Gleason v. Peters

1997 SD 102, 568 N.W.2d 482, 1997 S.D. LEXIS 102

• Court: South Dakota Supreme Court
• Decided: August 13, 1997
• Docket: None
• Status: Published

Opinions

AMUNDSON, Justice.

[¶ 1.] Charles and Ann Gleason (Gleasons) on behalf of their son, Michael Gleason (Michael), appeal the grant of summary judgment in favor of Deputies Dave Smith (Smith) and Brian Dean (Dean) (often collectively referred to as officers), and Lawrence County. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On December 31, 1994, Wayne Huck received permission from his father, David Huck (Huck), to have an underage drinking party on their leased premises located a few miles north of Whitewood, South Dakota. Kegs of beer were purchased and various students from Brown High School in Sturgis, South Dakota, were invited. As the students arrived, they were charged an entrance fee if they intended to drink the beer supplied by the Hucks.

[¶ 3.] It is undisputed that two Lawrence County police officers received an anonymous tip of a potential juvenile party near White-wood. Deputy Smith was the first officer to arrive at the scene after noticing a bonfire. He drove through an unlocked gate on the Huck premises. At that time, Huck approached Smith’s vehicle and the two conversed about the party. Smith then left the scene and met with other officers to discuss options regarding further investigation of the party. Smith initially spoke with Dean and then the two contacted the chief deputy for guidance. The chief deputy suggested using a spotting scope to assist with the identification of the individuals in order to obtain probable cause. However, the officers were unable to do so, as they received a priority call regarding another matter to be investigated forthwith.

[¶4.] Meanwhile, Michael arrived at the Huck residence. He did not drink alcoholic beverages before or during the party. While there, Michael was attacked by Trevor Peters (Peters), Eric Johnson (Johnson), and Christopher Schleuning (Schleuning), other students attending the party. After being hit and kicked repeatedly, Michael was driven by a friend to his parents’ residence. From there, he was taken to the emergency room at a hospital in Sturgis. As a result of the beating, Michael received two reconstructive surgeries on his face and incurred medical expenses in excess of $40,000.

[¶ 5.] Gleasons, on behalf of Michael, sued Peters, Johnson, and Schleuning for assault; Huck for faffing to supervise the activity involved and for furnishing alcoholic beverages to minors; the owner of the premises for allowing Huck to host such a party; Deputies Smith and Dean, and Lawrence County for faffing to stop the party. The trial court granted summary judgment in favor of Smith, Dean, and Lawrence County based on the special duty test established in Tipton v. Town of Tabor, 538 N.W.2d 783, 787 (S.D.1995) (Tipton I). Michael appeals the grant of summary judgment to these parties, raising the following issues:

I. Whether the public duty rule should be abrogated.

II, Whether the trial court erred when it applied the factors relevant to imposition of liability on a government entity, and concluded that there was no genuine issue of material fact.

STANDARD OF REVIEW

[¶ 6.] We addressed the standard of review to be applied under similar facts in Tipton I:

Summary judgment shall be granted “... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15—6—56(c). On appeal, our task is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. Whether a duty exists is a question of law for the court to determine.

538 N.W.2d at 785 (citations omitted). Furthermore, we may affirm the trial court if any reason exists to do so. Sparagon v. Native Am. Publishers, Inc., 1996 SD 3, ¶ 33, 542 N.W.2d 125, 133.

DECISION

[¶ 7.] I. Public-Duty Rule.

[¶ 8.] Gleasons argue that the public-duty rule should be abrogated, because it “has no place in South Dakota jurisprudence[.]” We disagree. We recently upheld the application of the public-duty rule in Tipton v. Town of Tabor, 1997 SD 96, ¶¶ 9-13, 567 N.W.2d 351, 358 (Tipton II), citing various reasons supporting the doctrine. One of these reasons is to promote “accountability for offenders, rather than police who through mistake fail to thwart offenses.” Id. at ¶ 10, 567 N.W.2d at 356. “Otherwise, lawbreaker culpability becomes increasingly irrelevant with liability focused not on the true malefactors, but on local governments.” Id. This is particularly applicable to the case at hand, because to hold as Gleasons urge would be to hold the officers accountable for the unforeseeable actions of lawbreakers simply because the officers were unable to stop an underage drinking party. As we have stated, “[generally, the law imposes ‘no duty to prevent the misconduct of a third person.’ ” Id. at ¶ 12, 567 N.W.2d at 357 (quoting Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn.1979)).

[¶ 9.] Gleasons are essentially urging this Court to allow a cause of action against the county under a theory of strict liability. The facts in this case certainly do not warrant such a result. Therefore, we again decline the opportunity to open the floodgates of litigation and abrogate the public duty rule in South Dakota.

[¶ 10.] II. Tipton I Factors.

