*1 Feb. Decided STEADMAN, Before SCHWELB and
GLICKMAN, Judges. Associate SCHWELB, Judge: Associate tragic This which arises from the fire, accidental death of two children in a requires us once again consider duty” doctrine, “public reach of the alia, District, generally protects the inter negligence for alleged firefighters officers and carrying operations. Nadia Miller, individually personal rep- as a resentative of the estates of her deceased children, minor Tionna Blanchard order, Blanchard, Kenisha from an appeals dismissing entered on October prejudice against her action the Dis- trict. Miller her Ms. suit under statutes, wrongful the survival and death alleged and she also infliction of negligent emotional distress. Miller contends alleged pleading that if the facts in her are true, they must for be assumed to be purposes of the motion dis- District’s miss, spe- and breached a owed cial of care to her and to the two children, deceased so that the apply. Concluding doctrine does not disposition the trial is mandated court’s our precedents, we affirm.
I. Complaint, her Amended 14, 2001, July alleged that fire broke *2 Street, only then that Ms. were located. It was home at 446 Lamont out at her were N.W., D.C., that the children was Miller discovered Washington, at which she a niece and not children were her five chil- her living with her husband and cousin, sleeping on the dren; addition, who had been cousin niece Tragically, Ms. Miller’s re- day the of first floor. sleeping her home on were in the children remained maining two promptly reported the fire. The fire was but, negli- burning house. allegedly gross as a result of District, the on the of there gence reveal the es- foregoing paragraphs of delay in the arrival an unreasonable namely, allegations, Miller’s sence of Ms. firefighters firefighting equipment. to Ms. negligently representing that by arrived, Mil- firefighters Before the Ms. safe, all of her children were Miller that three of the children ler’s husband threw her police the induced her and husband safety ground, on the out the window building, prematurely from the jump providing were assis- where rescuing prevented the Millers from thus further Complaint tance. The Amended fire.1 perished children the who alleges follows: as a motion to dismiss The District filed the chil- saving
15. After
first
three
prejudice, claiming that
complaint
the
dren, Nadia Miller looked out the win-
the
the action was barred
Met-
dow from her bedroom and saw a
the mo-
judge granted
The trial
doctrine.
officer,
Department
Police
who
ropolitan
seventeen-page
opinion.
written
tion in a
of the
assisting
with the rescue
Correctly noting
ruling
three children.
motion,
accept the
required
he was
alle-
time,2
16. The
officer called Ms. Mil-
complaint
the amended
gations of
ler,
her
she
the
telling
that
should leave
can
plaintiff
the
judge “assume[d]
the
that
to the
burning
responded
po-
house. She
but for
mistake of
prove that
chil-
lice,
officer that there were two more
and rescued
would have remained
she
Nevertheless,
she
trapped
dwelling
relying,
dren
in the
inter
who[m]
the children.”
po-
alia,
At
time
needed to rescue.
v. District
on Allison Gas Turbine
(D.C.1994),
lice officer
to Ms. Miller and said
called
safely
duty
were
judge
that the other two children
applied
they
the home and that
did not owe “a
ruled that
time,
[children],
Only
greater
at that
than
side
house.
having
led to believe that all five
it owed
from
or different
safe,
Miller,
did Ms.
v.
public.”
her children were
Klahr District
general
husband,
(D.C.1990)
jump Columbia,
with the assistance of her
(citations omitted).
dwelling.
from
Mr. Miller followed
Miller filed a
timely
appeal.
her.
notice of
burning
jumping
17. After
II.
house[,]
taken around
Ms. Miller was
conclude,
judge, that
as did the trial
where the two We
the side of
house to
is an
Although there
officer Allison controls.
children described
Gibson,
Conley
355 U.S.
firefight-
cited
v.
