Powell v. District of Columbia

1123 agreement Moreover, Maryland although namely, no cer- whether the there can be decree) underlying separa- (as tainty point, incorporated on this in the divorce explana- agreement provides possible parties tion at least as to should bind The tion for the order’s inconclusiveness. require support so as to amount of child a choice of separation agreement contains changed circum- Mrs. Rollins to show stating: Agreement “This provision law may increase be award- stances before an interpreted in accordance with and shall be Portlock, 518 A.2d 116 ed. Portlock v. Washington, D.C.” controlled the law of (D.C.1986); Albus, A.2d 1229 v. 503 Albus parties agreed application thus Hamilton, (D.C.1986); 247 v. Hamilton law, including laws District of Columbia opin- (D.C.1968). express no A.2d 421 We governing support, any dispute un- child question. ion on this agreement.3 Conceivably the Ma- der the Superior Accordingly, the order of mind, judge had this clause ryland dismissing petition is reversed Court partly,4 dispute such least and envisioned pro- for further and the case is remanded present under District of Colum- as the one ceedings. law, he the case with- bia when dismissed So ordered. purposes prejudice and “for statistical out intentions, judge’s only.” Whatever regard order final as

we cannot open for

its own terms it leaves the door proceedings.

further not fi Maryland

Because the order was nal, Superi- Yarborough require did not POWELL, Appellant, Verdina give it full faith and credit. or Court to Gamble, Gamble v. COLUMBIA, Appellee. DISTRICT OF (D.C.1969)(child subject support decree modification not entitled to full faith No. 90-1016. credit).5 Therefore, Superior Court Appeals. Court may against appellee the properly enforce obligation parent provide sup child Argued Oct. port age majority. Butler v. until 14, 1992. Decided Feb. Butler, 30-401.6 supra; see D.C.Code § judge the trial to consider in We leave for question parties

the first instance a argued appeal,

have not briefed out, represents, appellee not Rollins does 3. Mrs. Conflicts Law, American holding able to avoid its courts have been dispute, that she and the child had resided in Recipro brought twenty the Uniform under District of Columbia for the entire in actions here, (URESA), Support en petition Act years Enforcement of before she filed cal during except period Columbia and codified for a four-month in the District of acted See, (1988). e.g., seq. they Maryland. lived in 30-301 et D.C.Code (D.C.1967). Howze, Ap Howze however, bring petition un pellant, did not may judge mind the also have had in 4. The distinguished URESA. Courts have right alimony, der since she had "re- wife’s where, factually unlike Yarborough situations alimony” rights to claim serve[d] case, asserting spouse full faith agreement. in that separation longer domiciliary the state was no credit E.g., judgment Elkind v. he relied on. whose opinion Yarborough majority found 5. The Cal.Rptr. P.2d Byck, Cal.2d See, among legal commentators. favor little (1968); Thompson, Thompson 645 S.W.2d Recognition Ehrenzweig, Custo- e.g., Interstate however, Appellant, does (Mo.Ct.App.1982). (1953); Decrees, dy Ehrenz- 51 Mich.L.Rev. Rollins remains dispute fact that Mr. not Duties, weig, Recognition Support Interstate Maryland. Note, domiciled (1942); Scope Calif.L.Rev. Judgments, Co- and Credit To Full Faith Note, appellee (1942); does previously, note stated The Full 6.As lum.L.Rev. jurisdiction to en- dispute Superior Court’s Social and Credit Clause and Faith Conflicts (1934). petition. points Leflar tertain Policy, Yale L.J. 648 As Schrager, appellant. S. Richard Counsel, Schwab, Corp. E. Asst. Edward Reischel, Deputy L. Charles with whom brief, Counsel, appel- on the Corp. lee. ROGERS, Judge,

Before Chief FARRELL, Associate SCHWELB Judges.

