Berger v. City of University City, 47829

• Decision Date: 17 July 1984
• Docket Number: No. 47829,47829
• Citation: Berger v. City of University City, 676 S.W.2d 39 (Mo. App. 1984)
• Parties: Benjamin and Sarah BERGER, and Plastic Bottle Corp., Appellants, v. The CITY OF UNIVERSITY CITY, Missouri, Col. James P. Damos, Chief of Police of University City, Mo., Victor Ellman, City Manager, City of University City, Mo., Major Stanley Topper and Captain Fred Mallon, Respondents.
• Court: Missouri Court of Appeals

Page 39

676 S.W.2d 39

Benjamin and Sarah BERGER, and Plastic Bottle Corp., Appellants, v.The CITY OF UNIVERSITY CITY, Missouri, Col. James P. DamosChief of Police of University City, Mo., Victor Ellman, City Manager, City of University City, Mo., Major Stanley Topper and Captain Fred Mallon, Respondents.

No. 47829.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 17, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1984.

Gail N. Gaus, Clayton, for appellants.

Kohn, Shands, Elbert, Gianoulakis & Giljum, Alan C. Kohn, Mark J. Bremer, Robert A. Useted, St. Louis, for respondents.

SMITH, Judge.

Plaintiffs appeal from the action of the trial court in dismissing their 20 count petition as to University City, and four employees of the city, Damos, Ellman, Topper and Mallon.Following dismissal of the defendants named above, trial was had against the two remaining defendants, Local 398 of the International Association of Fire Fighters and Richard Walker, its president.Judgment against those defendants in the total amount of $1,257,500 was entered.No appeal was taken from that judgment.

Our review is limited to the allegations of plaintiffs' petition directed against the five dismissed defendants.However, for an understanding of the issues presented it is necessary to set forth certain background information contained in the trial court's findings of fact entered after trial on the claims against the other defendants.In July 1977, fire fighters in University City were engaged in an illegal strike.Sec. 105.530, RSMo 1978.A fire started on a loading dock on property owned by the Bergers and leased by Plastic Bottle Corporation.The striking fire fighters arrived at the scene of the fire shortly after its commencement and began picketing.Firemen from surrounding municipalities arrived at the scene prepared to battle the fire at a time when it could have been extinguished with minimal property damage.The picketing fire fighters threatened the other firemen with physical harm if they attempted to extinguish the blaze.The neighboring firemen did not fight the fire because of the threats of physical harm and the building was completely destroyed.

Plaintiffs in this action against the municipality and Damos, the police chief, Ellman, the city manager, and Topper, a police major in charge at the scene, alleged that these defendants failed to enforce the city ordinances and to provide police protection to the firemen from neighboring municipalities so they could extinguish the fire.It was alleged that such failure occurred despite the specific request of plaintiffs that police protection be provided.It was further alleged that the conduct of defendants was negligent, grossly negligent, intentional, wanton, and in conscious and utter disregard for the safety of plaintiffs' property.By amendment, plaintiffs also alleged that the conduct of the defendants was done under color of law to deprive plaintiffs of equal protection of the law guaranteed by the Fourteenth Amendment of the U.S. Constitution.

The allegations as to Mallon, the University City Fire Chief, also stated that he personally prevented the neighboring firemen from entering plaintiffs' premises and made threats of violence against them.No brief on behalf of Mallon was filed in this court.

The trial court correctly dismissed the counts of the petition directed against University City, Damos, Ellman, and Topper.Missouri cases have consistently held that public officers are not liable for injuries or damages sustained by particular individuals resulting from breach by the officers of a duty owed to the general public.Sherrill v. Wilson, 653 S.W.2d 661(Mo. banc 1983);Parker v. Sherman, 456 S.W.2d 577(Mo.1970);Jamierson v. Dale, 670 S.W.2d 195(Mo.App.1984).These holdings are based on the absence of a duty to the particular individual as contrasted to the duty owed to the general public.The "public duty" rule represents the law of most jurisdictions in this country.See cases cited in Sherrill v. Wilson, supraandParker v. Sherman, supra;Biloon's Electrical Service, Inc. v. City of Wilmington, 417 A.2d 371(Del.1980);Fulenwider v. Firefighters Association Local Union 1784, 649 S.W.2d 268(Tenn.1982);Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458(1982)[5, 6]Contra, Ryan v. State, 134 Ariz. 308, 656 P.2d 597(banc 1982).It applies equally to the governmental body for whom the public officers work.Biloon's Electrical Service, Inc. v. City of Wilmington, supra;Fulenwider v. Firefighters Association Local Union 1784, supra;Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection, 46 A.L.R.3d 1084.

Some jurisdictions have added a "special duty" exception whereby the police owe a special duty to an individual, as contrasted to the public at large if (1) the municipality is uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) there are allegations of specific acts or omissions on the part of the municipality; (3)the acts or omissions are either affirmative or willful in nature; and (4) the injury occurs while plaintiff is under the direct and immediate control of employees or agents of the municipality.Marvin v. Chicago Transit Authority, 113 Ill.App.3d 172, 68 Ill.Dec. 786, 446 N.E.2d 1183(App.1983)[4, 5].The "special duty" exception normally will arise when police fail to protect an informant under circumstances where inaction serves to positively work an injury not merely to withhold a benefit.Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534(1958).The "special duty" exception has not been recognized by the...