Simpson's Food Fair, Inc. v. City of Evansville, 770A106

Decision Date15 September 1971
Docket NumberNo. 770A106,No. 1,770A106,1
Citation149 Ind.App. 387,272 N.E.2d 871
Parties, 46 A.L.R.3d 1077 SIMPSON'S FOOD FAIR, INC., Plaintiff-Appellant, v. CITY OF EVANSVILLE, Evansville, Indiana, Defendant-Appellee
CourtIndiana Appellate Court
Ralph M. Koehne, John D. Clouse, Evansville, for plaintiff-appellant

Robert S. Matthews, Ronald Warrum, Jerry P. Baugh, Philip H. Siegel, Evansville, for defendant-appellee.

SULLIVAN, Presiding Justice.

Plaintiff-appellant, a retail grocery corporation in Evansville, alleged in its two-paragraph complaint that the failure of the city police to halt a wave of criminal activities had forced it to go out of business and to suffer damages in the amount of $1,000,000.00. Theories of negligence and strict liability were unsuccessfully advanced by plaintiff relying upon I.C.1971, 18--1--11--7, being Ind.Ann.Stat. § 48--6110 (Burns 1963), in that defendant's Motion to Dismiss the complaint was sustained. Plaintiff, failing to plead over, suffered judgment to be entered against it, from which judgment this appeal is taken. The statute relied upon by plaintiff reads as follows:

'Duties of police force.--It is hereby made the duty of such police force, and the members thereof are specially empowered, at all times, within such city, to preserve peace; prevent crime; detect and arrest offenders; suppress riots, mobs and insurrections; disperse unlawful and dangerous assemblages, and assemblages which obstruct the free passage of public streets, sidewalks, parks, and places; protect the rights of persons and property; guard the public health; preserve order at elections and public meetings; direct the movement of teams and vehicles in streets, alleys or public places; remove all nuisances in public streets, parks or highways; arrest all street beggars and vagrants; provide proper police assistance at fires; assist, advise and protect strangers and travelers in public streets or at railroad stations; carefully observe and inspect all places of business under license, or required to have the same, all houses of ill fame or prostitution, and houses where common prostitutes resort or reside, all lottery or policy-shops, all gambling-houses, cockpits, dance houses and resorts; and to suppress and restrain all unlawful or disorderly conduct or practices, and enforce and prevent the violation of all ordinances and laws in force in such city.' (Emphasis supplied)

The plaintiff-appellant contends that the City of Evansville knew or should have known of the high incidence of criminal activity in the plaintiff's neighborhood; that it refused to assign extra police to patrol the area or to request outside police assistance from the State; that a duty to protect the plaintiff and to prevent crime was breached; and that such breach proximately caused the plaintiff to lose customers and merchandise and ultimately to cease business operation.

The question for review is whether the City of Evansville under the circumstances is cloaked with immunity, thereby requiring dismissal of plaintiff's complaint.

The general rule regarding the immunity of municipal corporations for the acts of police officers has been stated by leading authorities. It was recently noted:

'The rule, that a municipality is not liable for mere nonfeasance of police officers in the performance of governmental duties, obtains generally even in those states in which the municipality is not immune from liability for the torts of such officers.' 18 McQuillin Municipal Corporations (3rd Ed.1963), § 53.80.

An earlier authority recognized that immunity of the municipality derived from the difference between public and private duties owed citizens by police officers:

'When officers liable to private suits. The rule of official responsibility then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public not an individual injury, and must be redressed, if at all, in some form of public prosecution. (Citations omitted). On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. (Citations omitted). 'The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its non-performance.' (Citations omitted).' (Cooley on Torts, pp. 756 ff).

Though we have no controlling Indiana precedent, some recent representative cases serve to mark the distinction between public and private duty. In Wong v. City of Miami (1970) Fla., 237 So.2d 132, the withdrawal of extra police from the area of a civil rally prior to a riot was alleged by damaged store owners to be negligence on the part of the city. The Supreme Court of Florida held, however, that the city was not negligent in its removal of police officers since it had an inherent right in the carrying out of its police powers to determine strategy and tactics.

In Massengill v. Yuma County (1969) 104 Ariz. 518, 456 P.2d 376, a county sheriff followed two cars engaged in a drag race but did not apprehend them before one crashed head-on into another motorist. The Supreme Court of Arizona upheld the doctrine of immunity stating that the duty of the officer to immediately arrest the dragsters was one owed to the public and not to the individual motorist.

In Huey v. Town of Cicero (1968) 41 Ill.2d 361, 243 N.E.2d 214, the Supreme Court of Illinois held that a municipality and its employees are not liable for failure to supply general police protection and that the municipality could only be liable where it is under a special duty to a particular individual. Under the facts of that case a yound Negro was beaten to death in a white sector of the town when local police knew of the possibility of racial disorder. The court found no private duty arising on the basis of the complaint since it did not allege that the town or its agents knew of the presence of the decedent in town; that the decedent had requested police protection; or that he was in particular danger.

EXCEPTIONS TO IMMUNITY DOCTRINE WHERE PRIVATE DUTY EXISTS

In recent years the doctrine of immunity from civil liability has suffered continuing erosion. The presence of the amorphous and ill-defined duty owed by government to the public as a predominating factor which insulates government from tort responsibility is giving way to Generally, to be private, a duty must be particularized as an individual. As stated in Huey, supra:

consideration of a more fundamental duty owed to private individuals. The shift in emphasis has been prominent in Indiana as well as in the rest of the nation. See Perkins v. State (1969) Ind., 251 N.E.2d 30; Brinkman v. City of Indianapolis (1967) 141 Ind.App. 662, 231 N.E.2d 169; Campbell v. State (1971) Ind.App., 269 N.E.2d 765. In Brinkman v. City of Indianapolis, supra, the city was held liable for the wrongful death of a resident, seriously ill, who called the police for emergency transportation to the hospital but who was instead negligently arrested and jailed by the police officer who assumed that the man was merely drunk. Although this court was, in that decision, intent upon the issue concerning establishment of liability of the municipality for the torts of its agents, rather than upon a description of the nature of the duty owed the individual, we note that the duty in Brinkman was patently a private duty owed to the particular individual. That duty arose when the individual was taken into custody.

'Exceptions to the (immunity) rule have been found only in instances where the municipality was under a special duty to a particular individual, such as protecting a material witness from threatened injury by third parties.' 243 N.E.2d 214, 216.

Such exception is demonstrated by the factual circumstance in Schuster v. City of New York (1958) 5 N.Y.2d 75...

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