DeHoney v. Hernandez

• Decision Date: 31 October 1978
• Docket Number: CA-CIV,No. 2,2
• Citation: 594 P.2d 1010,122 Ariz. 314
• Parties: Franklin R. DeHONEY and Virginia R. DeHoney, husband and wife, and Donald Malquist and Mary Jo Malquist, husband and wife, doing business as the Showcase, a Co-Partnership, Appellants, v. Serapio HERNANDEZ, David Wayne Hovis, Gerald Lee Edwards, James Hill, and the City of Casa Grande, a Body Politic, John Doe, One through Five (1-5) and XYZ Corporation, One through Five (1-5), Appellees. 2904.
• Court: Arizona Court of Appeals

Page 1010

594 P.2d 1010

122 Ariz. 314

Franklin R. DeHONEY and Virginia R. DeHoney, husband and wife, and Donald Malquist and Mary Jo Malquist, husband and wife, doing business as the Showcase, a Co-Partnership, Appellants, v.Serapio HERNANDEZ, David Wayne Hovis, Gerald Lee Edwards, James Hill, and the City of Casa Grande, a Body Politic, John Doe, One through Five (1-5) and XYZ Corporation, One through Five (1-5), Appellees.

No. 2 CA-CIV 2904.

Court of Appeals of Arizona, Division 2.

Oct. 31, 1978.

Rehearing Denied Dec. 6, 1978.

Review Granted Jan. 9, 1979.

Stanfield, McCarville, Coxon, Cole & Fitzgibbons, by A. Thomas Cole, Casa Grande, for appellants.

Murphy & Hazlett, by Thomas M. Murphy and Scott Goering, Tucson, for appellees.

OPINION

HOWARD, Judge.

This is an appeal from a judgment on a directed verdict for appellees.The primary question is whether the police department is liable for the losses from a burglary where the victim's premises are protected by a silent burglar alarm system connected with the police department, the police have made representations to the victim about their procedure in responding to silent burglar alarms and negligently fail to follow that procedure, and this failure is the proximate cause of the burglary losses.The court below decided that there would be no liability even if these facts were assumed to be true.We reverse and remand for a new trial.If the above facts are established at trial, the appellees are liable for the appellants' losses.

We will view the evidence in the light most favorable to appellants.Tanner v. Levie, 105 Ariz. 149, 460 P.2d 995(1969).

Appellants Franklin and Virginia DeHoney own a jewelry and framing store in Casa Grande called the Showcase.At the time of the burglary which gave rise to this action they were in the process of finalizing a partnership with appellants Donald and Mary Jo Malquist who had provided nearly half of the stock of Indian jewelry.Profits were being shared equally by the DeHoneys and the Malquists.

In the winter of 1974-1975, the DeHoneys were planning to expand their inventory of Indian jewelry.Because there would be an increased risk of theft, they were simultaneously planning to improve the store's security.Mr. DeHoney had casual conversations with several Casa Grande police officers and they all recommended a silent alarm system.Another officer came to the store, unbidden by appellants, specifically to talk about security systems.He too stressed the advantages of a silent alarm system over other security measures.Finally, Mr. DeHoney visited the police station to discuss a silent alarm system with someone there.He spoke with Lt. Bain, who basically seconded what the other men had said.

When a burglar sets off a silent alarm, he has no way of knowing he has done so.An alarm goes off somewhere else; in Casa Grande, silent alarms were connected to go off at the police station.All the police officers with whom Mr. DeHoney had discussed this described the same general response procedure, as follows.The dispatcher sends policemen to the building where the alarm has been triggered.They secure the entrances so the intruder cannot escape and wait until the owner, who has been notified by the dispatcher, arrives.All the officers told DeHoney about their excellent response time record, estimating a response time of 30 seconds to two minutes for the Showcase.The officers said that silent alarms promise a chance to apprehend an intruder because he has not been warned to flee, as he would have been by an audible alarm, the police are notified as soon as he enters the building, and know which building's alarm has gone off.They also said they felt this system was superior to other security measures because they are alerted to the intruder's precise location.

Mr. DeHoney testified that he had not considered an alarm system before these conversations with the police officers.He had not been aware that they were feasible for small businesses.

