City of Rome v. Jordan

426 S.E.2d 861, 263 Ga. 26, 92 Fulton County D. Rep. 960, 1993 Ga. LEXIS 307
CourtSupreme Court of Georgia
DecidedMarch 15, 1993
DocketS92G0907
StatusPublished
Cited by142 cases

This text of 426 S.E.2d 861 (City of Rome v. Jordan) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Rome v. Jordan, 426 S.E.2d 861, 263 Ga. 26, 92 Fulton County D. Rep. 960, 1993 Ga. LEXIS 307 (Ga. 1993).

Opinions

Sears-Collins, Justice.

Patricia Jordan and her husband, Cary Jordan, the appellees, brought a negligence action against the City of Rome, its chief of police, and a police department radio dispatch officer (the appellants) (collectively “the City”). The Jordans allege that the City negligently failed to properly train radio dispatch personnel, and that the City negligently failed to dispatch a police vehicle to the Jordan home in response to several telephone calls for assistance, causing Patricia Jordan to suffer serious injury and trauma.

The trial court granted the City’s motion for summary judgment. Acknowledging that there are no Georgia cases on point, the trial court held that because no “special relationship” existed between the City and the Jordans, the City owed no duty to the Jordans upon which liability could be based. The Court of Appeals affirmed summary judgment as to the allegation of negligent training, finding that the Jordans had offered no evidence to rebut affidavits presented by the City to show the extent of training given dispatch officers. On the question of whether a duty exists upon which liability for failure to provide police protection can be based, the Court of Appeals reversed the trial court, holding that no “special relationship” is required for [27]*27liability of municipalities with regard to the provision of police protection in Georgia. Jordan v. City of Rome, 203 Ga. App. 662 (417 SE2d 730) (1992). We granted certiorari to determine “[t]he duty of police officers of a city to respond to efnergency requests for help.” We reverse the Court of Appeals.

First we will consider what rule should be applied in negligence cases such as this, and then we will examine the facts of this case in relation to that rule.

1. The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care.1 Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Whether a duty exists upon which liability can be based is a question of law. First Federal v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128) (1990).

When considering whether there is a duty upon which a municipality may be held liable for the failure to provide police protection to individual citizens,2 courts have taken two fundamental approaches. The 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 publicf,] [except where there is] a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.

38 ALR4th 1194, § l[a] (1985). We will refer to this as the “public duty” doctrine. Other courts have held that the public duty doctrine creates a virtual immunity for government entities, which is in conflict with any judicial or legislative enactment abrogating or waiving sovereign immunity. Courts taking this minority approach have found the duty element of negligence satisfied by the general duty to protect the public, and have then determined liability based on traditional tort principles of breach, foreseeability and causation. See generally 38 ALR4th 1194 (1985 and Supp. 1992); see, e.g., Leake v. Cain, 720 P2d 152, 160 (Colo. 1986).

The Court of Appeals favored the minority view, in light of Georgia’s statutory waiver of governmental immunity to the extent of liability insurance, stating that

[28]*28where sovereign immunity does not apply, use of the [public duty doctrine] creates a shield behind which governmental entities can avoid liability for negligent acts, thereby imposing a type of immunity unique to governmental defendants.

Jordan, 203 Ga. App. at 665.

We disagree. Rather, we find that the abrogation or waiver of sovereign immunity in Georgia did not create a duty on the part of a municipality where none existed before. To impose liability on the City based on a general duty to protect all citizens from the actions of third parties would “expand [] the [City’s] duty and potential liability beyond that imposed [on private parties] under traditional tort analysis.” Jordan, 203 Ga. App. at 672 (Andrews, J., dissenting). On the other hand, far from creating a general immunity from liability, adoption of the public duty doctrine requiring a special relationship between the injured party and the alleged governmental tortfeasor restricts the liability of the governmental entity for the actions of a third party similarly to the manner in which the liability of a private party is restricted.3 Further,

“a municipality’s provision of police protection to its citizenry [is] a resource-allocating function that is better left to the discretion of the policy makers” . . . , “[t]he amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed.”

(Citations and punctuation omitted.) Kircher v. City of Jamestown, 74 NY2d 251, 256 (543 NE2d 443, 445, 544 NYS2d 995) (1989). Therefore, where failure to provide police protection is alleged, there can be no liability based on a municipality’s duty to protect the general public. However, in order to ensure responsibility and the utmost protection possible within limited means, it is important that a municipality be accountable for its negligence to some degree. Hence, where there is a special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual, the municipal[29]*29ity may be subject to liability for the nonfeasance of its police department.4

2. In order to determine whether such a special relationship exists, we adopt the following 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.

This test is adapted from the test set forth in Cuffy v. City of New York, 69 NY2d 255 (505 NE2d 937, 513 NYS2d 372) (1987). In addition to the above elements, the test set forth in Cuffy requires that there be “direct contact” between the injured party and the municipality. We have deleted that requirement for two reasons. First, we can conceive of numerous instances in which the injured party is unable to directly contact the municipality, due to physical limitations or other restraints, yet meets the other requirements of a special relationship. To find the municipality free from duty solely because of the limitations and restraints on the injured party would be unfair. Second, the reason for requiring direct contact in those states which do so appears to be that if there is no direct contact then there can be no reliance on the promise of the municipality. See, e.g., Bogart v. New Paltz, 145 AD2d 110 (537 NYS2d 678) (1989); Klahr v. District of Columbia, 576 A2d 718 (D.C. App. 1990).

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Cite This Page — Counsel Stack

Bluebook (online)
426 S.E.2d 861, 263 Ga. 26, 92 Fulton County D. Rep. 960, 1993 Ga. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-rome-v-jordan-ga-1993.