Warren v. District of Columbia

WARREN, al., Appellants, Carolyn et COLUMBIA,

DISTRICT et OF

al., Appellees. NICHOL, Appellant,

Wilfred

DISTRICT OF COLUMBIA METROPOL DEPARTMENT,

ITAN et POLICE

al., Appellees.

Nos. 79-394.

District of of Appeals. Columbia Court En

Argued April Banc Dec.

Decided C., Friedman, Washington, D. A.

Stephen for appellants. Reischel, Corp. Deputy Coun-

Chаrles L. Corp. sel, Rogers, W. whom Judith Sutton, Counsel, Corp. P. Asst. and David Counsel, C., were on Washington, D. petition, appellees. NEWMAN, Judge, and Chief

Before NEBEKER, HARRIS, KELLY, KERN, FERREN, Judges. Associate MACK NEBEKER, Associate Judge: dispatched promptly. Warren’s call was Metropolitan received at Department Appellants Warren, Carolyn Miriam m., Headquarters at 6:23 a. and was record- Douglas, and Joan Taliaferro in No. ed as a burglary progress. m., At 6:26 a. appellant Wilfred Nichol in No. 79-394 dispatched a call was to officers on the sued the District of Columbia and individu- street as a assignment, “Code 2” although al members Police De- calls of a progress crime in given should be partment for provide failure to priority designated as “Code 1.” Four adequate police respective services. The broadcast; responded cruisers trial judges held that the police were under three to the Lamont address Street and one no specific legal duty provide protection to another address to investigate possible to the individual appellants and dismissed suspect. the complaints for failure to state a claim upon Meanwhile, which relief granted. could be Super. Warren and Taliaferro 12(b)(6). However, Ct.Civ.R. crawled from split in a their window adjoin- deci- onto an sion a three-judge ing roof and division of this court waited for the to arrive. there, Warren, determined that appellants they policeman While saw one Taliaf- drive erro through alley and Nichol were owed a behind their house and care the police department proceed to the front and reversed residence with- window, the trial rulings. stopping, leaning court out out the division unani- mously appellant getting concluded that out of the cаr to check Douglas the back failed to fit within entrance of the A persons the class of house. second officer whom special owed, apparently duty was knocked on the door in and af- front of residence, firmed the lower court’s but left when dismissal of her he received no complaint. banc, The court en on answer. The three petitions departed officers m., rehearing, vacated the scene at 6:33 a. panel’s they decision. five minutes after After rearguments, arrived. notwithstanding our sympathy appellants who were the trag- Warren and Taliaferro crawled back in-

ic victims despicable acts, criminal we They again side their room. heard Douglas’ affirm judgments of dismissal. screams; continuing again police; called the Appeal No. 79-6 told the officer that the intruders had en- home, tered the requested immediate the early morning hours of March again, assistance. Once officer as- 1975, appellants Warren, Carolyn Joan Tal- help sured them that was on the This way. iaferro, and Miriam Douglas asleep were second call was received at 6:42 a. m. and rooming Street, their house at 1112 Lamont merely “investigate recorded as the trou- N.W. Warren and Taliaferro shared a ble” —it was dispatched any police never house; room on the third floor Doug- officers. las shared a room on the second floor with her four-year-old daughter. The women Believing police might be in the were awakened sound the back house, Warren and Taliaferro called down door being broken down two men later Douglas, thereby alerting Kent to their identified as Marvin Kent and James presence. Kent and Morse then forced all Morse. The men Douglas’ entered sеcond women, knifepoint, three to accompany room, floor where Douglas Kent forced apartment. them to Kent’s For the next sodomize him and raped Morse her. cap- fourteen hours the were women held tive, robbed, beaten, raped, forced to com- Warren and Taliaferro Douglas’ heard other, mit sexual acts each and made screams from the floor below. Warren tel- to submit to the sexual demands Kent ephoned police, told the officer and Morse. the house was being burglarized, and requested immediate assistance. The de- Appellants’ negligence claims of included: partment employee quiet told her to remain the dispatcher’s failure to forward the 6:23 and assured her assistance would a. proper degree urgen- m. call with the cy; services is owed to the responding officers’ failure to fol- vide and, low standard police investigative proce- relationship large, absent (cid:127) dures, specifically failure to individual, check between prop- rear entrance and position themselves specific legal duty Holding exists. that no near erly as- doors windows to special relationship between the po- existed certain any activity whether there was in- 79-6, Judge appellants lice and No. Han- side; and the dispatcher’s failure to dis- legal non concluded that no patch the 6:42 a. m. call. Judge We hold that Hannon was existed. adopt portions correct the relevant of and No. Appeal 79-394 portions appear his Those in the opinion. April 30,1978, On 11:30 approximately Appendix.1 following m., p. appellant stopped Nichol his car for a light red the intersection of Missouri court, Judge Pryor, then of the trial Street, Avenue and Un- Sixteenth N.W. in No. 79-394 the basis of ruled likewise known occupants in a vehicle be- directly opinion. In No. Judge Hannon’s appellant hind car rear struck his in the companion directed Nichol’s to officer times, several proceeded and then to beat identify cease to the assailants and efforts appellant breaking about the face and head off thus to break the violent confrontation. jaw. his get to identification officer’s directly his official and was one related to Metropolitan A Department Police officer general duty to the offenses. investigate arrived at the In response scene. to solely His direction, failings actions were related appellant’s officer’s companion duty to any public generally ceased to his further to efforts obtain identi- possessed neсessary fication of additional element information assailants. overriding relationship When the to an special officer then failed to create get information, Nichol leaving duty.2 unable to insti- legal against assailants, tute action his the hostile separate Here the effort to brought Nichol a negligence against action necessary from the victims —a assailants officer, Depart- part responsibility of the on-scene ment and the District Columbia. nothing general duty —adds owed and fails to create a rela- judges The trial dis correctly imposes legal duty tionship special

