Shelton v. City of Westminster

WIENER, J., Dissenting.

I agree with the majority the trial court properly rejected several of the Sheltons’ theories of recovery and therefore concur in *624that part of the opinion affirming the order dismissing the second through the seventh causes of action. In my view, however, a police department’s failure to comply with the mandatory duties of Penal Code section 11114 may give rise to liability on the facts presented. Accordingly, I would reverse the judgment of dismissal with instructions to overrule Westminster’s demurrer to the Sheltons’ first cause of action.

Health and Safety Code section 10254, enacted in 1978, requires coroners and medical examiners to conduct a dental examination of unidentified bodies and to forward the results of that examination to the Department of Justice. Penal Code section 11114 (see fn. 2, maj. opn., p. 613), passed as part of the same legislative package, mandates that local law enforcement officials who receive a missing person report must contact the family or next of kin of persons missing more than 30 days in order to obtain the missing person’s dental records from the family dentist. These records are to be forwarded to the Department of Justice. The statute then requires the Department of Justice to keep the missing person’s dental records on file so they can be checked against the coroner dental examination reports in order to aid in the identification of unidentified bodies.

The Sheltons’ second amended complaint alleges the City violated a statutory standard of reasonableness as provided in Penal Code section 11114 when it failed to obtain and forward to the Department of Justice a copy of Mark Shelton’s dental records. The Sheltons contend but for this omission, Mark’s body would have been identified much sooner than it was since the San Bernardino coroner had furnished the Department of Justice with a dental exam report on Mark Shelton’s body. Westminster responds that a city’s failure to comply with a statute gives rise to liability only if the statute was “designed to protect against the risk of [the] particular kind of injury” which the plaintiff suffered. (Gov. Code, § 815.6.)1 The Legislature’s purpose in enacting Penal Code section 11114 thus becomes the critical question. If the statute were designed in whole or in part to benefit the families of victims by facilitating the prompt identification of unidentified bodies, the Sheltons have stated a cause of action under Government Code section 815.6. If, on the other hand, the legislation was passed for reasons totally extraneous to concerns about the victim’s family or loved ones, it will not support an action for the type of injury alleged by the Sheltons in this case.

In analyzing the legislative purposes underlying Penal Code section 11114, several principles of general application to cases involving the scope and extent *625of governmental immunity must be kept in mind. The California Tort Claims Act is structured such that the liability of a public entity must be based on a specific statute authorizing liability. (Gov. Code, § 815.) Thus, in a statutory sense, immunity is the rule and liability is the exception. On the other hand, common law tort principles which guide our interpretational path suggest that “. . . when there is negligence, the rule is liability, immunity is the exception.” (Muskopf v. Coming Hospital Dist. (1961) 55 Cal.2d 211, 219 [11 Cal.Rptr. 89, 359 P.2d 457], mod. sub nom. Corning Hospital Dist. v. Superior Court (1962) 57 Cal.2d 488 [20 Cal.Rptr. 621, 370 P.2d 325].) These semantically opposite conclusions are not as functionally inconsistent as they may first appear. While the Tort Claims Act mandates that any imposition of governmental liability be pegged to some specific statutory authorization, it does not require that such authorizations, when they appear, must be interpreted narrowly. (See Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 2.42, p. 94.)

Westminster argues the sole legislative intent in enacting Penal Code section 11114 was to aid the coroner in identifying bodies for the purpose of criminal investigation. The majority concludes “there is no hint that plaintiffs are (1) owed a duty [citation] or (2) among the class of persons the statute was designed to protect, or (3) the statute was designed to protect against the particular injury caused. [Citation.]” (Maj. opn., at p. 615, italics in original.) In respectfully disagreeing with that categorical pronouncement, I doubt I am being merely oversensitive to the tragedy of this case. To be sure the aim of the statute is to facilitate identification of dead bodies, with one result being the investigation of criminal homicides. But the mandatory duties imposed by Penal Code section 11114 are not limited to cases involving the bodies of individuals who die of unnatural causes or under suspicious circumstances.

The Legislature would thus appear to have considered other factors in adopting Penal Code section 11114. One result of facilitated identification which comes quickly to mind is that the previously unidentified bodies may be removed from county medical facilities and returned to the victim’s family for proper disposition. The Legislature doubtless was aware that for cultural and religious reasons, the internment or other disposition of the deceased’s body is an extremely important emotional catharsis for the family and friends of the deceased. Moreover, the uncertainty which attends a presumed but unconfirmed death is nearly always an emotionally wrenching experience for loved ones.2 One need only look to the years of continuing national concern over servicemen missing in action in the Vietnam War as demonstrating that such *626perceptions are almost a definitional attribute of American if not human culture.

Past cases indicate numerous examples of statutes enacted for multiple concurrent purposes. (See, e.g., Courtell v. McEachen (1959) 51 Cal.2d 448, 459 [334 P.2d 870]; Cappa v. Oscar C. Holmes, Inc. (1972) 25 Cal.App.3d 978, 982-983 [102 Cal.Rptr. 207]; Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 903 [93 Cal.Rptr.530].) I think it is likely the Legislature was motivated by similar multiple purposes in enacting Penal Code section 11114. Where the legislative history is not definitive, I believe legislative intent may be gleaned by looking to the reasons which would motivate a reasonable legislator to enact the statute. As I have noted, the benefits conferred on the immediate families of victims whose bodies would otherwise remain unidentified is a more than reasonably foreseeable result of the statute. This conclusion is supported by the sound public policy of broadly interpreting statutes authorizing the liability of public entities. (See Muskopf v. Coming Hospital Dist., supra, 55 Cal.2d at p. 219; see ante, p. 625.) I therefore would hold the Sheltons have stated a cause of action under Government Code section 815.6 based on Westminster’s alleged failure to perform the mandatory duty imposed by Penal Code section 11114, a statute which was designed at least in part to facilitate the identification of bodies for the benefit of the immediate families of the victims.

Appellants’ petition for a hearing by the Supreme Court was denied February 23, 1983. Bird, C. J., and Reynoso, J., were of the opinion that the petition should be granted.

The full text of Government Code section 815.6 reads as follows: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge die duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

In the case of the Sheltons, for instance, the complaint alleges the family incurred substantial expenses pursuing private investigations and searches during the eight-month period in hopes of determining the fate of their son.