ROGERS, Judge: Chief Powell reversal Appellant Verdina seeks dismissing judgment her lawsuit We doctrine. barred reverse, erred judge the trial holding that by concluding that under the Hines v. District of govern- (D.C.1990) (citing Turner v. Dis- doctrine the of Columbia (D.C.1987); ment held in tort for the A.2d 662 could not be liable trict of issuing employee of its Morgan v. District of wrong tags regis- (en banc); (D.C.1983) automobile license Platt District appellant’s (D.C.1983); car since tration number 467 A.2d 149 appellant sufficiently alleged special duty Columbia, 444 A.2d v. District Warren bring “special her within the rela- as would (D.C.1981) (en banc)). tionship” exception public duty to the doc- duty doctrine purpose of the trine. employees and its is to shield the District providing liability from associated I “public Hines v. District Co- services.” Appellant Ford purchased a 1984 Escort lumbia, ap- supra, 580 A.2d at 136. As April registered car in the court, operated plied by the it has to bar li- District of and received D.C. person seeking, as by a an individ- lawsuits bearing tags cense the number 131-772. ual, prevent crime enforce the duties to Thereafter, on December she was protect in the against injury and otherwise County, stopped by Mary- an Anne Arundel special relationship im- of a absence im- land officer and her car was legal poses duty. Morgan v. Dis- check, computer through pounded when 468 A.2d at 1311 supra, trict of Washington Area Law Enforcement services); (police Co- (WALES), System incorrectly indicated that (same); lumbia, at 2-3 see supra, A.2d appellant’s registration belonged number Columbia, supra, also Hines v. District of on to another individual.1 Based these (ambulance services); at 136 Platt events, appellant sued the District of Co- District of government (District), alleging lumbia (building permits). at 150 negligently registration it issued her a cer- sovereign immunity doc- Originally, the plates previ- tificate license that had governments state local trine shielded ously Hinds, been issued to Ms. Althea liability under the common all tort negligently registration entered her infor- wrong.” king “the can do no law maxim: system. mation into the The trial WALES Note, Municipal Liability Negligent granted judge the District’s motion to dis- Loy.L.Rev. Inspection, 23 459-460 complaint grounds on miss that the (1977)(quoting v. The Dwell- Russell Men suit was barred doctrine. Devon, Eng.Rep. County ing in the II (K.B. 1788)) Note, Munici- [hereinafter Realizing pal Liability that the doctrine ]. Under the doctrine: led sovereign immunity often to unfair agents its District of [the Columbia] results, jurisdictions many either abolished provide owe no services to altogether, n. 14 id. at 460 the doctrine In- particular citizens as individuals. 4.96.010 (citing Wash.Rev.Code stead, “special relationship” § some Ann. absent 1967)), (West applicability. its or limited government and the between the individ- (1987 seq. 1-1201 et ual, D.C.Code provide pub- §§ the District’s also, large. Repl.);2 to the at see lic services on ProsseR Keaton any at law which a claim is asserted what this suit 1. The record is unclear about caused briefs, referring deposi- parties’ money only to a against error. The on account of dam- part appeal, on tion that is not the record age property loss of or on account to or Bureau of Mo- state that a District Columbia tor negli- personal injury or death caused representative thought Services Vehicle wrongful gent omission of em- act or computer operator the error resulted when a occurring ployee as the result of the District ap- up applications and numbers for mixed pellant employee, operation within such of the Althea and Ms. Hinds. employment, ve- scope of his office or Pro- the District: owned or controlled hicle vided, (1987 Repl.): E.g., D.C.Code arising out of a claim case Columbia shall not Hereafter the District of emergency operation of an vehicle governmental immunity assert defense 1044-1045, in the District of Initially, 1049 & 1052 courts TORTS govemmental/pro- (5th 1984) ed. [hereinafter PROSSER]. determining prietary distinction in when jurisdictions, including A number sovereign bar suit immunity would limit the circum- now District, gradually aban- but governments stances under which can be doned the discretion- favor by adopting sued one more of three Spencer approach. ary/ministerial avoiding liability. approaches alternative Hospital, supra, General U.S.App. Municipal Liability, Note, D.C. 425 F.2d at and cases cited Municipal, Coun- 463, 467; 57 Am.Jur.2d It is now that a District therein.3 “settled School, Liability ty, and State Tort officer, the when sued for the and District approaches 104-144. All three have ex- §§ of re- theory of officer the acts an under or isted at one time another District superior, spondeat protected by sover- are of of Two continue the Columbia. them eign immunity if acts are ‘dis- the officer’s sovereign immunity jurisdictional doctrine’s cretionary,’ subject liability to if the but suit, applicabili- bringing in character.” Ries- to but limit its bar acts were ‘ministerial’ ty by dividing governmental er District of activities into U.S.App. 183 (1) (immuni- 462, (1977); categories: governmental 375, 388, 563 two D.C. F.2d v. North accord District (no (2) immunity) ty) proprietary and of Neighbors, 367 A.2d 143, (D.C. Wash. (no (immunity) discretionary and ministerial 1976) (en banc) (noting that this distinction generally Spencer Gen- immunity). un- was influenced similar distinctions Hospital, 48, eral Act) (citing der the Federal Tort Claims (en banc). (1969) ap- The F.2d third Columbia, 310 A.2d v. District Wade doctrine, of proach public duty which the 857, (D.C.1973). municipality owes focuses “whether the Mu- Note, duty injured person.” to the the This court supra, nicipal Liability, see 467; liability at in limit the District’s doctrine to School, Municipal, County, sovereign immuni- negligence cases where Am.Jur.2d Liability approach and State Tort This ty is not a bar suit. 139. § calling performance of functions emergency the shall be involved "the ran District liable degrees judg- highest of discretion and only gross negligence. for the ment," id., District, the District could including and for those against For other claims the functions, in Id. Other be held liable however, tort. wrongful involving negligent or acts of those employee sim- the District was where employees, § D.C.Code 1-1202 authorizes: developed through ply carrying program out a Mayor the of Columbia of District ... judgment, could and the of discretion exercise settle, discretion, his claims and [or her] in liability Id. District. result in the suits, equity, against either at law in Thus, was not at risk in F.2d District at 483. District of Columbia.... actions, liability but tort for all of its 1-1202(1) provides that D.C.Code also "noth- See, in were nature. those which ministerial construed as de- herein contained shall be U.S.App. e.g., Elgin v. District of priving District Columbia defense (1964) (no bar D.C. 337 F.2d may it have...." by pupil injuries result as a to suit for suffered guardrails repair broken of failure Hospital, supra, Spencer involved a General 3. playground; ministerial act in- at volved). school hospital op- negligent treatment at the claim of clarified its District. The court erated rejections that the "classifi- notion earlier v. District Chandler ends, ‘governmental’ (D.C.1979), of a function cation the discretion- the court begins, inquiry determining into whether ary/ministerial rather than distinction in proceed permitted deciding be care in tort action should owed no the District However, entity.” 425 F.2d at Dis- Id. Hines v. close a fire station. gov- between the court The court drew distinction pose apply where "of a nature as to same distinction functions such declined to ernmental negligently efficiency quality employees responded to a of the threats to services, observing liability request government if tort was for ambulance in the District special negligent form consequence "related to a act or the distinction of [a] made omission," immunity sovereign as a accorded Id. at those that did not. former, determined, municipality.” Id. at 137. F.2d

H27 duty to originated principle from a also a involved individual, that: he has which states himself as an and that injury by peculiar suffered duty may general, owing A be nonperformance.” of its reason everybody, or it may particular, owing single person only by to a reason peculiar position. his Instances (citing 444 A.2d at Cooley, Law of * * * sort latter [include] 1932) (cita- (4th at 385-86 ed. Torts every person to so conduct his business J., omitted)) (Kelly, con- and footnotes tion exposing injury. as to avoid others to curring part dissenting part). duty owing But everybody can never Thus, govemmen- until become foundation of an action discretionary/min tal/proprietary and the placed position some individual is in [a] scope approaches defining the isterial gives him occasion to immunity, District’s upon performance; insist its then be- dichotomy establishes personally. comes a to him determining may sue whether a claimant State, Orzechowski v. 549 n. doctrine, The public duty the District. (R.I.1984) (quoting 3 3 Cooley, Law however, immuni sovereign is not based on (4th 1932)); TORTS 478 at 366 ed. see also considerations, whether, ty but rather Columbia, v. District 444 A.2d Warren if acts even involved are ministerial in (D.C.Super.Ct.1978) 1 (Appended to War- nature, duty an exists. Rieser actionable Columbia, ren v. District 444 A.2d 8 Columbia, supra, v. District (D.C.1981))(rebutting of the tort criticism 477. The at 563 F.2d at principle duty everyone that a to im- owed subject liability injuries District is to for plies duty one). a owed to no employ arising negligence from the of its general duty

