City of Rome v. Jordan

• Decision Date: 15 March 1993
• Docket Number: No. S92G0907,S92G0907
• Citation: 263 Ga. 26,426 S.E.2d 861
• Parties: CITY OF ROME et al. v. JORDAN et al.
• Court: Georgia Supreme Court

Page 861

426 S.E.2d 861

263 Ga. 26

CITY OF ROME et al. v. JORDAN et al.

No. S92G0907.

Supreme Court of Georgia.

March 15, 1993.

Reconsideration Denied March 30, 1993.

Robert M. Brinson, J. Anderson Davis, Brinson, Askew & Berry, Rome, for City of Rome et al.

Daniel A. Ragland, Robins, Kaplin, Miller & Ciresi, Atlanta, for Jordan et al.

Walter E. Sumner, Atlanta, amicus appellant.

SEARS-COLLINS, Justice.

Patricia Jordan and her husband, Cary Jordan, the appellees, brought a negligence action against the City of Rome, its chief of police, and a police department radio dispatch officer (the appellants) (collectively "the City"). The Jordans allege that the City negligently failed to properly train radio dispatch personnel, and that the City negligently failed to dispatch a police vehicle to the Jordan home in response to several telephone calls for assistance, causing Patricia Jordan to suffer serious injury and trauma.

The trial court granted the City's motion for summary judgment. Acknowledging that there are no Georgia cases on point the trial court held that because no "special relationship" existed between the City and the Jordans, the City owed no duty to the Jordans upon which liability could be based. The Court of Appeals affirmed summary judgment as to the allegation of negligent training, finding that the Jordans had offered no evidence to rebut affidavits presented by the City to show the extent of training given dispatch officers. On the question of whether a duty exists upon which liability for failure to provide police protection can be based, the Court of Appeals reversed the trial court, holding that no "special relationship" is required for liability of municipalities with regard to the provision of police protection in Georgia. Jordan v. City of Rome, 203 Ga.App. 662, 417 S.E.2d 730 (1992). We granted certiorari to determine "[t]he duty of police officers of a city to respond to emergency requests for help." We reverse the Court of Appeals.

First we will consider what rule should be applied in negligence cases such as this, and then we will examine the facts of this case in relation to that rule.

1. The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. ¹ Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982). Whether a duty exists upon which liability can be based is a question of law. First Federal v. Fretthold, 195 Ga.App. 482, 485-486, 394 S.E.2d 128 (1990).

When considering whether there is a duty upon which a municipality may be held liable for the failure to provide police protection to individual citizens, ² courts have taken two fundamental approaches. The majority rule is that "liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public[,] [except where there is] a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual." 38 ALR4th 1194, § 1[a] (1985). We will refer to this as the "public duty" doctrine. Other courts have held that the public duty doctrine creates a virtual immunity for government entities, which is in conflict with any judicial or legislative enactment abrogating or waiving sovereign immunity. Courts taking this minority approach have found the duty element of negligence satisfied by the general duty to protect the public, and have then determined liability based on traditional tort principles of breach, foreseeability and causation. See generally, 38 ALR4th 1194 (1985 and Supp.1992); see, e.g., Leake v. Cain, 720 P.2d 152, 160 (Colo.1986).

The Court of Appeals favored the minority view, in light of Georgia's statutory waiver of governmental immunity to the extent of liability insurance, stating that "where sovereign immunity does not apply, use of the [public duty doctrine] creates a shield behind which governmental entities can avoid liability for negligent acts, thereby imposing a type of immunity unique to governmental defendants." Jordan, 203 Ga.App. at 665, 417 S.E.2d 730.