missed both complaints. In a rea carefully soned such as created when there is a course Opinion, Memorandum Han- conduct, knowledge special possible non based his decision No. 79-6 on “the harm, fundamental actual use individuals in the princiрle that a agents City and its of New general duty investigation. are under no See Falco v. services, 673, provide public pro York, (App. 524 such as 34 A.D.2d 310 N.Y.S.2d tection, aff’d, 918, particular 329 N.Y. Div.1970), individual citizen.” 29 N.Y.2d 4, p. 97, (police See pro- (1972) infra. 279 N.E.2d 854 offi- S.2d 389, Having (1969) (en banc) (use 1. based 453 his dismissal on an absence of 449 P.2d of auto duty, Judge unnecessary investigation by Hannon found it accident victim to aid adequacy street); decide the point the notice to the Dis- walking impact Johnson 1973, trict of Columbia 12- 240, under D.C.Code States, 782, Cal.Rptr. § 447 69 Cal.2d 73 Consequently, do not is- we review that (1968) (en youth banc) (placement of P.2d 352 appeal. sue on in foster homicidal tendencies with known Chicago Ridge, home); Village 71 Gardner can special It be seen from cases in which a 373, (1966) (return Ill.App.2d 219 147 N.E.2d duty has been found that additional element up” victim scene for “show identification injected existing general has been аbove the City suspects); Schuster v. still assault violent public duty. E.g., Goldberg, 44 Florence v. 265, York, 75, 5 N.Y.S.2d of New N.Y.2d 180 189, 583, N.Y.2d 404 375 N.E.2d 763 N.Y.S.2d (1958) (recruitment of citizen 154 N.E.2d (1978) (school crossing guard course of con- organized in national violent crime informant case). police requiring replacement duct and of absent guard together reliance); McCorkle Angeles, Cal.Rptr. of Los 70 Cal.2d cer’s ‍‌​‌​‌​​‌‌‌​‌‌​‌​‌‌‌‌​​​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌​​​​​‌​‍injured granted panel statement motorcyclist opinion vacated on other he would obtain name of motorist who grounds; panel opinion in perti- reinstated struck the motorcycle gratuitous was a part, nent 188 U.S.App.D.C. 580 F.2d promise and did not create a legal ^[647] (1978)); Westminster Investing duty); Jackson v. Heyman, N.J.Super. Corp. v. G. C. Murphy U.S.App. 281, 314 (Super.Ct.Law Div.1973) A.2d 82 247, 259-50, D.C. 434 F.2d 523-24 (police investigation officers’ of vehicle acci- (1970) Wells, and Yohanan v. No. 78-0671 dent pedestrian where was a minor child did (D.D.C. 28, 1978), June with Massengill v. not create a special legal duty to child’s County, Yuma 104 Ariz. 456 P.2d 376 parents who were unsuccessful in at- (1969) (en banc); Riss v. of New tempt to recover damages because 22 N.Y.2d 240 N.E.2d failed identify vehicle). drivers of We (1968); Annot., (1972) 46 A.L.R.3d 1084 hold that Judge Pryor did not err in dis- Annot., 41 A.L.R.3d 700 This missing No. 79-394 for failure to state a uniformly accepted upon rule rests the fun- claim. damental principle agents its are under general duty case, In either easy to condemn the services, provide public such as pro- failings police. However, of the the desire tection, any particular individual citizen. for condemnation satisfy cannot the need States, Turner v. United 357- U.S. for a special relationship out of which a 109, 110, (1919); 39 S.Ct. 63 L.Ed. 291 specific persons arises. In neither Columbia, supra. Rieser v. District of of these cases has a relationship been al- leged beyond that found in publicly A maintained force consti- responses to crimes. Civil fails aas governmental tutes a bаsic provided service matter of law. community large to benefit the at by pro- moting public peace, safety good order.