From this principle, Professor if the to the ees owed Cooley following formulated for special duty person rule a to that as an determining when public a official owes a as a a class of individual or member of duty: owed; special duty whom a persons to duty cannot if the it the District be sued duty authority which the official [I]f general duty public-at-l a to the owed was imposes upon duty an officer is a to Columbia, arge.4 v. Klahr it, public, a failure or an perform to (D.C.1990)(“Under the A.2d inadequate performance, or erroneous seeking duty doctrine, person to a public, injury, must abe not an individual the District of liable hold Columbia redressed, all, and must be if at in some allege prove must that the public prosecution. form of On the other special injured duty a to the District owed hand, duty if the is a to an individu- any greater than from party, or different al, it, neglect perform then a or to to general public.”). duty which it owed to the

perform properly, is an individual employee cannot be the individual Since wrong, may support an individual his or her duties personally held liable for damages. “The failure of a action mu general public, can the perform to the neither officer a superior the wrong only nicipality respondeat an under a can constitute individual to its person employer is entitled ory when can show that since so.me obligation ("Although "special relationship” "special police no terms have 4. at individual, See, may interchangeably. e.g., duty" once be used to act at the behest of one Columbia, they begin particular citi supra, A.2d act on Turner v. District behalf of 668; 661-62, Columbia, way significantly Platt zen in such as to raise v. District of However, risks as supra, quotient A.2d at use the of risk over and above the we by every other member of the communi terms as stated in Warren v. District Colum- sumed bia, arise.”) responsibilities (citing special relationship supra, ty, 444 A.2d at 3: "a additional Co., imposes special legal duty_" See also Moch Co. v. Water N.Y. ... H.R. Rensselaer (1928)). Morgan supra, v. District 159 N.E. v. v. Metro. Po- City defenses.5 Modlin Nichol District employee’s Beach, (Fla.1967). Miami (D.C.1981) (en banc) Dept., 201 So.2d 70 lice (where plaintiff’s compan- officer directed Although de the court has not to cease efforts to obtain identification ion scribed all of the circumstances under assailants, and then failed to obtain the public duty applies, which the himself, court held that information broadly purposes of court has defined it failings pos- ... officer’s “actions liability. limiting the District’s substantive necessary sessed no additional element See, e.g., Hines District of relationship overriding supra, create clearly 136. The 580 A.2d at to duty”) (companion case applies has the doctrine to law and decided that enforcement services and services akin police fire ex protection, and that 1). may To the District determine whether necessarily istence of user-fee does liable, analyze held court must wheth- Morgan special relationship. create general er the owed to the victim is Columbia, supra, public-at-large, to the which case (no special relationship arises from the Dis- doctrine insulates assistance, person requests fact nor liability, special duty to from or a services); gratuitous promise provide from “special rela- plaintiff, which case nzer Wa tionship” exception to the doc- (D.C.1990) history (noting

