Nearing v. Weaver

670 P.2d 137, 295 Or. 702, 1983 Ore. LEXIS 1549

• Court: Oregon Supreme Court
• Decided: October 4, 1983
• Docket: TC 26761; CA A22918; SC 29424
• Status: Published

Opinions

LINDE, J.

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. 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 plaintiffs 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 (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 P2d 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 P2d 540 (1977), in which plaintiffs 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 plaintiffs 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. It was not left to the clerk in Brennen, the lawyer in McEvoy, or the officers in this case to foresee a possible risk and to form a “reasonable” opinion as to what “due care” might be required to avoid it. Such ad hoc judgments are exactly what the legislature meant to overcome when it enacted the obligation to enforce judicial orders.

This does not mean that the obligation creates absolute liability for resulting harm. There may be various defenses, for instance that the defendant made a good faith effort to perform, or that he was prevented from doing so by one or another obstacle, either factual or legal. The officer would not be liable, for instance, for failing to make an unconstitutional arrest. Whatever would be a defense under the statute is a defense to civil liability. But such defenses differ from a claim that failing to perform the duty created by the legislature to prevent harm by enforcing court orders is nothing other than a lack of due care toward the world at large and that liability therefore extends only to physical but not psychic or emotional injuries actually caused by that failure.

The order here differed from that in McEvoy because it was addressed to the husband rather than to defendants. Nonetheless it clearly gave rise to a duty of defendants toward the plaintiffs under the 1977 act. ORS 133.310(3) prescribes that a peace officer “shall arrest and take into custody a person without a warrant” when the officer has probable cause to believe that an order under the statute has been served and filed and that the person has violated the order. Subsection (3) appears after two subsections that state when an officer “may” arrest a person without a warrant, and the contrasting use of “shall” in subsection (3) is no accident. The widespread refusal or failure of police officers to remove persons involved in episodes of domestic violence was presented to the legislature as the main reason for tightening the law so as to require enforcement of restraining orders by mandatory arrest and custody. Even though the arrested person is entitled to be released pending an eventual adjudication of a criminal charge or contempt, ORS 107.720(3), the temporary removal was deemed essential to emphasize the seriousness of the court’s order and to permit the victims of violence to escape further immediate danger.

Defendants argue that an officer’s determination of probable cause to believe that a violation has occurred is a “discretionary function or duty” immune from liability under ORS 30.265(3) (c).⁶ This claim is answered by McBride v. Magnuson, 282 Or 433, 578 P2d 1259 (1978). In that case a police officer claimed immunity for her decision to take a child into custody and to make a report of child abuse. This court held that an officer or employee is not engaged in a “discretionary function or duty” whenever he or she must evaluate and act upon a factual judgment. Discretion, we stated, exists only insofar as an officer has been delegated responsibility for value judgments and policy choices among competing goals and priorities.⁷ Patently the purpose of ORS 133.310(3) was to negate any discretion of that kind in enforcing restraining orders issued under the Abuse Prevention Act. This conclusion does not depend on facts in the individual case. The circuit court erred in denying plaintiffs motion to strike this defense.

Defendants also claim immunity by virtue of ORS 133.315, which provides that “[n]o peace officer shall be held criminally or civilly liable for making an arrest pursuant to ORS 133.055(2) or 133.310(3) provided he acts in good faith and without malice.” That section provides immunity for making good faith arrests, not for failing to do so, and its obvious purpose is to reinforce the officer’s duty to arrest on probable cause. To invert this text so as to grant immunity for failing to make an arrest required by the 1977 act, as defendants propose, would fly in the face of that legislative purpose. This affirmative defense also should have been stricken.

This disposes of the issues actually raised by the parties. We add the following response to assertions introduced by the dissent.

1. The dissent asserts that we “overrule” two cases in which the court declined to find defendants liable for injury resulting from alleged conduct contrary to statutes, Bob Godfrey Pontiac v. Roloff, 291 Or 318, 630 P2d 840 (1981), and Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978). Most of the dissent is devoted to that proposition.

