LANDIS v. ROCKDALE COUNTY et al.
A91A1259
Court of Appeals of Georgia
March 31, 1994
212 Ga. App. 700 | 445 SE2d 264
Judgment affirmed. McMurray, P. J., and Smith, J., concur.
DECIDED MARCH 31, 1994.
Carl A. Johnston, for appellant.
Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.
A91A1259. LANDIS v. ROCKDALE COUNTY et al.
(445 SE2d 264)
ANDREWS, Judge.
After granting certiorari to review our decision in Landis v. Rockdale County, 206 Ga. App. 876 (427 SE2d 286) (1992), the Supreme Court entered an order “remand[ing] this case to the Court of Appeals for it to reconsider its decision in light of City of Rome v. Jordan, [263 Ga. 26 (426 SE2d 861) (1993)].”
In Landis, supra, we assumed, for purposes of the defendants’ motion for summary judgment at issue, that the Rockdale County deputy sheriff observed a noticeably intoxicated driver who approached and spoke to him while he was directing traffic at an intersection. The deputy failed to arrest or otherwise restrain the driver from continuing to drive her automobile. We further assumed that about two hours later, after the driver left a party, and while driving her car in an intoxicated condition, she caused an automobile accident which resulted in the death of the plaintiff‘s husband. The facts are more fully set forth in Landis, supra.
On behalf of her deceased husband, the plaintiff sued, among others, Rockdale County, the sheriff of Rockdale County, and the deputy sheriff who observed the intoxicated driver.1 The controlling issue on the defendants’ motion for summary judgment was whether the deputy sheriff, who observed the intoxicated driver before the fatal accident, had a duty to the plaintiff‘s decedent to protect him from the negligence of the intoxicated driver by arresting or otherwise restraining the intoxicated driver from continuing to drive.
This court‘s task is to reconsider this case in light of the Supreme Court‘s decision in City of Rome, supra. City of Rome involved a negligence claim against the city by a citizen who was injured by the
First, “[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care.” Id. at 27. Second, “[w]hen considering whether there is a duty upon which [a governmental unit] may be held liable for the failure to provide police protection to individual citizens . . . [t]he majority rule is that liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public, except where there is a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual. . . . Therefore, where failure to provide police protection is alleged, there can be no liability based on a [governmental unit‘s] duty to protect the general public. . . . Hence, where there is a special relationship between the individual and the [governmental unit] which sets the individual apart from the general public and engenders a special duty owed to that individual, the [governmental unit] may be subject to liability for the nonfeasance of its police department. . . . In order to determine whether such a special relationship exists, we adopt the following requirements: (1) an explicit assurance by the [governmental unit], through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the [governmental unit] that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the [governmental unit‘s] affirmative undertaking.” (Citations and punctuation omitted.) Id. at 27-29.
In adopting the three requirements to establish the existence of a special relationship, the Supreme Court noted that “[s]ince the situation is not presented by the facts of this case, we do not determine whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not act.” Id. at 29, n. 4. The dissent believes that this language evinces the Supreme Court‘s intention to distinguish its holding in City of Rome from the factual situation presented in Landis, where the police officer observed but failed to stop the intoxicated driver hours prior to the fatal accident. Accordingly, the dissent ignores the general principles governing liability set forth in City of Rome and concludes that, under the present facts, no special relationship between the plaintiff‘s decedent and the governmental unit was
We cannot agree with the conclusion reached by the dissent. It is true that the facts in Landis, where the relationship at issue was between the deputy and the intoxicated driver, may not lend themselves to application of the three special relationship requirements adopted in City of Rome, where the relationship at issue was between the police and the injured citizen. Nevertheless, City of Rome provides guidance in our reconsideration of Landis in light of the general principle which recognizes that liability for a failure to provide police protection cannot be based on a duty to protect the general public. A more logical understanding of the situation distinguished by the Supreme Court in City of Rome is that, even in the absence of one or more of the three express requirements for the existence of a special relationship with the injured citizen, a special duty to protect that citizen might be found under some circumstances where a police officer is present at the scene of a crime about to be perpetrated against the citizen (who at that point is an identifiable victim) and the officer fails to act to protect the citizen despite his ability to do so. No decision need be rendered on such a theory, since this is obviously not the type of situation presented by the facts in Landis.
In Landis, when the deputy sheriff was confronted with the intoxicated driver, plaintiff‘s decedent was not an identifiable victim in immediate danger of harm. At that point, the deputy sheriff had no contact with plaintiff‘s decedent. Although the deputy may have been present at the scene of a crime in that he observed an intoxicated driver, the deputy‘s duty to enforce the drunk driving laws was to the public in general, not specifically to plaintiff‘s decedent, who was killed hours later in a collision with the intoxicated driver at another location. “The special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff‘s decedent. [Cits.] In deciding the issue of when, if ever, an official‘s public duty precipitates into a special one to prevent harm to an individual, the law requires, to maintain the action, a showing of imminent harm to an identifiable victim. [Cits.]” Shore v. Town of Stonington, 444 A2d 1379, 1383 (Conn. 1982) (no liability although police stopped and released drunk driver, who later caused fatal accident).
