City of Kotzebue v. McLean

• Decision Date: 12 July 1985
• Docket Number: No. 7083,7083
• Citation: 702 P.2d 1309
• Parties: CITY OF KOTZEBUE, Appellant, v. Douglas McLEAN, Appellee.
• Court: Alaska Supreme Court

Page 1309

702 P.2d 1309

CITY OF KOTZEBUE, Appellant, v. Douglas McLEAN, Appellee.

No. 7083.

Supreme Court of Alaska.

July 12, 1985.

As Amended on Denial of Rehearing Aug. 20, 1985.

Robert C. Erwin, Julie Simon, Erwin, Smith, Garnett & Bendell, Anchorage, for appellant.

Millard F. Ingraham, Fairbanks, and Kennelly, Azar & Donohue, Fairbanks, for appellee.

Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Justice.

The principal issue presented in this appeal is the extent of a police officer's duty to respond to a life-threatening situation. Appellee Douglas McLean claims that the City of Kotzebue (the city) was negligent in preventing a stabbing of McLean because a Kotzebue police officer failed to promptly respond to a life-threatening phone call made by McLean's assailant prior to the attack. The superior court instructed the jury that the city, acting through its police officers, had a duty to exercise ordinary or reasonable care for the safety of McLean. The city appeals from a jury verdict in favor of McLean. We affirm.

Billy Howarth stabbed Douglas McLean in the stomach at approximately 3:00 a.m., on March 12, 1977, in the Nulukvik Hotel. Shortly before the stabbing, McLean and Howarth had been conversing at the hotel bar.

At about 2:45 a.m., fifteen minutes prior to the stabbing, Officer Danny Shield received a call at the Kotzebue police station. The caller was Howarth, whom Officer Shield knew and recognized. After identifying himself by name, Howarth stated that he "was somewhere between the Golden Whale and the Nulukvik Hotel and he was going to kill a friend of his." Officer Shield testified that he could not identify the "friend" Howarth spoke of nor did he know exactly where Howarth was calling from. The Nulukvik Hotel and the Golden Whale, another Kotzebue hotel with an attached bar, are approximately 200 to 300 feet apart. Both hotels are within a few minutes of the police station.

When Officer Shield received Howarth's call, he was processing a juvenile complaint report on an intoxicated minor he had just arrested. Instead of immediately responding to Howarth's life-threatening call, Officer Shield decided to finish filling out the juvenile report. Officer Shield was not alone in the station. A police dispatcher was also on duty. Although Officer Shield could have left the minor in the dispatcher's care while he investigated the call, he did not do so. In addition, Officer Shield knew that another member of the Kotzebue police department, Officer Carlos Salazar, was working as a security guard at the Nulukvik Hotel in his off-duty hours. Officer Shield did not contact Officer Salazar or have the dispatcher contact him. Officer Shield left the police station at 2:57 a.m. and arrived at the Nulukvik Hotel at 3:00 a.m., three minutes later. Thus, twelve minutes had elapsed between the time of Howarth's call and the time Officer Shield responded to the call. When he arrived at the Nulukvik Hotel, Officer Shield found the wounded McLean lying on the floor of the bar. Officer Shield took custody of Howarth from Officer Salazar.

The Police Chief of Kotzebue, August Nelson, testified that Officer Shield had properly responded to the threatening call. Chief Nelson stated that the police station normally received many threatening phone calls. He also testified that, in his knowledge, Howarth did not have a bad or dangerous reputation.

A conflict developed when a former police officer, Wilfred Lane, testified in rebuttal that he considered all threats of murder serious and would have taken immediate action. Lane had not been listed by McLean as a potential witness, despite a pretrial order requiring the parties to identify all witnesses and discovery relevant to witness disclosure. The city objected to Lane's testimony on these grounds. However, after McLean's attorney stated that he had not anticipated Chief Nelson's testimony, the city's objection was overruled.

The city also objected to the admission of a telephonic deposition and a jury instruction concerning damages. These objections were overruled.

At the close of McLean's case, the city requested a jury instruction limiting a police officer's duty to prevent crime to situations where a "special relationship" existed. This relationship was defined as existing only when the police had placed the victim in danger and then failed to provide protection. The superior court rejected this requested instruction and instructed the jury that the city owed a reasonable duty of care to McLean.