Although
also
faults
rescue,
41, 45-46,
attempting
principal
her
ers for not
law. *3 in This court held Allison that the Dis- Allison, helicopter a trict carrying pilot liability. a was indeed immune from court, Writing and three passengers Judge King crashed for the ex- into the Po- plained public duty follows: tomac River. doctrine as pilot The extracted himself helicopter, doctrine, from the public and he was duty rescued Under the divers, civilian scuba no passen- duty provide public the three has to services gers Initially, particular remained to citizen. trapped inside. Columbia, Hines v. the Harbor A.2d Patrol had no 580 diving equip- 133, (D.C.1990); 136 scene, Warren v. District ment on the and the civilian divers Columbia, (D.C.1981) 3 offered to attempt to rescue passen- (en banc); KEETON, PAGE ET W. gers. declined, The divers’ offer was AL„ PROSSER AND ON KEETON the Harbor Patrol ordered the would-be THE § LAW OF TORTS at 1049 stay rescuers to water. After (5th ed.1984). Rather, “the to arrived, equipment its own the Harbor provide public services is owed to the began operations, Patrol rescue but the and, public at large, absent a re- Patrol’s efforts too late to came save the lationship between the an in- passengers. opposition the District’s dividual, specific no legal duty exists.” motion for summary judgment, plain- Warren, 444 A.2d at A “special rela- tiff offered the deposition of its medical give tionship” may “special rise to a expert, who passengers testified “(1) duty” if is: there a direct contact they drowned because were submerged in or continuing contact vic- between the the river for period an extended of time. tim governmental or of- agency expert that if passengers believed (2) ficial; justifiable a reliance on from removed the wreckage part of the victim.” Dis- Platt v. crash, within ten minutes their trict chances of survival have would been better (D.C.1983) Warren, (citing supra, fifty percent. than J., (Kelly, A.2d at 11 concurring in After suit was the United dissenting part)). States District Court for the District of Id. Applying the doctrine to the record judge, relying it, before court concluded that “the duty doctrine, granted the District’s Harbor Patrol officers’ conduct direct- motion for summary judgment. The plain- ly respon- related to officers’ ‘on-scene appealed, tiff and the United States Court sibility’ conducting opera- the rescue Appeals following then certified tion.” Accordingly, Id. at 845. in the question this court: view, integral court’s conduct “was an Does the public doctrine render the part of general duty the officers’ District of Columbia immune from tort and, therefore, a spe- did not create liability in (citation omitted). a case in the District cial relationship.” Id. police officers private interfere Quoting from the District opinion,3 Court’s rescue efforts of civilians the scene of this court in Allison follows: continued as 1, 14, quoted (1993). Joy District Court had from D.C. F.2d Textron, Inc., Helicopter U.S.App. Bell (as parents) act- as the were put The issue that Allison seeks to officers well jury extraordinary front of the the officers and all ing pressure, whether under reasonably prudent this case acted doing their best concerned doubtless civilians preventing terrifying situa- tragic deal with a But undertaking from the rescue. tion. jury prevents Notwithstanding the similarities be- deciding precisely types these there tween Allison and the [Discretionary during issues.... acts significant difference. potentially also operation can not be later dis- Allison, civilian divers the order subject expert’s sected at trial and *4 a obviously the was stay to out of water whether, opinions hindsight, as to he on the “judgment apprehension call” based police as reasonably prudent
acted a inadvertently might ob- that civilians the officer. injured perhaps or be struct the operation, opined Id. at 845. The court that the Here, to the themselves. direction “may action of the Harbor Patrol officers a not on such jump Miller to was founded by well-grounded have been motivated call, alleged judgment rather on an safety pas- concerns about of both the the (and mis- consequent misapprehension divers,” id., sengers and the civilian scuba statement) namely, that doctrine, and that under the fact—of con- about whom Ms. Miller was children may second-guess the court not “the exer- Allison already had been rescued. cerned by personnel cise of discretion on-scene situation would more be similar operation.” a rescue Id. at 846.4 if had us the Harbor Patrol officers before case, In the per- the incorrectly told the civilian scuba divers ceived obvious similarities between Allison passengers had rescued. that the him. The judge case before noted Allison, pas- the the Harbor Patrol made cases, that allegedly both the victims a sengers’ worse as a result of condition police perished prevented pri- because the case, determination; in this discretionary them, rescuing vate individuals from police the chil- the reduced the chances of case, that in each the were en- officers an being by allegedly making dren rescued gaged making emergency in- decisions question statement of fact. volving operation. a rescue think it incorrect We case, appropriate allegedly that false or incorrect add in this is whether the investigated disposed plain- personally as the area near where The court follows of the analogous light. tiff's reliance on a somewhat deci- Id. at 1116-17. he had observed the by sharply a sion