Leake v. Cain

• Decision Date: 09 June 1986
• Docket Number: No. 85SC66,85SC66
• Citation: 720 P.2d 152
• Parties: James LEAKE, Jerry Couch, John Volpi, Daniel Garcia, James Green, and Commerce City, Colorado, Petitioners, v. H. Marie CAIN, nka H. Marie Burrows, individually and as natural mother and next friend of the deceased, Jeffrey Mark Cain, and Delores Chase and Jack Chase, individually and as natural parents and next friends of the deceased Jay Chase, Respondents.
• Court: Colorado Supreme Court

Page 152

720 P.2d 152

55 USLW 2013

James LEAKE, Jerry Couch, John Volpi, Daniel Garcia, James Green, and Commerce City, Colorado, Petitioners, v. H. Marie CAIN, nka H. Marie Burrows, individually and as natural mother and next friend of the deceased, Jeffrey Mark Cain, and Delores Chase and Jack Chase, individually and as natural parents and next friends of the deceased Jay Chase Respondents.

No. 85SC66.

Supreme Court of Colorado En Banc.

June 9, 1986.

Hall & Evans, Alan Epstein, Arthur R. Karstaedt, III, Denver, for petitioners.

Leland S. Huttner, P.C., Anne M. Vitek, Denver, for respondents.

ERICKSON, Justice.

In this wrongful death action, respondents seek damages for the deaths of their children, who were killed when they were struck by an automobile driven by Ralph Crowe. The trial court granted petitioners' motion for summary judgment. In Cain v. Leake, 695 P.2d 798 (Colo.App.1984), the court of appeals reversed and remanded the case for trial. We granted certiorari, and we now reverse and remand to the court of appeals with directions to reinstate the trial court's order granting summary judgment.

I. FACTS

The tragic sequence of events leading to the accident in this case is undisputed. On the evening of September 9, 1978, Ralph Crowe, eighteen years of age, attended a large, outdoor party of teenagers in Commerce City. ¹ Over the course of three and one-half hours, Crowe drank eight cups of beer and three cups of alcoholic punch. ² At approximately 11:30 p.m., Commerce City police officers were dispatched to break up the party after a neighbor complained. When the officers arrived at the party, they ordered the teenagers to disperse. Ralph Crowe became disruptive and was handcuffed and detained by the officers. Shortly thereafter, the officers were approached by seventeen-year-old Eddie Crowe, Ralph Crowe's younger brother. Eddie Crowe requested that Ralph be released to him and told the officers that he would drive Ralph home. After noting that Eddie Crowe appeared sober and after checking his driver's license, the officers agreed to permit Ralph Crowe to leave the party with his brother.

Ralph Crowe and another individual left the party as passengers in a vehicle driven by Eddie Crowe. The Crowe brothers took the individual home and then proceeded to a convenience store, where Ralph Crowe purchased some cookies. When the two youths left the store, Ralph Crowe drove the car. He proceeded to a location near Stapleton Airport, where the party which had been broken up by the Commerce City police was to continue. At the new site of the party, the car driven by Ralph Crowe struck six persons on the street, killing two of them (respondents' decedents). Ralph Crowe's blood alcohol content at the time of the accident was .20, well in excess of the legal presumption of intoxication in Colorado. ³

Respondents filed a wrongful death action ⁴ in the Denver District Court against Ralph Crowe, James Crowe (the father of Ralph Crowe), the five Commerce City police officers who responded to the party which Ralph Crowe attended on September 9, 1978, and the City of Commerce City. ⁵ Respondents alleged that the police officers had reason to believe that Ralph Crowe was intoxicated at the time he was detained, and that they negligently failed to take him into custody. Respondents further alleged that the officers were negligent in releasing Ralph Crowe to his younger brother, that it was foreseeable that Ralph Crowe would drive an automobile in an intoxicated condition, and that injury to the public was a foreseeable consequence of the officers' failure to arrest Ralph Crowe.

The police officers and the City of Commerce City (petitioners) filed a motion for summary judgment, contending that the duty of the officers to enforce the law was a public duty, and that the officers' negligence, if any, was not actionable because they did not owe a special duty to the respondents' decedents. After a hearing, the trial court granted petitioners' motion for summary judgment, stating that:

in order for one to recover on a tort claim of negligence brought against a public official by an individual member of the public, they are required to prove by a preponderance of the evidence ... that the defendant owes a special duty to the plaintiff and that [the] duty was breached, resulting in damage or injury.