In January of 1975, the DeHoneys installed a silent burglar alarm system in the Showcase.It could be activated by someone tampering with the doors or windows, or by something breaking one of several infrared beams which criss-crossed the interior of the store.The alarm was connected to go off at the Casa Grande police station.

On June 30, 1975, the alarm for the Showcase went off at the police station at 2:11 a. m. The dispatcher, appellee Edwards, immediately dispatched appellee Hernandez to the site of the alarm.At 2:13 Sgt. Hernandez and appellee Hill simultaneously arrived at the Showcase's front door and appellee Hovis arrived at the back.Both doors were secure; the police did not see any signs of disturbance.Sgt. Hernandez directed Edwards to telephone the proprietor and Hovis to stay in the general area.The three officers then left.

Tony Leon, the burglar, testified that he entered the Showcase through an air vent on the roof, broke through the ceiling and jumped down to the floor.Within a few minutes he heard the police at the front door.He dropped to the floor behind the counters and watched them check the doors, talk for a few minutes, and leave.He thought it was a routine door check.Leon then filled a box with Indian jewelry, broke the padlock on the back door, and left.He estimated he spent about 30 or 40 minutes in the store.

Meanwhile, dispatcher Edwards had been delayed in telephoning Mr. DeHoney.He had other duties to attend to and had trouble finding the telephone number.Mr. DeHoney was not telephoned until 2:41 a. m. He got to his store quickly, entered it with Officer Hovis, and saw that a large quantity of Indian jewelry had been stolen.The store was well lighted, and the holes in the ceiling, broken pieces hanging from the ceiling, and debris on the floor were clearly visible.Tony Leon said that as he drove away with the jewelry he saw Mr. DeHoney and the policeman enter the store.

Appellants brought this action against the policemen who responded to the burglar alarm at the Showcase that night, the dispatcher Edwards, and their employer the City of Casa Grande, on the theory that their negligence led to appellants' losses.After appellants presented their case, the trial judge granted appellees' motion for a directed verdict.He found that there was no special duty owing to appellants, therefore no liability even if the jury found there was negligence.We find, on the contrary, that the Casa Grande Police Department did owe a special duty to the appellants.In tort actions against a government body, although the defense of governmental immunity has been abolished, Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107(1963), the elements of liability still must be established, just as in an action against a private individual.In Arizona, liability in a claim founded on negligence depends on a showing that (1)the defendant had a duty to protect the plaintiff from the injury of which he complains; (2)the defendant failed to perform that duty; and (3) such failure was the proximate cause of the plaintiff's injury.Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 372 P.2d 333(1962).

In Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376(1969)the court stated that there are situations where a government, or agency thereof, can by its conduct narrow an obligation owing to the general public into a special duty to an individual, for the breach of which it is responsive in damages.The apprehension of law violators is a general duty owed to the public and not to individuals.Massengill v. Yuma County, supra.The question here is whether the conduct of the police narrowed that duty to a special duty.Instructive on this point is the case of McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100(App.1977).There the court stated:

"In the narrow field of police protection, however, we can discern certain general situations where duty toward specific individuals can be found.One is where there has been a specific promise or representation by police to a person in a situation which creates justifiable reliance."(Emphasis added)117 Ariz. at 277, 572 P.2d at 105.

As authority for this statement the court cited Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534(1958), Swanner v. United States, 309 F.Supp. 1183(M.D.Ala.1970)andBaker v. City of New York, 25 A.D.2d 770, 269 N.Y.S.2d 515(1966).Our examination of these cases discloses that they do not entirely stand for the proposition which the court enunciates.

The court in McGeorge states that in Schuster the police promised protection to an informer.The facts do not disclose this.In Schuster an informant gave information to the police concerning a notorious criminal which led to the arrest of the criminal.The role of the informant was widely publicized and when threats were made on his life he called the police for protection.The police did not take the threats seriously and gave no protection.The informant was murdered.The court held:

"Nevertheless, where persons actually have aided in the apprehension or prosecution of enemies of society under the criminal law, a reciprocal duty arises on the part of society to use reasonable care for their police protection, at least where reasonably demanded or...