California Appellate Court Reinstates Case Against Couple Who Delayed Calling Police After A Drunk Friend Fell Over Cliff

gavel2There is an interesting ruling out of California where the Third Appellate District has reversed a dismissal of tort claims against two defendants who were sued by their former friend after he fell off a cliff while drunk. The appellate court ruled that there are triable issues in the culpability of Zachary Gudelunas and Sarah Koivumaki in bringing Jason Michael Carlsen to the cliff knowing that he was drunk and then waiting for hours before calling police after he fell off the cliff in Redding above the Sacramento River.

The bizarre case began at a party in October 2008 when Jason Michael Carlsen needed a ride home. It appears that the friend who drove him had developed car problems. Gudelunas and Koivumaki agreed to perform that service. Gudelunas and Koivumaki are classmates at the Bethel School of Supernatural Ministry, a faith healing school. The three drove to a grocery store where Carlsen stole a fifth bottle of run and went to another party. When they arrived at the cliff and all three drank the stolen rum. Carlsen was clearly drunk. That is when Koivumaki started talking about her brother who died after he fell off a bridge and Carlsen laughed – making Kovimaki upset. It was then that Carlsen fell off the cliff. He at first was able to hold on to the cliff but then fell out of sight. Rather than call police, Gudelunas and Koivumaki searched for Carlsen, including wading into the river. They were afraid of getting into trouble and went back to Koivumaki’s apartment where she called her mother in Canada and said “this guy committed suicide; he jumped.” Hours after the fell (and thirty minutes after the call) the couple went to police.

Carlsen would later be found alive but could not remember the fall. He sued the pair for (1) assault and battery, (2) negligence, (3) willful misconduct, and (4) intentional infliction of emotional distress. However a lower court threw out the lawsuit. On its face, one can understand the trial court skepticism. Carlsen was clearly acting in a negligent fashion and his conduct could be viewed as cutting off proximate causation and creating determinative defenses under comparative negligence theories. However, the appellate panel ruled that some of the case was triable. The fact that the pair took a drunken friend to the cliff and then waited so long to call police were viable claims for a jury.

The assault and battery claim is obviously meritless on these facts. The negligence claim is interesting since in the United Stats there is no “duty to rescue” or come to the aid of another person. However that is only when you have not breached a duty that caused or contributed to the danger or the accident. The panel concluded:

From these facts and the supporting evidence, a jury reasonably could infer that Sarah breached her duty of ordinary care owed to Jason, and as a direct and proximate result of her breach, Jason fell from the cliff. While “[t]here may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; … it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability.” (Prosser & Keeton, Torts, supra, § 56, p. 378, fn. omitted.) Although Sarah did not drive the car that transported Jason to the cliff, the evidence supports a finding that she played an active role in placing Jason in a position of peril. She and Zach were close friends and were together at the party. She was present when De la Cruz told Jason that she and Zach had agreed to drive him home. She knew Jason was highly intoxicated. She and Zach had previously planned to go to the Bluffs to watch the sunrise, and Zach had brought a large blanket for that purpose. She and Zach walked with Jason from the roadside to the Bluffs and sat on a blanket with him drinking the rum he had stolen. There is no indication Sarah objected to any of the actions that led to Jason being on the cliff side while in a highly intoxicated state; to the contrary, the evidence suggests she and Zach had planned to go to the Bluffs to watch the sunrise. Sarah was not a passive participant; the only thing she did not do was drive the car. Should a jury conclude that Sarah was responsible for Jason’s fall, she had a legal duty to take affirmative action to assist or protect him after he fell. (See Williams, supra, 34 Cal.3d at p. 23.) A jury reasonably could conclude that Sarah breached that duty by waiting several hours before reporting his fall to police.

Jason’s facts, if proved, also support a finding of a special relationship between Sarah and Jason. A special relationship arises from the facts of the case, from the circumstances which create a peril. A jury reasonably could find that Jason, who was highly intoxicated, was in a particularly vulnerable state and dependent upon defendants for getting him home safely. (See Rotolo, supra, 151 Cal.App.4th at p. 325.) Should a jury conclude there was a special relationship, Sarah had a legal duty to take affirmative action to assist or protect Jason after he fell. (See Williams, supra, 34 Cal.3d at p. 23.)