The court concluded that the Commerce City police officers, in exercising their discretion to release Ralph Crowe, did not owe a special duty to the respondents' decedents.

The court of appeals reversed and held that petitioners were not immune from suit. Cain v. Leake, 695 P.2d at 798. In denying immunity, the court of appeals reasoned that (1) the decision of the police officers to release Ralph Crowe was not a discretionary act and (2) denying immunity would not unduly interfere with the governmental function. The trial court's reliance upon the public duty/special duty distinction in granting summary judgment was not addressed by the court of appeals.

II. DUTY

Nothing is more basic to tort law than the requirement that, in order to recover for the negligent conduct of another, the plaintiff must establish (1) the existence of a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) which actually and proximately caused (4) damage to the plaintiff. Franklin v. Wilson, 161 Colo. 334, 422 P.2d 51 (1966); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 164-65 (5th ed. 1984). This case focuses on the first element. We must decide whether the Commerce City police officers owed a duty to respondents' decedents to take Ralph Crowe into custody.

A. The Public Duty Doctrine

In granting petitioners' motion for summary judgment, the trial court relied upon what has become known as the "public duty doctrine." The origin of the public duty doctrine can be traced to South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). In South, the plaintiff alleged that he was kidnapped and held for a period of four days and released only when he secured the ransom money demanded by his kidnappers. He also asserted that the local sheriff knew that he had been unlawfully detained yet did nothing to obtain his release. The plaintiff sued the sheriff for refusing to enforce the laws of the state and for failing to protect the plaintiff. The circuit court awarded plaintiff a substantial judgment. The Supreme Court reversed and declared that a sheriff's duty to keep the peace was "a public duty, for neglect of which he is amenable to the public, and punishable by indictment only." 59 U.S. (18 How.) at 403. ⁶

1. The Colorado Cases

The public duty rule first surfaced in Colorado in Miller v. Ouray Electric Light & Power Co., 18 Colo.App. 131, 70 P. 447 (1902). The plaintiff's decedent in Miller died while he was incarcerated in the Ouray County jail. The plaintiff alleged that defective wiring in the jail caused a fire which resulted in the death. Plaintiff sought to hold the county commissioners liable for the death based upon a statute that required the county commissioners to inspect the county jail and to correct irregularities. The court of appeals held that the statute created only a public duty to insure the safety of the jail, not an individual duty to any person who was incarcerated in the jail. The opinion stated that the obligation of the county commissioners was "an official duty, owing to the public by virtue of their office, and for a breach of it the statutes specifically provide a remedy by suit upon their official bonds." 18 Colo.App. at 138, 70 P. at 449. Without the protection afforded by the public duty rule, the court concluded, no person would be willing to serve as a public officer because of the fear of exposure to liability.

In People v. Hoag, 54 Colo. 542, 131 P. 400 (1913), we addressed the public duty rule when the plaintiff, the only newspaper in Prowers County, sued the county clerk for refusing to publish a list of candidates before an election. The plaintiff relied upon a statute requiring the county clerk to publish such a list and alleged that it suffered monetary damages as a result of the clerk's refusal to publish the list. The plaintiff conceded that the statute imposed a public duty but argued that the statute also imposed a duty to the publishing company, which suffered a special injury by virtue of the clerk's failure to employ the newspaper's services. We rejected the plaintiff's contention and affirmed the trial court's dismissal of the action against the clerk, stating:

The statute requiring the clerk to publish the list of nominations was clearly intended for the benefit of the public, and not for the benefit of newspapers. The benefit to the latter was only incidental. Certainly the law was not passed with the idea of benefiting publishers. So that the duty imposed was purely a public one. When the duty imposed upon an officer is one to the public only, its non-performance must be a public, and not an individual injury, and must be redressed in a public prosecution of some kind, if at all. 2 Cooley on Torts, (3d Ed.) 756.

54 Colo. at 544, 131 P. at 401. The court distinguished cases outside of Colorado holding public officials liable where the plaintiff had parted with consideration in reliance on an official's representation or where the duty of the official was for the benefit of an identifiable class of persons to which the plaintiff belonged. Id.

We subsequently held that the duty of a county to maintain its highways is a public duty, and that any breach of the duty is not actionable by a person who suffers damages as a result of negligent highway design and maintenance. Richardson v. Belknap, 73 Colo. 52, 213 P. 335 (1923). The court thus reaffirmed the public duty rule set forth in Miller v. Ouray Electric Light & Power Co. and People v. Hoag. In Richardson, the court added a new rationale for the rule, stating that since...