A.2d 127 of free applies subject and the District trine service, present prohibition ambulance suit.6 inability against denying pay, service for therefore, decide, question we must E[mergency] “heavy subsidy appellant alleged an action- is whether reve M[edical] S[ervices] by of the able claim reason existence nues”). Moreover, pro within this area of her, thereby special duty owed to and has services, viding police related the doc special brought herself the relation- within applies to as inactions trine actions as well government ship exception. employees. District questions appropriate public policy un about the allocation of 5. A of considerations number public legisla- duty Spencer doctrine. resources to the executive and derlie limited ture, Hospital, U.S.App.D.C. supra, depletion at General of and concern about the "severe separa resources,” at 482. 425 F.2d Courts concerned Morgan v. District Colum- these bia, of powers tion of maintain that emphasized supra, the need the court scrutiny necessary "judicial to doctrine is avoid public employees have broad discretion in for to every govern other of act branches given responding limited resources to demands upon public.” ment which has some effect inescapable that and “the choices of allocation 3; State, supra, at n. 485 A.2d 549 Orzechowski (citation at 1311 omit- must be made.” ted). A.2d Hospital, supra, 138 Spencer see v. General liability, on such a limitation Without (quoting U.S.App.D.C. 425 F.2d at potentially "every for would be liable Elgin v. District omission, po- oversight, or blunder made a 152, (1964) governmen (retaining F.2d lice, building inspection] or offi- [ambulance per immunity injuries arising from "the tal cial." Id. highest calling for the formance degrees functions judgment.”)). Other of discretion does in the instant case The District not claim concerns, courts, focusing on fiscal fear either liability. See 57 Am. it immune from that Note, coffers," public potential "a drain on School, Municipal, County, State Tort Jur.2d (citations Liability, supra, Municipal at 469 (noting Liability "courts have 237-38 § omitted), encouragement in or that posited to issue license that decision deprive municipality litigation will creased discretionary apparently func- did involve correcting governmental error of funds for omitted); tion”) (footnote and Anno- citation cf. complaint. v. District gave rise to the Permits, Licenses, tation, and the Issuance (appended War A.2d 1 to o f 2680(a) Excepting Like within V.S.C.S. Columbia, supra, 444 at 8 ren v. District of Involving Act Tort Claims Claims From Federal 9). the issue from the courts have viewed Other Duty, Discretionary A.L.R. Fed. Function or perspective, government employee’s maintain (1977) ("discretionary excep- function” doctrine such without the Act, 28 U.S.C.S. Federal Tort Claims tion under subject employees an unreasonable would be 2680(a), inapplicable on to claims "based "passed litigation risk that could not certificates"). allegedly negligent reserving issuance In addition their ‘clients’.” Id. bearing plates III tion certificate and license number, reasonably someone else’s it was doctrine, “a Under that, if the error were discover- foreseeable person seeking to hold the of Co ed of the Offices of the Bureau of outside allege lumbia must liable Services, Motor serious conse- Vehicle prove special District owed quences appellant. There- injured could result for party, greater than or fore, different from owed contends the she general public.” Klahr v. District does she not bar lawsuit because Columbia, supra, (cita at 719 576 A.2d recipient particular identified as the omitted). Thus, tions police in the area of services, analogous which are not services, explained the court that a protection provided fire legal duty is created there “when public, funded user and which are conduct, special knowledge course of fee.7 harm, possible or the actual use of individu investigation.” als in the War [criminal] determining whether statute Columbia, supra, ren v. District regulation “special establishes a relation words, liability 3. In other exists ship,” the court has not to date defined a “ ‘special relationship’ where a between the protected class as broad manner city injured party” and the is established. appellant urges. Licensing permit Turner v. District of “spe necessarily do not create a statutes (citation 532 A.2d at 667 and footnote omit relationship.” cial ted). suggested in The court Turner that (D.C. Forsman, “there least ways are at two to demon 1990) (demolition permits; party third ‘special strate the existence of a relation claim); Platt v. District su ship’_” “special Id. at 667. A relation- pra, (occupancy permits 467 A.2d at 152 ship” can pre- be established a statute businesses, necessary fire and scribing “mandatory clearly acts for the building inspections, party code third protection persons aof class of claim). regulation statute or relevant No whole,” rather than the Morgan as a previously prescribes, here an extent special a relation held sufficient create (citations quotation at 1314 and internal pro ship, “mandatory clearly for the acts omitted), by satisfying two-prong or the persons of rath tection of a class test established v. District Platt Co- of er than the as a whole.” Turner lumbia, supra, (citing A.2d at Columbia, supra, 532 A.2d at District Warren v. District of of (finding protected a class of abused (Kelly, J., concurring part A.2d at in Act, dissenting part)), p. and in in the Child Abuse Protection discussed children infra (cit Appellant 1131. asserts that she can satis- the which mandated actions District fy either test. ing su Morgan v. District of 1314)). Although pra, at Appellant contends a result the that as of 40-102(c) (1990 Repl.) requires D.C.Code § requiring registration law mo- District’s identi the District to issue a certificate and vehicles, a tor the District has established qualified motor vehicle own tag fication special class of individuals who must take ers, unpersuasive argues, District not the steps privi- in order exercise the certain provision— ly, purpose of this that the lege owning operating a and motor ve- protect Further, facilitating law enforcement—is to hicle in the Columbia. not vehicle by issuing public-at-large a the and motor registra- that she contends fugitive. only that Appellant’s Id. at 320. The court noted reliance on Scott v. District Co- claim, lumbia, (D.C.1985), alleged computer support tort she had not a 493 A.2d 319 notice District not have sufficient the owed her an individ- hence "the did contention that period claim misplaced. plaintiff of limitations duty, Scott the within the ual In mistakenly it would have defend. because a WALES which was arrested 8(f).” Super.Ct.Civ.R. incorrectly Id. at 323. printout name as a listed her wanted official; 2) justifiable a special Improved agency owners as a or re “class.”8 protects law not motor part enforcement liance the victim.” others, pedestri- vehicle such as owners but (citing v. District Co Warren passengers, not ans and some of whom do J., lumbia, (Kelly, supra, 444 A.2d at 11 Therefore, own as Dis- motor vehicles. part dissenting part)).9 in in concurring maintains, government’s interest prong, The first which focuses on con purpose obtaining in the information plaintiff and the tact between appellant’s car limited to law about was official, privity requires “some form of be enforcement, gener- duly and its was police department and the victim tween the public, provide appellant al not ben- with apart from that sets the victim in manner different efits or services is, That the victim must be public_ provided from those to members of the reasonably plaintiff.” come a foreseeable sense, general public. In she was this Columbia, supra, everyone else who treated J., concurring part in (Kelly, 10at registration. (citing dissenting part) City Tam Nevertheless, type another of statute (Fla. Davis, 2nd 226 So.2d pa may give relationship rise to a even required Dist.Ct.App.1969)). The contact though for a it does not mandate duties must, words, a “direct transac other be special class. A statute which affords injured” “an arms- person with the tion pro- opportunity to seek its individual relationship city’s length in which the by taking may give tection certain actions form, dealing directly, some agent special duty that individual. rise to a injured.” Tampa person City Thus, appellant “special that a contends Davis, supra, at 452-53. 226 So.2d relationship” between herself and the arose argued appellant’s of Motor Ve- con Columbia Bureau It could law, when, required by hicle Services Motor Ser with the Bureau of Vehicle tact forms, filling registered her car out she satisfy prong did first vices statement, paying a making a sworn test.10 Wanzer v. fee. the court noted supra, 580 period even a series of contacts over In Platt v. District of enough some show time is not “absent two-prong test for greater agency assumed kind, “special relationship” of under person owed to “1) duty to that than must demonstrate: large.” But the broad lan continuing be- contact or contact direct obvious, merely states the governmental guage Hines the victim and the tween replacement notify provide respect system, the Dis- ment failed to to the WALES With points Report of the York court distin- statement in the school officials. The New general public in the District on guished Commission on Crime cases President’s (1966), crossing-guard duty voluntarily which indicates that grounds of Columbia community." one, Id. would "result benefits by a limited direct- was assumed individuals, at 192. specific and the at a class of ed and relied to her mother had seen the service two-prong on test based The police department’s decision to on the detriment Goldberg, 44 N.Y.2d Florence v. the decision in Goldberg,supra, provide guard. Florence (1978). N.E.2d 763 404 N.Y.S.2d 404 N.Y.S.2d 375 N.E.2d N.Y.2d at Columbia, supra, 444 See Warren v. J., concurring (Kelly, part and in at 10 dissenting part); id. at 1125 n. in see also argument, appellant's counsel stated 10.At oral Goldberg, opinion). (majority In Florence appeared appellant had not he believed special city basis of a was held liable personally of Motor Vehicle Ser- at the Bureau who, relationship a mother found to arise after car, registration apply of her but for the vices police-supplied observing upon for two weeks However, the use of a a "runner.” intersection, had relied on busy guard crossing at a school change the trans- the fact that “runner” does her accept employment and send decided appellant Bureau of and the action was between child hit himself. The was child to school Services, “runner” was since the day Motor Vehicle serving on a when a taxi at that intersection crossing guard personal agent. appellant’s Depart- was ill and the Police

