Patterson v. City of Phoenix

• Decision Date: 18 January 1968
• Docket Number: No. 8491,8491
• Parties: Arnold J. PATTERSON and Billie Marie Patterson et al., Appellants, v. CITY OF PHOENIX, Appellee.
• Court: Arizona Supreme Court

Page 613

436 P.2d 613

103 Ariz. 64

Arnold J. PATTERSON and Billie Marie Patterson et al., Appellants, v. CITY OF PHOENIX, Appellee.

No. 8491.

Supreme Court of Arizona, In Division.

Jan. 18, 1968.

Alan Philip Bayham, Phoenix, for appellants.

Robert J. Backstein, City Atty. Edward P. Reeder, Asst. City Atty., Melvin J. Mirkin, Phoenix, for appellee.

BERNSTEIN, Justice.

This is an appeal by Arnold J. Patterson, Billie Marie Patterson, Linda Patterson and Bobette Patterson, plaintiffs below, from an order of the Superior Court of Maricopa County granting summary judgment in favor of the City of Phoenix, defendant below.

The defendant in its motion for summary judgment relied on the depositions, affidavits, and pleandings which reveal the following undisputed facts. On July 9, 1963, at approximately 11:30 A.M., policewoman Lola Jean Harder, pursuant to the instructions of her sergeant, went to the home of Arnold J. Patterson to investigate a report that Linda Patterson, age eleven, and Bobette Patterson, age nine, were in such surroundings as to endanger their health, morals or welfare. When the officer arrived at the home she asked the children, who were alone at the time, if she might, enter, and the children let her in.

Shortly after Officer Harder began questioning the children, Linda Patterson asked that any further discussion take place with Mrs. Sampson, their next door neighbor, present. Officer Harder complied by taking the two children to Mrs. Sampson's home where, with Mrs. Sampson present, Linda told the officer of the various immoral acts of her mother and stepfather.

The events described were the following. Mr. Patterson had made sexual advances toward Linda when on one occasion he attempted to force his tongue into her mouth, and on another occasion fondled the girl's private parts. In addition, Linda stated that her stepfather had made her swim in the nude with him in the family pool. She also stated that her parents slept without clothing, and induced her to view them in acts of sexual intercourse by refusing to permit her to close the door between their respective bedrooms. Furthermore, Linda told of being whipped with a strap by her stepfather, and his use of abusive language.

From this interview with the children coupled with the fact that Mrs. Sampson had been told of these incidents by Linda on a prior occasion, Officer Harder decided to take the children into custody. See A.R.S. § 8--221, subsec. B. After the children were taken into custody they were brought to the Maricopa County juvenile authorities for care.

Following some additional investigation by Officer Harder criminal charges were filed against Mr. and Mrs. Patterson under A.R.S. § 18--842, as then written, which provided:

'A person having custody of a child who wilfully causes or permits the life of such child to be endangered, its health to be injured or its moral welfare to be imperiled, by neglect, abuse or immoral associations, is guilty of a misdemeanor.'

Subsequently, however, these charges were dismissed on motion by the county attorney. Immediately thereafter, the children, who had been kept from their parents for some eleven days, were returned to their home.

The cause presently before this court arises out of a suit filed by the Pattersons against the City of Phoenix for numerous alleged tortious acts committed by its police officers. In the Pattersons' suit the following claims were alleged: false imprisonment for the taking into custody of the two minor children; trespass by the City for the entry of Officer Harder into their home without a warrant; malicious prosecution for the criminal charges filed against them but later dismissed; and, defamation of character.

As to the defamation of character of the Pattersons they contend the claim arose out of the following incident. Officer Harder, in an attempt to reach Mrs. Patterson at her place of employment, spoke to her employer on the phone. The employer, who knew generally that Mrs. Patterson was having difficulty with the police, asked Officer Harder why they were badgering the Pattersons. After some initial hesitancy the officer made a statement concerning the incidents which the children had discussed with her.

On appeal the Pattersons contend that the trial court erroneously granted summary judgment for the City of Phoenix based on an incorrect reading of our decision in Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963). However, we must note that this contention is merely an assumption on the part of the Pattersons, and although both the City of Phoenix and the Pattersons proceed on the basis of the Stone decision that, nevertheless, the trial court may have reached its judgment on other grounds.