Both the rulings in favor of Gudelunas and Koivumaki were reversed and the case sent back. In the end, it would be interesting to see how a jury assigned negligence under comparative negligence analysis. It would seem that Carlson has much of the blame though a jury may find that the failure to call police trumps the stealing of the booze and the falling off the cliff.

The case is Carlsen v. Koivumaki, 2014 Cal. App. LEXIS 592.

Source: Courthouse News

26 thoughts on “California Appellate Court Reinstates Case Against Couple Who Delayed Calling Police After A Drunk Friend Fell Over Cliff”

  1. Lets see how this will go in Court. Plaintiff has no memory. There are no witnesses. The defendants have their version. So the jury is stuck with the defendants’ story of what happened.

  2. One of the countless examples of “it’s better to take the drunk home.”

  3. randyjet

    Dredd, I was not really serious of course … This does bring up an interesting question as to what would make one a defendant or an accomplice
    The answer is “agreement.”

    One fourth of all federal prosecutions are based on a conspiracy theory:

    Consider how a law school textbook might introduce the elements of traditional conspiracy law: Imagine that Joe and Sandra agree to rob a bank. From the moment of agreement, they can be found guilty of conspiracy even if they never commit the robbery (it’s called “inchoate liability”). Even if the bank goes out of business, they can still be liable for the conspiracy (“impossibility” is not a defense). Joe can be liable for other crimes that Sandra commits to further the conspiracy’s objective, like hot-wiring a getaway car (it’s called “Pinkerton” liability, after a 1946 Supreme Court case involving tax offenses). He can’t evade liability by staying home on the day of the robbery (a conspirator has to take an affirmative step to “withdraw”). And if the bank heist takes place, both Joe and Sandra can be charged with bank robbery and with the separate crime of conspiracy, each of which carries its own punishment (the crime of conspiracy doesn’t “merge” with the underlying crime). Why should conspiracy liability begin at the moment of “agreement,” before any crime is committed? Why can a conspirator be charged with both the inchoate offense of conspiracy and the robbery? Why should the law punish conspirators even if it’s impossible for them to commit the crime they planned? Why is withdrawal from a conspiracy so difficult?

    (Yale Law Journal). If the other person does not know you are kidding it can be a problem.

    Better safe than sorry these days.

  4. Estoppel. I would interpose the defense of estoppel. The plaintiff is estopped to sue them for failure to act because he acted positively to jump off. Estoppel by actions. We need an estoppel discussion here.

    1. raff, At the very least they were simply giving him time to faith heal himself from any injuries he may have gotten from the fall. When it became apparent that he had not healed himself, THEN it was time to call the sheriff. It seems the plaintiff has so little faith that he failed to fly as expected, and failed to heal himself. It is all on the guy, not his friends.

  5. If they were students at a faith healing school, maybe they thought he would fly off the cliff and land safely?? 🙂

  6. Laser, That would only work if you can lure Nugent to CA. In Texas, he could get away with shooting you for saying the O word!

  7. I heard a remark the other day – apropos.

    A group said “let’s go to Ted Nugents house and have him show off his gun collection. One of us can mention Obama and maybe Ted will blow up, shot himself; and we can all sue his estate for the emotional distress”.

    I’m just sayin………………

  8. @NickS

    Thx!!! These people here are cruel! My room has an eastern exposure and every morning a cna comes in and pulls the blinds and EEEEGGAHHHH!!! there ‘s all this sunlight everywhere and they smirk out “sunlight is good for you, Squeeky. . .” Not if you ‘re half snockered it’s not.

    Squeeky Fromm
    Girl Reporter

    1. I am quite glad I do not live in CA any more for a number of reasons, but their legal system is one of the things I really disliked. At least in Texas, I have the right of armed self defense of persons and property, unlike CA. Of course, Texas does go overboard in the opposite direction in many cases. In many if not most parts of Texas, the phrase “the sumbitch needed killin” is a valid defense to murder. Just look at the T.Cullen Davis murder trials in which his defense that the B!tch needed killin was a valid defense and he got away with it. Texas would be perfect if we could hit a happy medium in our legal system and we could get the GOP hacks out of power.

