Rowe v. Coffey

• Decision Date: 19 March 1999
• Docket Number: No. S98G1226.,S98G1226.
• Citation: 515 S.E.2d 375,270 Ga. 715
• Parties: ROWE v. COFFEY et al.
• Court: Georgia Supreme Court

515 S.E.2d 375

270 Ga. 715

ROWE v. COFFEY et al.

No. S98G1226.

Supreme Court of Georgia.

March 19, 1999.

Thomas F. Richardson, Chambless, Higdon & Carson, Macon, for Bryan Rowe.

Larry Keith Evans, Evans & Evans, Griffin, Samuel Fielding Greneker, Barry R. Chapman, Valdosta, Allen Denton, Long & Denton, Quitman, Theodore Freeman, Freeman, Mathis & Gary, LLP, George M. Weaver, Hollberg, Weaver & Kytle, Atlanta, for Delinda Coffey et al.

BENHAM, Chief Justice.

In early March 1994, Deputy Sheriff Rowe inspected Studstill Road during a torrential rainstorm in Brooks County, and decided a barricade was not necessary. However, a subsequent washout on that road that morning resulted in a series of wrecks and one death. Suit was brought against a number of defendants, including Brooks County, the sheriff, various road supervisors, and several deputy sheriffs. The trial court granted summary judgment to the defendants. The Court of Appeals affirmed the grant of summary judgment to all the defendants except Rowe. Coffey v. Brooks County, 231 Ga.App. 886(1), 500 S.E.2d 341 (1998). As to Rowe, the Court of Appeals held that he was not protected by the public duty doctrine enunciated in City of Rome v. Jordan, 263 Ga. 26(2), 426 S.E.2d 861 (1993). This Court granted the writ of certiorari and posed the question, "Whether the public duty doctrine applies in this case."

The Court of Appeals discussed in its opinion in this case the proper scope of the phrase "police protection" as used in City of Rome, supra, and concluded that it was "broader in scope than the mere providing of protection to the public against third-party criminal activity and includes the provision of certain other protective police services." Coffey v. Brooks County, supra at 887, 500 S.E.2d 341. That court went on to find that Rowe and the other law enforcement defendants in this case "were engaged in police protection of the public when they inspected and elected whether to blockade public roads within the county which were in various stages of flooding." Id. However, reading this Court's decisions in Dept. of Transp. v. Brown, 267 Ga. 6(3), 471 S.E.2d 849 (1996), and Hamilton v. Cannon, 267 Ga. 655(1), 482 S.E.2d 370 (1997), as limiting the public duty doctrine to "police protection situations involving the acts or omissions of third parties whose behavior may be unpredictable," Coffey v. Brooks County, supra at 888, 500 S.E.2d 341, the Court of Appeals declined "to extend the public duty doctrine to provide immunity from liability to the law enforcement officers engaged in the protection of the public at large from hazardous conditions caused by the weather rather than by a third party." Id.

Looking back at the language used in Dept. of Transp. v. Brown, supra, we see that language used in distinguishing the situation in that case from the situation in City of Rome could fairly be interpreted as the Court of Appeals did in this case. The offending language is these sentences:

The essential difference between that duty and the duty at issue in this case is the involvement of third parties whose behavior may be unpredictable. The duty DOT owes to each member of the public does not involve third parties, only the way in which DOT's performance or nonperformance of its duty impacts individuals.

Dept. of Transp. v. Brown, supra at 8, 471 S.E.2d 849. In hindsight, we conclude that a better expression of the distinction between those cases would simply have been that City of Rome involved police protection and Dept. of Transp. v. Brown did not and that the public duty doctrine, which deals with the failure to provide police protection, did not apply to the Department of Transportation's alleged negligence.

The holding in Hamilton v. Cannon, supra, that the "public duty doctrine adopted in City of Rome is limited to the situation in that case and thus does not apply outside the police protection context," should be read only to limit the application of the doctrine to situations involving police protection in general. While the plaintiffs in City of Rome alleged a failure to protect from the acts of a third party, the opinion states the public duty doctrine in a broader way, concentrating on the question of whether a governmental unit's duty ran to the public at large or to an individual. City of Rome may be fairly read to limit the scope of the doctrine to the police protection context, but neither City of Rome, nor Dept. of Transp. v. Brown, nor Hamilton v. Cannon expressly limits the application of the doctrine to protection from the acts of third parties.

