Nearing v. Weaver

• Decision Date: 04 October 1983
• Citation: 295 Or. 702,670 P.2d 137
• Parties: Henrietta NEARING, on Behalf of Herself, and As Guardian ad Litem For Robert Lee Nearing, Jr., and Jeannette M. Nearing, Minors, Petitioners on Review, v. Martin WEAVER, Paul Sauls, and City of St. Helens, Respondents on Review. TC 26761; CA A22918; SC 29424. . *
• Court: Oregon Supreme Court

Page 137

670 P.2d 137

295 Or. 702

Henrietta NEARING, on Behalf of Herself, and As Guardian ad Litem For Robert Lee Nearing, Jr., and Jeannette M. Nearing, Minors, Petitioners on Review, v. Martin WEAVER, Paul Sauls, and City of St. Helens Respondents on Review.

TC 26761; CA A22918; SC 29424.

Supreme Court of Oregon In Banc. ^*

Argued and Submitted July 6, 1983.

Decided Oct. 4, 1983.

Simon J. ffitch, Hillsboro, argued the cause and filed brief for petitioners on review. With him on the brief were Ruth Gundle, Portland, and Oregon Legal Services Corp.

Christopher E. Burris, Portland, argued the cause and filed brief for respondents on review. With him on the brief were David P. Morrison and Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.

LINDE, Justice.

In 1977 the Legislative Assembly enacted an "Abuse Prevention Act" to strengthen legal protection for persons threatened with assault by a present or former spouse or a cohabitant. 1977 Or.Laws ch. 845. "The means chosen for this purpose included the use of temporary restraining orders, injunctions, and temporary child custody orders, former ORS 107.715 (1979), now ORS 107.716, and mandatory provisions for the warrantless arrest upon probable cause of a person believed to have violated such an order. ORS 133.310(3). ¹ The present case requires us to decide whether officers who knowingly fail to enforce a judicial order under the 1977 act are potentially liable for resulting harm to the psychic and physical health of the intended beneficiaries of the judicial order, over defenses of official discretion and official immunity. We hold that these defenses do not preclude potential liability.

The case is on appeal from the circuit court's summary judgment for defendants, affirmed by the Court of Appeals, 61 Or.App. 297, 656 P.2d 965. The Court of Appeals did not explain the basis for its decision.

The complaint alleged the following facts. Plaintiffs are Henrietta Nearing and her two children, Robert and Jeanette, respectively 4 and 3 years old. Henrietta Nearing was separated from her husband in November 1979. On April 16, 1980, the husband entered plaintiffs' home without permission and struck Henrietta. She reported this to one of the defendant police officers, Martin Weaver, causing her husband to be arrested and charged with assault. The next day the circuit court issued an order restraining the husband from molesting plaintiffs or entering the family home. The order was served on the husband, and a copy of the order and proof of service were delivered to the police department of defendant City of St. Helens. ²

On May 12 and 13, 1980, the husband again entered plaintiffs' home without permission, first damaging the premises, and thereafter attempting to remove the children. Henrietta Nearing reported these incidents to defendant Weaver and asked him to arrest her husband because she was frightened of his violent proclivities. The officer confirmed the validity of the restraining order and the damage to plaintiffs' home but declined to arrest the husband on the ground that the officer had not seen the husband on the premises.

On three subsequent occasions in May, 1980, the husband returned to plaintiffs' address, sought entry to the home, and on the last occasion assaulted Henrietta's friend and damaged his van. When Henrietta reported this to defendants Weaver and Sauls on May 27, 1980, Weaver told her that the St. Helen's police would arrest the husband for violating the restraining order "because it was Robert Lee Nearing Sr.'s second offense," but no such action was taken. Two days later, on May 29, Nearing, Henrietta's husband, telephoned her and threatened to kill her friend. On June 1, Nearing intercepted the friend and plaintiffs in front of the home, repeated the threat, and assaulted the friend.

The complaint alleges the defendant officers' knowledge of the relevant facts. It further alleges that as a "proximate result" ³ of their failure and refusal to arrest her husband, Henrietta has suffered "severe emotional distress and physical injuries" further described in the complaint and that the children have suffered "acute emotional distress," have been "upset," have had difficulty sleeping, and have suffered "psychological impairment."