H31 annually. registration renew her namely, that mere contacts are insufficient 40-102(a) (b) (d), 40- special duty of a & & absence evidence D.C.Code §§ 105(a)(1) (b) (1990 arising Repl.). as a result. The Platt test takes & The statute requires not obligation this into account because it that the District described only proof type application of contact different upon accepting assumed her that of the District with the issuing tags registration. from license and a re- public, proof justifiable 40-102(c). but also Thereafter it was reason- Id. § liance.11 ap- that if ably foreseeable the District registration tags’ license num- pellant’s Appellant prong of the met the first incorrectly recorded and entered ber were special relationship Platt test for a because system, she could suffer the WALES the District’s under the statute to including impound- penalties various plates issue her the correct license car, ment of her as occurred here. Id. registration for her car arose from a “di 40-105(a)(l); 40-102(g)(3), 18 DCMR §§ ap her rect transaction” —as evidenced 411.3, 429.3(c); §§ Ann. Md.TRAns.Code plication payment of a fee—between 13-402.1(f) (1987) (misdemeanor for non- herself and Bureau Motor Vehicle registration noncompliance residents’ personal Services. This direct and transac 1101.1, requirements); 1110.1 18 DCMR §§ undertaking by tion the District to was ($300 days jail); or 10 see also fine individually that on her number Hill, F.Supp. United States v. tags registration belonged only license (D.D.C.1978) (impoundment for failure to to the car she 40- owned. See D.C.Code § register). 102(c)(1990 Repl.); Morgan v. District see 1314; supra, 468 A.2d at cf. second, Appellant also has met the Rieser v. District prong of “justifiable reliance” Platt. 563 F.2d at 479. registration system premised on differ- paying may While fee be insufficient being assigned every ve- ent numbers standing special alone to create a relation 40-102(c); hicle. D.C.Code 18 DCMR ship, see Wanzer v. District of 413.5, (“identification tags are 413.8 §§ supra, 580 A.2d at it is one factor solely operation for the of the vehicle de- properly determining considered in whether registration on the card which ac- scribed place a “direct transaction” took between them”). Indeed, the effective- companpes] appellant and the District.12 registration system ness of the as well suffering penal- system depends a car on an individu-

To drive without the WALES law, numbering registra- appellant required by system ties of Dis- alized car, register accurately are entered into trict of Columbia law to tion numbers reliance, 11. "Justifiable prov or futile action such offi- [of in this context of on the inaction cial]_’’ relationship, su- special Johnson v. District means Morgan pra, reliance.” Colum 580 A.2d at 143. bia, (citations omitted). supra, 468 A.2d at 1315 paid by appellant The court has drawn a distinction between cases differs from 12. The user-fee involving victims who offi suffer ambulance services fee $35 Wanzer. up nothing for those cials’ to show at all or do services fee was waived fail[ure] ambulance arrival, pay, one could be asked about after their "and those who suffer from unable to and no ” ability pay negligence.’ time services were public John their at the officials’ ‘affirmative requested. su- A.2d at son v. District Wanzer Furthermore, pur- (citing pra, at 131. for su satisfying prong (suggesting special duty poses test, the first of the Platt pra, A.2d at a significance "negligent handling of the user-fee is not that it there is the exists where thereby actually paid, dog, negligent operation police a ve exists but establishing that negligent police weapon”), and individualized contact use of a a direct hicle [or] appellant and the Bureau of Motor between and Weeda v. District of contrast, plaintiffs (D.C.1987) (actionable By duty the where ambu Vehicle Services. no such negligently established removed deceased brother lance crew Wanzer up-front paid fee as a wreckage)). may arguably he never victim contact since auto "While a obtaining that the ambulance services ‘rely’ worsen her means of on not to [a official] condition, fairly based arrived. Id. no such reliance can be never 40-102(f) computer. (“[t]o registered registration and her correctly Id. facili- the § regulation correctly the of mo- into tate identification and number entered the WALES Mayor repre- shall system. tor vehicles ... establish on the District’s She relied (4) keeping program tags ... records of the license sentation when she affixed [a] 40-102(e)(l) (reg- registration_”); id. Maryland it into in the to her car and drove expires is since it istration nontransferable that, having registered her properly belief vehicle). upon sale or transfer Since law, not car she would under District’s registration sanctions of the law are penalties driving suffer the without upon through the registrant oper- visited tags. registration valid license and system, appellant of the ation WALES Accordingly, appellant suffi- because District, justifiably could assume that negligence against ciently stated claim assuring in the the effective- interests special duty to as a of its result system, ness of would accu- the WALES her, thereby placing her within the registration rately record her license and doctrine, we exception to the system. number the WALES judgment dismissing her com- reverse the statutory opera- scheme for lawful plaint.13 re- placed tion of a motor vehicle certain which, appellant upon sponsibilities on their SCHWELB, concurring Judge, Associate fulfillment, placed responsibilities in return judgment: in the her owner of the District to as the I judgment, concur as well registered Appellant relied to her vehicle. I Judge opinion. much of Chief ROGERS’ ac- detriment on the District’s affirmative however, my separately, explain write registering accepting her after tions car not public duty view doctrine has that fee, application her reliance ought not be previously applied, been By issuing registration was reasonable. here applied, type to the of situation number, tags and license with certain presented. representations District made constructive pub- Judge describes the Chief ROGERS appellant registration that that number being akin lic doctrine as somewhat assigned to car. D.C.Code had been sovereign immunity. Ante defense 40-102(e)(l). Appellant’s subsequent re- immunity, ob- Sovereign as she 1126. of member of the liance was not that serves, maxim historical stems from the general public upon the assur- — wrong.” The King do no that “the can sys- registration that and WALES ance is, wrong however, that he can do problem their enforcement tem would serve law kings right of does. The divine upon specific rep- often rather purposes —but kings (or govem- make if her that her car would be would sense resentation to colleague, should concurring Judge that the doctrine According who Schwelb means to our only admit apply where latter cases would apparently a much narrower favors court, no-duty-to- liability. this of no The rationale been doctrine than has actor even as- “presumes cases is that the never majority that because the rescue ... contrast, By duty toward the victim. is sumes a defendant in this case Colum- bia, is that principles point the government doctrine do familiar the[ ] range very obli- Concurring broad apply.” opinion assumes a This gations public-at-large, enforceable to the incorrect. The exists, pro- through political and administrative is a whether to determine cesses, of those that to allow suit for breach negligence. generally but Ries- basic element special rela- no U.S.App. individuals with whom supra, 183 duties er v. District of pro- tionship been would have established at 477. The doctrine rests D.C. at F.2d costs, outweigh any accepted supra, understanding, see note repeatedly found on the sound, compensate by govern- governmental for individ- desire to owed duties legislature prac- has determined "everyone” conceptually ual harms. are ment tically individuals, immunity governmental there shall no from duties owed distinct damages arising money from the in suits for different means. hence enforceable vehicles, operation than negligent other of 444 A.2d v. Warren District of runs, by emergency Dis- Moreover, emergency on not vehicles at 8. government employees. D.C.Code private "analytical rescue cousin 1-1213, (1987 Repl.). cases," by 1-1215 concurring opinion §§ if at 1135