APPENDIX The extent quality police protection community afforded to the necessarily de- SUPERIOR COURT OF THE DISTRICT pends upon availability public re- OF COLUMBIA CIVIL DIVISION upon legislative sources and or administra- Civil Action No. 4695-76 tive concerning determinations allocation of those City resources. Riss v. of New WARREN, al., CAROLYN Plaintiffs, et supra. public, through representa- its officials, recruits, trains, tive maintains and disciplines its force and determines COLUMBIA, DISTRICT OF et the manner personnel in which are de- al., Defendants. time, At ployed. any given publicly fur- MEMORANDUM OPINION police protection nished may accrue to the citizens,

personal benefit of individual Court, however, does agree all times the needs and interests of the defendants owed a legal duty to community predominate. аt large Private respect allegations resources and needs have little direct effect made in the complaint amended for the the nature of provided services reason that the District of ap- Columbia public. Accordingly, to the courts have pears to follow the exception well-established rule without concluded that when a official police personnel and the municipality governmental or other entity government employing gener- services, them are not undertakes to furnish police it as- ally liable to victims of criminal acts for duty only public large sumes a failure to provide adequate police protec- not to individual members of the communi- tion. Compare Rieser v. District of ty. Stamford, Colum- E.g., City Trautman v. bia, 183 U.S.App.D.C. 375, 390-91, 563 F.2d Conn.Supp. (1975); 350 A.2d 782 Hen- (1977) 477-78 en (rehearing banc ‍‌​‌​‌​​‌‌‌​‌‌​‌​‌‌‌‌​​​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌​​​​​‌​‍Petersburg, derson v. St. So.2d

that officers be on Fol- scene. Massengill (Fla.Dist.Ct.App.1971); lowing carefully given the instructions him County, supra, Yuma and Riss v. police, was, nonetheless, plaintiff York, supra. New Dereliction in the per- shot by assailants. The dismissing order therefore, of police may, formance duties plaintiff’s complaint against city only redressed in the context of a that, grounds affirmed on the in the ab- prosecution and not private in a suit for sence relationship, not present money damages. Massengill, supra. case, police department was un- This rule of owed der no protect plaintiff Henderson. large frequently has been most applied It Massengill was in v. Yuma County, involving cases complaints inadequate supra, Court, Supreme Arizona in a protection during urban riots or mob vio decision, unanimous en banc affirmed the Many challenge lence. these cases complaint dismissal of а preparedness alleging of the that a police to handle such situations, others, deputy sheriff county and the employing while such as Westmin ster him were Investing Corp. Murphy v. G. C. in failing apprehend supra, two challenge the tactical decisions made reckless drivers. According to the com- to curtail or police protection plaint, remove deputy sheriff saw two youths Westminster, the riot areas. officials of leave a local tavern and drive their cars the Metropolitan Department away at excessive speeds. The deputy sher- District of Columbia had decided to limit iff allegedly then cars, followed the two police presence in Murphy the area of the watching them weave forth, back and drive Company’s during store the firey 1968 riots. wrong on the side of the attempt road and Murphy’s destroyed store was and the com pass a hill. The officer made no pany a claim against filed the District of attempt to apprehend the pre- drivers or Columbia contending police depart vent their reckless conduct. Shortly there- ment deliberately had negligently aban after the two reckless drivers collided with doned policing obligations during its the an oncoming vehicle causing the deaths of riots and thereby permitted rioters de five persons of the six involved. The Arizo- stroy Murphy’s property. affirming In na Superior Court had concluded that the Murphy’s against dismissal of claim the Dis duty of defendants to arrest the reckless trict, the United of Appeals States Court duty drivers was a general owed to the for the District of held Columbia Circuit public and occupants not to the deceased that the District of Columbia had no direct oncoming vehicle. The Arizona Su- legal obligatiоn Murphy Mur preme Accord, agreed. Court Trautman v. phy, therefore, right had “no substantive Stamford, City of supra. 1 omit- [Footnote damages resulting recover the from failure ted.] government keep or its officers to [the] duty The public may owed 252, 526, the peace.” Id. at F.2d 434 a specific become owed to an individu- quoting States, Turner v. supra United [248 police al if the and the individual are in a S.Ct.at 110], at 358 U.S.] [39 special relationship different from that ex- Courts have also found private duty no isting gen- police between the and citizens in an assortment of other Thus, erally. police when the New York situations which involved allegedly inade- department solicited confidential informa- quate police protection. v. Henderson apprehension gangster tion to aid in Wil- City Petersburg, supra, plaintiff St. had Sutton, police special lie assumed a police dеpart- contacted the Petersburg St. to the informant who came forward. ment arrangements and made York, 75, City Schuster v. New 5 N.Y.2d police making protection while deliveries in (1958). 180 154 N.E.2d 534 part city. dark and secluded Plain- special relationship was created previously Similarly, tiff had been attacked while and, arranged a making such deliveries re- when the confrontation accordingly, crime, lied personnel suspect the assurances of and a witness to between 6 called the

