Ivicevic v. City of Glendale
| Decision Date | 13 May 1976 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 549 P.2d 240,26 Ariz.App. 460 |
| Parties | John P. IVICEVIC and Barbara M. Ivicevic, husband and wife, Cecil Mathews and Darlene Mathews, husband and wife, and Sheldon Mathews, Appellants, v. CITY OF GLENDALE, a Municipal Corporation, and John Morin, Chief of Police of the City of Glendale, Appellees. 2883. |
| Court | Arizona Court of Appeals |
This appeal is taken from the granting of a Motion to Dismiss for failure to state a claim upon which relief might be granted against the City of Glendale and John Morin, the Glendale police chief. Appellants concede that John Morin was properly dismissed as a party defendant and appeal only the dismissal as to the City of Glendale.
The facts, as alleged by the appellant, are that on August 7, 1971, Mrs. Pierson telephoned a complaint to the Glendale police stating that her husband, Harley Pierson, was intoxicated and disturbing the peace in front of their home. When the officers arrived they found the husband asleep in front of the house. They awakened him and ordered him to leave the premises. At that time, the officers knew or should have known that Pierson was intoxicated and unable to drive safely. After ordering Pierson to leave, the officers saw him get into his car and drive away. Several minutes later, Pierson's car collided with a vehicle operated by one of the appellants, Sheldon Mathews. As a result of the collision, Mathews was injured, his passenger, Monika Ivicevic, decedent of other appellants, was killed, and the car damaged.
The question presented for our review is whether under the facts as pleaded, the City of Glendale can be held liable for the damages sustained by appellants resulting from the alleged negligence of its police officers in allowing Pierson to operate a motor vehicle in an intoxicated state.
In order to state a cause of action in tort, a plaintiff must prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by that breach. In the case sub judice, no claim for relief can be stated against the City of Glendale because the duty allegedly owed by the City was a duty to the public in general and not to appellants in particular. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Delarosa v. State, 21 Ariz.App. 263, 518 P.2d 582 (1974); Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973).
In Massengill v. Yuma County, our Supreme Court examined the duty of public officers and governmental agencies.
104 Ariz. at 521, 456 P.2d at 379.
The Court went on to hold that the duty owed by police officers is clearly one owed to the general public, and that unless facts are pleaded to show that a plaintiff fits into the narrow exception to this rule, no cause of action can be maintained against the officers or governmental agency by individual plaintiffs for any alleged negligent performance of that duty.
Duran v. City of Tucson, supra, is helpful in setting out the exceptional situations where a particular duty to individuals exists and recovery in tort is possible against a government agency and its public officers. As noted in Duran two specific types of situations give rise to this duty to individuals.
'(1) (There are) certain activities of the government which provide services and facilities for use of the public such as highways, public buildings and the like, in performance of which the governmental body may be liable under the ordinary principles of tort law. The basis for liability is the provision of the service or facilities for the direct use by members of the public. This is to be contrasted with the provision of a governmental service to protect the public generally from external hazards.
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'(2) (T)here are situations where a government or agency thereof can by its conduct narrow an obligation owed to the general public into a special...
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