[¶ 11.] Not having abrogated the public-duty doctrine, we address Gleasons’ second argument on appeal. They argue that the trial court erred in determining there was no genuine issue of material fact as to whether Smith, Dean, and Lawrence County possess a special relationship with Gleasons.

[¶ 12.] The special duty rule provides that a plaintiff must show a breach of a duty owed to him/her as an individual rather than to the community at large in order to establish liability. Id. at ¶ 13, 567 N.W.2d at 358. This rule states that “when a public entity acts on behalf of a particular person actively causing injury, the law may impose liability because the government has by its conduct already made a policy decision to deploy its resources to protect such individual.” Id. (footnote omitted).

[¶ 13.] Other jurisdictions have addressed whether a special duty is imposed upon law enforcement officers which serves as a basis for damages incurred to a specific class of individuals. A summary of those decisions follows:

Ordinarily, a breach of the general duty to prevent criminal acts which police owe to the public does not impose liability upon the employing governmental unit for damages which particular citizens suffer as a result of the breach. Instead, only where a special duty, i.e., a duty particularized as to an individual, is breached by the police will the municipality be held liable for damages.... When the reliance element is either not present at all or if present, is not causally related to the ultimate harm, this underlying concern is inapplicable and the invocation of the special duty exception is then no longer justified.

Eugene McQuillin, Municipal Corporations § 53.04.50, at 179 (3rd Ed.1993) (footnotes omitted); see also Taylor v. Phelan, 9 F.3d 882, 886 (10th Cir.1993) (holding there was no special duty by the police officer to protect a family who expressed fear of a perpetrator); Calogrides v. City of Mobile, 475 So.2d 560, 562 (Ala.1985) (holding that there was no liability based on the city’s failure to deploy a certain number of officers to a scene); Shore v. Town of Stonington, 187 Conn. 147, 444 A.2d 1379, 1384 (1982) (holding that public interest would not be served by second-guessing a police officer’s exercise of discretion and creating liability for not arresting a drunk driver); Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458, 463 (1982) (holding there was no special duty by the police officer to remove an unwanted person from another’s premises even after receiving a warning); Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 597, 204 N.E.2d 635, 637 (1965) (holding that a municipality is not liable for failing to provide police protection); Coleman v. Cooper, 89 N.C.App. 188, 366 S.E.2d 2, 7 (1988) (holding there was no liability for the failure to provide police protection to witnesses who were to testify against the assailant); Wuethrich v. Delia, 155 N.J.Super. 324, 382 A.2d 929, 930 (1978) (holding that a municipality is not liable for its “failure to protect against the criminal propensity of third persons.”).

[¶ 14.] We then examine the relevant precedent in South Dakota. In Tipton I, this Court recognized that there may be certain circumstances in which a government entity possesses a special duty that results in liability. In order to properly examine those circumstances, we adopted four factors to be applied when determining whether a county “assumes to act for the protection of individuals”:

“1) the state’s actual knowledge of the dangerous condition;

2) reasonable reliance by persons on the state’s representations and conduct;

3) an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole; and

4) failure by the state to use due care to avoid increasing the risk of harm.”

Tipton I, 538 N.W.2d at 787 (quoting Cracrafl, 279 N.W.2d at 806-07). “Strong evidence concerning any combination of these factors may be sufficient to impose liability on a government entity.” Id. This was slightly modified, however, in Tipton II, wherein this Court held that meeting only one element, actual knowledge, is insufficient to establish a private duty. Tipton II, 1997 , 567 N.W.2d at 363-64 (stating, “To impose tort liability upon local law enforcement for failure to protect an individual solely upon actual knowledge of imminent danger directly conflicts with the principal rationale behind the public duty rule[.]”) Keeping this modification in mind, we address each of the four Tipton I factors in a light favorable to Gleasons.

[¶ 15.] A. Actual Knowledge

[¶ 16.] According to Tipton II, “ ‘[actual knowledge’ means knowledge of ‘a violation of law constituting a dangerous condition.’ Constructive knowledge is insufficient: a public entity must be uniquely aware of the particular danger or risk to which a plaintiff is exposed. It means knowing inaction could lead to harm.” Id. at ¶ 17, 567 N.W.2d at 358 (citations omitted). In addition, “actual knowledge denotes a foreseeable plaintiff with a foreseeable injury.” Id. at ¶ 18, 567 N.W.2d at 359. Therefore, in the case before us, the officers must have had actual knowledge that their failure to stop the party would lead to Michael being assaulted by individuals who attended the party.

[¶ 17.] Gleasons, however, merely argue there was substantial evidence that Smith was aware of juveniles consuming alcohol on the Huck premises.¹ Assuming it is true that Smith knew juveniles were consuming alcohol at the party (i.e., in a light most favorable to Gleasons, consistent with our review of summary judgment motions), the actual knowledge element is not met, because Gleasons presented no evidence in resistance to the motion for summary judgment that Smith knew there would be an assault and that a victim would be injured. In fact, a great leap would be required to show Smith knew an assault would occur. Further, it is insufficient that Smith should have known an assault would occur. See, e.g., id. (stating, “actual knowledge imports ‘knowing’ rather than ‘reason for knowing’ ”).