more without success. his opportunity following day, an suitor carried out suspect thereby giving Village v. “having thug lye the witness. Gardner throw to assault hired threat 373, 219 Ridge, Ill.App.2d Chicago 71 face.” 293 N.Y.S.2d [plaintiff’s] Id. at City of v. (1966). In McCorkle Distinguishing N.E.2d 240 N.E.2d at 862. 252, Cal.Rptr. 70 Cal.2d Angeles, supra, Los New Schuster investi- officer (1969), police help 449 P.2d 453 did plaintiff’s pleas Court held into plaintiff led a traffic accident gating speciаl relationship create a between plaintiff where the highway middle of not serve as and the and could herself The Cali- car. by another was then struck liability. basis of had special found that a fornia Court plaintiff in Antique Corporation Arts affirmative by the officer’s created Torrance, been Cal.App.3d Likewise, officer parole conduct. (1974), Cal.Rptr. 332 arranged to have its relationship special to have been in a held burglar alarm directly wired to the Tor home operating a foster with individuals rance station. Plaintiff contended to dis- and, therefore, obligation under an the alarm went during off the course juvenile of a violent close the character of a burglary neg police dispatcher in the foster sought place whom he ligently delayed ten minutes before trans 782, 73 State, 69 Cal.2d home. Johnson alert, mitting thereby allowing the bur (1968).2 Thе 240, 447 P.2d Cal.Rptr. glars escape plaintiff’s goods. for the Appeals Court States United argued hookup Plaintiff the alarm cre a similar recognized District of Columbia special police, ated a relationship with the relationship between rejected contention, but the Court this con violent, family of hospital mental cluding alarm, that “an irre alert from hospital planned who patient assaultive spective transmitted, of how is no more hospital knew had who the discharge than a complaint that a crime has been or is members. family attacked previously being 592, 114 Cal.Rptr. committed.” Id. States, U.S.App.D.C. Hicks v. United at 334. F.2d above, Appeals the Florida As noted Henderson complaint dismissed Court that in this contend action Plaintiffs notwith- supra, Petersburg, of St. relationship with too, a special entered they, having requested standing plaintiff’s tele- and Taliaferro when Warren police police pro- for specifically plans discussed Courts request assistance. phoned which the in reviewing After cases tection. com- opportunity to consider had have were government agency or other police that a situations have concluded parable that ‘special duty’ under a different for aid is not in itself sufficient request the Florida public generally, to the owed In Riss special duty. create a police for request that a Court concluded had com- supra, plaintiff New accompanied by even protection, when times about police to the numerous plained provided, be protection would her that promise threatened rejected suitor who had necessary duty” “special des- not create the response plaintiff’s In does repeatedly. Id. at liability. rendered tort to establish pleas help, perate the- novel help have a more adopted Plaintiffs and refused nominal assistance only this case attempt distinguish a “last ory received in an further. Plaintiff plaintiff con- once Plaintiffs discussed above. threat from the suitor from those chance” Wrongful Act Death presented of Columbia in District A factual situation is similar complex, Columbia, apartment against supra. the owners of the This v. District of Rieser parole raped parolee, the District officer case involved a who was woman Appeals, MacKin- parolee The Court of Columbia. murdered District Columbia non, .Judge, an ac- alia that parole in held inter who officer Circuit had been assisted relation- obtaining employment apartment com- exists where at the tionable ship govern- plex place. between the dece- been established where the has murder took plaintiff. damages dent’s father filed under mental unit suit for adequate fight water the fire constitut- tend although ed, most, withholding nonactionable Department may not have been under a a benefit. Whatever the omissions and fail- specific duty plaintiffs to these at the time ures of the defendant officers in this of the initial telephone complaint, action, alleged failures, those omissions and undertook an obligation by taking some ac- too, constituted no more than a similar tion toward rendering assistance. Plain- withholding of a benefit. tiffs seem saying to be liability Moreover, premised volunteer would have attached had the operator large part in upon the assumption plaintiffs’ refused call, had the dispatcher volunteer is free to assess each rescuе situa- refused to transmit the message, or had the tion, involved, weigh the risks and deter- officers refused However, to respond. mine obligation whether to shoulder the plaintiffs’ argument continues, op- once the leave it to someone else.3 Police officers erator, dispatcher and officers took some clearly are not in a position to make such action to plaintiffs, assist they all became choices on ease case basis and would personally answerable money in damages presume absurd to individual for failing to render assistance adequate to assumes a permanent “volunteer” status meet plaintiffs' needs. Without any sup- when he Again, becomes officer. in porting plaintiffs authority, contend that Judge the words of Cardozo: defendant police employees were “at least” position obligаtion An intention to assume an volunteers and must be held liable as volunteers indefinite extension to member of every for any damages resulting from their negligent improba- is seen to be the more omissions. Plaintiffs’ argument misapprehends both ble when we recall the burden crushing the legal status of the police officer and the obligation impose.... A legal status of the volunteer. promisor will be deemed to have had not case, Co.,

