Munoz v. City of Union City (120 Cal. App. 4th 1077, 2004)

Opinion

RUVOLO, J.

I.

Introduction

Lucilla Amaya was shot and killed by a Union City police officer after her brother summoned police assistance to the house in which Lucilla, under the influence of methamphetamine and armed with two knives, was located with her father and daughter. In a suit by Lucilla’s relatives (respondents) against the City of Union City, the Union City Police Department, and the Union City Chief of Police (collectively referred to as Union City or appellants), as well as Union City Police Corporal Tod Woodward (referred to as Woodward or collectively with Union City as appellants) a jury found appellants liable for negligence and battery.

Union City and Woodward contend the judgment must be reversed because they owed no legal duty to Lucilla, principally relying on our 1998 opinion in Adams v. City of Fremont (1998) 68 Cal.App.4th 243 [80 Cal.Rptr.2d 196] (Adams). They further argue that reversal is required because no reasonable juror could have found that the use of deadly force under the circumstances was unreasonable, and the trial court refused to instruct the jury on the objective test for reasonableness as to the alternative excessive force (battery) cause of action.

We affirm in part, concluding that Woodward owed a duty of care not to use deadly force in an unreasonable manner, the breach of which in this case is supported by substantial evidence. Accordingly, Union City is also liable for that portion of the judgment attributable to Woodward’s negligence under undisputed principles of vicarious liability. However, we reverse that portion of the jury’s verdict against Union City based on its direct negligence under authority of our Supreme Court’s recent decision in Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 [7 Cal.Rptr.3d 552, 80 P.3d 656] (Eastburn), because the direct negligence theory advanced by respondents was not grounded on a violation of a statutory duty by the public entity (Gov. Code, § 815).

II.

Statement of the Case

The incident in which Lucilla was killed occurred on March 7, 1998. A government tort claim against appellants was filed by Lucilla’s daughter Yvette Munoz, Lucilla’s father Jessie Amaya, and Lucilla’s brother JJ. Amaya (collectively referred to herein as respondents). After this claim was rejected, respondents filed a complaint for damages in Alameda County Superior Court on November 25, 1998. The complaint alleged causes of action for negligent and intentional wrongful death, infliction of emotional distress, negligence per se, negligent employment and failure to supervise and train employees, respondeat superior, violation of civil rights and injunctive relief. Union City and Woodward filed a demurrer on April 7, 1999, which was sustained as to the civil rights cause of action, with leave to amend.

Respondents’ first amended complaint was filed on June 7, 1999. Union City and Woodward filed their answer on August 9, 1999. Subsequently, respondents dismissed their civil rights and negligence per se causes of action.

Jury trial began on March 28, 2001. On May 10, 2001, the jury returned a special verdict finding Woodward and Union City liable for negligence and battery (unreasonable force). The jury awarded $1,781,200 to Yvette, $131,000 to Jessie and $23,400 to J.J. The jury apportioned the negligence that caused respondents’ damage as 50 percent to Woodward, 45 percent to Union City and 5 percent to Lucilla. Judgment was entered on May 14, 2001, and notice of entry of judgment was filed on May 16, 2001. A motion by all appellants for a new trial was denied on July 11, 2001. A remittitur was issued to correct a clerical error in the judgment regarding the damages awarded to Jessie. Union City and Woodward’s notice of appeal was timely filed on July 31, 2001.

III.

Factual Background

At about 5:30 a.m. on March 7, 1998, Jessie Amaya was awakened by his wife, who told him that Lucilla had called and was hallucinating. Jessie went to Lucilla’s house and knocked on the front door. Lucilla opened the door and asked what Jessie was doing there, then told him to sit on the couch. After she closed the door, Jessie noticed that Lucilla had a knife in each of her hands. In response to his question why she was holding the knives, Lucilla said she was scared of someone in the back room whom she referred to as “Uncle George.” Jessie looked in the back room and tried to assure Lucilla that no one was there, but she did not believe him. He sat back down on the couch and from then on, Lucilla became agitated if he tried to move. Jessie tried to calm her down and she told him to “stay the hell away” from her. Lucilla’s hands were hanging at her sides and she refused to put down the knives. Lucilla’s daughter, Yvette, tried to coax her mother to go to bed, but Lucilla told her to “stay the hell away” from her. Yvette followed her grandfather’s direction to go back to her room and tried to go back to sleep. At some point shortly after Jessie had arrived, Lucilla asked if he had brought a gun; he said he had not and asked why she would need one; and she pointed her finger to her head, simulating a gun.

Meanwhile, Lucilla’s brother, J.J. Amaya, having received a call from their mother, had gone to stand outside Lucilla’s house and observe what was happening. He saw the wooden front door open and Lucilla standing with her back to the wooden door and right shoulder to the security screen door. He could hear Lucilla yelling, “I am tired of men using me. I am tired of men taking advantage of me. I am tired of men, the men in my life.” Lucilla was very upset; J.J. heard her cry and moan and felt she needed help. He returned to his home a short walk away and, after talking to his mother, called his father at Lucilla’s house.

On the phone, Jessie confirmed that Lucilla was holding a knife in each hand. J.J. asked for permission to call the police and Jessie reluctantly agreed, because “they were the professionals. They knew how to handle things like that.” About six months before, the police had been called and Lucilla had been hospitalized for a couple of days because of an incident in which Lucilla was upset and holding a knife. On that occasion, Lucilla had complied with the police request to come outside and had gone willingly with them.

