White v. Beasley

552 N.W.2d 1, 453 Mich. 308

• Court: Michigan Supreme Court
• Decided: August 1, 1996
• Docket: 101350, Calendar No. 5
• Status: Published

Opinions

Brickley, C.J.

This case requires that we decide if the public-duty doctrine should still be recognized in Michigan and, if it should, to define the limits of the special-relationship exception to that doctrine as applied to police officers. We conclude that the public-duty doctrine remains valid in Michigan. We also conclude that the most appropriate special-relationship test for examining the relationship between police officers and private individuals is the test articulated by the New York Court of Appeals in Cuffy v City of New York, 69 NY2d 255; 513 NYS2d 372; 505 NE2d 937 (1987).

i

FACTS

This case comes to us to consider defendant’s motion for summary disposition alleging a failure “to state a claim on which relief can be granted.” MCR 2.116(C)(8). Therefore, for purposes of deciding if the lower courts correctly ruled on the motion, we accept all well-pleaded facts in plaintiff’s complaint as true. Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).

Plaintiff alleges that defendant, Detroit Police Officer Keith D. Beasley, was grossly negligent when he responded to a telephone call requesting aid on behalf of decedent, Phoebe Obleton. At 12:30 A.M., on Tuesday, October 9, 1990, through the decedent’s bathroom window, her neighbors saw her husband attack her. They also heard the decedent screaming for help. Responding to the situation, two of the neighbors telephoned Detroit’s 911 emergency dispatch service requesting emergency assistance on behalf of decedent. Further calls to 911 followed. Finally, at 12:40 A.M., neighbors placed a direct call to the local police station.

At 1:30 A.M., Officer Beasley and another police officer arrived at the decedent’s residence.¹ Decedent’s neighbors met the officers, explained that they had seen the decedent’s husband attacking her, communicated that they heard her scream for help, and informed the officers of her apartment number. The complaint alleges that, in response, the officers, “after taking down the witnesses’ names, simply circled the building and left without ever attempting to knock on Plaintiff decedent’s apartment door, or make any attempt to contact Plaintiff decedent or determine if, in fact, she was being or had been attacked.”

At 4:15 A.M., the decedent’s husband telephoned Detroit’s 911 service to report that he had stabbed his wife to death. At 4:50 A.M., three hours and twenty minutes after Officer Beasley arrived outside the decedent’s residence, she died.

Sheila White, as personal representative of the decedent’s estate, filed a suit against the City of Detroit, the City of Detroit Police Department, the 911 operator, and both responding police officers. The trial court dismissed the claims against the city and the police department on the basis of governmental immunity. The 911 operator and defendant Officer Beasley moved for summary disposition for failure “to state a claim on which relief can be granted.” MCR 2.116(C)(8). Defendants relied exclusively on the public-duty doctrine, arguing that they owed a duty to the public only, not to the decedent as an individual. The trial court denied their motion.

The Court of Appeals reversed with respect to the 911 operator.² 206 Mich App 459, 462; 522 NW2d 681 (1994). It reasoned that the public-duty doctrine applied to the 911 operator and that the relationship between the decedent and the 911 operator was too attenuated to satisfy the special-relationship exception to the public-duty doctrine. Id. However, it upheld the trial court’s denial of summary disposition for Officer Beasley. Id. at 466. It found that defendant’s arrival at the crime scene was sufficient to satisfy the special-relationship exception to the public-duty doctrine. Id. at 462. Defendant appealed to this Court.

Defendant’s appeal places two issues squarely before this Court. First, because we have not yet addressed the issue, we must decide if the public-duty doctrine is viable in Michigan. Second, provided that we accept the existence of the public-duty doctrine, we must also define the limits of the doctrine’s special-relationship exception when applied to police officers.³

n

THE PUBLIC-DUTY DOCTRINE

We hold that the public-duty doctrine applies in Michigan. As defined by Justice Cooley, the public-duty doctrine provides

[t]hat if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. [2 Cooley, Torts (4th ed), § 300, pp 385-386.]

Applied to police officers, the public-duty doctrine insulates officers from tort liability for the negligent failure to provide police protection unless an individual plaintiff satisfies the special-relationship exception. See Cuffy, 69 NY2d 260.

Currently, the public-duty doctrine is under attack because some commentators believe that the doctrine unjustifiably creates inequitable and harsh results for plaintiffs. The doctrine has an “all or nothing” character that may deny a plaintiff recovery just because the tort was committed by a public, rather than a private, employee. The problems stemming from the doctrine’s “all or nothing” character are compounded by the lack of guidance in defining which duties are public and which are specific individual duties. Partly on the basis of these concerns, some courts have abandoned the public-duty doctrine altogether.⁴ See, e.g., Ryan v State, 134 Ariz 308, 310; 656 P2d 597 (1982), and Leake v Cain, 720 P2d 152, 159 (Colo, 1986). While the inequitable and harsh results created by the doctrine are a significant concern when the doctrine is applied to most government employees, we conclude that the dangerous work environment inherent in police activities is a counterbalancing concern when the doctrine is applied to police officers, as will be discussed in part m of this opinion.

