Schear v. Board of County Com'rs of Bernalillo County

• Decision Date: 06 August 1984
• Docket Number: No. 15324,15324
• Citation: 101 N.M. 671,1984 NMSC 79,687 P.2d 728
• Parties: Susanne M. SCHEAR, Petitioner-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO, and James Jimerson, Bernalillo County Sheriff, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 728

687 P.2d 728

101 N.M. 671

Susanne M. SCHEAR, Petitioner-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO and James Jimerson, Bernalillo County Sheriff Respondents-Appellees.

No. 15324.

Supreme Court of New Mexico.

Aug. 6, 1984.

Rehearing Denied Sept. 12, 1984.

[101 NM 671] Joseph M. Fine, Parham & Fine, P.A., Albuquerque, for petitioner.

Karen C. Kennedy, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for respondents

William G. Gilstrap, P.C. New Mexico Trial Lawyers Assoc., Albuquerque, amicus curiae.

OPINION

WALTERS, Justice.

The Court of Appeals upheld the trial court's dismissal of petitioner's complaint on the basis of her failure to state a claim upon which relief may be granted. The complaint had alleged that respondents' agents did not respond to a call reporting a crime in progress and requesting assistance, and that petitioner suffered a brutal rape and torture as a result of the agents' inaction. We granted certiorari and now reverse the dismissal by the trial court and the decision of the Court of Appeals.

The question presented is whether a governmental entity and its law enforcement officers may be held liable, after receiving notice, for negligently failing to take adequate action to protect a citizen from imminent danger and injuries.

On a motion to dismiss, we assume the truth of the facts alleged in the complaint. Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015 (Ct.App.1974). Those facts are fully described in the opinion of the Court of Appeals and we need not repeat them. Schear v. Board of County Commissioners, 23 SBB 192 (Ct.App.1984). Petitioner alleged that respondents' negligence in failing to adopt proper procedures for responding to reported criminal acts, and in failing to respond or investigate, was the direct and proximate cause of her injuries.

Negligence is generally a question of fact for the jury. New Mexico State Highway Department v. Van Dyke, 90 N.M. 357, 563 P.2d 1150 (1977). A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant. White v. City of Lovington, 78 N.M. 628, 435 P.2d 1010 (Ct.App.1967). Whether a duty exists is a question of law for the courts to decide. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). Our statutes place a duty on law enforcement officers to investigate violations of the criminal law.

It is hereby declared to be the duty of every sheriff, deputy sheriff, constable and every other peace officer to investigate all violations of the criminal laws of the state which are called to the attention of any such officer or of which he is aware * * * *

NMSA 1978, Sec. 29-1-1 (Repl.Pamp.1979) (emphasis added).

The Court of Appeals, relying on its opinion in Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct.App.1979), held that the duty imposed by Section 29-1-1 was a duty owed to the general public and that, absent a "special duty" owed to petitioner, failure to perform the duty or an inadequate or erroneous performance would not give rise to an individual cause of action. The Court of Appeals noted the absence of a special duty owed to petitioner in this case and held that the "public duty-special duty" rule precluded petitioner's action.

Doe is not controlling. Although the facts in Doe are similar to the facts in this case, ¹ the operative statute in that case was the Peace Officers Liability Act, NMSA 1953, Sections 39-8-1 to -17 (Supp.1975), not the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.Pamp.1982 and Supp.1983). Section 39-8-4 of the Peace Officers Liability Act protected police officers from liability while in the performance of a public duty. The court in Doe, declaring that the applicable statute imposed a duty on the officer to the general public and that no "special relationship" (i.e., "privity, a direct relationship or contact between the victim and the police," 92 N.M. at 503, 590 P.2d at 651) existed which would give rise to a "special duty," held that no liability could be imposed on the basis of the officer's failure to act.

With the enactment of the Tort Claims Act, the Police Officers Liability Act was repealed in 1976. 1976 N.M. Laws, ch. 58, Sec. 27. Unlike Doe, liability in this case is dependent upon an interpretation of the Tort Claims Act. The extent of its application is set forth in Section 41-4-2(B):

The Tort Claims Act shall be read as abolishing all judicially-created categories such as "governmental" or "proprietary" functions and "discretionary" or "ministerial" acts previously used to determine immunity or liability. Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.

Section 41-4-12 provides further:

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.

Nothing in the statute refers to performance of either public or special duties.

The Court of Appeals held that the court in Doe relied not on the Police Officers Liability Act, but rather on the "common-law public versus special duty distinction," and that that distinction is one of the "traditional tort concepts of duty" which the Tort Claims Act did not abolish. That statement is too broad. As we discuss hereafter, the "public duty" distinction is too closely linked to the concept of sovereign immunity, from which Section 41-4-12 provides an exception, to have been included by the legislature within the meaning of "traditional tort concepts of duty."

The Court of Appeals' opinion further declares that the language: "when caused by law enforcement officers," requires "direct causation" by the officers in order for there to be liability. Its observation that "the assault was committed not by a law enforcement officer but by a third party" demonstrates its misunderstanding of Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1981), where we said that "caused by" does not mean "committed by," but instead has the usual meaning of "proximate cause" as a requirement for liability in an ordinary negligence case. Id. at 332, 622 P.2d at 237. We again specifically hold that law enforcement officers need not be the direct cause of injury (in the sense of having inflicted it) in order for liability to attach.

We disagree, too, with the Court of Appeals' interpretation of the basis for decision in Doe. It appears to us that the "public duty-special duty" discussion in Doe necessarily arose from the statutory (rather than any common law) provision excepting police officers from liability when engaged in performance of public duty. Repeal of that statute undercut any precedential effect of Doe. It is clear to us, in any event, that the Tort Claims Act abolished the "public duty-special duty" distinction in this jurisdiction.

The "public duty-special duty" rule bears a direct relationship to the doctrine of sovereign immunity. Adams v. State, 555 P.2d 235 (Alaska 1976); Martinez v. City of Lakewood, 655 P.2d 1388 (Colo.App.1982). "[I]t is clear that [the "general duty-special duty" dichotomy] * * * is a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity." Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015 (Fla.1979). Although many jurisdictions have relied on the distinction (see, e.g., Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Trautman v. City of Stamford, 32 Conn.Supp. 258, 350 A.2d 782 (1975); Simpson's Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971); Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968); Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975)), the development in the law has been to abolish it in those jurisdictions where the matter has been more recently considered or reconsidered. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982) (overruling Massengill ); Adams v. State; Martinez v. City of Lakewood; Commercial Carrier Corp. v. Indian River County (declaring Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) to have no effect following legislative waiver of governmental immunity); Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). "[T]he trend in this area is toward liability. The 'public duty' doctrine has lost support in four of the eight jurisdictions relied upon by the city [for its argument that it owed no duty of ordinary care to an individual citizen]." Wilson v. Nepstad, 282 N.W.2d at 667. Those courts have demonstrated a reasoned reluctance to apply a doctrine that results in a duty to none where there is a duty to all. See Adams v. State; Martinez v. City of Lakewood. The court, in Adams, said:

[W]e consider that the "duty to all, duty to no-one" doctrine is in realty a form of sovereign immunity, which is a matter dealt with by statute in Alaska, and not to be amplified by court-created doctrine. An application of the public duty doctrine here would result in finding no duty owed the plaintiffs or their decedents by the state, because, although they were foreseeable victims and a private defendant would...