Bartashevich v. City of Portland

• Decision Date: 31 July 1973
• Citation: 308 A.2d 551
• Parties: Robert BARTASHEVICH v. CITY OF PORTLAND.
• Court: Maine Supreme Court

Page 551

308 A.2d 551

Robert BARTASHEVICH v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

July 31, 1973.

Henry N. Berry, III, Portland, for plaintiff.

Charles A. Lane, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

The plaintiff brought a direct action against the City of Portland (City) to recover damages for the tortious conduct of a member of the City police department. The plaintiff premised his complaint on several theories, namely, 1) 'on a theory of respondeat superior'; 2) on the negligent failure 'to act prudently in the selection, training and supervision of members of its police department to prevent foreseeable harm' to the plaintiff and, finally, that plaintiff is a third party beneficiary of 'the contract of employment between the Defendant . . . and (the police officer) in that said (officer) was hired by the City to protect Plaintiff from being the victim of an assault and battery, false arrest, and/or malicious prosecution . . ..'

The City filed a motion to dismiss on dual grounds, namely:

1) ',(T)he Complaint fails to state a claim against Defendant upon which relief can be granted.'

2) '(A)t all relevant times the Defendant was acting in a governmental capacity, and therefore immune from liability.'

After a hearing on this motion the Justice below tersely ruled: 'Motion granted over objection of defendant (sic).' The plaintiff appealed, and we deny the appeal.

The action now before us is based on the identical facts which gave rise to the issues discussed in Bale v. Ryder and the City of Portland, 286 A.2d 344 (Me.1972). In Bale we concluded that 'it would not be appropriate for us at this time to abrogate the existing rule of sovereign immunity by judicial fiat.' Although we adhere to the carefully articulated reasoning of Mr. Justice Pomeroy in Bale critical of the doctrine, this case is hardly an appropriate one to use as a vehicle to abrogate it, prospectively or otherwise. The same circumstances that denied potential recovery to Mr. Bale should not be used to support Mr. Bartashevich's claim for damage.

We note the continuing viability of the 106th Maine Legislature (now in adjournment but expected to reconvene in special session in January, 1974), a body which, as we said in Bale, 'has the power, the capacity and the administrative machinery for conducting investigations and for giving consideration to several plans which could be advanced to solve the problem with relatively minor impact upon the municipal treasury.' The Legislature should, by now, be well aware of our disaffection with the sovereign immunity rule as a rational legal concept. ¹ However, we still believe that a reasonable time should pass in which legislative thought may crystalize on the best methods of resolving the problems which may face municipalities with the abolition of the doctrine before we consider whether, absent some affirmative legislative action, we should assume the responsibility of abrogating this court made legal rule.

Clearly, the routine operation of a police department is a governmental function as opposed to a proprietary activity ² and, therefore, the negligence of a police officer in making an on duty arrest does not expose the municipality to liability because of the sovereign immunity doctrine. Thus, the first count in the plaintiff's complaint premised 'on a theory of respondeat superior' cannot be maintained.

Can the plaintiff predicate his action upon an alleged independent tort committed by the City? This issue was not dealt with in Bale.

The plaintiff seeks support in two Maine cases, Woodcock v. City of Calais, 66 Me. 234 (1877), and Michaud v. City of Bangor, 159 Me. 491, 196 A.2d 106 (1963). These cases are distinguishable.

Woodcock recognized the sovereign immunity rule and acknowledged that the acts of a municipal employee (street commissioner) performed within the scope of his lawful authority would not expose the City to liability. However, the trespassory act there complained of exceeded this authority and, being done by express direction of the city government, the city became liable. In other words, when the city government specifically ordered its street commissioner to commit a trespass, the city became liable therefor.

In Michaud, the Bangor City Council formally voted 'to do an illegal act, which act was executed by the city building inspector and the city fire department' and the resulting demolition of the plaintiff's property by the city employees was not 'within the scope of their duties as public officers in their respective capacities.' The holding in Michaud imposed tort liability upon the city when it specifically authorized an illegal act to be done by its employees, in which case they acted not as public officers but as special agents.

More appropriate to the facts before us, although by analogy, is Rhoda v. Aroostook General Hospital, 226 A.2d 530 (Me.1967), an action premised on the negligent failure of the defendant charity 'to properly select qualified employers, to properly train its employees, and to adequately supervise and control its employees.' Although speaking in terms of charitable immunity and the rationale underlying that doctrine, and recognizing that if it was to be abolished the Legislature 'as the ultimate policy maker in the State' should do so, the Rhoda Court used this language:

'There is no sound distinction in reason to help support a different rule regarding the liability of a charitable institution for the negligence of its servants and agents and its liability for the carelessness on the part of its governing body. There is equally no sound ground for distinction between exoneration or immunity from liability for the negligence of the ordinary servants of the charity and that of corporate officers, sometimes termed corporate negligence, including negligence in selecting, training, supervising, controlling or retaining employees. . . .'

Id. at 532.

This language has complete applicability to the issue before us and precludes recovery on the theory of an independent tort by the municipal officers.

Finally, plaintiff argues that he is entitled to proceed against the City because, as a member of the public, he is the third party beneficiary of an employment contract between the City and the police officer under which the...