Otherwise, there are two basic justifications for retaining the public-duty doctrine. First, the doctrine protects governments from unreasonable interference with policy decisions, and, second, it protects government employees from unreasonable liability.

We agree that the public-duty doctrine serves a useful purpose by protecting governments from unreasonable interference with policy decisions. As noted by the Supreme Court of Illinois, while deciding a suit alleging that the failure to enforce the City of Chicago’s housing code led to a child’s injury,

If the failure of the city to enforce [an] ordinance should render it liable for injuries sustained thereby, the tremendous exposure to liability would certainly dissuade the city from enacting ordinances designed for the protection and welfare of the general public, and thereby the general pubT lie would lose the benefit of salutary legislative enactments. [Stigler v Chicago, 48 111 2d 20, 24-25; 268 NE2d 26 (1971).]

We find the reasoning of the Supreme Court of Illinois persuasive. A convincing justification for the continued recognition of the public-duty doctrine is its purpose of shielding governmental units from liability “when its employees act, or refuse to act, so as to conform to a municipal ordinance and/or a state statute.” Sawicki v Village of Ottawa Hills, 37 Ohio St 3d 222, 226; 525 NE2d 468 (1988).

Further, tort liability should not be based on statutes and ordinances that are not traditionally relied on to impose liability or do not themselves specifically expose government employees to liability. Such liability may also deter the governmental entity from enacting protective legislation, fearing that the added cost of employee liability will eventually be borne by the governmental entity. Additionally, we note that mechanisms besides the threat of liability in negligence exist to hold employees accountable for failure to conform to statutes and ordinances. See Ezell v Cockrell, 902 SW2d 394, 398 (Term, 1995).

Similarly, we agree that the public-duty doctrine is justified to the extent that it clarifies that a government employee’s job title alone does not create a duty between the employee and specific members of the public. For example, police officers should not be liable for insuring the general public’s welfare just because their job title lists them as “police officers.” Police officers should not be liable “for failing to protect a member of the general public from a criminal act of which they were not aware but should have anticipated and prevented . . . De Long v Erie Co, 60 NY2d 296, 304; 469 NYS2d 611; 457 NE2d 717 (1983).

Further, we agree that

[f]or the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. [Pass v City of New York, 22 NY2d 579, 581-582; 240 NE2d 860 (1968).]

Therefore, we agree that the public-duty doctrine should shield a government employee from liability that is based solely on that employee’s particular job title.

In conclusion, we find that the public-duty doctrine still serves several useful purposes. The government should be protected from unreasonable interference with policy decisions. Government employees should enjoy personal protection from tort liability based on their action in conformity with, or failure to conform to, statutes or ordinances not intended to create tort liability. The job titles of government employees alone should not create a duty to specific members of the public. Therefore, we adhere to the public-duty doctrine in Michigan to the extent that the doctrine achieves these objectives.

III

the special-relationship exception

The special-relationship exception to the public-duty doctrine exposes a government employee to liability for the employee’s actions whenever a court finds that the government employee has a “special-relationship” with the plaintiff. Sawicki, 37 Ohio St 3d 230. Whether or not the employee has a “special-relationship” with the plaintiff is determined by the specific test applicable in that state. A survey of special-relationship tests reveals deep disagreement among the states regarding the exact nature of the “special-relationship” the plaintiff must prove.⁵

The only special-relationship test adopted in more than one state is the test adopted by the New York Court of Appeals in Cuffy, supra at 260. The Cuffy test has also been adopted in Ohio and, with modification,⁶ in Georgia. Sawicki, 37 Ohio St 3d 232; City of Rome v Jordan, 263 Ga 26, 29; 426 SE2d 861 (1993). The elements of the Cuffy test are:

(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2) knowledge on the part of the municipality’s agent that inaction could lead to harm;

(3) some form of direct contact between the municipality’s agents and the injured party; and

(4) that party’s justifiable reliance on the municipality’s affirmative undertaking .... [Cuffy, 69 NY2d 260.]

We recognize that this test is somewhat arbitrarily restrictive. On first glance the test reads more like a test for promissory estoppel under contract law than a test for a special relationship in tort. However, we also recognize that police officers are employed to work in a “milieu of criminal activity where every decision is fraught with uncertainty.” Ezell, supra, 398. Because of the unusual and extraordinary nature of police work it is unfair to allow “a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman’s discretionary professional duty.” Shore v Stonington, 187 Conn 147, 157; 444 A2d 1379 (1982).