In assumption the classic H. R. Moch Inc. mind a risk so over- Rensselaer Water 247 N.Y. whelming trivial at. reward. [Id. (1928), N.E. 896 then Cardozo deline- N.E. 897-98.] ated the liability of volunteer: Plaintiffs have also construed the issues It is ancient learning that one who giving “negligent this case as rise to act, assumes to even though gratuitously, performance of an at- police duties.” may thereby become subject tempt overwhelming to avoid the case law of acting carefully, if he acts at all .... barring private suits over omis- The hand once may set to a task duties, performance of police sions always be withdrawn impunity bring seek to this action within though liability would fail if it had never for allowing recovery the orbit of cases been at applied all.... If conduct has injuries negligent acts by caused gone forward to stage such a inac- performance official officers in the of their tion result, would commonly nega- by plaintiffs duties. The cited include cases tively merely benefit, in withholding a negligent handling police dog, neg- of a but positively or actively working in an vehicle, injury, ligent operation a police and the there exists a relation out of negligent police weapon. which arises a use of go to Such forward. ‍‌​‌​‌​​‌‌‌​‌‌​‌​‌‌‌‌​​​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌​​​​​‌​‍[Id. negligence, 159 N.E. at cases involve acts of affirmative 898.] The Moch case involved a suit against anyone police for which or civilian —would — water company for negligent handling failure to be liable: of an attack supply ade- quate water fight vehicle, to a city dog, negligent operation fire. of a motor Cardozo found that to provide failure and use of a firearm. Those acts pie Washington, D.C.App., recently The District of rescue doctrine in this refrained from Columbia Court implying jurisdiction. 395 A.2d an adoption Appeals ^[18] Gilles- of the doctrine. doctrine should likewise not be considered an and its This Court’s discussion of the rescue applicability plaintiffs’ adoption claim es- representatives, public

through its change do not in which it demands of ordinary negligence the standards tablishes have been they happen character because out those services carrying its employees cоmmitted officer in the course public through representatives, its However, allegations of his duties. adherence to effectively can most enforce negligence solely case present derive As mem- competence. standards of those police employees defendants’ status as fore- public, individuals bers of the plaintiffs’ and from contention that defend- conduct of over the go any direct control reasonably prudent ants failed to do what in the same manner public employees police employees would have done similar responsi- any avoid direct such individuals The difference is between circumstances. public employees. compensating bility hand and a ordinary negligence on the one malpractice novel professional sort have the Plaintiffs in this action would not, becoming person the other. A does jury of twelve additional com- Court and officer, himself from insulate join responsi- in the munity representatives everyone of the basic duties which owes bility judging adequacy public he assume people, other but neither does Plain- employee’s performance in office. individual- any greater obligation to others lead to results proposition tiffs’ ly. undertaken only additional Massengill aptly described which the Court accepting as a officer is employment “staggering.” Massengill as v. Yuma Coun- the duty public large. owed to the In this ty, supra at 456 P.2d at 381. public duty concept has drawn some jury case ask Court criticism for rule purportedly creating the arrogate power to themselves the to deter- “ that: ‘Because we duty ” every- owe mine, example, whether defendant Offi- we body, nobody.’ owe it to Riss v. Thompson cer acted in a manner consistent of New supra 293 N.Y.S.2d at good police practice when he volun- J., (Keating, 240 N.E.2d at 862 dissent- suspect’s out a house rather teered to stake however, ing). A duty public, owed to the to the crime volunteering report than is no less enforceable because is owed to with this contention scene. Consistent “everybody.” Public officials at all levels then, under- jury should a also Court public remain accountable to the and the through clues known to take to sift maintains elaborate mechanisms whether a crim- police in order to determine rights formally enforce its in the —both ap- reasonably inal have been could formally through courts and less internal committing a second prehended before proceedings. In the case of the disciplinary empowered crime? a Court also be Should Department, officers evaluate, action, context of a tort are subject charges penal- to criminal and a handling major of a fire and determine ty years imprisonment of two for failure to properly placed hoses were whether the arrest law 4- breakers. D.C.Code § Might allocated? correctly the firemen 143. Additionally, officers are answerable claim properly entertain a tort Court also superiors ultimately to their sev- ability to teach over a school teacher’s for dere- through representatives, its postman’s grade English enth or over assigned liction in their duties. D.C.Code important promptly failure to deliver 4-121. § piece of mail? duty specifically en- The absence of a new, of a by the Court Establishment by forceable individual members duty to use reasonable privately enforceable public police рeculiar is not to community func- public of performance the diligence in of representative form services. Our ren- services likely improve not tions would with duties owed to government replete is direct, creation of public. the dered to as citizens but everyone capacity in their each accountability between personal as anyone capacity in his not enforceable every member of employee and government representatives, its Through an individual. service; bring the effectively community would community the public creates then, of responsibility, The rule official halt, appears duty business of be That if speedy to this: dampen “would authority imposes upon of which the official ardor all but resolute, most a duty public, or the most an officer is to the a failure irresponsible in it, the unflinching discharge duties,”4 pеrform or an or errone- inadequate of their dispatch performance, and a new must be a not an generation public, ous litigants of redressed, to the be grievances injury, courthouse over individual and must real and all, imagined. An public prosecu- if at in some form of public amount of enormous hand, time money duty would be tion. On the other if is consumed in liti- gation private individual, neglect duty claims than then rather in bet- tering inadequate it, perform is perform properly, service which or to draws the complaints. may pass wrong, support Unable to an individual an risk of litigation “clients,” costs on to prudent damages. individual action for “The fail- public employees public pub- public perform choose to leave ure of officer to lic service. wrong duty can constitute an individual

