Benson v. Kutsch

Decision Date28 March 1989
Docket NumberNo. 18223,18223
Citation181 W.Va. 1,380 S.E.2d 36
PartiesDallas L. BENSON and Rebecca M. Benson, etc., Plaintiffs Below, Appellants, v. Patricia Valentino KUTSCH, et al. Defendants Below, The City of Wheeling, Appellee. West Virginia
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The public duty doctrine, simply stated, is that a governmental entity is not liable because of its failure to enforce regulatory or penal statutes.

2. A municipality may not be held liable because of the failure of its employees to inspect premises to determine if there are violations of fire or building codes.

3. If a special relationship exists between a local governmental entity and an individual which gives rise to a duty to such individual, and the duty is breached causing injuries, then a suit may be maintained against such entity.

4. " 'A motion for summary judgment may only be granted where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.' Syllabus point 2, Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978)." Syllabus Point 3, Thomas v. Raleigh General Hospital, 178 W.Va. 138, 358 S.E.2d 222 (1987).

James E. Seibert, Linda W. Curtis, Seibert, Kasserman, Karnsworth, Gillenwater, Glauser & Richardson, for Dallas Benson and Rebecca Benson.

Paul T. Tucker, Bachmann, Hess, Bachmann & Garden, Wheeling, for defendant/appellee.

Jeffrey A. Holmstrand, John B. Garden, Bachmann, Hess, Bachmann and Garden, Wheeling, for City of Wheeling.

MILLER, Justice:

Dallas Benson and Rebecca M. Benson, his wife, the plaintiffs below, appeal the dismissal of their case upon a motion for summary judgment. The Circuit Court of Ohio County concluded that they had failed to assert a valid cause of action against the City of Wheeling. The plaintiffs argued that the City is liable for damages allegedly resulting from its failure to inspect the apartment occupied by the plaintiffs for compliance with the city building code. We disagree, and we affirm the judgment of the circuit court.

The plaintiffs lived in an apartment building in Wheeling. On October 18 The plaintiffs subsequently sued the owner of the building, Patricia Valentino Kutsch, 1 and the City of Wheeling for damages, alleging that if their apartment had been equipped with a smoke detector, as required by the City's Building and Housing Code, 2 Mr. Benson would not have been injured. In particular, the plaintiffs alleged that the City was negligent in failing to conduct an inspection of the premises which would have revealed the building code violation. 3

[181 W.Va. 2] 1981, Mr. Benson was seriously injured when a fire broke out in their apartment.

The City filed a motion for summary judgment on the ground that the complaint failed to state a cause of action against it. By order dated March 10, 1987, the trial court granted the motion on the ground that the enactment of a fire and building code by the City did not create a duty to the individual plaintiffs to inspect their apartment for possible code violations.


We have not had occasion to address specifically the question of whether a municipality may be held liable for the failure of its employees to inspect premises to determine if there are violations of fire or building codes. 4 We observe initially that the plaintiffs do not point to any language in the housing code that imposes a positive duty on the City to make regular inspections or that creates a cause of action in favor of one injured by the failure to inspect or by a negligent inspection. 5

The public duty doctrine is a principle independent of the doctrine of governmental immunity, although in practice it achieves much the same result. It had its origins in this country in South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855), where a kidnapping victim sued the sheriff, claiming that the sheriff knew he had been kidnapped and where he was detained, but did nothing to secure his release. The Supreme Court, relying on English authorities, found no liability and concluded that a sheriff's duty to enforce the law was "a public duty, for neglect of which he is amenable to the public, and punishable by indictment only." 59 U.S. (18 How.) at 403, 15 L.Ed. at 435. 6 This rule subsequently evolved into the public duty doctrine which, simply stated, is that a governmental entity is not liable because of its failure to enforce regulatory or penal statutes.