divided theory action was on that An Hawaii: prompt investigation light source of: Appellant cites Po- Fochtman Honolulu at have saved the hikers. See id. would Dep’ts, & lice Fire Haw. P.2d Fochtman, reliance Appellant's municipal imposed lia- however, because, misplaced under this bility because two did not precedent,- municipal would court's investigate flashlight report citizen’s by public case be barred that being nearby frantically waved on a moun- doctrine, "actions since there the officers’ ridge. flashlight apparently tain failing solely to [their] related emergency signal two used an device generally possessed injured hikers who were found dead necessary to create no additional element Fochtman, morning. supra, next overriding relationship reported who at 1115-16. The civilian ], Dep't duty.” D.C. Metro. Police [v. Nichol light to the but for testified [1, (D.C.1981) (en banc) ]. police, he would have assurances subject statement trine are not retrospective “made condition worse than if [the victims’] dissection at trial. This is true even the (or, it would have been had the plaintiffs [rescuers] a person this claimed failed up nothing to show all or done in privity plaintiffs) to be relied to arrival,” after their Johnson v. District misrepre- detriment on a negligent their (D.C.1990), fact police, sentation of on the protec- and thus took the case outside discretionary rather than on a assessment tion of the duty doctrine.5 light of the rescue scene. of these authorities, we conclude that Ms. Miller’s We attempt conclude distin- complaint does claim amended not state a guish this case from Allison basis of upon may granted. which relief Ac- allegedly false statement made cordingly, judgment ac- dismissing officers cannot our be reconciled with en Warren, hereby with prejudice tion banc decision in A.2d 1. Warren, women, young relying two on as- Affirmed.7 help
surances was on *5 way, to check on attempted the condi- SCHWELB, Judge, Associate housemate, tion of their who had been concurring: raped by and sodomized intruders. fact, dispatched no been had join I Although opinion of the inquiry to the house.6 The women’s alert- -indeed, I its it am author —I think court— presence, ed the intruders to their appropriate recognize that some mem captive, women were kidnapped, held of court expressed bers our have the view raped, robbed otherwise mistreated. Columbia, District of subsequently brought The women suit applied expan doctrine has too and, against the notwithstanding sively Dis rigidly. and too See Warren v. telephone calls to the police and (D.C. Columbia, 1, 444 trict A.2d 9-12 of the women’s reliance on the false assur- 1981) (en banc) J., Mack, (Kelly, joined by help ance dispatched, a 4:3 J., and, C.J., Newman, in part, by concur majority of the en banc court sustained the part); ring dissenting Pow dismissal the action for failure to state a 1123, ell v. District upon granted. claim which relief could be (D.C.1992) (Schwelb, J., 1132-37 concur judgment). ring Chambers-Cas together, Allison Considered War- 275, King County, v. for the tanes Wash.2d proposition ren stand 451, one, (1983), 458 n. 5 factual scenario as this the ac- such opera- Washington, upholding while during tions public duty principle, severely tion are doctrine protected doc- Johnson, swered; stop- an drove we reversed award of sum- one officer without door, mary judgment Emergency where Ambulance ping and another knocked on the but Firefighters, having responded emer- one call left when no answered. The second gency involving had call a woman who suf- was made after the had left the area. attack, allegedly fered a heart administered (CPA) cardiopulmonary in a resuscitation 7.Substantially stated for the reasons negligent subsequently manner. The woman order, we in his written conclude died. negligent that Ms. Miller's claim of infliction See of emotional distress 'likewise fails. responded 6. A car had an earlier Baker, (D.C. Williams v. call, tormenting while the intruders were 1990) (enbanc). help housemate. The first call for was an- applying the our earlier cases for criticized al., JOHNSON, Appellants, et Karen H. inflexibly. v.
doctrine too In Fochtman Departments, & Fire Honolulu Police court P.2d 1114 Haw. SOURCE, PAYLESS SHOE sufficiency complaint sustained INC., Appellee. allegations in comparable to Ms. Miller’s this declined expressly this court No. 02-CV-1182. Tur- in Allison Gas to follow Fochtman Appeals. of Columbia Court bine v. District of (D.C.1994). Argued Nov. fairly might doctrine 5, 2004. Decided Feb. stepchild sovereign characterized as the immunity originated immunity. Sovereign (mostly held purported belief princes) in
kings, princesses and queens, kings. That belief—and right divine to one’s to believe whatever is one tends advantage into —translated wrong. no But when king that the can do today’s analogue the District of Columbia— wrongs sat of those who throne — *6 individuals, not too one or more it should liability readily permitted escape for the harm that it has caused. following
I with the agree continue Ari- statement zona: firm- is no doctrine more perhaps
There ly principle established than the liability wrongdoing; follows tortious negligence proximate
that where
the,rule
injury,
cause
immunity
exception.
is the
Comm’n,
Highway
98 Ariz.
Stone v. Ariz.
107, 112
quoted
Powell,
(Schwelb, J.,
curring ate future our en court should banc our decisions consider whether some of are expounding the foregoing propo- too much odds sition.