At some point, Lucilla looked out the door and realized J.J. was outside. She seemed startled. Lucilla was stabbing the door behind her with the knives, as she had been throughout the incident. Jessie tried to stand up from the couch to hug Lucilla but she yelled at him not to move and he sat back down. Jessie did not try to take the knives away from Lucilla because she had not threatened anyone and he thought it would agitate her if he tried to remove the knives.

Believing the situation was not an emergency, J.J. called a nonemergency police line rather than dialing 911. The dispatcher who took his call at 6:12 a.m. testified that J.J. reported his sister was under the influence of something, had been “5150” in the past and was in possession of a knife. He said he thought his sister might harm herself and he was concerned about his father and niece, who were in the house with his sister. He did not say his father or niece were being threatened. The dispatcher did not recall J.J. saying that his sister or anyone else was in possession of a gun. J.J. provided his own and Lucilla’s phone numbers, but suggested that the police not call Lucilla’s house because he was afraid this might escalate the situation. When the dispatcher told J.J. the duty sergeant was on an emergency call, he said he was beginning to think the situation was going to escalate to an emergency and the dispatcher told him to call back on 911 if this occurred.

The acting watch commander on duty at this time was Corporal Tod Woodward, who had assumed this role because the sergeant on duty had gone home early. Woodward had been on the SWAT team for about five years but did not have specific training as a supervisor in a crisis situation. Since assuming the rank of corporal in June 1997, Woodward had responded to a critical situation as a supervising officer on two occasions that he recalled; he had not had occasion to respond as a supervising officer to a call involving a barricaded suspect, a potential “5150” or a person under the influence of a “central nervous stimulant” and he had no formal training in hostage negotiation.

When he heard the broadcast of a “ ‘5150’ with a knife,” Woodward had the dispatcher direct Officers Kruger and Housley to respond. The two officers were dispatched to the scene at 6:19 a.m. Officer Kruger directed the dispatcher to get information updating the situation and the dispatcher called Lucilla’s house. Jessie told the dispatcher that Lucilla was still at the front door and still held two knives. Kruger recalled the dispatcher informing him that the suspect was at the front door with one knife, although when he reviewed the dispatch tape before his deposition in this case, he heard the dispatcher say the suspect had two knives.

Neither Kruger nor Housley activated their red lights and sirens as they approached Lucilla’s house, not wanting to aggravate the situation. As Kruger neared the house, he was flagged down by J.J., who said that his sister and father were in the house, his sister was very agitated and had a knife and he was concerned about his father’s welfare. Kruger did not recall telling Sergeant Bizieff, after the incident, that JJ. had reported his sister being suicidal. JJ. was very concerned about Lucilla’s reaction to the police arriving, fearing the situation might escalate.

Kruger and Housley parked their vehicles out of sight of the house; Kruger walked to about 20 feet from the front door and Housley remained about five feet further back. Lucilla was standing with her back to the open front door and the right side of her body by the screen door. Kruger spoke to her in a calm tone of voice, trying to establish a dialogue, but she told him to “stay back, don’t come any closer.” J.J. testified that Kruger spoke to Lucilla calmly, asking what the problem was and saying he was there to help her, and that Lucilla responded, “[N]o. You’re here to hurt me.”

Kruger and Housley described Lucilla as jumping up and down, “throwing her body around vigorously” and moving her arms and hands around, allowing the officers to observe what appeared to be a steak knife in her left hand. Kruger testified that he did not see anything in Lucilla’s right hand although he did see her right hand briefly; Housley testified that he could not see Lucilla’s right hand because it was concealed behind the latch plate on the screen door.

Neither Kruger nor Housley heard Lucilla make any threats during the incident. Lucilla alternated between being very excited and calming down, speaking coherently and incoherently. Kruger heard a male voice in the house and had the impression the person was trying to calm Lucilla down. He also saw a young woman in the house. Kruger and Housley felt the people in the house were in danger because Lucilla was “completely irrational,” unpredictable and waving a knife around.

After about two minutes, Lucilla was becoming increasingly agitated and Kruger felt he was not going to be successful getting Lucilla to talk to him. He called Woodward to the scene, telling him there was an armed suspect in the house with another person. Woodward arrived after approximately two minutes. Kruger recalled that he did not at this point have his weapon drawn, but drew it at some point after Woodward arrived, although Housley recalled that he and Kruger both had weapons drawn before Woodward arrived.

Woodward spoke with J.J. for three to five minutes. According to Woodward, J.J. said his sister was in the house with a knife, that she had been a “5150” on a prior occasion, that she might be under the influence of methamphetamine and that she was threatening to harm his father and his niece. J.J. denied telling Woodward that he felt Jessie or Yvette were in danger. Woodward directed Kruger to get more information from J.J. and directed Officer Holbrook, a canine officer who by then had also arrived on the scene, to check the back of the house for means of access into the house or communication with the occupants. Woodward testified that Holbrook reported the back door would not be a viable entry point; he had testified at his deposition that Holbrook told him the back door was locked. Holbrook testified that he never checked whether the sliding door was locked because he determined that the door was not a viable entry point due to Lucilla having a direct fine of sight to the door.