The test articulated in Cuffy responds to these concerns by insulating police officers from liability arising from their tortious on the job conduct in almost all instances where a plaintiff alleges a failure to provide police protection. Yet, the test also provides plaintiffs some relief in the particularly egregious case of an officer promising police protection, but negligently carrying out that promise. Although this test may deny recovery to some deserving plaintiffs, we prefer to be cautious when exposing police officers to on the job liability. Police officers must work in unusual circumstances. They deserve unusual protection. Therefore, at least when applied to police officers, we would adopt the Cuffy special-relationship test.

IV

JUSTICE LEVIN’S DISSENT

In his dissent, Justice Levin argues that this Court is compelled to abandon the public-duty doctrine for two reasons: because it is not a part of the law of this state and because the doctrine is inconsistent with MCL 691.1407(2); MSA 3.996(107)(2). We conclude that the dissent overstates the argument. This Court is free to abandon the public-duty doctrine, but not compelled to do so.

First, the public-duty doctrine is a part of the law of this state. In recent years the Court of Appeals has consistently relied on the doctrine.⁷ Admittedly, before this case, this Court has not chosen to recognize the doctrine, but that is not sufficient grounds to ignore Court of Appeals precedent. This Court’s previous failure to recognize the public-duty doctrine simply leaves open the question whether this Court should adopt the doctrine. It does not prevent this Court from adopting the doctrine.

On the other hand, what is not a part of the law of this state is the recognition of any duty in tort on the part of the police “under state law and the Charter of the City of Detroit to protect the public.”⁸ Post at 354. Fiser v City of Ann Arbor, 417 Mich 461; 339 NW2d (1983), relied on by the dissent, simply recognizes that, where the Legislature has provided an exception to statutory immunity, the police are subject to the same tort concepts affecting liability faced by private individuals. In this state, as in all other states that we are aware of, police are not subject to greater tort liability than would be faced by any other member of society with similar training, knowledge, and skill.

Similarly, we conclude that the dissent has confused the term “duty” as used in the former text of MCL 92.4; MSA 5.1752 with the concept of duty as an element of tort law. Aside from tort law, “duty” also means any “action or a task required by one’s position or occupation.” Random House College Dictionary: Revised Edition. It is in this sense that MCL 92.4; MSA 5.1752 enumerates the tasks and powers assigned to police officers. The Legislature' never intended MCL 92.4; MSA 5.1752 to impose a duty in tort.

Second, we disagree with Justice Levin’s assertion that the public-duty doctrine is a doctrine of governmental immunity. Instead, we conclude that the public-duty doctrine is a doctrine of tort law. See Sawicki, 37 Ohio St 3d 230. The doctrine determines whether a duty in tort exists, not whether an individual is immune from an otherwise existing tort duty. Accordingly, it is part of tort law. As a result, the public-duty doctrine is consistent with 1986 PA 175, MCL 691.1407(2); MSA 3.996(107)(2), and neither Ross v Consumers Power Co (On Rehearing), 420

Mich 567; 363 NW2d 641 (1984),⁹ nor 1986 PA 175 compels this Court to abandon the doctrine.

v

APPLICATION OF THE PUBLIC-DUTY DOCTRINE

With the public-duty doctrine and its special-relationship exception defined, we must now decide whether summary disposition was appropriate in the case before us. We conclude that it was. We employ a two-part analysis to reach this conclusion.

First, we conclude that the public-duty doctrine shields the officer from liability for the charged conduct. Plaintiffs complaint alleges a failure to provide police protection. Therefore, unless the facts of this case fit the special-relationship exception, the public-duty doctrine instructs that the officer did not owe a duty in tort to any individual, including decedent. Second, we find that the facts in this case do not establish a special relationship between the officer and decedent. Employing the newly adopted special-relationship test, we conclude plaintiff has failed to allege at least two of the elements necessary to the establishment of a special relationship.

First, plaintiff did not allege facts sufficient to suggest that there was direct contact between the police officer and decedent. There is no allegation of direct contact before the attack, and during the attack decedent only succeeded in contacting her neighbors — not the police. Second, plaintiff failed to suggest that decedent justifiably relied on any affirmative action taken by the police department. Because decedent never directly contacted the police, she had no knowledge of a promise on which she could rely.

Further, any argument that she relied on the police officer because she knew that it was the officer’s “duty” to aid victims of crime runs contrary to our rationale for adopting the public-duty doctrine itself. Such an argument is tantamount to arguing that a tort duty can be established solely on the basis of defendant’s job title. Because we adopted the public-duty doctrine in part to protect government employees from liability based solely on their job title, we refuse to allow the exception to contradict the rule.