H33 (D.C.1979); 994, Donoghue v. Ste- ments) 996 always their conduct to conformed 562, (appeal tak- Unfortunately, venson, App.Cas. 580 angelic norms. 1932 divine because, reason, 2, they Scot.); supra do not. For note PROSSER, en from out, doctrine of majority points “the as the 53, determining whether a at 358. § sovereign immunity led to unfair re- often particular indi- to a defendant owes sults,” 3, has been that doctrine ante vidual, generally dispositive question jurisdic- in this abolished for tort actions rea- that individual was injury to whether tion, “ministe- to the extent that at least to the defendant. sonably foreseeable (as discretionary) distinguished from rial” Apt. Corp., Mass. Ave. Kline v. 1500 are government District functions of the 477, 370, 375-78, 439 F.2d U.S.App.D.C. v. involved.1 See (1970); Long Island Palsgraf 482-85 v. 226, (D.C.1985); Pace, 498 A.2d 228-29 99, 101, 339,-, R.R., 162 N.E. 248 N.Y. 965; Chandler, 1, supra note 404 A.2d at 2, 43, 284- (1928); supra note Prosser, § Wagshal v. District of That, however, is as far as the defen- (D.C.1966).2 172, 173 obliged to duty extends. He is not dant’s oth- sovereign immunity or some Absent peril or to aid them others from rescue reason, princi- compelling er conventional need, at least the absence time of negligence presumptively ples of the law him special relationship between proof of a apply, do and should no matter whether A.C., 573 A.2d plaintiff. In re and the of its citi- defendant is the District one banc); 1235, (D.C.1990)(en v. Rieser See, e.g., zens. Columbia v. (D.C.1982). White, 159, 442 A.2d 162-63 (1977); 375, 393, 462, F.2d Yania (1) ex- The elements of are 343, 316, 322, 155 A.2d 397 Pa. Bigan, by the defendant to istence of a owed 2, 56, at 375- (1959); supra note Prosser, § (2) plaintiff, negligent of that breach defendant, (3) injury present case allegation There is no (4) proximately caused duty to Ms. Powell a See, the District owed e.g., defendant’s breach. pre-exist- Fowler, protect n. her from some 497 A.2d rescue or Columbia v. MacNamara, (D.C.1985); Rather, Ms. the harm which ing peril. Morrison v. PROSSER, (D.C.1979); caused to have suffered was Powell claims has con- supra note 30. The District municipal em- District. When solely element, and Ms. Powell ceded the second registration Ms. Powell’s ployees entered alleged in her com- indisputably facts num- system under a the WALES data into which, plaint proved, if would establish some- already issued to had been ber which remaining third and fourth. The else, reasonably foreseeable one it was question is the District owed whether that, discovered if were to be the error process her automo- duty to Ms. Powell time, inopportune some gendarmerie at registration properly. bile in an unantic- find herself Ms. Powell could gener- tortfeasors ipated quandary. Since must exercise Ordinarily, a defendant care to fore- reasonable ally owe unreasonable risk care to avoid reasonable have been Otis, plaintiffs, this would 396 seeable injury to others. Munson applica- plate regarding license U.S.App. entry of data Elgin 1. In 118-19, (1964), system for- computer involves the F.2d tions into a D.C. balancing.” re- were defined as those policy ministerial functions or “delicate mulation of flecting policy execution of as distinct "the functions, Discretionary its formulation.” likewise jurisdictions have 2. Most American hand, policy involve determinations the other sovereign doctrine of limited the abolished or large people affect numbers which often gov- by a immunity the exercise relation to balancing competing con- "call for a delicate functions; entity some ministerial ernmental Independence, 445 U.S. siderations.” Owen W. gone have even further. Page et Keeton 622, 648, 63 L.Ed.2d 100 S.Ct. Law of Torts al., on the Prosser and Keeton (1980); Colum- Chandler v. District see also 1984) (hereinafter (5th ed. law. at 1044-54 Pros- (D.C.1979). bia, I do ser). argument be made that can serious think 1134 principle liability fol-

