Darrar v. Bourke

• Decision Date: 29 January 1996
• Docket Number: Nos. 95-92,95-98,s. 95-92
• Citation: 910 P.2d 572
• Parties: Judith Ann DARRAR and Dickson Darrar, Husband and Wife, Petitioners, v. Michael BOURKE; Michael Wyatt; and the City of Sheridan, a Municipal Corporation, Respondents. The CITY OF SHERIDAN, Petitioner, v. Judith Ann DARRAR and Dickson Darrar, Husband and Wife, Respondents.
• Court: Wyoming Supreme Court

Page 572

910 P.2d 572

Judith Ann DARRAR and Dickson Darrar, Husband and Wife, Petitioners, v. Michael BOURKE; Michael Wyatt; and the City of Sheridan, a Municipal Corporation, Respondents.

The CITY OF SHERIDAN, Petitioner, v. Judith Ann DARRAR and Dickson Darrar, Husband and Wife, Respondents.

Nos. 95-92, 95-98.

Supreme Court of Wyoming.

Jan. 29, 1996.

Michael K. Shoumaker of Northern Wyoming Law Associates, Sheridan, for Judith Ann Darrar and Dickson Darrar.

John R. Perry of Goddard, Perry & Vogel, Buffalo, for Michael Bourke and Michael Wyatt.

Debra J. Wendtland of Connor & Wendtland; and Robert W. Connor, Jr., City Attorney, Sheridan, for City of Sheridan.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

GOLDEN, Chief Justice.

Judith Ann Darrar (Darrar) and her husband, ¹ Dickson Darrar, appeal the district court's decision to dismiss their negligence claims, filed pursuant to the Wyoming Governmental Claims Act, against Michael Bourke and Michael Wyatt (officers). The district court determined the officers were entitled to qualified immunity and dismissed the claims against the officers. The City of Sheridan (Sheridan) appeals the district court's refusal to dismiss Darrar's claims against it. The two appeals were consolidated for purposes of briefing and oral argument.

We affirm the district court's refusal to dismiss the claims against Sheridan and reverse the order to dismiss the claims against the officers.

ISSUES

Darrar presents the following issues:

1. Is the claim of Judith Darrar and Dickson Darrar against police officers Michael Bourke and Michael Wyatt barred by qualified immunity?

2. If the police officers are given qualified immunity, must the claim of the plaintiffs against the City of Sheridan also be dismissed?

The officers present a single issue for review:

Did the trial court properly rule that Officers Bourke and Wyatt were protected by qualified immunity?

Finally, the City of Sheridan presents these issues:

I: Are Defendants Bourke and Wyatt entitled to qualified immunity?

II: Does the City have a duty of indemnity once the officers have been declared immune?

III: What is the effect of W.S. § 1-39-104?

FACTS

On April 8, 1992, the officers, while employed as police officers for the City of Sheridan, encountered Danny Welch in Sheridan, Wyoming. Welch had been drinking alcoholic beverages and appeared to be emotionally upset and disturbed when the officers questioned him. Welch asked the officers for a ride and a place to stay because he had just been released from prison and did not have a place to stay in Sheridan.

One of the officers transported Welch to the police station, allowing Welch to call a friend for a ride and a place to stay. When Welch was unable to contact his friend, one of the officers directed a police dispatcher to call a taxicab for Welch. The dispatcher requested cab service at the police station to take an unnamed individual (Welch) out past the Skyline Drive-In. Within a short time Darrar arrived at the police station in her taxicab in response to the request.

The officers did not advise Darrar that Welch was a convicted felon, recently released from prison, that he had been drinking and exhibiting signs of emotional distress, or that they had been unable to confirm the identity or location of the person to whose home Welch stated he wished to go. Darrar picked Welch up at the police station, Welch's requested destination never materialized and Welch subsequently kidnapped and raped Darrar.

Darrar filed a tort action against the officers and Sheridan, based on the waiver of immunity for tortious acts of peace officers found in WYO.STAT. § 1-39-112 (1988) of the Wyoming Governmental Claims Act. Darrar claimed the officers were police officers for the City of Sheridan and were acting within the scope of their duties as police officers when they committed the negligent acts which resulted in Darrar's kidnapping and rape. Specifically, Darrar claimed:

20. That Officers Wyatt and Bourke were aware of the fact that Danny Welch was dangerous to Judith Darrar and that he was a threat to her well being because:

1. Each officer knew that Danny Welch had exhibited a propensity for violence in the past;

2. The officers knew Danny Welch had been drinking;

3. The officers knew Danny Welch was emotionally disturbed that night;

4. The officers should have been suspicious and concerned about sending a female cab driver to a supposed address that could not be located, had no listed telephone and whose very existence they failed to confirm.