Therefore, plaintiff has failed to allege facts sufficient to satisfy the special-relationship exception. Under the public-duty doctrine, the police officer did not owe a duty in tort to decedent, an individual. As a result, plaintiff has failed to state a claim on which relief can be granted. Accordingly, we would reverse the Court of Appeals and remand the case to the trial court for entry of an order granting defendant’s motion for summary judgment.

Riley and Weaver, JJ., concurred with Brickley, C.J.

1 The other officer is named in plaintiff’s complaint but did not join defendant’s motion for summary disposition. Therefore, any claims regarding the other officer are not before this Court.

2 The 911 operator is not a party to this appeal and plaintiff has not filed a cross appeal.

3 In this case we do not decide whether the same test, or a separate test, should be applied to other government employees.

4 Also influential to most jurisdictions abandoning the public-duty doctrine is the feeling that it is another form of sovereign immunity that is inconsistent with the abrogation of governmental immunity in their jurisdictions. See, e.g., Adams v State, 555 P2d 235, 241-242 (Alas, 1976), Brennan v City of Eugene, 285 Or 409; 591 P2d 719 (1979), and Chambers-Castanes v King Co, 100 Wash 2d 275, 291; 669 P2d 451 (1983) (Utter, J., concurring in result).

5 See Ashburn v Anne Arundel Co, 306 Md 617, 631; 510 A2d 1078 (1986) , Bailey v Town of Forks, 108 Wash 2d 262, 268; 737 P2d 1257 (1987), Braswell v Braswell, 330 NC 363, 371; 410 SE2d 897 (1991), Coty v Washoe Co, 108 Nev 757, 760; 839 P2d 97 (1992), Ezell, supra, 402; Fessler by Fessler v REJ Inc, 161 Ill App 3d 290, 296; 514 NE2d 515 (1987), Hage v Stade, 304 NW2d 283, 286 (Minn, 1981), Melendez v Philadelphia, 320 Pa Super 59, 65; 466 A2d 1060 (1983), Shore v Stonington, 187 Conn 147, 153-155; 444 A2d 1379 (1982), and Williams v State, 34 Cal 3d 18, 25; 192 Cal Rptr 233; 664 P2d 137 (1983).

6 The Georgia Supreme Court eliminated the element of “direct contact” from the Cuffy special-relationship test. City of Rome v Jordan, 263 Ga 26, 29; 426 SE2d 861 (1993). The court found the element unfair and duplicative, arguing that the requirement of plaintiffs detrimental reliance on the government’s promise satisfied the same concerns as the element of “direct contact.”

7 See, e.g., Gazette v Pontiac, 212 Mich App 162; 536 NW2d 854 (1995); Singerman v Municipal Service Bureau, Inc, 211 Mich App 678; 536 NW2d 547 (1995); Harrison v Corrections Dep’t Dir, 194 Mich App 446; 487 NW2d 799 (1992); Jones v Wilcox, 190 Mich App 564; 476 NW2d 473 (1991); Massey v Corrections Dep’t, 182 Mich App 238; 451 NW2d 869 (1990); Markis v Grosse Pointe Park, 180 Mich App 545; 448 NW2d 352 (1989); Simonds v Tibbitts, 165 Mich App 480; 419 NW2d 5 (1987); Hobrla v Glass, 143 Mich App 616; 372 NW2d 630 (1985); Rose v Mackie, 22 Mich App 463; 177 NW2d 633 (1970).

8 We interpret this phrase in the dissent as a recommendation for establishing an overarching tort duty to “protect the public” based in part on the interpretation of statutes never previously employed to find a tort duty. A similar argument was adopted in a dissent, but rejected by the majority of the Court of Appeals in Zavala v Zinser, 123 Mich App 352; 333 NW2d 278 (1983). To the extent this phrase suggests that the Court should create tort liability burdens for police officers greater than imposed by common-law tort principles, we also disagree.

However, where not supplanted by statute or common-law concepts such as the public-duty doctrine, we would recognize that police officer conduct should be judged by the same common-law tort concepts applicable to private citizens. “The officer’s conduct should be compared to ‘that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances.’ ” Fiser v City of Ann Arbor, 417 Mich 461, 470; 339 NW2d 413 (1983), quoting McKay v Hargis, 351 Mich 409, 418; 88 NW2d 456 (1958).

9 Assuming for the sake of argument that the public-duty doctrine was part of sovereign immunity, MCL 691.1407(1); MSA 3.996(107)(1) would actually compel this Court to recognize the public-duty doctrine to the extent that the doctrine shields the state from liability. See id. at 608 and Moss v Cummings, 44 Mich 359; 6 NW 843 (1880).