Although recognizing obligation only in person when some can shоw that public employees perform duty their duties public was involved also fully and adequately, the law properly individual, does he himself as an and that permit obligation to be injury enforced in a special peculiar has suffered private money suit for damages. Accord- nonperformance.” reason of its [Id. ingly, the Court (4th 1932); concludes that ed. citation 385-86 § have failed to state claims which relief and footnotes omitted.] may granted be accordingly, the action duty dichotomy This general duty/special is dismissed as all defendants. [Footnote illustrated our decision in Chandler 5 omitted.] Columbia, There, supra. District of JOSEPH M. HANNON Columbia, reasons, District of for financial randomly decided to close several chosen Dated: November stations, fire one of which was near Mrs. KELLY, with whom Judge, Associate out in Chandler’s home. After a fire broke MACK, Judge, joins, concurring Associate her her two home and children died part part: dissenting inhalation, smoke Mrs. sued for Chandler premise

The basic underlying the dismiss- death, wrongful alleging that her children’s als of these complaints is correct: unless a negli- deaths from the District’s resulted “special duty” particular to a individual gence closing Recogniz- fire station. can shown, governmental officials and nonliabili- ing general municipal rule units owe only general, nonactionable of Mrs. ty, this court found that the facts duty to provide members of the give Chandler’s case did not rise to a relationship.” services such as fire and police protection. “special Id. at 966- Columbia, protec- Chandler v. District D.C.App., By way analysis, 67. further fire (1979); 404 A.2d 964 Duran v. Tuc- the com- tion services are meant to ‍‌​‌​‌​​‌‌‌​‌‌​‌​‌‌‌‌​​​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌​​​​​‌​‍benefit son, (1973); whole, Ariz.App. munity 509 P.2d 1059 as a and because Mrs. Chan- Stamford, Trautman v. Conn. dler’s children were members of out Supp. (1975); Trujillo public, single 350 A.2d 782 them as nothing City Albuquerque, 93 N.M. 603 P.2d to whom individuals owed, (App.1979); McQuillan, Municipal Without E. had arisen. 53.04a, Corporations (3d 1977). action in duty, b ed. As the critical element of §§ Colley, stated 2 T. Law lie.1 negligence of Torts: does not Biddle, Gregoire discretionary (2d 177 F.2d Cir. was a sion to close the stations 1949). act, city See could not be sued. Id. Columbia, generally D.C. Wade v. District (en banc). 1. The Chandler (1973) case was also decided on the App., 310 A.2d immunity; sovereign basis of deci- because the 10 Second, plaintiff. specific there must be reasoning police applies pro