Neither case was cited by defendants. Neither case holds that statutory duties never give rise to civil liability unless the legislature makes that intention explicit in the text or accompanying explanations.⁸ We do not overrule either case, as the dissent claims; children still will have no statutory civil claim under the circumstances of Burnette nor litigants under the circumstances in Bob Godfrey Pontiac unless the legislature makes a change. Those cases relate to this very different statute only because the dissent extends their holdings to a general rejection of all liability whenever the underlying duty is established by the legislature rather than by judges. That conclusion, however, must be reached for different statutes on a case-by-case basis.

The statutes in this case, ORS 133.310(3), and its companion, ORS 133.055, are unique among statutory arrest provisions because the legislature chose mandatory arrest as the best means to reduce recurring domestic violence. They identify with precision when, to whom, and under what circumstances police protection must be afforded. The legislative purpose in requiring the police to enforce individual restraining orders clearly is to protect the named persons for whose protection the order is issued, not to protect the community at large by general law enforcement activity.

2. The dissent states that this decision creates “strict” liability. That is a word of uncertain meaning. It is not liability without fault. We have made it clear that the liability is not absolute; there may be defenses. The governing standard of conduct is set by the statute, not by this decision.⁹ If a statute merely calls on its addressee to exercise due care, that is the standard. This statute demands more of officers than the exercise of reasonable judgment whether to respond to requests to enforce known court orders; it mandates that they respond. That is the point of the statute.

3. The dissent asserts that the plaintiffs did not make a claim based on the statute. To the contrary, plaintiffs’ argument to the circuit court covered both a common law and a statutory theory.¹⁰

4. At bottom the dissent simply opposes tort liability for injuries caused by disregard of the statute on policy grounds, because it may cost local governments money. To that there are two answers. First, the same argument can be and no doubt was made against all claims under the Tort Claims Act, but the act was nevertheless enacted. This is a claim under the Tort Claims Act. If a private defendant would be liable for harm caused by failure to carry out a mandatory duty for the benefit of a specific person protected by a court order, as in McEvoy v. Helikson, supra, the Tort Claims Act makes a public defendant liable in the same manner. That policy decision was made by the legislature; it is not a new policy choice to be made in this case.

The second answer is that there is in fact no liability if the statute is followed. There is here no open-ended invitation to turn courts and juries loose to second-guess local policies. That might be true if all liability can only be negligence liability for lack of “due care,” as the dissent seems to argue. But here the statutory duty is too plain to create such unavoidable risks of liability. When compliance with the statute, unless prevented by good cause, will avoid exposure to liability, the argument that there should be no liability because of the potential expense actually is an argument for a privilege not to comply with the statute. But that policy choice, like the policy of the Tort Claims Act, also has been settled by the legislature.

The circuit court’s letter order and the arguments made to that court show that the court was persuaded as a matter of law that plaintiff could not recover for psychic and emotional injuries, as distinct from physical injuries that might have resulted from the same inaction by defendants. Because here, as in McEvoy v. Helikson, supra, there was a specific duty toward these plaintiffs, that proposition is incorrect. The decision of the Court of Appeals affirming the summary judgment must be reversed and the case remanded to the circuit court for further proceedings.

Reversed and remanded.

1 ORS 133.310(3):

“A peace officer shall arrest and take into custody a person without a warrant when the peace officer has probable cause to believe that:

“(a) There exists an order issued pursuant to ORS 107.095 (l)(c) or (d), 107.716 or 107.718 restraining the person; and

“(b) A true copy of the order and proof of service on the person has been filed as required in ORS 107.720; and

“(c) The peace officer has probable cause to believe that the person to be arrested has violated the terms of that order.”