end of the matter if the suit had been lished than the non-governmental wrongdoing; neg- defendant. lows tortious that where showing special relationship No ligence proximate injury, is of cause required in kind “rescue” cases would then is liability immunity the rule is necessary have been if the defendant had exception_” High- v. Arizona Stone private party. been a 384, 392, Comm’n, 381 P.2d way 93 Ariz. 107, (1963). 112 however, majority presumes, is because the defendant in this case exemption from The District claims liabil- Columbia, princi- of familiar District these negligence for ity to Ms. its Powell ples apply. not of law of do by theory is so-called that relief barred Judge effectively Chief ROGERS would re- public duty doctrine. Some courts have recover, quire Powell, Ms. in to to order concluded, reasonably my albeit without prove special relationship of the existence metaphor, applied, even heretofore {e.g., the District an between and herself that doctrine is an albatross around representation affirmative the District ought justice.3 neck of Whether not upon reasonably Powell relied which Ms. to jurisdiction, to in this how- be abolished detriment), an ele- which would not be ever, question not before us. Rath- is suing if a pri- ment of case she were er, we must decide whether the corporation. disagree ap- I vate be extended to reach this doctrine should proach. I majority, Unlike the would start case. that, presumption except carry- with the cases, previous the public In our functions, ing its the Dis- discretionary out exclusively to doctrine been trict, party, like other must exercise alleg- the District has situations which injury to avoid to a fore- reasonable care edly steps take affirmative to res- failed to plaintiff. If District fails to do seeable injury from protect cue or so, proximate if the result of its failure something peril someone or caused plaintiff, to then the District injury Application than District itself.4 other required to com- presumptively should be does type of to that of case not injuries. “There the doctrine pensate her for those unprincipled exception to the firmly no more carve out an perhaps doctrine estab- 235, State, See, gent respond request e.g., promptly v. 241-44 failure to Adams 555 P.2d 152, Columbia, Cain, ambulance); (Alaska 1976); 720 Klahr v. District 576 Leake v. P.2d 155- 718, (D.C.1990) (District (Colo.1986) (en banc); owes no indi- A.2d 719 60 Commercial Carrier 1010, protect County, vidually victims al- enforceable Corp. v. Indiana River 371 So.2d negligently (Fla.1979); by escapee Nepstad, legedly v. murdered 1015-17 Wilson 282 664, house); 1979) (en banc); operated halfway (Iowa Platt District v. 667-74 N.W.2d (Dis- 1351, 149, (D.C.1983) Schmieder, v. So.2d 1357-58 Stewart Omaha, (La.1980); inspect properly theater Maple City trict’s failure movie v. Neb. 254, 293, 299-301, (1986); liability patrons of to individual N.W.2d 259-60 does create Comm’rs, proper injured by in- County conditions v. Board 101 N.M. theater spection Schear 671, 673-674, 728, disclosed); (1984); Morgan v. Dis- P.2d 730-31 De would have 1306, 296, 305-06, (D.C. Erie, Long County 468 A.2d 1310-11 v. 60 N.Y.2d 611, 717, 721-22, (en banc) (neither 1983) offi- 469 N.Y.S.2d 616- law enforcement 457 N.E.2d (1983); City Eugene, may v. 285 Or. be held liable for Brennen cials nor the District 406-411, 719, (1979) (en protect P.2d 723-25 individual citizens from harm failure Milwaukee, banc); conduct); City Coffey 74 Wis.2d v. Warren District caused criminal 526, 539-540, (1976); (neither (D.C.1981) De 247 N.W.2d State, (Wyo.1986). P.2d 652-53 Wald v. can held liable nor officials King County, 100 respond Chambers-Castanes v. police properly to re- for failure of n. 669 P.2d n. 5 protection Wash.2d quest from bur- from victims for (1983), Washington, Forsman, Supreme while Court glars); see also principle, upholding (D.C.1990) (District 1317-18 jurisdiction severely criticized case law this duty, in context of issu- no individualized owes inflexibly. applying the doctrine too building person permits, to ensure that liability permit secures insur- whom is issued compensate neighbors See, adequate e.g., ance damage Wanzer collapse (D.C.1990)(absent property caused their rela- structure). permittee’s negli- tionship, held liable for District cannot be

H35 Platt, supra 467 A.2d at general concept municipal liability for we held in note negligence carrying alleg- ministerial func- out in the context of the District’s tions, basically for it is consistent with the negligent adequately carry to edly failure common doctrine that there is no af- law theatre, safety inspections of a movie out spe- duty to rescue some firmative absent patrons, that prevent thus to harm to fact, duty relationship. public cial In the “1) plaintiffs a di- the must demonstrate: analytical are in some measure the cases continuing contact between the vic- rect or private cousins of the rescue cases.5 governmental agency or offi- tim and the precedents cial; 2) the duty justifiable

Our stand for the reliance on proposition plaintiff seeking thereafter, that a recov- part of the victim.” Soon ery against failing the District for to save Morgan, supra, 468 A.2d at we him existing peril protect him from an the two-part test which defined from harm must establish a rela- being requisites special relationship as tionship government the sufficient to with “(1) undertaking protect a specific to that, trump the rule for a even individual, (2) justifiable re- particular defendant, governmental duty there is no rules, plaintiff.” These liance the any provide to individual citizen to such public duty in other doctrine elaborated protection. liability readily If im- were cases, applied roughly correspond to those posed against government in such a private pursuant law to actors to common situation, just any then about victim of principles. rescue might crime or misadventure viewed aware, however, pub- I So far as am having arguable against the Dis- claim duty lic doctrine has never before been against wrongdoer. trict as well as one, such as applied to a situation this Requiring plaintiff who claims that solely lack which it was the District’s own him, negligently failed to rescue directly actively care that of due prevent party, to harm to him from a third negligent- If plaintiff caused the harm.6 distinguish to his own situation from that ly operated police car were to citizenry as a whole is therefore at Powell, arguably Accordingly, injure least strike and Ms. reasonable. My colleagues dispute analogy upon decided in Warren v. District Colum- A.2d ground public duty bia, (en banc), (D.C.1981) contrary that doctrine "is is That, duty to determine whether a exists.” how- my doctrine is view that ever, is also the essence of the rescue doctrine— prior peril inapplicable no where there was no enforceable there is rescue another plaintiff needed rescue and from which only The where individual. difference plaintiff was the result where the harm the government, potential rescuer is the the ar- Nichol, negligence. solely however, of the District’s gument imposing such a to an individu- plaintiff had been assaulted stronger government’s job al is because it accident, following parties third an automohile provide protection community large. to the police had failed to obtain information and the proposi- cases stand for the Our his so that he could sue them— about assailants difference, notwithstanding this tion that situation. The had a classic rescue obligation protect "everyone" existence of an own to discontinue his instructed any not be treated as a will villains, identify court’s but the efforts to precedents That is as far as our individual. liability holding went this did not create gone. See note For the reasons have infra. spe- question constitutes a to the of what opinion, I do not stated below in the text of this nothing absolutely relationship, cial and had go think that we should now further. doctrine do with notion that Warner, Compare A.2d at note applies situations. in non-rescue 130-31, and Hines v. District Judge also cites Johnson v. Chief ROGERS (D.C.1990)(holding 136-37 143 n. 4 duty doctrine barred suit District for (D.C.1990), proposition as Nichol for the same respond prompt- ambulance service to failure of case, involv- classic rescue Johnson was another ly help), Johnson v. District to calls for properly to of an ambulance the failure (D.C.1990) plaintiff’s decedent. respond from the to a call (holding could be held liable if that District majority relies cites passage which the service ac- affirmative of ambulance applies my to it discussion of Nichol Nichol plaintiffs injuries). tively worsens as well. colleagues My apparently Nichol contend that Dep’t, 444 Columbia Metro. Police proximate required compensate her result of the District’s for was