A clear majority of states which have considered whether police officers have a duty to restrain a drunk driver have followed the rationale of the “public duty” doctrine, which, as adopted in City of Rome, supra, requires that liability be based on facts establishing a duty owed to the injured individual rather than a duty to protect the general public. See Evett v. City of Inverness, 224 S2d 365, 366 (Fla. Dist. Ct. App. 1969) (police officer who stopped but released an intox-
In determining whether the deputy in Landis owed a duty to plaintiff‘s decedent, the foregoing principles must be applied in the context of the general rule of Restatement, Torts 2d, § 315, as stated in Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982), that ” ‘there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.’ Bradley Center dealt with specific exceptions to the general rule under Restatement, Torts 2d, §§ 315 and 319. Section 315 sets forth two exceptions to the no duty rule where ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person‘s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.’ Section 319 is a more specific statement of the type (a) exception of section 315, and provides that: ‘One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.’ ” Landis, supra at 884 (Andrews, J., dissenting).
Under the type (b) exception of § 315, the question is whether there was a special relationship between the deputy sheriff and plaintiff‘s decedent giving rise to a duty imposed on the deputy to protect plaintiff‘s decedent from the negligence of the intoxicated driver. As demonstrated in the foregoing analysis, no such special relationship and no such duty existed because the only duty owed by the deputy at the time he encountered the intoxicated driver was a duty to protect the public in general.
The facts of Landis are more specifically related to the situation described in the type (a) exception of §§ 315 and 319, as discussed in Bradley Center, supra. Under these sections, the question is whether there was a special relationship between the deputy sheriff and the intoxicated driver which imposed a duty on the deputy to control the
Moreover, “although a police officer has authority to arrest a person without a warrant where an offense is committed in his presence or within his immediate knowledge (
“As a majority of this court noted in Ferguson, [supra] (quoting Pierson v. Ray, 386 U. S. 547, 555 (87 SC 1213, 18 LE2d 288) (1967), overruled on other grounds Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982)), ‘[a] policeman‘s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.’ ” Landis, supra at 883 (Pope, J., dissenting). The dissent‘s imposition of a special duty under the facts of this case places police officers in just such a precarious position.
Moreover, by reference to Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), the dissent appears to be re-asserting the position originally taken in Landis, supra, by creating an expanded common law duty imposed on police officers by analogy to the alcohol provider statutes at
City of Rome, supra, provides additional support for the conclusion that the defendants violated no duty for which they could be held liable in tort for the plaintiff‘s claims. The trial court correctly granted the defendants’ motion for summary judgment.
Judgment affirmed. Pope, C. J., McMurray, P. J., Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. Beasley, P. J., and Cooper, J., dissent.
BEASLEY, Presiding Judge, dissenting.
This tort case presents the important issue of whether a law enforcement officer owed a duty to that segment of the general public, which is within the path of travel of an intoxicated driver within his immediate zone of control, to protect a member of that segment who was killed less than two hours later. The alleged breach is the failure to exercise that control by taking custody of the driver or by taking other reasonable steps to prevent her driving. The facts of the case are set out in our original decision, Landis v. Rockdale County, 206 Ga. App. 876 (427 SE2d 286) (1992). Defendants’ petition to the Supreme Court of Georgia for writ of certiorari was granted. Ultimately, the Supreme Court remanded the case to this Court for reconsideration in the light of its decision in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993).
The circumstances of the present case are outside the scope of City of Rome v. Jordan. Jordan involves the “special relationship” exception described in the Restatement (Second) of Torts, § 315 (b), between the defendant and the plaintiff.2 In footnote 4 of the opinion, the Supreme Court stated: “Since the situation is not presented by the facts of this case, we do not determine whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not act.” Recalling from our earlier decision that the posture of this case fo-
There is evidence that Deputy Drummond was present at the scene where Taggart was driving under the influence, talked with her, was aware of her impaired state, and could have terminated her driving and the palpable risk of injury created by it that evening. This response to her demonstrated condition would have saved the life of plaintiff‘s decedent.
Having determined that City of Rome v. Jordan is not directly controlling, the question remains whether or not the rule announced therein should extend to the circumstances of the present case. I conclude that it should not, to the extent of requiring a special relationship in the sense of direct contact between the injured party and the governmental unit because, as we discussed in our earlier consideration of the case, of the ” ‘risks involved and the General Assembly‘s efforts to control drunk driving for the protection not only of those drivers but others on the highways. . . .’ [Cit.]” Landis, supra, citing Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985);
Tort liability in drunk driving cases is extended to social hosts and to commercial purveyors of alcoholic beverages, for the benefit of unidentified members of the traveling public, because of the high risk of injury and high rate of occurrence. Sutter, supra; Studebaker‘s of Savannah v. Tibbs, 195 Ga. App. 142 (392 SE2d 908) (1990) (physical precedent); Tibbs v. Studebaker‘s of Savannah, 184 Ga. App. 642 (a) (362 SE2d 377) (1987) (physical precedent);
A policeman‘s duty, which is undergirded by an officially imposed authority to act, implements that public policy. The duty arises from the officer‘s presence at the scene of a crime (drunk driving), the nature of which crime gives rise to the occurrence of a foreseeable act (injury-producing car crash), coupled with the total power to prevent
I conclude that the trial court erred in granting summary judgment to the three defendants on the claim of Drummond‘s negligence.
I am authorized to state that Judge Cooper joins in this dissent.
DECIDED MARCH 18, 1994 —
RECONSIDERATION DENIED APRIL 1, 1994 —
Thomas W. Malone, Peterson, Dillard, Young, Self & Asselin, James M. LaChance, Lawrence J. Pond, for appellant.
Jenkins & Eells, Frank E. Jenkins III, Maddox, Starnes & Nix, John A. Nix, Chambers, Mabry, McClelland & Brooks, V. Jane Reed, Dawkins & Serio, Harrill L. Dawkins, for appellees.
Abdul S. Valiani, pro se.