The same in protection give tection For in Trautman v. of rise to example, cases. assurances Stamford, See, City plaintiff justifiable of who victim. supra, by e.g., reliance the Tallahassee, by standing supra was struck a car while on a Sapp City v. of at 365- city sidewalk sued the and two оfficers, alleging negligent stop failure to York, City In Bloom v. New 78 Misc.2d of drag adjacent the racing on street 1077, (1974), 979 several store 357 N.Y.S.2d finding sidewalk. In that no city owners sued the failure to stated, plaintiff, owed the the court during a distur- protect property their civil “the of the allegations instant case nowhere complaints alleged in bance 1968. The specifically by assert conduct directed po- of city gave specific officials assurances the defendant officers toward the lice failed to protection, negligently but plaintiff individually. conduct The of promises. take The steps carry out the defendant .. . patrolmen directed toward city complaint, relying moved dismiss general plaintiff of municipal on the rule of nonliabili- happened part be a time in ques at the motion, easily ty. The court denied 259, tion.” Id. 32 at 350 A.2d at Conn.Supp. in from thosе cases distinguishing case applied rule The same has been in duty: special which there is no finding special protect young duty to alleged In at the case bar it is man park, Trujillo from violence in a v. city willing able to plaintiffs ready, were of City Albuquerque, supra; to warn a they were protect premises motel employee suspicious persons of in the assured by restrained who lot, motel of parking Sapp City v. Tallahas protection would proper police them that see, (Fla.Dist.Ct.App.1977); 348 363 So.2d alleged therefore provided. There is to arrest car a drunk driver whose collided acts which an affirmative series of car, with the plaintiff’s decedent’s Massen .... city special assumed [Id. 518, gill County, v. Yuma Ariz. 104 456 P.2d 1078, 357 N.Y.S.2d 981.] (1969); protect lady young from Wayne, of Fort also v. See Silverman estranged boyfriend, threats of her Riss 415, (Ind.App. Ind.App. N.E.2d 285 v. City of New 22 N.Y.2d (dismissal negligence сomplaint (1968); 1976) N.Y.S.2d 240 N.E.2d 860 disturbance, protect property protect arising from failure property during a civil personal Investing light v. in Corp. during Westminster G. C. Mur riot reversed Co., phy U.S.App.D.C. promise protection).2 434 F.2d 521 Goldberg, N.Y.2d Florence (1978), 375 N.E.2d general, pro- nonactionable assigned a voluntarily police department narrow, however, vide services may particularly crossing guard to cover school special, to a if two factors actionable Brooklyn. the first busy For intersection First, present. are must be some there school, infant plaintiff’s two weeks depart- form of privity between the and saw accompanied him to school mother ment the victim the victim that sets every day. guard the intersection See, apart general public. e.g., from the Davis, employment, she accepted 454 When the mother Tampa 226 So.2d himself, is, relying (Fla.Dist.Ct.App.1969). thе victim sent child to That school presence must at the intersection. reasonably guard’s become foreseeable on the noted, Investing Corp. questions As the Chandler court those cases Westminster immunity duty require Murphy supra, sovereign separate a case relied C.G. analysis. Chandler, supra question judge at 966. No the trial No. 79-6. immunity sovereign ap- general pub- is raised these were members Westminster peals. lic, protection promises had whom no made, therefore and to the District whom been pro- allegations 2. The assurances of duty. owed no distinguish tection in and Silverman Bloom

H One day, (1956); ill guard was and the Torts 18.6 2 Restatement § department provide failed to replacement (Second) (1965). of Torts 323 In the § or to notify school officials there would words of Chief Cardozo: guard no crossing. at the The child was gone If conduct has forward to such а struck a taxi cab as he to tried cross stage commonly inaction would re- alone; street the mother city sued sult, negatively merely withholding negligence. Upholding a verdict for jury benefit, actively or positively child, emphasized the court factors two working injury, there exists relation distinguishing general duty that case from duty out of arises a to go which forward. First, duty cases. assumed the po- v. Co. Rensselaer Water 247 [Moch one; lice was a limited it was directed 160, 167, 896, (1928); N.Y. 159 N.E. 898 a toward class of individuals rather citation omitted.] than toward general. Id. at not, course, This is of strict theory 587, 404 N.Y.S.2d at at 375 N.E.2d liability; only do actor need that which Second, the mother had witnessed the is reasonable under circumstances. provision of services and had relied to her Prosser, supra. guard’s detriment performance. on the Id. summarize, prerequi- To there are two The combination of these two factors led finding special duty. First, to sites the court to general duty conclude that the there must be direct contact some other provide to police services had become a spe- privity form of between the victim and the duty cial owed to that child.3 so department the victim be- As both the Bloom and Florence courts reasonably plaintiff. comes a foreseeable noted, the concept actually Second, be specific there must assurances of no more than an application cardinal justifiable services that create re- that, principal of tort law even where no liance the victim. Without both of these duty to may originally, act exist once one elements, provide police to services act, undertakes to a duty he has to so do general, remains a nonactionable to with due care. supra Florence v. Goldberg, large. at 196, 587, at 404 at N.Y.S.2d 375 N.E.2d at