Woodward approached the front of the house, positioning himself in front of a white car in the carport. He spoke to Lucilla in a calm tone of voice, trying to coax her to put down the weapons and come outside to talk to him. He did not try to determine whether the screen door was open or locked because Lucilla was demanding that he stay back and he did not want anyone to get hurt. Lucilla remained in the same position, with her back to the door and her right shoulder an inch or so away from the screen door. Woodward could see the blade of a knife in her left hand; her right hand was concealed behind the latch plate of the door.

After talking to J.J. and having him draw a floor plan of the house on an index card, Kruger returned to stand about three feet behind Woodward. Lucilla was telling Woodward to stay back. Woodward had his weapon drawn and pointed at the ground. He had ordered all the officers at the scene to turn off their radios, to avoid the risk of the situation escalating if Lucilla heard a potential call for the SWAT team. Woodward testified that he ordered cessation of all nonemergency calls because he did not want to “clog the airways with useless information or unnecessary chat.” Less than a minute after Kruger returned to Woodward’s position, Woodward directed Kruger to get a shotgun from the car. Kruger heard Woodward ask Holbrook to notify Sergeant Tyser of the situation. Tyser was the sergeant due to come on duty at this time and was a member of the SWAT team.

Woodward testified that as he tried to talk to Lucilla, he moved forward, retreated when she told him to “back off,” then moved forward again. Woodward felt as long as she was focused on him she would not kill her relatives. Within about three minutes of beginning to talk to Lucilla, Woodward told Holbrook to call for the SWAT team. Holbrook testified that he had not heard Lucilla make any threats to herself or others at the point he was given this direction.

Woodward testified that he did not become irritated with Lucilla or raise his voice at her, although he did raise his voice when speaking to the other occupants of the house so they would hear him. Lucilla was sporadically pointing the knife at her father, gesturing in a threatening manner. She told Woodward that she wished Dennis Benetez, a Union City police officer, were there; Woodward told her he could get Benetez for her but did not attempt to do so because there was not enough time. At some point, the door “jiggled” and Lucilla said she was “going to fly out full force.” When Woodward asked what she meant, Lucilla told him she had a knife in one hand and a gun in the other. Woodward could see Yvette in the house and she appeared to be scared. Woodward told Lucilla that if she let the other people in the house go into the back room, she could come outside to talk to the police or they could come inside to talk with her. When nothing happened, he repeated this more loudly. Woodward denied that he directly ordered the people in the house to go to the back room, stating that he was concerned this might have agitated Lucilla even more. J.J., however, testified that he heard first Woodward and then Kruger yell, “you in the house, go to the back room and lock the door.” Lucilla’s neighbor also heard an officer yell to the people in the house to go to the back room and lock the door. Jessie testified that the officer at the front door told him, “Hey you in the house, go to the back bedroom and close the door.”

Woodward saw Jessie and Yvette move out of view. Lucilla watched them, looked at Woodward, then took the knife forward and began moving. Woodward raised his gun and pleaded with her, “Please don’t, please don’t.” She looked into the barrel of Woodward’s gun, looked back at her family members, looked back at Woodward, and said, “I am going to stop my father from hurting me. He is not going to hurt me any more.” She made a movement forward, thrusting with the knife. Thinking she was going to kill her father and daughter, Woodward shot five times, until she stopped. Jessie, Yvette and J.J. all testified that they heard Lucilla scream just before the shots were fired. Woodward testified that when he fired the first shot, Lucilla had moved six inches from the front door and he estimated she was 10 feet from where her father and daughter had disappeared from view, a distance he felt she would cover in two seconds. Expert testimony placed Lucilla further from the door at the time she was shot. Woodward testified that he intended to stop the threat Lucilla posed to her relatives and denied having shot Lucilla with intent to kill. Approximately nine minutes had elapsed from the time Woodward arrived at the scene to the time Lucilla was shot. Sergeant Tyser arrived at the scene two minutes after the shooting.

Housley recalled that at some point Woodward asked Lucilla if she had a gun and she said she had a gun in her right hand. Housley moved closer, although he acknowledged he put himself in a position that violated his training by not assuming a position of cover in the presence of a person claiming to have a gun. Lucilla became more excited and Housley moved to a position by the front window of the house. Woodward and Holbrook, in front of the door, also moved closer. Housley heard Woodward order the occupants of the house to go into a back room and shut the door. He heard Woodward say something like, “no, no, please don’t, please don’t,” in a pleading tone, “very soft spoken yet desperate.” Housley then heard shots. By this time, Woodward had moved “very close” to the screen door, with Holbrook directly behind him. Housley did not hear Lucilla scream before the shots were fired. He heard J.J. saying “you better not have shot my sister.” Housley entered the house and found Lucilla on the floor, moving. In accordance with his training, he handcuffed her behind her back because he did not know where a gun or knife might be. He did not see any knives or guns. He never heard Woodward yell at Lucilla or say anything Housley felt was provoking. He denied telling Woodward, “I can’t believe you shot her.” He had been told that J.J. claimed to have heard him say this and stated that such a claim was a lie. Housley testified that J.J. did not get close to the front door of the house after the shooting.

Kruger was returning from the car with the shotgun when he heard three or four shots. He decided to secure the shotgun and get a halogen tool he had in the car so he could get into the house quickly. Kruger had in the past used this tool to open a door identical to Lucilla’s “very quickly.” He had not attempted to use it on this occasion because he believed that doing so would put the people in the house at additional risk.