We disagree. Rather, we find that the abrogation or waiver of sovereign immunity in Georgia did not create a duty on the part of a municipality where none existed before. To impose liability on the City based on a general duty to protect all citizens from the actions of third parties would "expand[ ] the [City's] duty and potential liability beyond that imposed [on private parties] under traditional tort analysis." Jordan, 203 Ga.App. at 672, 417 S.E.2d 730 (Andrews, J., dissenting). On the other hand, far from creating a general immunity from liability, adoption of the public duty doctrine requiring a special relationship between the injured party and the alleged governmental tortfeasor restricts the liability of the governmental entity for the actions of a third party similarly to the manner in which the liability of a private party is restricted. ³ Further, " 'a municipality's provision of police protection to its citizenry [is] a resource-allocating function that is better left to the discretion of the policy makers' ..., 'the amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed.' " Kircher v. City of Jamestown, 74 N.Y.2d 251, 256, 543 N.E.2d 443, 445, 544 N.Y.S.2d 995 (1989) (citations and punctuation omitted). Therefore, where failure to provide police protection is alleged, there can be no liability based on a municipality's duty to protect the general public. However, in order to ensure responsibility and the utmost protection possible within limited means, it is important that a municipality be accountable for its negligence to some degree. Hence, where there is a special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual, the municipality may be subject to liability for the nonfeasance of its police department. ⁴

2. In order to determine whether such a special relationship exists, we adopt the following requirements:

(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party;

(2) knowledge on the part of the municipality that inaction could lead to harm; and,

(3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking.

This test is adapted from the test set forth in Cuffy v. City of New York, 69 N.Y.2d 255, 505 N.E.2d 937, 513 N.Y.S.2d 372 (1987). In addition to the above elements, the test set forth in Cuffy requires that there be "direct contact" between the injured party and the municipality. We have deleted that requirement for two reasons. First, we can conceive of numerous instances in which the injured party is unable to directly contact the municipality, due to physical limitations or other restraints, yet meets the other requirements of a special relationship. To find the municipality free from duty solely because of the limitations and restraints on the injured party would be unfair. Second, the reason for requiring direct contact in those states which do so appears to be that if there is no direct contact then there can be no reliance on the promise of the municipality. See, e.g., Bogart v. New Paltz, 145 A.D.2d 110, 537 N.Y.S.2d 678 (1989); Klahr v. District of Columbia, 576 A.2d 718 (D.C.App.1990). We find that this concern is met by specifically requiring that the injured party rely on the promise of the municipality to her detriment. ⁵

3. When construed in favor of the Jordans, Gaylor v. Jay & Gene's Chrysler, 183 Ga.App. 255, 256, 358 S.E.2d 655 (1987), the evidence in this case shows that Hoyt Marks appeared at Patricia and Cary Jordan's home early one morning while Cary Jordan was away, and asked to speak with his estranged wife, Dana Jordan Marks, who is Cary Jordan's sister. Before letting Marks into her house, Patricia called Dana, who was at her mother's house nearby, and told Dana that Marks was there. Dana told Patricia to let Marks in, call her back, and she would call the police. Patricia did as Dana instructed. When Dana called the police, she informed the police that Marks had "escaped" from an alcohol rehabilitation center, that there was a warrant out for his arrest for probation violation, and that he was at Patricia Jordan's house harassing her. The police radio dispatch officer told Dana that a police car was on its way to Patricia Jordan's home.

After Marks had talked with Dana, he turned on Patricia and sexually assaulted her at knifepoint. After Marks had assaulted Patricia once, Dana called Patricia's house. Marks held a knife on Patricia and allowed her to answer the telephone. Dana asked Patricia if the police had arrived yet. When Patricia said no, Dana said she would call them again. Then, holding a knife to her throat, Marks assaulted Patricia again.

Applying the test for a special relationship to these facts, we find there was no genuine issue of fact with regard to the requirement of detrimental reliance. Patricia Jordan argues that she did not try to fight Marks because she thought the police were coming. The evidence shows that Patricia was not aware that the police had made any promise of assistance, if in fact they did. Any reliance on her part on the police arriving was based solely on a belief that the police would come if called, not on any promise made by the police. To allow such an expression of reliance to satisfy the reliance requirement in the special relationship test would render the requirement virtually meaningless. Therefore, we find that the trial court was correct in granting summary judgment based on a finding that there was no special relationship between Patricia Jordan and the...