, fns. omitted.) We submit, this is precisely the analytical course charted by our Supreme Court in recent years, and the one which we follow. ( Id. at p. 1533.)

Further, we note that the dissent's argument that the special relationship exception should be interpreted broadly to include affirmative acts that increase a preexisting harm appears to rest primarily on its agreement with the Mann court's 20-year-old observation that "`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.' [Citation.]" (Dis. opn. of Kline, P.J. at p. 24 citing Mann, supra, 70 Cal.App.3d at p. 780.) In arguing for this expansion, the dissent relies on dated commentary, predicting a legal trend that never actually materialized. In 1983, our Supreme Court firmly shut the door on such predictions when it expressly disapproved Clemente v. State of California (1980) 101 Cal.App.3d 374, a case which found a special relationship was created between a police officer and an individual citizen based solely on their relationship of dependency. ( Williams, supra, 34 Cal.3d at pp. 26-27.) In disapproving Clemente, the Williams court remarked "One might well question whether the drowning man is not similarly dependent on the swimmer on shore; it is settled that there is no legal duty to come to the rescue. [Citations.]" ( Id. at p. 26, fn. 6, italics omitted.)

Finally, we address the dissent's argument that a duty may be imposed in this case because the responding police officers engaged in actionable misfeasance which increased the risk of harm to Patrick, as opposed to nonactionable nonfeasance. The false expediency of this misfeasance/nonfeasance distinction has been persuasively exposed and criticized in recent law review commentary. For example, in Rowe and Silver, The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries (1995) 33 Duquesne L.Rev. 807, following an exhaustive examination of cases and legal commentators, the authors conclude that the same challenged conduct may be characterized as either nonfeasance or misfeasance, thus eliminating this distinction as a meaningful way to apply tort doctrine. They observe that the driver who lawfully operates a motor vehicle owes a duty to act reasonably to prevent the vehicle from striking a child who runs into the street. Yet the driver's actionable conduct may either be characterized as misfeasance in the operation of the vehicle or nonfeasance because of the failure to brake. ( Id. at p. 831.)

This same dualism applies to cases examined in this opinion including Lopez and Mann, to name only two. The challenged police conduct in Lopez may be properly characterized either as nonfeasance (failure to enter the restaurant to defuse the crisis), or misfeasance (employment of the wrong tactical strategy to meet the crisis). In Mann, the conduct vis-a-vis the stranded motorists was either the removal of static warnings (misfeasance) or the failure to provide alternative warnings to motorists (nonfeasance).

The facts of this case are equally amenable to such artificial semantics. Rather than characterizing the police conduct as misfeasance (employing a confrontational tactical approach), we could define it as nonfeasance (failing to employ a sensitive approach). However, we decline to resolve this case based on an ambiguous distinction bound to create confusion in application. Instead, we have thoroughly analyzed the existing body of relevant decisional law, weighed the relevant public policy considerations enumerated by our Supreme Court, and concluded that no duty should be imposed under these facts.

For all of these stated reasons, we conclude appellants owed no duty of care to take reasonable steps to prevent Patrick from committing suicide. Because respondents failed to demonstrate the existence of a legal duty — an essential element of a negligence cause of action, the trial court's refusal to grant appellants' motion for nonsuit or directed verdict must be reversed.

IV. Disposition

Haerle, J., concurred.