766; II v. City supra Bloom of New 1079, 357 Security N.Y.S.2d 981. Cf. grants In reviewing the trial courts’ Lish, National Bank D.C.App., 311 A.2d dismiss, accept the motions to “we must (1973) (“[o]ne act, 834 who assumes allegation every well-pleaded of material even though gratuitously, may thereby be- indulge fact ... as true and all reasonable subject come acting careful- may inferences which arise therefrom.” if ly, he all.”) acts at (quoting Schweid, Glanzer Early Insurance Co. v. Settlers Shepard, 236, 239, 233 N.Y. 135 N.E. D.C.App., (1966). 922 A.2d (1922)). More precisely, begins one who only ap- dismissals will be sustained if it perform another, a service to pears whether “beyond plaintiff[s] doubt gratuitously or not perform must with support rea- can of facts in prove set [their care; thus, sonable ‍‌​‌​‌​​‌‌‌​‌‌​‌​‌‌‌‌​​​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌​​​​​‌​‍subjects he himself re- would entitle claims] [them] Gibson, 41, 45-46, harm Conley suffered because the lief.” 355 U.S. 99, 101-102, (1957). other reasonably and relied foreseeably S.Ct. L.Ed.2d 80 upon the actor’s performance. W. See See also v. Tiber Island Condomini- Owens Prosser, (4th Association, The Law of Torts ed. um D.C.App., 373 A.2d § 1972); James, 2 F. Harper and F. The Law attempt Appellees procedures distinguish guard, Florence to be followedif school by arguing gratuitously assigned, from the case at bar that the unable to re- once port duty ly voluntary. was statutory duty pro- duty. assumption in Florence breached a The initial crossing guards. opin- guard complete- provide crossing vide It is clear from the ion, however, Florence, supra department regu- 44 N.Y.2dat by appellees only referred to lations dealt 375 N.E.2d at 767. bring review, tively the business of

Under this I would standard that the War- complaints hold of appellants dispatch gen- a new speedy halt ... ren, 79-6), (No. (No. Nichol Taliaferro to the courthouse over litigants eration that, 79-394), are proved, contain facts if imagined.”5 duty grievances real and sufficient that Police De- establish will not recognize opinion I in this which partment Appel- duty. owed each a Moreover, the liability. such create broad urgent tele- lants Warren’s and Taliaferro’s argument phone calls Police De- to the standard is liability assumes that strict partment broad removed them from the imposed to be and that the courts general Nich- public. Appellant class of general unable prove completely apply ol’s direct with the on the contact officer liability in a reasonable principles of tort reasonably scene of the made him a assault arising fashion the context actions plaintiff. Any duty assumed .foreseeable acts . .. police not a from the police points from those on was whole, community as a made as argument is ... personnel. specific duty persons. to identifiable legal principles as if there were no such fault, foreseeability, or proximate cause also appellants

All three of these have with- operate to keep all of which alleged specific police protec- assurances of re- justifiable tion that have created may No is contend- in reasonable bounds. one police on de- parts. liance their When the scene ing must be at partment employee tells frantic callers They need every potential crime .... 79-6, help way, is on the as in or No. under as man would only act a reasonable he will for an in- obtain vital information City of New the circumstances. [Riss jured person, in No. it is reason- as 586, 293 supra at ably persons so assured foreseeable J., (Keating, dissent- 240 N.E.2d at 863 detriment, fоrego, ave- may to their other ing).] help. nues of embarked Once complaints appel- judgment, my upon where services under circumstances Warren, Taliaferro and Nichol contain lants was foreseeable that a citizen reasonably prove which they may from sufficient facts might rely performance, they their as- them; care. con- perform sumed with due was owed to judges erred in dismiss- sequently, the trial Appellant Douglas does not fit within to state ing complaints for failure was persons class of to whom a special granted. relief could be claim arguably owed. she meets the Although me, also, about gratuitous comments To prerequisite,4 first she does fulfill the not either of the condemning recognized “failings” second. she was unaware of Because po- telephone calls to the or for an is no substitute in these cases women, she lice’s assurances to the other analy- objective decisional independent and to her det- justifiably could have relied issue. and sensitive important sis of Therefore, the riment on assurances. those as dismissal to her must affirmed. Judge, concurring NEWMAN, Chief “floodgates of ignore appellees’ I do not dissenting part: part and carefully litigation” argument have as to majority opinion I in the concur judge’s considered the trial fear that “[t]he 79-394). join I (No. appellant Nichol direct, accountability personal creation of Warren, Douglas appellants dissent as to and ev- government employee between each 79-6). (No. ery member would effec- and Taliaferro community merely Whether the class victim still member she removed herself from ble is, stated, public? general as a factual of question: point of from the view of department, knowledge the tele- with its Appendix 5. See infra at 4. call, phone appellant Douglas a foreseea-

Case Details

Case Name: Warren v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Dec 21, 1981

Citation: 444 A.2d 1

Docket Number: 79-6, 79-394

Court Abbreviation: D.C.