You are instructed that under the circumstances of this case the defendant City of Kotzebue, acting through its police department, had a duty to exercise ordinary or reasonable care for the safety of plaintiff Douglas D. McLean.

The jury returned a verdict in favor of McLean and awarded him damages of $180,000. ¹

I. DUTY OF CITY POLICE

The city claims that by providing protection, the police discharge a duty owed to the public at large, not to specific individuals. Therefore, individuals may not recover damages based on police failure to protect them, absent a "special relationship." We rejected this "public duty" doctrine in Adams v. State, 555 P.2d 235, 241-42 (Alaska 1976), and now decline to resurrect it.

The Public Duty Doctrine

In Alaska sovereign immunity is statutory. AS 09.50.250 protects the state; AS 09.65.070 protects local governments. ² We have recognized that the legislature has placed certain limits on governmental liability and that courts must work within the bounds the legislature has set.

The public duty doctrine does have an impressive pedigree. ³ But with due respect for those courts in other states which continue to adhere to the doctrine, we think the "duty to all, duty to no-one" rule is outmoded, artificial, and "in reality a form of sovereign immunity." Id. at 241. Courts use the doctrine to immunize governments from liability for mistakes which might otherwise be actionable. The arguments used to defend the public duty doctrine are the same arguments raised in defense of general sovereign immunity. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 811 (Minn.1979) (Kelly, J., dissenting); Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, 863 (N.Y.1978) (Keating, J. dissenting); Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451, 461 (1983) (Utter, J., concurring in the result). As we said in Adams, to allow the public duty doctrine to provide governments with special protection "would create immunity where the legislature has not." 555 P.2d at 242.

In Cracraft, the Minnesota Supreme Court observed that private citizens generally have no duty to do the things that the public duty doctrine protects; if governments are to be treated the same as citizens, then governments should not be liable for breaches of duties that citizens do not owe to each other. 279 N.W.2d at 805, 806. The flaw in Cracraft 's analysis is that citizens who do the things the public duty doctrine protects may indeed be liable for negligence. If insurance companies, for example, decide to conduct safety or fire inspections of premises they insure, negligent inspections may lead to liability. See Note, State Tort Liability For Negligent Fire Inspection, 13 Colum.J.L. & Soc.Prob. 303, 337-38 (1977). If a private entity promises to provide security and fails to prevent criminal conduct from injuring a victim, the private entity may in some cases be liable. See, e.g., Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331, 336-37 (1983), and the cases cited therein. The basic question is whether the defendant has undertaken a responsibility. If it has, and it has failed adequately to discharge that responsibility, it may be liable to people who have been injured. See Restatement (Second) of Torts §§ 323, 324A (1965). ⁴

In Adams, the state had decided to conduct fire inspections. In the case before us, the city had decided to provide police protection. Fire inspections and police protection benefit the public, but they also benefit individual citizens. We decline to follow a doctrine which automatically insulates government from liability for failure to exercise reasonable care in the delivery of these services.

In practice, the public duty doctrine is an injunction against imposing liability on a government without first deciding what the government's duty is. While the public duty doctrine does protect the state from becoming the insurer of all private activity and from undue interference with its ability to govern, we believe that these concerns are better addressed by the tort concept of duty, which limits the class of people which may seek to hold the state responsible for negligent action, and by AS 09.50.250. See Adams, 555 P.2d at 241. ⁵

Duty to Protect McLean ⁶

In Ryan v. State, 134 Ariz. 308, 656 P.2d 597, 599 (1982) (en banc) the court observed that it was "well aware that by removing the public/private duty doctrine, we have not solved all of the problems in this area." More specifically, the Arizona court stated:

We deem an ad hoc approach to be most appropriate for the further development of the law in this field. We do not recoil from the thought that the Legislature may in its wisdom wish to intervene in some aspects of this development.

We think the Ryan court's approach is an appropriate means of resolving the issue of whether the city had a duty to protect McLean.

" 'Duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." W. Prosser, The Law of Torts, § 53, at 325 (4th ed. 1971). In addressing these policy considerations we must first define the class of cases to which our rulings will apply, then weigh the factors which support and oppose the imposition of liability in that class of cases.

The record...