CAN THE GHOSTBUSTERS BE SUED FOR NOT COMING TO YOUR ASSISTANCE??

By: Steve B. Chu, with help from Cameron J. Chu and Brandon C. Chu

We’ve all been there: enjoying a peaceful day at the park, the kids are playing, and we line up for a sumptuous healthy repast of hot dogs, only to be interrupted by an appearance of the supernatural kind . . .

The horror!!

What happens now?

Who can possibly help us before the focused, non-terminal repeating phantasm, also referred to as a class 5 full roaming vapor, aka “Slimer” makes off with our healthy hot dogs???

Of course! We call our faithful paranormal investigators: the Ghostbusters! They are still busting ghosts after all these years, and doing it well I might add. They would handle the job and protect both our fun and our food, all at the same time. No slime on these hot dogs here!

Now, in the legal world, we live in the realm of “what if?” So what if the Ghostbusters were NOT so quick to respond? In fact, what if they didn’t particularly care for our paranormal dilemma? What if something were to happen that went a little like this . . .

The Ghostbusters NOT answering the call??!! Chaos would ensue: ten years of darkness, cats and dogs living together, you get the picture. So now what? Could an aggrieved park-goer now sue the Ghostbusters for their inaction?

The argument for the case would probably go something like this: the Ghostbusters are in the business of protecting people by fighting ghosts, they make their living this way and even advertise that they protect people. And yet, when I actually called them, they didn’t care! They neglected me and all the other poor park-goers. Thanks to them, we had to live with slimy hot dogs. Would such a case stand a chance in a Court of law?

Can the Ghostbusters be sued for not taking action? Under California law, the answer is a resounding no. In order to file a tort lawsuit seeking money damages, one must first show that the person/entity being sued had a legal responsibility to do something they did not do. Or in legal parlance, the defendant must have owed a legal duty to act. The general rule here is that absent some special responsibility, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Davidson v. City of Westminster, 32 Cal.3d 197, 203 (1982).

In the excellent IDW Ghostbusters comic, the City of New York reached an agreement with the proton pack carrying team to have them act as a form of deputized law enforcement. So let’s take that example of law enforcement and public entities such as police and firefighters. The law makes clear that generally speaking, one cannot civilly sue public safety officers for not coming to one’s aid.

A long line of California cases protects public safety personnel from being sued based upon the failure to act reasonably in protecting members of the public. Williams v. State of California, 34 Cal.3d 18, 28 (1983); Carpenter v. City of Los Angeles, 230 Cal.App.3d 923, 931 (1990); Davidson, 32 Cal.3d at 203. Recovery 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 made some form of promise that they would provide protection to a specific person. Williams, 34 Cal.3d at 28; Carpenter, 230 Cal.App.3d at 931.

In one example, a court found that police had no duty to act when they were engaged in surveillance of a laundromat, a victim was attacked by an assailant, and officers knew there was a similar assault the night before and saw the alleged perpetrator leave and enter the premises several times. Davidson, 32 Cal.3d at 203. The court ruled that a police officer’s mere observation of a citizen’s conduct which might create a risk of harm to others does not create a legal responsibility to control the citizen’s subsequent harmful behavior. Jackson v. Clements, 146 Cal.App.3d 983, 987 (1983).

The rationale for this rule? It is the age old “slippery slope.” As California Courts have recognized: “The problem is that a duty to warn in the context of danger existing off premises will seldom be as simple as passing along unverified information. Inevitably, [the Court] would be imposing not just a duty to warn but a duty to investigate, monitor and evaluate reports of off-premises dangers.”

So the concern is that if we were to allow lawsuits against public officials who are sworn to protect the public and yet fail to do so, we are significantly increasing the potential for lawsuits and people could now sue a police officer for not responding to a call that they personally believe to be meritorious. This would make things more difficult for law enforcement officials to do their jobs as they would have less ability to make their own decisions about where to focus their resources, what investigations to conduct, and how to deploy their personnel.

California also has a specific statute that prevents these type of “failure to act” lawsuits against police. California Government Code sections 818.2 and 845 state that public entities are not liable for failure to provide sufficient police protection service, for failing to make an arrest, or failing to retain an arrested person in custody.

California Courts have specifically held that: “Whether police protection should be provided at all, and the extent to which it should be provided are political decisions which are committed to the policy-making officials of government. To permit review of these decisions by judges and juries would remove the ultimate decision-making authority from those politically responsible for making the decisions.”

(Zelig v. County of Los Angeles, 27 Cal. 4th at 1142 (emphasis added).)

So regardless of the ultimate reason for not responding, the law protects the discretion of law enforcement and public safety officials to decide how best to go about their jobs.

Let’s take the comic example we just saw where poor Louis Tully is attempting to cross at a crosswalk before almost being viciously mowed down by a Zombie Cabbie.  What if super-assistant Janine Melnitz, and the Ghostbusting crew were otherwise engaged in all important contests of video games, pool and darts?  If that were the case, could they be sued?

The answer would remain a resounding no.  The reason the Ghostbusters do not act is not the concern of the inquiry.  The concern is that Courts are reluctant to impose legal obligations upon people that would force them to take action.

Undoubtedly, most situations where public safety officers don’t show up would likely involve officers who are simply tied up on other cases and unable to be everywhere at once.  One can imagine situations where public safety officers are working long hours, getting inundated with calls for assistance, and despite best efforts they still cannot respond to every call.  The law protects these officers from civil lawsuits for the alleged failure to respond.

Here’s what we would LIKE to happen!!  We would like for the Ghostbusters to hang out in their headquarters, ready to spring into action 24 hours a day, 7 days a week.  They could then respond to a call anywhere within the time it takes for Ecto-1 to make the trip.  Who needs a day off when one is fighting evil paranormal spirits?

Part of the Ghostbusters’ recruiting pitch, should they decide to open up their ranks, could include the notion that people cannot legally force the Ghostbusters to act. The Ghostbusters have the freedom to help, or not help, as they choose.

Now as a practical matter, if the Ghostbusters started refusing calls and leaving people to be slimed in parks and crosswalks, then they would likely start losing business and it would be a public relations disaster. However, from a tort law point of view at least, they cannot be forced to act.

On a related side note, a member of the public should also not be able to prevail in a case against the Avengers or any other superhero for failing to swoop in and save them at the last minute for the reasons already discussed.

Indeed, an individual relying upon a civil tort case to force the Ghostbusters to act is likely to end up feeling like this shining example of comic book fan stereotypes.

Have a safe and Happy Halloween everyone!

Toys and Photography: Cameron, Brandon and Steve Chu.

Directed by: Cameron

Ghosts and staging: Brandon and Cameron

For more Lego fun and shenanigans, plus blooper reels, please take a quick look at these two videos: