Barratt v. Burlingham ( 1985 )

OPINION

SHEA, Justice.

This is a civil action brought by Mark F. Barratt (Barratt) and his parents, William J. and Bernadette Barratt, against Peter Magnant, a North Kingstown special police officer; Michael J. Burke, a North Kingstown police officer; and the town of North Kingstown.¹ The case comes before us on the plaintiffs’ appeal from a judgment of the Superior Court granting the defendants’ motion for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. The plaintiffs contend that the judge below erred in granting that motion. We affirm.

Initially, we note that in reviewing the grant of a motion for summary judgment, this court applies the same rules as the trial court. Ardente v. Horan, 117 R.I. 254, 257, 366 A.2d 162, 164 (1976). This review includes an examination of the pleadings and affidavits viewed in a light most favorable to the party opposing the motion. Steinberg v. State, — R.I. —, —, 427 A.2d 338, 340 (1981). Only when our review reveals no issues of material fact, and the moving party is entitled to judgment as a matter of law, will we uphold the trial justice’s order granting summary judgment. Id.

The following facts are undisputed. On the evening of May 27, 1978, Barratt, a seventeen-year-old, and two friends, Roger McMurray and Charles Bonn, went to the Carriage Inn, a restaurant and bar in North Kingstown. By the time they left the Carriage Inn at 1 a.m. on May 28, they were quite intoxicated, each having consumed seven or eight drinks.

As the three young men started to leave the Carriage Inn’s parking lot in a car driven by McMurray, a special police officer on duty in the parking lot that night, Peter Magnant, stopped the car and ordered McMurray to park it in a vacant lot across the street. Magnant told them that they were going to stay parked until they sobered up. McMurray told the officer that he did not want any trouble and that they only wanted to be on their way. At this point Barratt asked Magnant if he could talk with him. He got out of the car and told the officer that he was “straighter” than his friends. Attempting to show that he was sober, Barratt offered to do pushups and jumping jacks, but Magnant replied that it would not be necessary. Magnant asked to see Barratt’s driver’s license, but Barratt told him he did not have it on his person. In fact, Barratt was not licensed to drive by the State of Rhode Island or any other- state. • When Magnant asked Barratt in what direction he was going, Barratt told him that they were heading south. The officer then gave Bar-ratt permission to drive and told him to leave the area.

Barratt then drove McMurray’s car from the vicinity of the Carriage Inn to the Warwick‘exit off route 95, where he stopped the car and relieved himself. At this point, McMurray took over as driver and drove the trio to the Seawall in Warwick, Rhode Island, where they met some friends and drank some beer. Approximately half an hour later, McMurray dropped Barratt and Bonn at Barratt’s home so that they could get cigarettes. Finding none, Barratt and Bonn left the house and found that McMur-ray had returned and was waiting for them in the car. McMurray then drove them to a self-service station where they got cigarettes. Thereafter, Bonn took over the driving. While on Oakland Beach Avenue in the city of Warwick, the car transporting the three young men collided with a utility pole and a tree. Barratt was seriously injured as a result of the accident and remains a quadriplegic.

Barratt contends that defendant Mag-nant voluntarily assumed a duty toward him when he stopped the car and announced that he would not allow them to leave until they “sobered up.” Magnant’s conduct, Barratt argues, engendered a personal duty to act reasonably to protect Barratt and his friends from the obvious, real, and severe danger of driving while intoxicated. In short, Barratt argues that the circumstances of this case — Magnant’s personal intervention and contact with Bar-ratt and his friends — transformed Mag-nant’s duty as a police officer from a duty to protect the general public into a duty owed to Barratt individually. We cannot agree.

This court’s decision in Becker v. Beau-doin, 106 R.I. 562, 261 A.2d 896 (1970), abrogated the judicially created doctrine of sovereign immunity as a defense to tort claims against municipal and quasi-municipal corporations. Shortly after the holding in Becker, the Legislature enacted G.L. 1956 (1969 Reenactment) § 9-31-1, as enacted by P.L. 1970, ch. 181, § 2, which abrogated the sovereign immunity of the state as well as of all other political subdivisions in Rhode Island.

Section 9-31-1, however, was not intended “to operate so as to impose liability upon the state for any and all acts or omissions of its employees and officers which might cause injury to persons.” Calhoun v. City of Providence, 120 R.I. 619, 625, 390 A.2d 350, 353 (1978). It was understood that “[t]here must be a weighing of the injured party’s demand for justice against the state’s equally valid claim to exercise certain powers for the good of all without burdensome encumbrances and disruptive forces.” Id. at 628, 390 A.2d at 355.

Recognizing that certain government activities engaged in by employees and officers must be free of the threat of potential litigation, this court concluded that before such liability could be imposed upon the state, “plaintiffs must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public.” Ryan v. State Department of Transportation, — R.I.-,-, 420 A.2d 841, 843 (1980); see also Orzechowski v. State, — R.I. —, —, 485 A.2d 545, 548 (1984); Smith v. Tripp, 13 R.I. 152, 154 (1880).

In the instant case, when the police officer allowed Barratt to drive, his act was an exercise of discretion coming within the scope of his authority to enforce the criminal-drunk-driving laws pursuant to G.L. 1956 (1982 Reenactment) § 31-27-2. Section 31-27-2, which makes driving under the influence of liquor unlawful, is intended to protect the general public from intoxicated drivers. Since the duty imposed by that statute upon police officers charged with enforcing it is public in nature, Mag-nant’s duty to Barratt was public in nature.

Contrary to Barratt’s contention, Magnant’s personal intervention and contact with Barratt and his friends created no special duty owed to him in an individual capacity. A police officer’s observation of a citizen’s conduct that might foreseeably create a risk of harm to others, or the officer’s temporary detention of the citizen is not sufficient in itself to create a “special relationship” that imposes on the officer such a special duty. Jackson v. Clements, 146 Cal.App.3d 983, 987, 194 Cal.Rptr. 553, 555 (1983). If we were to hold otherwise, officers trying to avoid liability might be compelled to remove from the road all persons who pose any potential hazard and, in doing so, might find themselves subject, in many instances, to charges of false arrest. Shore v. Town of Stonington, 187 Conn. 147, 157, 444 A.2d 1379, 1384 (1982). “We do not think that the public interest is served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman’s discretionary duty. Such discretion is no discretion at all.” Id. We conclude, therefore, that Magnant is not personally liable to plaintiffs on these facts.

Negligence is the breach of a duty, the existence of which duty is a question of law. Federal Express Corporation v. State of Rhode Island Department of Transportation, 664 F.2d 830, 835 (1st Cir. 1981). If no such duty exists, then the trier of fact has nothing to consider and a motion for summary judgment must be granted. Accordingly, since we find no duty was owed to Barratt in his individual capacity, granting the motion for summary judgment by the trial justice was appropriate.

For these reasons, the plaintiffs’ appeal is denied and dismissed. The judgment appealed from is affirmed, and the papers of this case are remanded to the Superior Court.

1 . Doris Burlingham, the town treasurer, was the named defendant because a suit against the town treasurer is in substance and legal effect a suit against the town pursuant to G.L.1956 (1980 Reenactment) § 45-15-5.