Another section mandates arrests when an officer at the scene of a domestic disturbance has probable cause to believe that one person has assaulted another or placed the other in fear of imminent serious physical injury. ORS 133.055(2). If the facts occurred as pleaded in the present case, one of the defendant officers may have confused “on the scene” arrests under that section with arrests to enforce a restraining order under ORS 133.310(3).

2 This was required by the act, as amended by 1979 Or Laws ch 522:

“(1) Whenever a restraining order, as authorized by paragraph (c) or (d) of subsection (1) of ORS 107.095 or ORS 107.715 which includes bail and an expiration date pursuant to ORS 107.715 and this section, is issued and the person to be restrained has actual notice thereof, the petitioner shall deliver forthwith to a law enforcement agency a true copy of proof of service on the respondent and a true copy of the order. Upon receipt of a true copy of proof of service and a true copy of the order, the law enforcement agency shall forthwith enter the order into the Law Enforcement Data System maintained by the Executive Department. Entry into the Law Enforcement Data System shall constitute notice to all law enforcement agencies of the existence of such order. Law enforcement agencies shall establish procedures adequate to insure that an officer at the scene of an alleged violation of such order may be informed of the existence and terms of such order. Such order shall be fully enforceable in any county in the state.”

ORS 107.720(1) (1979). After the events in this case, the statute was amended by 1981 Or Laws ch 780 and 1983 Or Laws ch 561, § 3.

3 Cases reaching this court show that the practice of repeating familiar old formulas in pleadings, motions, or instructions survives unaffected by the court’s repeated reminders that “proximate cause” is not an element in Oregon tort law. See Norwest v. Presby. Intercomm. Hosp., 293 Or 543, 560 & n. 19, 652 P2d 318 (1982); Mooney v. Johnson Cattle, 291 Or 709, 718 n. 10, 634 P2d 1333 (1981).

4 As examples of independent legally protected interests, we cited an invasion of privacy, Hinish v. Meier & Frank Co., 166 Or 482, 113 P2d 438 (1941); unauthorized removal of a spouse’s remains, Hovis v. City of Burns, 243 Or 607, 415 P2d 29 (1966); interference with use and enjoyment of the land, Edwards v. Talent Irrigation Dist., 280 Or 307, 570 P2d 1169 (1977); and trespass to a home and conversion of personal property, Douglas v. Humble Oil, 251 Or 310, 445 P2d 590 (1968), and Fredeen v. Stride, 269 Or 369, 525 P2d 166 (1974).

5 We recently noted that Oregon rules require a pleader to state “the ultimate facts constituting a claim for relief,” ORCP 18 A., rather than pleading a form of action (in that case, the “common counts in assumpsit”). Davis v. Tyee Industries, Inc., 295 Or 467 (1983).

6 ORS 30.265(3) (1979):

“(3) Every public body and its officers, employes and agents acting within the scope of their employment or duties, or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598, are immune from liability for:

“(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”

7 “Many officers or employees carrying out the functions entrusted to them by others must frequently assess facts and choose how to act or not to act upon them. But not every exercise of judgment and choice is the exercise of discretion. It depends on the kind of judgments for which responsibility has been delegated to the particular officer. Discretion, as this court has noted in other contexts, involves ‘room for policy judgment,’ Smith v. Cooper, 256 Or 485, 502, 475 P2d 78, 45 ALR3d 857 (1970), quoting Dalehite v. United States, 346 US 15,36 (1953), or the responsibility for deciding ‘the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued,’ Antin v. Union High School Dist. No. 2, 130 Or 461, 469, 280 P 664 (1929). It involves the delegated responsibility for ‘assessment and ranking of the policy objectives explicit or implicit in the statute’ and for the judgment that one or more of these objectives will be served by a given action, Dickinson v. Davis, 277 Or 665, 673, 561 P2d 1019 (1977).”