The rationale for the doctrine lies in the inherent difficulty in determining what general responsibilities of a public agency should give rise to a cause of action. Implicit in this inquiry is the recognition that it is impractical to require a public official to be responsible for every infraction of regulatory legislation that requires inspection or enforcement from his office. There is the added principle that the government should be able to enact laws for the protection of the public without thereby exposing the taxpayers to liability for omissions in its attempts to enforce them. Rich v. City of Mobile, 410 So.2d 385 (Ala.1982); Grogan v. Commonwealth, 577 S.W.2d 4 (Ky.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979); O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33 (1983). Thus, a general duty is not thought to give rise to a cause of action unless the ordinance imposes some specific liability for the failure to enforce it.

Plaintiffs point to several jurisdictions that have rejected the public duty doctrine and have held that a general statutory duty, if breached, may give rise to a cause of action. E.g., Adams v. State, 555 P.2d 235 (Alaska 1976); 7 Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). However, it appears that in these jurisdictions there are limits on the right to sue.

In Ryan v. State, supra, the state was held liable when an inmate escaped from a youth center and shot Mr. Ryan during the course of a robbery. The Supreme Court of Arizona rejected the public duty doctrine, but not without some qualifications. The court recognized judicial and legislative immunity and left open the scope of immunity as to executive employees, stating that "with officers and employees making plans and decisions which set the course of government, we do not feel it appropriate to define the limited parameters of immunity in abstract.... [They will be defined] as they come before us." 134 Ariz. at 311, 656 P.2d at 600. The court concluded with this statement, recognizing judicially-created governmental immunity in appropriate cases:

"Employing the spirit of the [Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 381 P.2d 107 (1963) ] decision, we propose to endorse the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy. Otherwise, the state and its agents will be subject to the same tort law as private citizens." 134 Ariz. at 311, 656 P.2d at 600. 8

The Wisconsin Supreme Court in Coffey found a city building inspector liable for negligently failing to discover that the standpipes for fire hoses located in a building were defective. As a result, when the building caught fire, there was insufficient water to extinguish it. In rejecting the public duty defense and any "special duty" theory, the court made the broad conclusion that "[a]ny duty owed to the public generally is a duty owed to individual members of the public." 74 Wis.2d at 540, 247 N.W.2d at 139. 9 The court did, however, leave a broad qualification, termed its "public policy exception," by which "the imposition of liability did not always flow from a finding of negligence and cause-in-fact[.]" 74 Wis.2d at 541, 247 N.W.2d at 139. 10 This public policy exception would appear to be sufficiently broad that it can be applied in almost any situation to avoid imposition of liability.

In summary, in rejecting the public duty defense, the Arizona and Wisconsin Supreme Courts suggest that a governmental entity's breach of a duty to the general public may give rise to a cause of action. This broader exposure to liability is tempered by these courts' statements that public policy may require interposing a rule of nonliability in a given case.

In Leake v. Cain, 720 P.2d 152 (Colo.1986) (en banc), the Supreme Court of Colorado concluded that the public duty defense was equivalent to a form of governmental immunity and should be rejected, but recognized that not every public duty should result in liability. The court refused to find that a statute providing for emergency commitment of inebriates created a cause of action against a police officer for injuries to the plaintiff caused by a drunk driver, who was released by the officer into the custody of another. The court appears to have followed the special relationship rule discussed in Part II, infra: "Where a person should reasonably foresee that his act, or failure to act, will involve an unreasonable risk of harm to another, there is a duty to avoid such harm." 720 P.2d at 160. (Citations omitted). 11 It concluded that the statute was designed to protect the inebriate and not the injured plaintiff, even though the language of the statute indicated that protective custody was required where the inebriate was "clearly dangerous to the health and safety of himself or others." Colo.Rev.Stat. § 25-1-310(1) (1982). The court in Leake also held that the officer's decision to release the inebriate was a discretionary act and, as a consequence, enjoyed a qualified immunity. 12

The result in Leake is not novel when it is considered that the public duty theory creates no duty. Therefore, the rejection of the doctrine does nothing more than to require the plaintiff to show a viable cause of action against the city and its officials. Thus, we...

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