Kruger went to the front door, which was now wide open, and heard J.J. saying words to the effect of, “You didn’t shoot her. You didn’t shoot her.” Woodward and Officer Holbrook were inside; Lucilla was lying on her stomach on the floor and Kruger could see two gunshot wounds. Officers Souza and Rodriguez arrived at the scene shortly after the shots were fired, and Sergeant Tyser arrived about three or four minutes after the shots. Kruger estimated that five to seven minutes elapsed from the time Woodward arrived at the scene to the time the shots were fired.

JJ. testified that he ran toward the house upon hearing the shots. He heard one of the officers say, “I can’t believe you shot her, I can’t believe you shot her.” At the front door, JJ. said to Woodward, “You better not have shot her, you better not have hurt her.” Officer Holbrook, who had run toward the house at the same time as J.J., asked what had happened and Housley said, “he shot her, she was standing, she was standing at the front door and he shot her.”

Jessie testified that when the police first arrived at the house, about 10 minutes after Jessie talked to J.J. on the phone, Lucilla was startled and said, “Oh no, you called the cops.” Lucilla’s attention shifted from Jessie to the police. Jessie heard an officer speak to Lucilla in a calm tone of voice, offering to help her. Lucilla told him she had been hurt by a lot of men in the past. Lucilla was upset, alternating between coherence and incoherence. The officer talked to her for what seemed like 10 to 15 minutes but Lucilla told him to stay away from her. Lucilla talked about “Uncle George” and at one point said she thought he was going out a back door. When a second officer replaced the first one, asking Lucilla to “drop the knives and talk to him,” Lucilla said, “[N]o, no no. Leave me alone. . . . You are going to hurt me. You are going to hurt me. Stay away, stay away.” The officer’s tone changed, with him yelling at her more and appearing frustrated with her. Jessie never heard Lucilla say she had a gun in one hand and a knife in the other and never saw a gun in the house during the time the police were there. He did not hear her threaten him, Yvette or the police. The only time she pointed one of the knives at him or Yvette was when the police asked where her father was and she pointed with the knife. After Lucilla was shot, Jessie found her lying on her back on the floor with her arms spread out and the knives “resting on the palm of her hand.”

Yvette testified that when she first came out of her room upon hearing the police had arrived, the officers did not have their guns drawn. After a while, the police “got frustrated,” took out their guns and held them at their sides. Yvette concluded they were frustrated because their “tone of voice” was “getting louder and louder.” Yvette saw Lucilla holding a steak knife in each hand, pointed toward the floor. Lucilla moved her arms around from time to time but did not threaten anyone. Yvette testified that the officers initially tried to calm Lucilla down, then “started getting really irritated, agitated and raising their voice [sic].” Yvette heard Lucilla ask for Dennis Benetez. The officer who was standing four or five feet from Lucilla yelled at Yvette and her grandfather to go into the back room; Yvette did so reluctantly. Lucilla had become more agitated, scared because the officers had their guns out and were not listening to her tell them to stay back. Yvette never heard Lucilla tell the police that she had a gun in one hand and a knife in the other and never saw a gun; Lucilla did not keep a gun in the house.

Lucilla’s neighbor, Mary Diaz, heard the police outside her window and heard an officer telling Lucilla he wanted to help and was not going to hurt her. Lucilla was saying she was tired of people hurting her and she wanted Dennis, a friend of hers in the police department. Diaz heard Lucilla say she saw her Uncle George running from the side of the house and heard the officer say he did not see anyone. She also heard Lucilla saying she was tired of all the men in her life and telling the police to stay back. As the minutes passed, Diaz heard a change in the tone of the officer talking to Lucilla: His voice became louder and he sounded frustrated. Diaz thought he sounded mean. At some point, in response to the officer asking Lucilla to come outside, Lucilla said she “had a knife in one hand and a gun in the other and if she came out she was going to come out in full force.” Diaz did not hear Lucilla say anything threatening to her father or daughter and did not hear any warnings by the police before she heard shots fired. A few seconds before the shots, Diaz heard the officer yell to the people in the house to get to the back room and lock the door.

Diaz’s mother also testified that initially the officer speaking to Lucilla sounded “calm,” then his voice got “harsh,” louder and more demanding. Alicia Diaz heard Lucilla say she had a gun but did not hear an officer ask if she had a gun before this.

Woodward testified that he never heard Lucilla threaten Yvette, the initial dispatch he received did not indicate the suspect was threatening family members and that he did not recall any broadcast referring to family members.

Respondents presented the testimony of Peter Reedy, a former Sacramento police officer who owned a consulting business called Situational Crisis Management. Reedy had been a police officer for 25 years, approximately 15 of them as a supervising officer, had taught crisis negotiations and management to other officers and police agencies and had been the supervisor of a hostage negotiation team. During his career as a police sergeant, Reedy responded as supervising officer to critical incidents hundreds of times and was called to critical incidents as a negotiator some 70 times. On two of these occasions, the subjects were killed, and in both Reedy had recommended that the police wait out the situation rather than going after the barricaded subject.

Reedy acknowledged that the minimum standards for peace officers’ training in California is set by the Peace Officers Standard of Training (POST), that the last time he had attended a POST training was over a decade before trial, and that he had never been certified as a POST instructor. Since retiring from the police force, Reedy had been retained to testify in approximately 63 civil cases, two-thirds of the time for plaintiffs and one-third for the defense. In preparation for the present case, Reedy spent some 100 hours reviewing police reports, hospital records, transcripts of interviews, statements and depositions, audio and video tapes, photographs, and other documents.

