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The Consequences Of The Lack Of A Duty To Rescue

Monday, Jun. 03, 2002

In my last column, I explained why it might be very difficult to sue the federal government for negligence in the context of the terror attacks of 9/11. The column elicited numerous comments from readers - many of whom were shocked by the idea that, in the United States, the government, local, state, or federal, has no general duty to protect the public. It is, admittedly, a strange feature of our legal system. In this column I want to explore how the government's "non-duty" to rescue affects citizens on a day-to-day basis.

A colleague of mine, Professor Ben Zipursky of Fordham University School of Law, pointed out to me that in the same week that I wrote my column, another "non-duty" decision was handed down. In that decision, the California Supreme Court ruled, in effect, that the state has no duty to protect a woman from her ex-husband when they meet in court, even if the ex-husband has threatened to kill her. The case provides an example of the consequences of a "non-duty" determination.

The Facts of the Zelig Case

The case, Zelig v. County of Los Angeles, was brought by eight year old Dana Zelig on behalf of herself and her murdered mother, Eileen. Eileen had separated from Harry Zelig in 1993.

Over the course of the following two years, Harry not only failed to provide support, as he had been ordered to do, but he also threatened to kill Eileen. Eileen obtained a number of orders of protection against Harry, including one that forbade him from carrying a gun when he was within 100 yards of her or her children.

On September 1, 1995, Eileen and Dana met Harry at the Central Civil Courthouse in Los Angeles to attend a hearing concerning support. They were directed to walk from the courtroom in which they were scheduled to appear to another room. As they descended a staircase to within the building, Harry pulled out a concealed revolver and shot Eileen point blank in the chest, in front of Dana.

Dana's suit alleged a variety of torts, but I want to focus on one in particular. Dana's complaint alleged that the County of Los Angeles owed her mother (and her) a duty to take steps to prevent Harry from bringing a weapon into the courthouse.

In essence, the complaint suggested that, as a landowner, the County had a general duty to anyone it allowed onto its property to protect them from foreseeable criminal acts by third parties. The risk of criminal activity posed by Harry was well known to the County, not only because of the restraining orders that Eileen had obtained, but because Eileen had specifically spoken to officials at the courthouse about her concerns for her safety. Therefore, Dana's attorney argued on her behalf, a jury could find that the County had breached a duty to protect Eileen from Harry.

What could the County have done? Dana's attorney argued that steps the County could have taken included "posting adequate disclaimers or warnings [about the dangers posed by men like Harry], installing metal detectors or inspecting persons entering [the courthouse].

The trial judge dismissed the complaint, but the Court of Appeals reinstated the complaint to a significant degree. In the end, the California Supreme Court-in a unanimous opinion-reversed the Court of Appeals, and Dana lost her claim.

The Oddity of Having to Plead A Landowner's, Not A Government, Duty

It is important to note that, at the outset, Dana Zelig's attorney had to frame her argument that a duty of the County existed in a very peculiar way - one that has a bizarre, almost coded quality.

Dana's attorney's did not simply say at the outset: "The State of California knew that my father threatened to kill my mother, especially when they argued over child support. As a result, the State of California had a duty to protect my mother when she was required, by the state, to appear in the same place as my father."

Instead, Dana argued that, pursuant to a California code provision, the County had a duty as a landowner to protect Eileen. In other words, the reason why the County should have had warnings, metal detectors, and searches, is the same reason why certain nightclubs have bouncers-because landowners have a duty to protect licensees against foreseeable risks of personal injury.

Was There A "Dangerous Condition" In the Courthouse?

The answer is that, because of the doctrine of sovereign immunity - explained in my last column - it is a mistake to begin with the assumption that the County's duties are like those of Disneyland's or K-Mart's. The County's duties as a landowner are more narrow. That is because they are not based on general California tort law, but on a specific piece of legislation - California Civil Code Section 835. This statute sets out the narrow grounds when, as a landowner, a governmental entity may be sued.

According to the statute, the County can be sued as a landowner only when someone is injured by a "dangerous condition" of the land. Obviously, as the California Supreme Court pointed out, Eileen Zelig was not injured by, for instance, a broken step at the courthouse. Does that mean that there was no "dangerous condition"?