would be injuries.7 Corporation negligence, my Counsel view moreover, argument, entirely that the circum- conceded at was devised for different be liable if such District would likewise of her way not stand in the stances should from failure on the accident resulted recovery. part agent adequately of an public policy of the considerations None brakes, inspect or maintain the car’s Judge ROGERS describes in which Chief though no individual would even supporting the opinion her footnote as princi- I see no plaintiff. be a foreseeable application of public doctrine warrants differentiating pled basis for between Ms. Pow- doctrine here. A decision Ms. that Powell’s situation and that of victim an impos- cry far ell’s favor is a indeed by the Dis- automobile accident caused every of the ing judicial scrutiny over act trict’s lack of due care. government. non-judicial branches of allegedly Ms. harm suffered Pow- public employees to retain “broad need of intangible or theo- ell was not some func- discretion” in the exercise of their contrary, On the it was retical character. entering does not extend to erroneous tions that as a result of the real. She maintains computer issuing someone data plate and the mismatch between her license wrong plate. license To the extent that employees which the District's information by holding the public fisc is diminished sys- into WALES negligently entered this, that such case District liable tem, companions she found them- and two nearly unjust consequence is as leav- highway selves stranded on remote uncompensated for the ing Ms. Powell County, Maryland at 2:30 Anne Arundel which, allegations of com- harm if the her morning, her Ford a.m. one cold December true, plaint are the District's having just impounded. Escort been When surely caused her. upset at understandably she became experience is instructive. In Arizona’s accusation that officer’s not-so-subtle 1963, sovereign immunity the defense of vehicle, had the officer told she stolen the all claims judicially abolished for was quiet, he if she “didn’t was her be Ariz, Stone, supra, state. lost, going up.” Frightened, to lock [her] later, 392, years 381 P.2d 112. Six surroundings in and unfamiliar with doctrine. the court themselves, the aston- they found County, Ariz. Massengill v. Yuma trio had make their ished and bewildered (1969). 518, 521-523, 376, 456 P.2d through the way some distance snow even 1982, Massengill, the court overruled telephone. It almost to find a dawn parameters owed holding “the managed to find taxicab to they when ordinarily coextensive by the state will following them In the weeks drive home.8. Ryan those owed others.” Powell, misadventure, according to Ms. 310, 597, 308, State, P.2d 134 Ariz. contesting go to had to the trouble she (1982). govern- to ominous Responding undeservedly so citation she had been doom, impending warnings mental error, the District’s given as a result of remarked: re-registering retrieving her car and only that not will We are also told unimpeachable plates license obtaining government treasury suffer but prove by prepon- Powell can If Ms.

it. its to a standstill because travail will come evidence that all derance of tion); Warren, Elgin supra note 7. supra note 444 A.2d at Woodbury, U.S.App.D.C. 136 U.S. 337 F.2d at District Columbia (District (1890) (District negligent 34 L.Ed. 472 S.Ct. maintenance liable negligent child). maintenance liable for directly injuring schoolyard fence directly injuring plaintiffs); Booth Dis- streets U.S.App.D.C. F.2d trict of deposition that the Powell testified in Ms. (1956) (same); Hosp., Spencer v. General "charged He us [dollars]. taxicab driver 425 F.2d charged is all we had." $15 us because that (District (1969) negligent provision liable worsening plaintiffs condi- medical services H37 We cant afraid to act. agents will be predictions attendant recall the dire

but decision. publication Stone

Arizona survived! So, 309, 656 P.2d at 598. 134 Ariz. at

Id.

too, District of Columbia the demise of the comer, irrespective of yet around the

is not result of this case. colleagues recog- gratified my

I am barring Pow- improvidence

nize Ms. believe, door. I the courthouse

ell from

however, eminently fair result ought to be se- they have reached straightfor- simpler and more

cured application I favor the

ward route. would negligence, rath- doctrines of

of traditional excep- embarking upon a search for than

er which, public duty doctrine what-

tions to a situation, merits in some other

ever its bearing

seems to me to have no whatever

on this one. REES, Appellant, R.

Jonathan REYES, Appellee,

Blanca L. Blanca L. Rees.

a/k/a

No. 91-740. Appeals. of Columbia Court

Argued Dec.

Decided Feb. Rees, pro se. R.

Jonathan D.C., Jackson, Washington, H. Suzanne appellee. ROGERS, Judge, Chief Before KERN, FARRELL, Judge, and Associate Judge. Senior

Case Details

Case Name: Powell v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Feb 14, 1992

Citation: 602 A.2d 1123

Docket Number: 90-1016

Court Abbreviation: D.C.