Reedy described six “important factors for the successful handling of a critical incident of a crisis situation,” which he referred to as the “6 C’s.” These factors are containment (setting up a perimeter on the incident), control (of people interfering with the scene and of officers themselves), confirmation (getting the facts), calm (maintaining distance and composure), communication (two-way communication, including negotiators) and command (by an experienced, educated, trained commander who does not become directly involved in the incident). Reedy testified that the most “explosive” point in a critical incident, when people are most often hurt, is the police assault; the second most dangerous point is the first 45 minutes.

Reedy offered the opinion that Woodward’s actions were unreasonable because he violated the “6 C’s” in a number of ways, including failing to set up a perimeter to contain the situation, getting too close to Lucilla, getting personally involved rather than maintaining his role as supervisor, failing to take the time to confirm facts through relatives and neighbors, failing to use a hostage negotiator, failing to establish real communication with Lucilla or to communicate with dispatch or Benetez, and having a weapon drawn while talking with Lucilla. Reedy testified that Woodward had insufficient training and experience to be the supervising officer at an incident such as this and that Woodward’s use of deadly force was unreasonable.

The defense expert, George Williams, had never been a police officer due to physical injuries, but had been training police officers for 20 years. He was a POST-certified master instructor, and was a certified instructor in various defensive tactics and weapons for police officers. He estimated that he had trained at least 12,700 officers and had conducted trainings for hundreds of state agencies and agencies in 26 other states and 14 foreign countries. He had been an instructor for the California Specialized Training Institute (CSTI), training officers and government officials on how to respond to various crisis situations. Williams had also worked for the Tracy Police Department training officers, SWAT members and supervisors and had conducted force review to determine whether force used by the officers was reasonable. Since 1996, Williams and his wife had run their own company conducting training nationwide. About 30 percent of Williams’s business was consulting, almost all of which was for police officers’ defense. All but one of the civil cases in which he had been retained were on behalf of a law enforcement officer or agency. Williams did not have specific training in hostage negotiation and was not a hostage negotiator. In preparation for this case, he had reviewed the same documents as Reedy.

Williams opined that what the officers in the present case did was “reasonable based on their training, based on what we expect and pay them to do.” Williams had not heard of Reedy’s “6 C’s” before reading Reedy’s deposition but testified that the officers acted in accordance with these standards. He testified that setting up a perimeter in this case would not have been indicated because there were a limited number of officers and there was no concern with Lucilla leaving the house. Williams felt the officers controlled as much of the situation as they could and did not lose control of themselves, that they confirmed information by contacting J.J. and Lucilla, that the neighbors reported the officers remained calm and were not yelling, cursing or threatening, that Woodward’s order to turn off radios was a proper tactical response because of how close the officers were to Lucilla, and that Woodward had command of the officers. According to Williams, Woodward “took charge of the situation exactly how he was supposed to. What he did was reasonable.”

Williams testified that based on the information known to him at the time, Woodward’s use of deadly force was reasonable. Given the door, which did not allow Woodward to get to Lucilla, there was no lesser force he could have used in this situation; Williams stated that it was not reasonable to think anyone could have entered the front door and crossed the distance to disarm Lucilla without using deadly force. A Laser would not have worked through the door, Mace could not have been delivered effectively through the door, and tear gas would not have been appropriate. According to Williams, there was no way Woodward could have safely tried to evacuate Jessie and Yvette from the house, but Woodward did evacuate them from the immediate area of the living room. Williams did not believe entry through the rear sliding door was a realistic or tactically sound option because the entry would have alerted Lucilla, potentially heightening her fear and anxiety. Because police officers are trained not to tackle a person armed with a knife, Lucilla still would have faced deadly force if she had made any move toward the officers or others in the house. Williams also testified that police officers are trained to believe a person who claims to have a gun until the claim is disproved. Once Lucilla said she had a gun, it was tactically sound for Woodward to remain in his position in order to monitor her actions and the other occupants’ positions, and to react if necessary. Williams testified that it was Lucilla’s conduct, not Woodward’s, which led to the need for deadly force. Williams did not view this as a hostage situation, which he said was one in which the suspect was using a hostage as leverage against law enforcement.

Defense expert Dr. Alex Stalcup testified that methamphetamine is a stimulant. Methamphetamine intoxication is characterized by a “waxing and waning of distress,” periods of increasing agitation alternating with periods of calm. Stalcup opined that Lucilla’s behavior was consistent with methamphetamine use in that she was observed to vacillate between agitation and calm and appeared to be hallucinating or paranoid. Stalcup additionally testified that police officers are trained to maintain “social distance” when approaching someone on methamphetamine, starting at seven to 10 feet and gradually moving forward; to speak in a soothing or reassuring tone of voice and not yell; to avoid sudden motions; to keep weapons hidden; and to maintain two-way dialogue.

IV.

Liability of Woodward

A. Woodward’s Duty of Care

Union City and Woodward argue they cannot be held hable for negligence in Lucilla’s shooting because, as a matter of law, they had no legal duty of care toward Lucilla. “Public entities are . . . hable 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. ([Gov. Code,] § 815.2.) . . . 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 [256 Cal.Rptr. 363] . . . .)” (Adams, supra, 68 Cal.App.4th at p. 264, fn. omitted.)