[¶ 18.] Gleasons argument to the trial court defending the grant of a motion for summary judgment relies on the theory that negligence cases are not usually appropriate for summary judgment motions. There were no references to specific disputed facts concerning the knowledge possessed by the officers as to a potential assault.

[¶ 19.] B. Reasonable Reliance

[¶ 20.] Gleasons fail to include an argument or cite authority in their brief concerning the second factor, reliance on the police officers’ conduct. “Failure to cite.authority violates SDCL 15-26A-60(6) and constitutes a waiver of that issue.” State v. Phillips, 489 N.W.2d 613, 616 (S.D.1992).

[¶ 21.] C. Ordinance for Protection of Particular Class

[¶ 22.] As stated in Tipton II, “[t]his element ‘permits recovery against a government entity for negligent failure to enforce its laws only when there is language in a statute or ordinance which shows an intent to protect a particular and circumscribed class of persons.’ ” 1997 SD 96, at ¶ 35, 567 N.W.2d at 366 (quoting Tipton I, 538 N.W.2d at 786) (other citations omitted).

[¶ 23.] In their brief to this Court, Gleasons contend SDCL 7-12-4 applies to this element, which states:

It shall be the duty of the sheriff to comply with all orders of the attorney general or his agents and at all times, whether on duty under the call of the attorney general or his agents or not, to see to it as far as may be possible that all the laws of this state and especially all laws relating to alcoholic beverages are faithfully executed and enforced.

The language in this statute alone illustrates its broadness, e.g., “all the laws of this state” and “all laws relating to alcoholic beverages[.]” “When a statute’s language is clear, certain and unambiguous, our function confines us to declare its meaning as plainly expressed.” Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 6, 543 N.W.2d 787, 790 (citing U.S. West Communications v. Public Utils. Comm’n, 505 N.W.2d 115, 123 (S.D.1993)). The clear language of this statute provides that officers are to enforce the law. This certainly means to enforce the law in order to protect the general public and not a particular class of individuals.

[¶ 24.] D. Failure To Avoid Increasing Risk of Harm

[¶ 25.] This factor means the action of the officers must cause harm or expose Gleasons to a greater risk. Tipton II, 1997 SD 96, at ¶ 38, 567 N.W.2d at 366-67. Gleasons argue this factor “has a strong presence in this ease.” However, they misinterpret the meaning of the element. Rather than demonstrate how the officers failed to avoid increasing the risk of harm, Gleasons simply argue the officers failed to use due care. Even if we assume it is true that the officers failed to use due care and were unable to decrease any possible harm to Michael, we have stated, “[f]ailure to diminish harm is not enough.” Id. (citation omitted). It is undisputed that no affirmative action by the officers “ ‘contributed to, increased, or changed the risk which would have otherwise existed.’ ” Id. at ¶ 39, 567 N.W.2d at 367 (quoting Von Batsch v. American Dist. Telegraph Co., 175 Cal.App.3d 1111, 222 Cal.Rptr. 239, 246-47 (1985) (involving a killing by intruders after officers failed to find evidence of intruders)). All that is shown here is that the officers failed to eliminate the potential danger of an assault being committed on a juvenile at the party. The undisputed facts in this case disclose the officers exposed Michael to no greater a risk than that to which the public was exposed. Therefore, Gleasons fail to meet the requirements of Tipton II.

Conclusion

[¶ 26.] We affirm the trial court’s grant of summary judgment in favor of Smith, Dean, and Lawrence County on the basis that a special duty does not exist on behalf of those parties as a matter of law.

[¶ 27.] MILLER, C.J., and KONENKAMP and GILBERTSON, JJ., concur. [IT 28.] SABERS, J., dissents.

1 . Gleasons’ brief states: "[Tjhere is substantial evidence that Deputy Smith knew that the party at the Hucks involved consumption of alcohol by minors, both from the tip and from his conversation with Huck, if not Smith's own observations of the activities around The bonfire.” It is undisputed that an anonymous tip was received by the police that underage drinking was occurring near Whitewood. Further, Smith admits to locating a party and having a discussion with Huck. However, there is no evidence in the record indicating that the police officers undeniably knew there were minors drinking alcoholic beverages, and that the officers were capable of alleviating the danger involved with the situation. As Smith testified, he felt he did not have probable cause to enter the Huck premises. Dean also testified that the two officers contacted the chief deputy for guidance, and he agreed that probable cause was lacking. He suggested using a spotting scope in order to identify an individual as a juvenile, thereby obtaining probable cause. However, Dean mentioned that the officers never had the opportunity to use the scope because a priority call was received. Shortly thereafter, the officers were notified as to Michael’s injuries.