Landis v. Rockdale County

• Decision Date: 18 March 1994
• Docket Number: No. A91A1259,A91A1259
• Citation: 445 S.E.2d 264,212 Ga.App. 700
• Parties: LANDIS v. ROCKDALE COUNTY et al.
• Court: Georgia Court of Appeals

Page 264

445 S.E.2d 264

212 Ga.App. 700

LANDIS v. ROCKDALE COUNTY et al.

No. A91A1259.

Court of Appeals of Georgia.

March 18, 1994.

Reconsideration Denied April 1, 1994.

Certiorari Denied June 27, 1994.

Thomas W. Malone, Peterson, Dillard, Young, Self & Asselin, James M. LaChance, Lawrence J. Pond, Atlanta, for appellant.

Jenkins & Eells, Frank E. Jenkins III, Maddox, Starnes & Nix, John A. Nix, Chambers, Mabry, McClelland & Brooks, V. Jane Reed, Atlanta, Dawkins & Serio, Harrill L. Dawkins, Conyers, for appellees.

Abdul S. Valiani, pro se.

ANDREWS, Judge.

After granting certiorari to review our decision in Landis v. Rockdale County, 206 Ga.App. 876, 427 S.E.2d 286 (1992), the Supreme Court entered an order "remand[ing] this case to the Court of Appeals for it to reconsider its decision in light of City of Rome v. Jordan, [263 Ga. 26 (426 SE2d 861) (1993) ]."

In Landis, supra, we assumed, for purposes of the defendants' motion for summary judgment at issue, that the Rockdale County deputy sheriff observed a noticeably intoxicated driver who approached and spoke to him while he was directing traffic at an intersection. The deputy failed to arrest or otherwise restrain the driver from continuing to drive her automobile. We further assumed that about two hours later, after the driver left a party, and while driving her car in an intoxicated condition, she caused an automobile accident which resulted in the death of the plaintiff's husband. The facts are more fully set forth in Landis, supra.

On behalf of her deceased husband, the plaintiff sued, among others, Rockdale County, the sheriff of Rockdale County, and the deputy sheriff who observed the intoxicated driver. ¹ The controlling issue on the defendants' motion for summary judgment was whether the deputy sheriff, who observed the intoxicated driver before the fatal accident, had a duty to the plaintiff's decedent to protect him from the negligence of the intoxicated driver by arresting or otherwise restraining the intoxicated driver from continuing to drive.

This court's task is to reconsider this case in light of the Supreme Court's decision in City of Rome, supra. City of Rome involved a negligence claim against the city by a citizen who was injured by the criminal assault of a third person. The injured citizen claimed that the city police negligently failed to respond to protect her from the attack after she telephoned the police several times before the attack, asking for assistance. In determining that the city was not liable on the negligence claim, the Supreme Court set forth certain general principles applicable to a negligence claim for inadequate police protection.

First, "[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care." Id. at 27, 426 S.E.2d 861. Second, "[w]hen considering whether there is a duty upon which [a governmental unit] may be held liable for the failure to provide police protection to individual citizens ... [t]he 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.... Therefore, where failure to provide police protection is alleged, there can be no liability based on a [governmental unit's] duty to protect the general public.... Hence, where there is a special relationship between the individual and the [governmental unit] which sets the individual apart from the general public and engenders a special duty owed to that individual, the [governmental unit] may be subject to liability for the nonfeasance of its police department.... In order to determine whether such a special relationship exists, we adopt the following requirements: (1) an explicit assurance by the [governmental unit], through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the [governmental unit] that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the [governmental unit's] affirmative undertaking." (Citations and punctuation omitted.) Id. at 27-29, 426 S.E.2d 861.