Accordingly, we hold that Dept. of Transp. v. Brown and Hamilton v. Cannon do not so limit the application of the public duty doctrine. The scope of "police protection" is broad enough to include, as the Court of Appeals reasoned in this case, other protective police services. While we do not undertake in this case to set out the exact limits of those services, we take note of the persuasive foreign authority cited by the Court of Appeals in its opinion in this case, applying the public duty doctrine in the context of "hazardous conditions caused by nature" (Coffey v. Brooks County, supra at 887, 500 S.E.2d 341), and conclude that the scope of police protection for the purposes of the public duty doctrine includes the activities undertaken by Rowe in this case. That being so, Rowe was entitled to summary judgment. The judgment of the Court of Appeals in this case must, therefore, be reversed to the extent that it reversed the trial court's grant of summary judgment to Rowe.

Judgment reversed.

All the Justices concur except FLETCHER, P.J., and SEARS, J., who concur specially, and HUNSTEIN, CARLEY, and THOMPSON, JJ., who dissent.

SEARS, Justice, concurring specially.

In City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993), this Court adopted the majority view on the duty owed by governmental units to provide police protection to individual citizens:

[L]iability 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.

Id. at 27, 426 S.E.2d 861, quoting 38 A.L.R.4th 1194, § 1[a] (1985). To establish the scope of the "special relationship" required to establish a particularized duty to protect, we adopted in City of Rome three requirements:

(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party;

(2) knowledge on the part of the municipality that inaction could lead to harm; and,

(3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking.

Id. at 29, 426 S.E.2d 861. Applying the doctrine in that case, we held that the City of Rome owed no duty to the plaintiff on which tort liability could be based because there was no special relationship between the City of Rome and the plaintiff giving rise to a particular duty owed to that individual. Subsequently, in Dept. of Transp. v. Brown, 267 Ga. 6, 471 S.E.2d 849 (1996), we held that the public duty doctrine did not apply to the Department of Transportation in a suit based on negligent design of an intersection because "our decision in [City of Rome v. Jordan ] was directed squarely and only at the duty owed by a governmental entity to provide police protection to individual citizens." 267 Ga. at 8,471 S.E.2d 849. One year later, in response to questions certified by the United States Court of Appeals for the Eleventh Circuit, we relied on our holding in Dept. of Transp. v. Brown, supra, to conclude that the public duty doctrine did not apply to a situation in which a deputy sheriff answering an emergency summons to a swimming pool where a patron had collapsed interfered with ongoing efforts at resuscitation. Hamilton v. Cannon, 267 Ga. 655, 482 S.E.2d 370 (1997). Specifically, we held that the decision in City of Rome applied only to police protection and was limited to the situation involved in that case.

The Court of Appeals has had several opportunities since we issued City of Rome to consider and apply the public duty doctrine. See Dybas v. Town of Chester, 234 Ga.App. 113(1), 505 S.E.2d 274 (1998) (absent special relationship, no liability for failure to keep underage drivers off road); Diaz v. Gwinnett County, 225 Ga.App. 807, 808, 485 S.E.2d 42 (1997) (absent special relationship, public safety officials not liable to employee for failure to prevent hepatitis infection); Booth v. Firemen's Ins. Co., 223 Ga.App. 243(2), 477 S.E.2d 376 (1996) (absent special relationship, no liability for conduct allegedly breaching deputy's bond); Washington v. Jefferson County, 221 Ga.App. 81, 82, 470 S.E.2d 714 (1996) (absent special relationship, no liability for not preventing fight); Finley v. Lehman, 218 Ga.App. 789(1), 463 S.E.2d 709 (1995) (absent special relationship, no liability for allegedly negligent inspection of ditch); Tilley v. City of Hapeville, 218 Ga.App. 39(1), 459 S.E.2d 567 (1995) (absent special relationship, no liability for not preventing collision with car stopped in roadway); Landis v. Rockdale County, 212 Ga.App. 700, 445 S.E.2d 264 (1994) (absent special relationship with person subsequently injured by intoxicated driver, no liability for not arresting intoxicated driver in earlier encounter); City of Lawrenceville v. Macko, 211 Ga.App. 312(2), 439 S.E.2d 95 (1993) (absent special relationship, no liability for allegedly negligent inspection of house under construction); Smail v. Douglas County, 210 Ga.App. 830, 831, 437 S.E.2d 824 (1993) (absent special relationship, no liability for failure to provide police protection to woman killed by rock thrown from overpass); and Feise v. Cherokee County, 209 Ga.App. 733, 434 S.E.2d 551 (1993) (absent...