“ ‘[I]n 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 [v. Grace Community Church (1988)] 47 Cal.3d [278,] 292-293 [253 Cal.Rptr. 97, 763 P.2d 948], italics omitted.) [f] 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 [224 Cal.Rptr. 664, 715 P.2d 624]; Stout [v. City of Porterville (1983)] 148 Cal.App.3d [937,] 942 [196 Cal.Rptr. 301]; Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 822 [131 Cal.Rptr. 854]; Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847].) 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 [131 Cal.Rptr. 14, 551 P.2d 334].) 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 [69 Cal.Rptr. 72, 441 P.2d 912].)” (Adams, supra, 68 Cal.App.4th at pp. 264—265; see Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-473 [63 Cal.Rptr.2d 291, 936 P.2d 70] (Parsons).)

As set out in detail above, respondents’ claims against Woodward concern two separate, albeit related, aspects of the police response: First, the tactics employed by the officers at the scene during the confrontation with Lucilla and, second, the actual shooting. Respondents claimed that Woodward was negligent both because of the manner in which he supervised the police response at the scene, and because he was the one who applied deadly force against Lucilla.

The parties have diametrically opposed views as to the applicability of our Adams precedent to the facts of this case. Appellants argue for an expansive application by claiming no tort duty was owed to respondents, even where law enforcement use deadly force in the course of responding to a public safety emergency. On the other hand, respondents contend that Adams should be limited to its facts-—that is, no duty of care is owed where police, in responding to an emergency call, fail to prevent a suicide. Both views are incorrect. As will be explained, this court’s decision in Adams, supra, 68 Cal.App.4th 243, precludes liability based upon when and how law enforcement personnel respond to requests for emergency assistance from the public. Nevertheless, law enforcement officers do have a duty to refrain from unreasonable use of deadly force.

In Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561], the court identified a number of elements to be assessed in deciding whether a defendant owed a tort duty to a plaintiff. “These factors include: (1) the foreseeability 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; and (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 [167 Cal.Rptr. 70, 614 P.2d 728]; Dutton [v. City of Pacifica (1995)] 35 Cal.App.4th [1171,] 1175 [41 Cal.Rptr.2d 816]; Allen [v. Toten (1985)] 172 Cal.App.3d [1079,] 1086-1087 [218 Cal.Rptr. 725].)” (Adams, supra, 68 Cal.App.4th at pp. 267-268.) “[W]hen 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.]” (Parsons, supra, 15 Cal.4th at p. 473, italics omitted.)

We considered these factors in Adams, in which the majority concluded that the police owed no duty of care toward a man killed during a crisis situation. The decedent in Adams had a history of depression, had been suicidal in the past, and became belligerent and argumentative when he drank hard liquor. After an argument with his wife in which the decedent broke dishes and pushed his wife, relatives found he had broken various items in the house and isolated himself in a dark closet. He responded to his stepdaughter’s attempts to talk to him by discharging a firearm, causing his relatives concern that he might have injured himself. The relatives left the house and called the police, who eventually found the decedent sitting in the bushes in the backyard, wearing only underwear and cradling a gun pointed at his own chest. The police, who had weapons drawn and a police dog that had approached the decedent in the bushes, made various attempts to talk with the decedent, while the decedent continually told the police to leave. Some 16 minutes after the police had located the decedent in the yard, he told the police he could make them leave and gunfire erupted from the bush area. Believing the decedent had shot at them, the police fired at him. The self-inflicted shot from the decedent’s gun proved fatal.

As in the present case, the expert testimony in Adams was conflicting as to whether the police officers’ conduct at the scene fell below the standard of care. As here, Reedy testified as an expert for the plaintiffs that the police response was too rushed and confrontational, and that the police did not follow proper guidelines for crisis management. Additionally, a psychiatrist testified that the police were a substantial cause of the suicide. The defense law enforcement experts testified that the steps taken by the police were proper and disagreed with the plaintiffs’ psychiatrist’s opinion.

Adams focused on the tactical choices made by the police because the plaintiffs based their claims on this facet of the response. In balancing the Rowland factors, the majority justifiably placed importance on the public policy implications inherent in the analysis. (See Parsons, supra, 15 Cal.4th at p. 472.) For example, in discussing the Rowland factor of moral blame, we noted that “[pjolice officers often act and react in the milieu of criminal activity where every decision is fraught with uncertainty. [Citation.]” (Adams, supra, 68 Cal.App.4th at p. 270.) We went on to comment further, “[w]e agree with the Allen [v. Totten, supra, 172 Cal.App.3d 1079] 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. [Citation.]” (Adams, supra, 68 Cal.App.4th at p. 271, fn. omitted.)

These practical concerns compelled us to observe how imposing a duty of care would actually threaten, and not promote, public safety: “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. [Citations.] . . . 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.” (Adams, supra, 68 Cal.App.4th at pp. 272-273, fn. omitted.)

Finally, in balancing the Rowland factors we were led to the inexorable conclusion that a tort duty could not be imposed: “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 that 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 [the officer]’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 [the officer] 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.” (Adams, supra, 68 Cal.App.4th at p. 276.)

The reasoning the majority employed in Adams applies with equal force to cases such as this one where police conduct fails to prevent harm. Like the critique he made of police in Adams, respondents’ expert Reedy offered the opinion that the strategy Woodward employed was unreasonable in a number of ways. These included failing to set up a perimeter to contain the situation, getting too close to Lucilla, getting personally involved rather than maintaining his role as supervisor, failing to take the time to confirm facts through relatives and neighbors, failing to use a hostage negotiator, failing to establish real communication with Lucilla or to communicate with dispatch or Benetez, and having a weapon drawn while taking with Lucilla.

