Other Cases Affecting Children

Alec Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180 [89 Cal.Rptr.2d 768]. Court of Appeal, Second District, Division 7.

A father, on behalf of his three-year-old son, brought a negligence action against the city and a police officer for failing to investigate or report a reasonable suspicion of child abuse as mandated by Penal Code section 11164 et seq., the Child Abuse and Neglect Reporting Act. The trial court sustained a demurrer to the compliant and held that the city was not liable for the officer's failure to investigate and report reasonable suspicions of child abuse. The child lived with his mother and his mother's boyfriend. The child's father was concerned when he noticed the child's severe facial bruising and black eye. A few days later a neighbor of the child's mother and boyfriend called the father and told him that the child was being beaten. The father immediately went to the police department and reported the black eye, which had been confirmed by the neighbor, and that the child was in the process of being physically abused by the mother's boyfriend. The father described where the child was and offered to take the police to the location. He requested that the police immediately investigate the matter. The police failed to conduct any investigation. Six weeks after the father's report, the child was beaten so badly by the mother's boyfriend that he suffered total and permanent disability. The father brought this action against the city, the officer, and the mother's boyfriend. The trial court sustained the city's demurrer on the grounds that there was no special duty to protect the child from abuse, the department and its officers are immune from liability, and the officer's failure to act was not the cause of the child's injuries. The

Court of Appeal reversed the decision of the trial court. The appellate court determined that based on the Child Abuse and Neglect Reporting Act, the complaint states a cause of action under the doctrine of negligence per se. The officer had a duty under Penal Code section 11166 to investigate and report the reasonable suspicion of child abuse in this instance. Although the general rule is that there is no duty to assist another and the police do not have the duty to protect individual members of society, Penal Code section 11166 created this special duty. Section 11166 provides that an employee of a child protective agency, which includes a police department, who has knowledge of or observes a child, in his or her professional capacity, whom he or she knows or reasonably expects has been the victim of child abuse shall make a report as soon as possible. The appellate court stated that the statute imposed a duty upon the officer to investigate, in order to determine whether there is reasonable suspicion to support the child abuse investigation, and a duty to report the incident of abuse. The duty of professionals, including police officers, to investigate and report incidents of child abuse is mandatory. (See Landeros v. Flood (1976) 17 Cal.3d 399, 131 Cal.Rptr. 69; Planned Parenthood Affiliates v. Van De Kamp (1986) 181 Cal.App.3d 245, 266 Cal.Rptr.2d 361.) The officer's failure to investigate the facts surrounding the father's allegations of abuse in this case was a breach of his duty.

The Court of Appeal discussed whether the failure of the officer to investigate the incidents of abuse proximately caused the child's injuries. The appellate court determined that the abuse caused by the mother's boyfriend was not a superseding cause thereby relieving the city or the officer of liability. Also, the failure to investigate or report an incident of child abuse enhances the chances of repeated and more severe abuse, as happened in this case. The Court of Appeal also held that because the immunity statutes for police officers are only for discretionary law enforcement activities, and in this case the duty was mandated by child abuse reporting statutes, the city could not defend the action on the basis of sovereign immunity. Therefore, in this case both the officer and the city are not immune from liability.