21. That on April 8, 1992, the Defendants had a custodial relationship with Mr. Welch as a result of investigating him, placing him in the police car and transporting him to the Sheridan Police Station.

22. That at the time of these events there existed a special relationship between Judith Darrar and the Defendants since they summoned the cab to the police station placing her at risk.

23. That the Defendants were negligent in failing to arrest Danny Welch for drinking alcohol while on parole from prison and a minor.

24. That the Defendants were negligent in failing to check and confirm the supposed destination of Danny Welch.

25. That the Defendants were negligent in failing to warn Mrs. Darrar that the person they summoned her to carry had a history of violence, had been drinking and was disturbed emotionally.

26. The negligence of the Defendants set in motion the special forces which allowed Danny Welch to commit his crimes and offenses against the Plaintiffs [Darrars].

The officers responded to Darrar's amended complaint with a motion to dismiss based on qualified immunity. Sheridan answered Darrar's complaint, denying, among other things, that the officers were acting within the scope of their duties ² and asserting governmental

immunity and qualified immunity. Sheridan also claimed Darrar failed to state a cause of action upon which relief could be granted and that Darrar was more negligent than Sheridan. After briefing and a hearing on the officers' motion, the district court dismissed Darrar's tort claims against the officers based on qualified immunity. Sheridan filed a motion to dismiss, arguing that if the officers were not liable, then Sheridan also escapes liability. The district court refused to dismiss Darrar's claim against Sheridan based on the waiver of immunity in the Wyoming Governmental Claims Act. Darrar and Sheridan appeal from those decisions.

STANDARD OF REVIEW

Stating the officers were entitled to qualified immunity and were immune from suit, the district court granted the officers' motion to dismiss. In Cranston v. Weston County Weed & Pest Board, we reiterated our oft-cited standard of review of a trial court's order dismissing a complaint:

According to our standard of review we will sustain a dismissal of a complaint only if it shows on its face that the plaintiff was not entitled to relief under any set of facts. In considering such a motion, the "facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to plaintiffs." Dismissal is a drastic remedy, and is sparingly granted.

Cranston v. Weston County Weed & Pest Bd., 826 P.2d 251, 254-55 (Wyo.1992) (quoting Matter of Paternity of JRW, 814 P.2d 1256, 1259 (Wyo.1991) (citations omitted)).

WYO.R.CIV.P. 8 provides that a generalized statement of facts is sufficient in a complaint. A plaintiff should have the opportunity to litigate a claim on its merits. Torrey v. Twiford, 713 P.2d 1160, 1165-66 (Wyo.1986). WYO.R.CIV.P. 9(b) provides that malice, intent, or knowledge of a person may be averred generally, only fraud and mistake must be stated with particularity. Torrey, 713 P.2d at 1166. Therefore, we must determine whether it appears beyond doubt that no set of facts in support of Darrar's claim would entitle her to relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

Another reason that a litigant should usually have the opportunity to develop his claim beyond the complaint is that of judicial economy and expense to the parties if the appeals court reverses the dismissal.

" * * * [A] motion to dismiss [is not] the only effective procedural implement for the expeditious handling of legal controversies. Pretrial conference; the discovery procedures; and motions for a more definite statement, judgment on the pleadings and summary judgment, all provide useful tools for the sifting of allegations and the determination of the legal sufficiency of an asserted claim. The salvaged minutes that may accrue from circumventing these procedures can turn to wasted hours if the appellate court feels constrained to reverse the dismissal of the action. * * * This is not to say or imply that a motion to dismiss should never be granted. It is obvious that there are cases which justify and indeed compel the granting of such motion. The line between the totally unmeritorious claims and the others cannot be drawn by scientific instruments but must be carved out case by case by the sound judgment of trial judges. That judgment should be exercised cautiously on such a motion." Rennie & Laughlin, Inc. v. Chrysler Corporation, 242 F.2d 208, 213 (9th Cir.1957).

Torrey, 713 P.2d at 1166-67.

DISCUSSION

Historically, a peace officer was entitled to qualified immunity if, while acting within the scope of his duties, he performed his discretionary duties reasonably and in good faith. Blake v. Rupe, 651 P.2d 1096, 1107 (Wyo.1982), cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983). "[C]ommon law has never granted police officers an absolute immunity." Id. (citing Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)). When considering whether a peace officer is entitled to The terms "good faith," "reasonable," "ministerial" and "discretionary" were discussed by this court in the context of qualified immunity ³ in Blake, Oyler,...