But like Adams, the need to protect the overall safety of the community by encouraging law enforcement officers to exercise their best judgment in deciding how to deal with public safety emergencies vastly outweighs the societal value of imposing tort liability for the judgments they make in emergency situations. Adams stands for the proposition that law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties. Applied to the present case, Adams means that the conduct of the police—Woodward’s decisions as to how to deploy his officers at the scene, the efforts made in an attempt to defuse the situation as safely as possible, and other such factors— cannot subject appellants to liability. For these reasons, finding a tort duty and submitting to the jury the question of whether police decisions fell below the standard of care, was error.

As in Adams, we are not indifferent to respondents’ concern that insulating law enforcement emergency actions from tort liability poses the question of whether such a shield will discourage police from overzealous conduct. Indeed, this concern is likewise noted in the concurring opinion in this case, which complains, “Adams [and this decision, by implication] frees the police to employ outrageously dangerous tactics.” (Conc. opn. of Kline, P. J., post, at p. 1118.) In this regard, we find the response we made in Adams equally applicable here: “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 (Pen. Code, § 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 . . . .) 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.” (Adams, supra, 68 Cal.App.4th at p. 274.)

The concurring opinion also exhumes its view in the Adams dissent that a tort duty should be imposed here under the rescuer theory, or special relationship doctrine, suggested by section 343 of the Restatement Second of Torts. We need not repeat the dialogue we exchanged with the dissent in Adams on this alternative tort theory for the simple reason that no contention was made by respondents in this case, either in the trial court or on appeal, that appellants’ liability was premised on the special relationship doctrine. Indeed, respondents’ brief cites neither Williams v. State of California (1983) 34 Cal.3d 18 [192 Cal.Rptr. 233, 664 P.2d 137], nor Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 [110 Cal.Rptr.2d 528, 28 P.3d 249] (Lugtu), the two cases our concurring colleague principally relies upon in seeking its application to the inapposite facts of this case.

But our analysis does not end with our discussion of the meaning of Adams, for Adams presented a more limited claim than that being made in this case. Here, the focus is not simply on the failure of police to prevent harm, but police conduct that directly inflicted harm. Adams does not go so far as to insulate officers in crisis situations from liability for their own unreasonable use of deadly force. Indeed, we expressly recognized in Adams that reckless and unreasonable use of deadly force by the police would be subject to tort liability: “We agree with appellants that the harm suffered by Patrick is most appropriately characterized as suicide. Respondents contend the jury was free to infer that Patrick did not die from self-inflicted injuries because the possibility existed that Patrick shot himself reflexively after police officers fired the first shots. Below, the trial court repeatedly rejected this argument, concluding that to permit the jury to ‘speculate and suppose that the gunfire originated with the police, is not something I can accept. There is no evidence presented to the jury or to me that the officers fired first.’ We agree that no evidence was introduced from which a reasonable jury could conclude that the police officers fired first. ... If the factual record supported the dissent’s conclusion that in the absence of any threatening behavior, officers recklessly ‘killed’ Patrick by ‘riddl[ing]’ his body with a ‘hail of bullets,’ we certainly would agree that the officers were properly subjected to tort liability. (Dis. opn., post, at p. 307.)” (Adams, supra, 68 Cal.App.4th at p. 262, fn. 16.)

Twenty-eight years earlier our Supreme Court determined that police officers have a duty to use reasonable care in employing deadly force. In Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 [86 Cal.Rptr. 465, 468 P.2d 825] (Grudt), Grudt, who was slightly hard of hearing, was driving in a high crime area when plainclothes police officers in an unmarked vehicle unsuccessfully attempted to stop him and observed him reach under the front seat of the car. Two other plainclothes officers who had heard a broadcast about the pursuit intercepted Grudt at an intersection and one of them tapped loudly on Grudt’s window with a loaded shotgun. According to the officer, he shot Grudt when Grudt suddenly accelerated, brushed past one officer and struck the other in the leg; according to other evidence, Grudt’s car had not moved at the time the shots were fired. Grudt died within seconds. At the time of the shooting, marked police vehicles were converging on the intersection from north and south. Grudt’s wallet was found under the seat of the car. (Id. at pp. 581-582.)

The Grudt court found the trial court erred in removing the issue of negligence from the jury, as the evidence most favorable to the plaintiff could have supported a view that Grudt, driving in a high crime area late at night and hailed to stop by men in plain clothes, thought he was going to be robbed, tried to elude the robbers, hid his wallet under his seat and was shot when his car stopped at an intersection. Questions of negligence were presented by the officers’ decisions to arrest Grudt without waiting for uniformed officers to arrive, to tap on the window with a shotgun, and to use deadly force. “At the very least, the evidence favorable to plaintiff raised a reasonable doubt whether [the officers] acted in a manner consistent with their duty of due care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death.” (Grudt, supra, 2 Cal.3d at p. 587.)