Defendants denied the allegations except for the identity and status of defendants and pleaded affirmative defenses of immunity and discretion. Plaintiffs moved to strike the affirmative defenses and assigned denial of the motion as error on appeal.

Defendants' first contention in the circuit court and on appeal is that plaintiffs' action is one for damages for the negligent infliction of emotional distress, and that Oregon law does not allow recovery on this theory. Plaintiffs counter that Oregon law does allow recovery of damages for psychic or emotional harm when defendant's conduct infringes some legal right of the plaintiff independent of an ordinary tort claim for negligence. Plaintiffs are right. In a recent review of the cases, we stated:

"If there are few causes of action for psychic or emotional harm as such, the reason is not found in objections to monetary damages for harm of that nature. The reason may be found by focusing, not on the nature of the plaintiff's loss, but on the source and scope of the defendant's liability. This court has recognized common law liability for psychic injury alone when defendant's conduct was either intentional or equivalently reckless of another's feelings in a responsible relationship, or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently."

Norwest v. Presbyterian Intercommunity Hospital, supra n. 3, at 558-59, 652 P.2d 318 (footnotes omitted). ⁴

The question, therefore, is whether plaintiffs pleaded an infringement by defendants of a legal right arising independently of the ordinary tort elements of a negligence action. It is clear that plaintiff did so.

The complaint alleges facts that, if proved, obliged the St. Helens police officers to respond to plaintiffs' call for protection against the exact kind of harassment by the elder Robert Nearing that is said to have occurred, and it alleges that the officers refused to enforce the restraining order in the manner prescribed by law. The duty defendants are alleged to have neglected therefore is not an ordinary common law duty of due care to avoid predictable harm to another. It is a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order.

The parties in the circuit court gave most attention to Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979). In that case a clerk had failed to enforce an ordinance requiring an applicant for a taxicab license to show adequate liability insurance. This court held that the city was liable to a passenger injured in an inadequately insured taxicab. The city had no duty to impose such an insurance requirement, but once the requirement was imposed by the ordinance, the clerk and therefore the city were under a duty to enforce it. Therefore they were liable to a member of the class sought to be protected for the foreseeable harm of the kind to which the ordinance was directed.

The clearest precedent for the present case, however, is McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977), in which plaintiff's legal interest also was established by a specific court order designed to protect plaintiff against the very harm that occurred. In McEvoy, the order directed an attorney not to return his client's passport to her until she returned her child to his father, in order to prevent the client from fleeing the country with the child. The father was held to have a claim for mental anguish when the lawyer failed to comply with the order and the mother took the child abroad. Because the sources of defendants' duty in this case, as in McEvoy, were designed to protect plaintiffs against the type of harm which allegedly occurred, it is no defense that plaintiffs claim is for psychic and emotional injuries.

In explaining their claim to the trial court as well as on appeal, plaintiffs described it as a type of action for defendant's negligent failure to perform their duty, as in Brennen and McEvoy, though the words "negligent" or "negligence" neither were nor had to be used in the complaint. ⁵ This invited possible confusion insofar as there is no cause of action for negligent infliction of purely psychic or emotional injury as such, unsupported by a violation of some more specific duty toward the plaintiff. In this case a duty specifically towards these plaintiffs arises from the statute coupled with the court order. A plaintiff, of course, may plead and argue an action both under a theory of negligence and under another statutory or common law theory if he or she so chooses; actions based on injuries from defective products are a familiar example. When separate legal theories are said to require the same result on the same alleged facts, that contention should be made clear.

In this case, the issue below was the adequacy of defendants' defenses; no objection is raised to plaintiff's complaint. And plaintiff's reference to "negligence" in this case was immaterial to the alleged liability, if "negligence" is used in the sense of "carelessness" or "failure to use due care" rather than merely as a conventional legal totem, because the result would not be different if defendants had acted, or failed to act, willfully or intentionally or with some other state of mind. It must be recalled what role the allegation of "negligence" plays in an ordinary common law case. In general terms that role is to invoke a duty to take reasonable care not to cause a risk of a foreseeable type of harm to a foreseeable class of plaintiffs. Here the risk, the harm, and the potential plaintiff were all foreseen by the lawmaker and, in McEvoy and in this case, by a court....