Green v. Denison

• Decision Date: 13 October 1987
• Docket Number: No. 69131,69131
• Citation: 738 S.W.2d 861
• Parties: William GREEN and Frances Clayton, Appellants, v. James DENISON, et al., Respondents.
• Court: Missouri Supreme Court

Page 861

738 S.W.2d 861

William GREEN and Frances Clayton, Appellants, v. James DENISON, et al., Respondents.

No. 69131.

Supreme Court of Missouri En Banc.

Oct. 13, 1987.

Rehearing Denied Nov. 17, 1987.

Thomas R. Bellmann, James W. Jeans, Sr., James W. Fletcher and James Bartimus, Kansas City, for appellants.

Darrell L. Havener, Daniel L. Fowler, and Thomas M. Cunningham, Kansas City, for respondents.

BLACKMAR, Judge.

This is a tragic and troubling case. On Sunday evening, March 4, 1979, police were called to an apartment building at 3821 Bell, Kansas City, because the occupant of one apartment, Charles Garrett, had appeared at the door of Ethel Santos' apartment, flourishing a rifle and making threats. The police exchanged shots with Garrett, who had returned to his apartment. The bullet from Garrett's rifle shattered the glass in a "security door" providing access to the hallway, totally blinding plaintiff William Green, a guest in the Santos apartment, who had called the police. A blast from the shotgun of officer James Denison, one of the defendants, killed Garrett and wounded plaintiff Frances Clayton, his companion, depriving her of the effective use of her right arm. Green and Clayton sued Denison, Sergeant Daniel Dawson, and officer Roderick Divilbiss, all of the Kansas City, Missouri police department. At a trial in August of 1985 the jury returned substantial verdicts in favor of both plaintiffs on a submission of ordinary negligence, assessing a percentage of fault against each. The trial court sustained the defendants' motions for judgment notwithstanding the verdicts and entered judgment for the defendants. The court of appeals reversed, directing judgment on the verdicts. We granted transfer because of the important questions about liability of police officers for acts in the line of duty. We now affirm the judgment of the circuit court, concluding that the defendant officers are not liable on an ordinary care standard under the facts of this record.

We of course take the facts from the plaintiffs' point of view. The three defendant officers answered Green's call, arriving in separate vehicles. As they approached the apartment house Denison carried a shotgun and the other two carried their drawn service revolvers. They rang the bell and were admitted to the 7' by 12'8"' hallway by Green and others from the Santos apartment. The officers asked, "where is he," and, communicating by hand signals, took positions near the apartment pointed out as Garrett's. The apartment was dark and the door slightly ajar. Divilbiss kicked the door open. Although the defendants testified that one of them had called out "police officers" before the door was kicked open, the people who remained in the hallway said that they heard no such announcement, and we shall assume that none was made. As soon as the door was kicked open, Denison saw a flash and heard a shot from within the darkened apartment. He then fired his shotgun toward the point of the flash, killing Garrett and wounding Clayton as described. The officers had made no effort to move the Santos group out of the hallway before taking up positions around Garrett's door. Only twenty to thirty seconds elapsed between the time the officers entered the hallway and the time the shots were fired.

We are mindful of the plaintiffs' assertions, both in briefing and argument, that there is evidence that the police officer fired the first shot. Officer Denison, in excerpts from his deposition read into evidence by the plaintiff, testified directly to the contrary. While the plaintiffs are not bound by this evidence if there is evidence to the contrary, they may properly be bound by evidence which they introduced and which is uncontradicted, especially as to matters on which they have an affirmative burden. Evidence that only one loud report was heard, and that more than one ejected shotgun shell casing was observed, does not provide support for a finding that Officer Denison fired the first shot. The plaintiff's uncontradicted evidence shows, furthermore, that Denison had a basis for firing in self-defense.

Dr. George Kirkham, a professor of criminology, testified as an expert witness for the plaintiffs on accepted police practices. He professed familiarity with the "policies" of the Kansas City Police Department, which he said were the same as those of other metropolitan police departments, but did not refer to any manual or published statement of policies, and none was introduced into evidence. He criticized the officers: (1) for acting too hurriedly; (2) for not getting more information from the Santos group before taking positions around the Garrett apartment; (3) for not warning the people in the hallway of their intention to enter the Garrett apartment; (4) for not clearing the Santos group from the hallway; (5) for not clearly announcing their presence to Garrett and trying to talk him into giving up his gun, before kicking the door open. The jury could have found from this evidence that the officers were negligent in the performance of their duties.