282 Or at 436-37. See also Bradford v. Davis, 290 Or 855, 864-65, 626 P2d 1376 (1981).

8 “It would, of course, be desirable if legislatures were to indicate their intention to allow or to withhold the right of those injured by violations of statutes passed for their benefit to recover damages from the violator, if not in each individual statute, than by enacting some general formula. That suggestion was made long ago in the House of Lords, in tones mixing resignation with frustration:

“ ‘To a person unversed in the science or art of legislation it may well seem strange that Parliament has not by now made it a rule to state explicitly what its intention is in a matter which is often of no little importance, instead of leaving it to the courts to discover, by a careful examination and analysis of what is expressly said, what that intention may be supposed probably to be. There are no doubt reasons which inhibit the legislature from revealing its intention in plain words. I do not know, and must not speculate, what those reasons may be. I trust, however, that it will not be thought impertinent, in any sense of that word, to suggest respectfully that those who are responsible for framing legislation might consider whether the traditional practice, which obscures, if it does not conceal, the intention which Parliament has, or maybe presumed to have, might not safely be abandoned...’

“Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, 410, quoted in Fricke, supra 76 L A Rev at 256.”

Bob Godfrey Pontiac v. Roloff, supra, 291 Or at 341 (concurring opinion).

In Oksenholt v. Lederle Laboratories, 294 Or 213, 219, 656 P2d 293 (1982), we used the following analysis to determine if a federal regulation creating an obligation of drug manufacturers created corresponding state civil liability to doctors for breach of that regulation:

“First, are physicians within the class intended to be protected by the regulation; second, does the regulation provide an exclusive or adequate civil remedy; and third, will a civil remedy for a physican as well as for an injured patient further the purpose of the regulation?”

9 The reference in the concurring opinion to a defense that defendant “acted reasonably under the circumstances” could apply to the negligence theory there discussed, not to the issue whether the statutory duty has been observed. What constitutes compliance or excusable noncompliance is a matter of statutory interpretation; only whether the compliance or noncompliance occurred may be an issue of fact.

10 Plaintiffs’ trial memorandum in opposition to the motion for summary judgment argued:

“PLAINTIFFS’CLAIM IS BASED UPON DEFENDANTS’NEGLIGENT PERFORMANCE OF THEIR STATUTORY DUTY TO ENFORCE RESTRAINING ORDERS

“Defendant’s motion for summary judgment misconstrues the theory of plaintiffs’ case. Ms. Nearing and her children are not seeking damages for the negligent or intentional infliction of emotional distress. Rather, her complaint is founded on the breach of the statutory duty owed her by Officers Weaver and Sauls. These defendants had an unequivocal obligation to arrest violators of restraining orders pursuant to the requirements of ORS 133.310(3).”

“PLAINTIFFS’ CLAIM IS ALTERNATIVELY BASED UPON A SPECIAL DUTY

“Ms. Nearing and her children’s claim of negligence can be alternatively premised on the special duty owed her by virtue of her relationship with the St. Helens Police Department.”

At oral argument on the motion, defendants argued:

“... [t]he first thrust of defendant’s Motion for Summary Judgment is that what we’re dealing with here is a claim for relief for negligent infliction of emotional distress....”

.. The plaintiffs have argued that in fact the police officers here violated Mrs. Nearing’s legal right to have Mr. Nearing arrested, and they cite the statute — the Oregon statute which was designed to decrease domestic violence to protect battered spouses especially....”

Plaintiffs replied:

“The defendant’s motion completely misconstrues the... theory in this case. The case is not based upon either negligent or intentional infliction of emotional distress, rather it is based upon a statutory duty on the part of the police officers to arrest violators of restraining orders pursuent [sic] to ORS 133.310, Sub. 3.

“I think also in construing the cause of action it’s important to look at the plaintiffs’ complaint, particularly paragraphs seven, eight and nine where we’ve pleaded that a restraining order was obtained by Mrs. Nearing and her children, that it was served on the — on Mr. Nearing and that a copy of both the Proof of Service and the restraining order was delivered to the defendant City Police. So, it’s very clear that we’re proceeding under the statute....”