Rowe v. Coffey

515 S.E.2d 375, 270 Ga. 715, 99 Fulton County D. Rep. 1325, 1999 Ga. LEXIS 310

• Court: Supreme Court of Georgia
• Decided: March 19, 1999
• Docket: S98G1226
• Status: Published

Opinions

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 SE2d 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 SE2d 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. 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 SE2d 849) (1996), and Hamilton v. Cannon, 267 Ga. 655 (1) (482 SE2d 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, 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. 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), 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.