Green's verdict director reads as follows:

INSTRUCTION NO. 8

Your verdict must be for William Green and against Defendants James Denison, Daniel Dawson and Roderick Divilbiss, if you believe:

First, that Defendants were present at 3821 Bell in response to a disturbance call that a man with a rifle had threatened a neighbor, and

Second, that Defendants knew or in the exercise of ordinary care should have known that if they attempted to enter the Garrett apartment, that there was a reasonable likelihood of an exchange of shots, and

Third, that Plaintiff William Green was in a position of danger when Defendants attempted to enter the Garrett apartment, and

Fourth, that Defendants knew or in the exercise of ordinary care should have known of Plaintiff William Green's position of danger at that time, and

Fifth, that Defendants failed to advise Plaintiff William Green of their intent to enter the apartment and failed to allow Plaintiff William Green the time or opportunity to remove himself to a position of safety, and

Sixth, that Defendants were thereby negligent, and

Seventh, that as a direct result of such negligence Plaintiff William Green sustained damage.

The verdict director for Clayton is as follows:

Your verdict must be for Frances Clayton and against Defendants James Denison, Daniel Dawson and Roderick Divilbiss, if you believe:

First, that Defendants were present at 3821 Bell in response to a disturbance call that a man with a rifle had threatened a neighbor, and

Second, that Defendants knew or in the exercise of ordinary care should have known that if they attempted to enter the Garrett apartment, that there was a reasonable likelihood of an exchange of shots, and

Third, that in the event of such exchange of shots any persons other than Garrett in the apartment would be in a position of danger, and

Fourth, that before taking such action Defendants failed to determine if there were any such persons in a position of danger, and failed to warn of their identity and allow such persons the time or opportunity to remove themselves to a position of safety, and

Fifth, that Defendants were thereby negligent and;

Sixth, that as a direct result of such negligence Plaintiff Frances Clayton sustained damage.

These are, manifestly, submissions of ordinary negligence. The plaintiff argues vigorously that such is the proper standard, asking rhetorically whether the police are to be the ultimate judges of the reasonableness of their own conduct. The defendants argue for a higher threshold of liability, citing cases going back to Reed v. Conway, 20 Mo. 15 (1854), to which they trace the doctrine of official immunity discussed below.

The parties and the court of appeals have cited us to many cases, from Missouri and elsewhere, in which civil claims have been made against law enforcement officers. Extensive annotations are cited. ¹ We have supplemented their research by our own efforts. Surprisingly few cases are close to this one factually. The numerous cases in which police officers have deliberately initiated the use of deadly force, as when a shooting or stabbing seems imminent, or to effect the arrest of a fleeing felon, or to prevent escape of a prisoner, are of little help. The vital issues there are whether there was a privilege to use lethal force, and whether more force was used than was reasonably necessary. ² Also of limited value are the many cases cited by the parties which arose under 42 U.S.C. Sec. 1983, in which it is necessary to show deprivation of federal constitutional rights. ³ Cases such as these may contribute helpful analysis, but they involve issues and considerations not present here.

This case involves claims against police officers who were directed to respond to a disturbance call and who were fired upon almost immediately after they took positions at the suspect's door. The plaintiffs argue that the police could and should have foreseen the violent encounter, and so may be held to civil liability to the persons injured on a negligence theory. Two distinct but somewhat related doctrines, firmly established in Missouri law, impose obstacles to recovery. These are the official immunity doctrine ⁴ and the public duty doctrine. ⁵ Both are discussed in Sherrill v. Wilson, 653 S.W.2d 661 (Mo. banc 1983), in which we held that psychiatrists at a state hospital were not liable for releasing an allegedly dangerous patient on a short pass, or for failure to return him to custody after he overstayed his leave. The doctrines are not matters of affirmative defense, but rather serve to delineate the legal duty which the defendant official owes to the plaintiff.

The official immunity doctrine holds that a public official is not civilly liable to members of the public for negligence strictly related to the performance of discretionary duties. The fear of personal liability...