In adopting the three requirements to establish the existence of a special relationship, the Supreme Court noted that "[s]ince the situation is not presented by the facts of this case, we do not determine whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not act." Id. at 29, n. 4, 426 S.E.2d 861. The dissent believes that this language evinces the Supreme Court's intention to distinguish its holding in City of Rome from the factual situation presented in Landis, where the police officer observed but failed to stop the intoxicated driver hours prior to the fatal accident. Accordingly, the dissent ignores the general principles governing liability set forth in City of Rome and concludes that, under the present facts, no special relationship between the plaintiff's decedent and the governmental unit was necessary in order to impose a special duty owed to protect plaintiff's decedent from the negligence of the intoxicated driver.

We cannot agree with the conclusion reached by the dissent. It is true that the facts in Landis, where the relationship at issue was between the deputy and the intoxicated driver, may not lend themselves to application of the three special relationship requirements adopted in City of Rome, where the relationship at issue was between the police and the injured citizen. Nevertheless, City of Rome provides guidance in our reconsideration of Landis in light of the general principle which recognizes that liability for a failure to provide police protection cannot be based on a duty to protect the general public. A more logical understanding of the situation distinguished by the Supreme Court in City of Rome is that, even in the absence of one or more of the three express requirements for the existence of a special relationship with the injured citizen, a special duty to protect that citizen might be found under some circumstances where a police officer is present at the scene of a crime about to be perpetrated against the citizen (who at that point is an identifiable victim ) and the officer fails to act to protect the citizen despite his ability to do so. No decision need be rendered on such a theory, since this is obviously not the type of situation presented by the facts in Landis.

In Landis, when the deputy sheriff was confronted with the intoxicated driver, plaintiff's decedent was not an identifiable victim in immediate danger of harm. At that point, the deputy sheriff had no contact with plaintiff's decedent. Although the deputy may have been present at the scene of a crime in that he observed an intoxicated driver, the deputy's duty to enforce the drunk driving laws was to the public in general, not specifically to plaintiff's decedent, who was killed hours later in a collision with the intoxicated driver at another location. "The special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff's decedent. [Cits.] In deciding the issue of when, if ever, an official's public duty precipitates into a special one to prevent harm to an individual, the law requires, to maintain the action, a showing of imminent harm to an identifiable victim. [Cits.]" Shore v. Town of Stonington, 444 A.2d 1379, 1383 (Conn.1982) (no liability although police stopped and released drunk driver, who later caused fatal accident).

A clear majority of states which have considered whether police officers have a duty to restrain a drunk driver have followed the rationale of the "public duty" doctrine, which, as adopted in City of Rome, supra, requires that liability be based on facts establishing a duty owed to the injured individual rather than a duty to protect the general public. See Evett v. City of Inverness, 224 So.2d 365, 366 (Fla.Dist.Ct.App.1969) (police officer who stopped but released an intoxicated driver owed no duty, different from that owed to the general public, to the plaintiff's decedent who was later killed in an accident caused by the intoxicated driver); Crosby v. Town of Bethlehem, 90 A.D.2d 134, 457 N.Y.S.2d 618 (1982) (no duty owed to plaintiff's decedent even though the drunk driver who caused the fatal accident had a conversation with a police officer before the accident; the officer believed the driver was intoxicated but did not restrain him from driving); Crider v. United States, 885 F.2d 294, 298, n. 3 (5th Cir.1989) (construing Texas law to be in accord with the "public duty" rationale applied by the majority of states dealing with failure of police to restrain a drunk driver); Landis, supra, 206 Ga.App. at 883, 427 S.E.2d 286 (Pope, J., dissenting and citing majority position as set forth in Annotation, Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer, 48 ALR4th 320 (1986)).

In determining whether the deputy in Landis owed a duty to plaintiff's decedent, the foregoing principles must be applied in the context of the general rule of Restatement, Torts 2d, § 315, as stated in Bradley Center v. Wessner, 250 Ga. 199, 201, 296 S.E.2d 693 (1982), that " 'there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.' Bradley Center dealt with specific exceptions to the general rule under Restatement, Torts 2d, §§ 315 and 319. Section 315 sets forth two exceptions to the no duty rule where '(a) a special relation...