Similarly, in Munoz, v. Olin (1979) 24 Cal.3d 629 [156 Cal.Rptr. 727, 596 P.2d 1143], police officers investigating arson incidents in Munoz’s neighborhood shot Munoz in the belief he was the person they had seen igniting a fire by a local business. The court stated, “Defendants do not dispute that an officer’s lack of due care can give rise to negligence liability for the intentional shooting death of a suspect. In Grudt[, supra,] 2 Cal.3d 575 [86 Cal.Rptr. 465, 468 P.2d 825] . . . this court expressly so held.” (Munoz v. Olin, supra, 24 Cal.3d at p. 634.) The Munoz court went on to find substantial evidence to support the jury’s finding of negligence in that defense evidence suggested Munoz was innocently on his way home, the officers were mistaken in their determination he was the arsonist they had seen, and the officers failed to warn Munoz or attempt to apprehend him by other means. (Id. at pp. 635-637.)

Appellants argue that neither Grudt nor Munoz actually analyzed the duty issue or involved a crisis situation such as in the present case. This much is true. The issue in Grudt was whether the plaintiffs could proceed on a negligence theory where they had pled only an intentional tort but the pretrial conference order raised negligence as an issue to be tried; Grudt permitted the plaintiffs to proceed on inconsistent theories of liability. In Munoz, the parties did not dispute the issue of duty. Hence, these cases assumed the existence of a duty to use reasonable care in apprehending a suspect. As appellants note, the factual situations in these cases were quite different from the crisis situation presented here. Nevertheless, Grudt and Munoz do implicitly recognize a duty on the part of police officers to use reasonable care in deciding to use and in fact using deadly force. (See also Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 404-406 [29 Cal.Rptr.2d 232] [upholding jury verdict of no negligence in police shooting of man during investigation of domestic disturbance; issue in dispute was whether officer used reasonable care, with no discussion of duty].) Indeed, the assumption that such a duty exists was critical to the decisions, as the plaintiffs otherwise could not have been permitted to establish liability based on negligence. The court’s implicit determination that police officers owe a duty of care not to use deadly force unreasonably can only have been based on recognition that consideration of the Rowland factors would support finding such a duty. So, here, appellants had a duty to use reasonable care in employing deadly force.

Given the preceding discussion, if the jury’s verdict was based on the theory of liability against Woodward that we reject (pre-shooting response at the scene) and was not based on the use of deadly force, we would be compelled to reverse and remand for retrial. However, in context it is apparent that the jury’s consideration of Woodward’s pre-shooting activity does not undermine the verdict. As we discuss below, the jury found that Lucilla’s death was caused by Woodward’s battery upon her—the unreasonable use of deadly force—and this finding is fully supported by the evidence. Based on this finding, the jury also must have concluded that the use of deadly force was negligent, a legal theory we also find legally and factually sustainable. Because one of the theories of liability against Woodward is factually and legally sustained, the jury’s consideration of the circumstances giving rise to the shooting was necessarily harmless. (Widson v. International Harvester Co. (1984) 153 Cal.App.3d 45, 54 [200 Cal.Rptr. 136] [“Reversal is not required where there is another independent basis to support a verdict.”]; see also, Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153 [76 Cal.Rptr.2d 804].)

B. Substantial Evidence of Woodward’s Unreasonable Use of Deadly Force

Appellants argue they cannot be held liable for Woodward’s use of deadly force because no reasonable jury could conclude the use of such force was unreasonable. In reviewing a claim of insufficiency of the evidence a reviewing court must examine the entire record in the light most favorable to the respondent, resolving all evidentiary conflicts and making all reasonable inferences in support of the judgment. (Stenseth v. Wells Fargo Bank (1995) 41 Cal.App.4th 457, 464 [48 Cal.Rptr.2d 192].)

In order to prevail on a claim of battery against a police officer, the plaintiff bears the burden of proving the officer used unreasonable force. (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614] (Edson).) “A police officer in California may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance. (Pen. Code, § 835a.) The standard jury instruction in police battery actions recognizes this: ‘A peace officer who uses unreasonable or excessive force in making a lawful arrest or detention commits a battery upon the person being arrested or detained as to such excessive force.’ (BAJI No. 7.54.)” (Edson, supra, 63 Cal.App.4th at pp. 1272-1273, fns. omitted.)

Claims that police officers used excessive force in the course of an arrest, investigatory stop or other “seizure” of a free citizen are analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution. (Graham v. Connor (1989) 490 U.S. 386, 395 [104 L.Ed.2d 443, 109 S.Ct. 1865].) “The test of reasonableness in this context is an objective one, viewed from the vantage of a reasonable officer on the scene. It is also highly deferential to the police officer’s need to protect himself and others: ‘The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. [Citation.] . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation, [f] [T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. [Citations.]’ (Graham [v. Connor], supra, 490 U.S. at pp. 396-397 . . . .)

“ ‘. . . Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes “reasonable” action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.’ (Smith v. Freland (6th Cir. 1992) 954 F.2d 343, 347.)

“The Supreme Court’s definition of reasonableness is therefore ‘comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present.’ (Roy v. Inhabitants of City of Lewiston (1st Cir. 1994) 42 F.3d 691, 695 . . . .) In effect, ‘the Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases. . . .’ (Ibid.)” (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 343-344 [54 Cal.Rptr.2d 772] (Martinez).) “An officer’s use of deadly force is reasonable only if ‘the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’ [(]Tennessee v. Garner [(1985)] 471 U.S. 1, 3 [85 L.Ed.2d 1, 105 S.Ct. 1694] . . . ; see also Graham [v. Connor, supra,] 490 U.S. at [p.] 396 one of factors in determining reasonableness is ‘whether the suspect poses an immediate thre