In any event, as we see it, an analysis of the present case before us requires an understanding of our decision in Stone. In that case we held that the doctrine of governmental immunity from tort liability was abolished, not only for that case, but for all other pending cases, those not yet filed which were not barred by the statute of limitations and all other future causes of action. Stone v. Arizona Highway Commission, supra.

Of course, one of the most important caveats to be noted is that a particular governmental unit is only liable on the theory of respondent superior if the agent or employee acted within the scope of his employment. Stone v. Arizona Highway Commission, supra.

A critical part of Stone was the destruction of any distinction between proprietary acts ¹ and governmental acts, which would recognize liability in the former and immunity in the latter. In the Stone decision we equated the two areas of governmental action for purposes of tort liability.

The injustice in the area of governmental immunity led many courts to delineate further distinctions in attempt to limit that immunity. For example, a difference is recognized in the area of governmental action between those acts that are purely ministerial and those acts requiring the exercise of discretion. Indeed, before the Stone decision this court had carved out certain areas of liability for distinctly ministerial acts. See Harlan v. City of Tucson, 82 Ariz. 111, 309 P.2d 244 (1957); City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296 (1966) (dealing with the city's liability for injury caused by its failure to maintain streets and sidewalks in proper condition.)

The question raised on this appeal is whether under the Stone decision the City of Phoenix is liable for the acts of its police officers acting within the scope of their authority, if those acts are discretionary.

In order that there be no confusion in the future we deem it necessary to examine the City's argument that police officers must exercise discretion in their duties, and that consequently the City should not be held liable for an officer's discretionary acts.

Admittedly, police officers do exercise discretion in the execution of their duties. Yet, every human act requires the use of some discretion. Indeed, as one respected commentator has concluded:

'The dichotomy between 'ministerial' and 'discretionary' is at the least unclear, and one may suspect that it is a way of stating rather than arriving at the result.' Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 218 (1963).

Perhaps the highwater mark was reached when the United States Supreme Court decided Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite was a case arising from the 1947 Texas City disaster in which almost 600 people were killed, 3,000 injured, and damages totalled more than 200,000,000 dollars. Apparently the explosion resulted from either the negligent loading of a vessel or a negligent choice of procedures for loading. In interpreting the discretionary function exception under the Federal Tort Claims Act the Supreme Court held in Dalehite that the disaster was caused by the exercise of a discretionary function in the planning as opposed to operational stage, and therefore no liability could be imposed on the government. ²

The only logical justification advanced by some commentators for relieving police officers from tort liability based on a wrongful exercise of their discretion is that 'the broad threat of personal financial liability hanging over police officers in the performance of official duty must serve--at least to men normally concerned with home and family--as a continual and substantial deterrent to vigorous law enforcement.' Mathes and Jones, Toward a Scope of Official Duty' Immunity For Police Officers in Damage Actions, 53 GeoL.J. 889, 907 (1965).

Nevertheless, in this state we take judicial notice of the statutes which permit insuring governmental agents and agencies. See A.R.S. § 38--641 (State); A.R.S. § 11--261 (Counties); A.R.S. § 9--497 (Cities and Towns). We conclude, therefore, that whatever fear a police officer might suffer with regard to personal financial loss is certainly diminished where liability insurance exists. In any event, in the case at bar such an argument is specious where the city and not the police officer is sued.

Moreover, the general rule across the nation is that although the municipality is immune from liability a police officer is personally liable for torts committed within the scope of his employment except where his acts are specifically authorized by statute, regulation or court process, or permitted by the thin shade of privilege which his office provides. See, Cal.Law Revision Comm'n Study Relating To Sovereign Immunity 404--55 (1963); Smith, The Use of Deadly Force by a Peace Officer in the Apprehension of a Person in Flight, 21 U.Pitt.L.Rev. 132 (1959); Note, The Civil Liability of Police Officers for Wounding or Killing, 28 U.Cinc.L.Rev. 488 (1959); Annot., 60 A.L.R.2d 873 (1958).

Indeed, our court in Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947), held that a state highway...