Dana's attorneys said no. They argued that the County's omission of security measures put the courthouse in what was in effect a "dangerous condition," regardless of whether the courthouse's most basic architecture was dangerous or not (though they also asserted it was). Indeed, they pointed out, earlier precedent had indicated that California courts would interpret the requirement of a "dangerous condition" loosely, to hold that a dangerous condition existed in a very similar situation.

Distinguishing Away the Zuniga Precedent - An Odd Argument By the Court

For example, in Zuniga v. Housing Authority, a California Court of Appeals had held that the failure to place security barriers in a drug-infested housing project counted as a dangerous condition, given that the Housing Authority was on notice that arsonists were likely to harm the plaintiff.

How did the California Supreme Court deal with Zuniga - which seemed quite parallel to the Zelig case? In a peculiar way. It did not overrule the precedent. However, it did observe that the Court of Appeals "fail[ed] . . . to relate the physical condition of the property to the conduct of the arsonists" - thereby implying that doing so might be necessary in a case in which the government was sued in its capacity as landowner.

In any event, in the context of Zelig, the California Supreme Court was clear that nothing about the physical condition of the courthouse was causally related to the shooting of Eileen. The plaintiffs even tried to connect the courthouse's "labyrinthine structure [and] seemingly endless hallways" to a general condition that provoked or encouraged Harry Zelig. But the court would have none of it.

An Attempt to Impose Liability Under a Federal Constitutional Rights Statute

On one level, I am very sympathetic with the California Supreme Court's treatment of Dana Zelig's landowner liability argument. It is really a legal fiction to say that a defect in the architecture of the courthouse itself caused her mother's death. However, it is important to note that Dana's attorneys were forced into arguing this convoluted fiction because of a gap in the law.

Dana's attorneys did try to make this argument, invoking a federal statute that allows damages awards for constitutional rights violations. They claimed the constitutional right abridged was the right to due process of law.

The argument was a clever one: By not doing something to increase her safety at the courthouse, the State of California forced Eileen Zelig into an impossible choice. If she wanted to press her legal rights for child support, she had to risk being killed because she had to confront her dangerous ex-husband in a courthouse without proper security. Conversely, if she didn't want to risk being killed, she had to give up her support claims against her ex-husband -claims she had a right to make. Putting battered women to a choice between giving up their rights, and giving up their security, deprives them of due process of law.

The California Supreme Court disposed of this argument, ingenious though it was, in a few short paragraphs. That ruling may have been correct, for a contrary ruling might have opened the floodgates to an argument that every practical impediment to the exercise of due process rights of which the State is aware is a constitutional violation. But even if this particular ruling, and the landowner statute ruling as well, are both correct, a gap in security protections remains, and it is a grievous gap - one that should be remedied.

Why California Was Responsible for Eileen Zelig's Welfare While In Its Own Courthouse

The State of California should accept responsibility for its failure to properly protect the security of women like Eileen Zelig. For her to have been shot two blocks from the courthouse might simply have been a tragedy. For her to have been shot within the very courthouse from whose judge she sought protection and vindication, was more than a tragedy - it was a case of tragic irresponsibility

One might argue, though that the proper remedy for this security problem - as for, say, deficits in our system of protection against terrorism - is political. If the people of California are dissatisfied with the lack of safety they experience anywhere, including their courthouses, one might argue that they should not look to tort law for remedies, but should simply vote for the politicians who promise to do something about public safety. (This argument, incidentally, would immunize the government from suits arising from the FBI's pre-September 11 failures, too.)

The problem with this argument, I believe, is that there is a big difference between our interest in safety from terrorists and our right to be heard in court. The degree to which we will spend money, to make ourselves safe from terrorists, and which measures we should take to do so, may be something that should be left to the discretion of elected officials, and, ultimately, the voters - not to the courts. But the issue of whether courthouses should have sufficient security precautions so that the right to be heard in court can effectively be exercised should not be left to the political process.

That issue is properly addressed in the courts - though perhaps through a new, better-tailored statute, not through existing landowner liability statutes or the federal statute that awards damages for constitutional rights violations. After all, the courts protect the right not to be injured by a defective product or a drunk driver. They should protect a battered woman's right not to be injured in an unsafe courthouse by a violent ex-husband as well.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects.

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