  9. @Dredd

    I propped one eye open and read the stuff at the link. They don ‘t serve breakfast here until nine, and I may have to drink a Pepsi if I don ‘t get some coffee soon. But, I am going home Saturday!!!

    Anyway, did that one defendant stupidly fail to file an answer, or did an attorney file some sort of Rule 12(???) motion in lieu of a response??? If the latter, look for a malpractice claim. Oh, I am soooo sleepy.

    Squeeky Fromm
    Girl Reporter

  10. I’m fairly common sense in cases like this, leaning toward the defense. But, I see this as a good and interesting ruling. Thanks for posting it.

  11. randyjet

    … My advice was to shoot the attorney since Ray was fairly old and even if they caught him, he would probably be dead before it went to trial.
    You would be an accomplice and/or a defendant.

    Not wise words these days.

    1. Dredd, I was not really serious of course, but I was pointing out the obvious facts. I guess in California, the producers of the Shakespeare play which has the line “First let’s kill all the lawyers” would be in trouble if a lawyer gets shot in the town where it was running.

      This does bring up an interesting question as to what would make one a defendant or an accomplice. My impression was that one has to take some constructive step such as buying a gun, or driving him to the killing site. Then just what recourse does a poor defendant in a law suit have In a civil suit that has no merit? I have read about one woman in CA who was constantly suing her neighbors for one thing or another and driving them to bankruptcy with all the suits.

  12. Only in California! When I lived in Yreka, a friend of mine had an alcoholic neighbor who lived across the street. They had been having problems, so Ray got a restraining order to keep the drunk off of his property. One day the drunk was in his usual state and obnoxiously drunk and came over in violation of the order. He dared Ray to shoot him. Ray declined, and said he was calling the cops. The guy left, went home and hung himself in his garage. The widow sued Ray and other neighbors for causing her husbands suicide.

    Ray did not have the money to hire an attorney and did not know what to do. I left the area just after so I never heard what happened. My advice was to shoot the attorney since Ray was fairly old and even if they caught him, he would probably be dead before it went to trial.

  13. Squeeky,


    The medical bills. I am sure his attorney will introduce them.

    As far as there being a default, don ‘t some states hold that an answer by one defendant will serve to prevent default???
    The “medical bills” will not distinguish any bodily damage that happened at impact from any damages that happened after the initial damage/

    What damage would waiting do that medical bills would show?

    There will have to be testimony by a forensic medical expert, because the plaintiff can’t remember anything.

    Typically the defense will also have a forensic medical expert who will counter the plaintiff’s expert.

    As to the failure to answer the complaint, the appellate court settled that with an answer of “no.”

    Will the defendants petition the California Supreme Court?

  14. @Dredd

    The medical bills. I am sure his attorney will introduce them.

    As far as there being a default, don ‘t some states hold that an answer by one defendant will serve to prevent default???

    Squeeky Fromm
    Girl Reporter

  15. Squeeky,

    Well, I don’t think friends let friends fall off cliffs.


    That proves they are not friends, but it does not matter.

    Who or what is going to prove damage after his fall and subsequent impact with the ground?

  16. The not calling combined with some negligence will bring up damages.

    Did the wait cause further damage, or just emotional impact?

    How is the plaintiff going to prove delay caused further injury and to what degree?

    The testimony of the drunk guy who stole booze and fell?

    The defendants were stupid to bring suspicion on themselves, and wrong not to call for help right away, but the damages are not clear.

    The one defendant was stupid on steroids for not responding to the complaint: “A defendant’s failure to answer the complaint has the same effect as admitting the well-pleaded allegations of the complaint, and as to these admissions no further proof of liability is required,” Blease wrote.

    So, again, does the testimony of the plaintiff hold any weight on that?

    He [plaintiff] cannot recall being at The Bluffs, much less his fall or waiting for help to arrive,” the ruling states. “Accordingly, Sarah’s conduct could not be the actual and proximate cause on any mental distress he has suffered.”

    Will forensic testimony be able to distinguish initial damage caused by impact from further and additional damage caused by waiting?

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