Trujillo v. City of Albuquerque , 93 N.M. 564 ( 1979 )

OPINION

ANDREWS, Judge.

The question presented in this case is whether, prior to both the prospective abrogation of the doctrine of sovereign immunity by our Supreme Court in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), and the enactment of New Mexico’s Tort Claims Act, § 41 — 4-1 et seq., N.M.S.A.1978, a municipality of this State could be sued for its failure to provide adequate police protection in a public park. The trial court found that such a suit could not be maintained. We affirm.

On June 22, 1975, plaintiff’s decedent, Ernest Trujillo, along with a group of friends, was in Roosevelt Park, a park established and maintained by the City of Albuquerque. Earlier in the day, a rock concert had been held but Ernest and his friends went to the park after the concert was over. They were sitting on the grass when they were approached by, and had some kind of altercation with, another person who then left the park. Shortly thereafter, a second person approached Ernest and his group, accusing them of having “picked on” his brother, and drew a gun, firing it once or twice. Ernest and his friends then chased this person to the top of a knoll where a third person, Wilbert Miles, stood and fired a shotgun “into the ground”, hitting and killing Ernest.

This action is brought by Ernest’s mother for damages caused by the death of her son. Her first complaint alleged that the City maintained the park; that the maintenance of the park was a proprietary function of the City; that the City allowed the rock concert to be held in the park without proper police and security arrangements; that the City had a duty to secure the park and protect citizens using it, particularly a duty to protect Ernest’s well-being; and that the City breached its duty and was therefore liable in damages.

The City moved to dismiss or for summary judgment and the motion was granted for failure to state a claim, with leave granted to amend. The first amended complaint alleged basically the same facts but noted that the park had been known as a “hot bed” for years and that, in failing to take measures to maintain the park as a safe place, the City had allowed it to become a nuisance. Further, the plaintiff alleged that the City’s negligence in maintaining the nuisance resulted in Ernest’s death and prayed for damages totalling $1,096,560.00.

The City again moved to dismiss for failure to state a claim or for summary judgment. The court granted the motion for summary judgment, finding as follows:

1. That characterizing the cause of action as a nuisance, or characterizing the cause of action as based upon park maintenance, does not change the true character of the action wherein the real complaint is that the City did not provide adequate police or other protection at Roosevelt Park.

2. The claim that the City inadequately provided police or other protection for the public from assault, battery and possible death, is a governmental function and the action having occurred before the doctrine of sovereign immunity was abrogated, results in the conclusion that the City is not subject to suit in this action.

The plaintiff appeals from the summary judgment, raising as her only point the existence of genuine issue of material fact, “namely, whether or not the manner in which Roosevelt Park was maintained on the 22nd of June, 1975, and prior thereto constituted a nuisance.”

The trial court, as shown by its order, considered the action to be based on the City’s failure to provide police protection to Ernest, that the provision of such protection was a governmental function and therefore one on which the City was immune to suit. These conclusions were correct.

While New Mexico courts have not had occasion to directly address the question of whether a city is liable for failure to provide adequate policing to protect one citizen from being assaulted by another citizen, it is clear that a municipality will neither be held liable for failure to carry out a statutory function, nor a governmental function. The City of Albuquerque was granted immunity in Barnett v. Cal M, Inc., 79 N.M. 553, 445 P.2d 974 (1968), when it was held that the operation of a police department is a governmental function, and the City of Clayton was found to have no special duty beyond that owed to the public in general in Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct.App.1979).

In Doe v. Hendricks, a case we find consistent with the majority rule, see Henderson v. City of St. Petersburg, 247 So.2d 23 (Fla.App.), cert. denied, 250 So.2d 643 (Fla.1971); Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968); Anno. “Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection”, 46 A.L.R.3d 1084 (1972), the parents of a child brought an action for damages against the City and its police officers alleging that the child had been assaulted because the police, after having been called, failed to respond with sufficient speed to prevent the assault.

Judge Sutin found that liability for such failure would exist only if there had been a specific promise or protection by the police to the victim or if the police officer had affirmatively caused the damage of which the plaintiff was complaining, stating that the public duty owed by the City and its police officers will not support an action for damages by a single citizen harmed by the criminal action of another.

Thus, where there is no showing of a direct relationship or contact between the victim and the police creating a special duty, there is no liability on the part of the police and municipality. Plaintiff here has failed to establish that a special duty existed between the victim and the police, there-. fore there is no liability.¹

Next, the plaintiff argues that the maintenance of a public park is a proprietary function which exposes the City to liability. In making this argument, plaintiff fails to distinguish between maintenance of physical facilities in a park such as was the case in Murphy v. City of Carlsbad, 66 N.M. 376, 348 P.2d 492 (1960) and the maintenance of law and order so as to prevent third persons from committing violent acts in a park. The distinction is decisive and controlling. For while maintenance of parks is a proprietary or private function, the maintenance of good order in a park, and the prevention of dangerous conditions there caused by imprudent conduct of individuals is a governmental function, in the exercise of which a municipality is not liable. See Williams v. City of Longmont, 109 Colo. 567, 129 P.2d 110, 142 A.L.R. 1337 (1942).

Finally, plaintiff contends that the lack of police protection for Roosevelt Park was a condition constituting a public nuisance, and that she has standing to abate such a nuisance under § 30-8-8(B), N.M.S.A.1978, which - states:

A civil action to abate a public nuisance may be brought, by verified complaint in the name of the state without cost, by any public officer or private citizen, in the district court of the county where the public nuisance exists, against any person, corporation or association of persons who shall create, perform or maintain a public nuisance.

We need not address the issue of whether the alleged conduct of the City constitutes a public nuisance because it is clear that the statute cited above imposes no duty on the city in connection with the alleged public nuisance. As stated in Roberson v. District of Columbia, 86 A.2d 536 (D.C.1952), where the plaintiff was injured by children playing on a city sidewalk:

any duty of the District to prevent loitering, congregating and playing on public sidewalks is a public duty calling for the exercise of the government’s police power, and the exercise of police power is strictly a governmental function. Moreover, the prevention of loitering involves either the making or enforcing of regulations governing the use of streets and the decisions generally are in accord that no liability may be imposed on a municipal corporation for its failure to enact or enforce ordinances. 86 A.2d 536.

Such reasoning is applicable here. As in Roberson, the alleged nuisance is not the condition of the land, the physical structures on the land or the activities of the landowners. The alleged nuisance is the acts of third persons who come on the land. Accord Tennessee Coal Iron & Railroad Co. v. Hartline, 244 Ala. 116, 11 So.2d 833 (1943); Southern Ry. Co. v. State, 130 Tenn. 261, 169 S.W. 1173 (1914).

To hold a municipality liable for the conduct of third persons, such as is alleged in the complaint before us, would,’ in our opinion, be contrary to sound public policy and create policing requirements difficult -of fulfillment. As stated in Doe v. Hendricks, supra, the legislature, the representatives of the people, fix the public policy of the State. The duty of the courts is to express that public policy. We have done so in this case.

No genuine issue of material facts is shown by the record and the summary judgment is affirmed.

IT IS SO ORDERED.

WOOD, C. J., concurs. SUTIN, J., dissenting.

1 . Immunity need not be discussed in view of the prospective holding in Hicks v. State, supra.