Landis v. Rockdale County

Pope, Judge,

dissenting.

While I concur fully with Judge Andrews’ dissent, I write separately to point out the fallacy of the majority’s strained creation of a new tort duty in this case. In a desperate search to find a legal basis for this new duty, the majority gleans this duty from the rationale underlying the alcohol provider statutes, statutes the majority concedes do not even apply to this case. The result — this is a classic case of bad facts making bad law. While I sympathize with the plaintiff’s tragic loss of her husband, we should not allow the circumstances of this case to cause us to deviate from traditional tort principles and analysis when deciding whether Drummond owed a duty to plaintiff’s decedent to remove Taggart from the highway.

Contrary to the majority’s contention otherwise, the rationale underlying our Supreme Court’s decision in Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985) and OCGA §§ 3-3-22 and 3-3-23 do not provide a basis for the expanded common law duty created by the majority in this case. The rationale underlying Sutter and those statutes is that one who provides alcoholic beverages to a person who is noticeably intoxicated and who will soon be driving and/or to one who is younger than the legal drinking age by their own actions increases the risk to others using the highways that they will be harmed by the intoxicated persons. A police officer, on the other hand, by merely coming into contact with someone who is intoxicated, has done nothing to expose the travelling public to any greater danger.

The proper starting point when deciding if the police officer in this case owes a duty to plaintiff’s decedent is the general rule, as stated in the Restatement (Second) of Torts, § 315 and as approved by our Supreme Court in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), that there is no duty to prevent a third person from harming another, absent a special relation between the actor and wrongdoer or between the actor and the victim. Construing the facts in the light most favorable to plaintiff, in this case there is no evidence of the type of “special relation” that will support a finding of duty. The plaintiff’s decedent had no contact with Drummond or any other Rockdale County police officer on the night of the collision and neither the plaintiff’s decedent or the police acted in a manner that would create a special relationship between the plaintiff’s decedent and the police. Furthermore, there is no evidence of a special relation between Taggart and Drummond. Through a purely chance encounter, which occurred when Taggart stopped at an accident scene at which Drummond was directing traffic, Drummond engaged in casual conversation with Taggart, had an opportunity to observe her and allegedly either knew or should have known that she was intoxicated. Taggart was not stopped by Drummond nor was she ever detained or in any way placed under his control on the night of the fatal collision. Thus, there is simply no showing of a special relation between Drummond and Taggart or Drummond and plaintiff’s decedent.

In cases such as this before finding the required special relation needed to create a duty, at a minimum, we should require a showing of some control being exercised by the police officer over the wrongdoer or a showing that a police officer knew of imminent harm to an identifiable victim by a known wrongdoer. See Shore v. Town of Stonington, 444 A2d 1379 (Conn. 1982); accord Jordan v. City of Rome, 203 Ga. App. 662 (417 SE2d 730) (1992), cert. granted, 203 Ga. App. 909. Duty, in such cases, should not hinge on a mere chance encounter between a police officer and a person who subsequently causes injury to another.

Under similar circumstances a New York appellate court refused to hold that there was a duty of care owed to plaintiff’s decedent when the drunk driver who killed plaintiffs decedent had a conversation with a police officer earlier in the day and the officer believed the driver was intoxicated but did not prohibit him from driving. Crosby v. Bethlehem, 457 NYS2d 618 (1982). Indeed the substantial majority of jurisdictions that have considered this issue have refused to allow actions based on police negligence, expressing the fear that holding law enforcement officers liable for failure to make an arrest would cripple an essential governmental function by forcing police officers to choose between potential liability for making a false arrest on one hand and for failure to make an arrest on the other hand. See generally, Annotation, Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer, 48 ALR4th 320 (1986).

As a majority of this court noted in Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115 (376 SE2d 861) (1989) (quoting Pierson v. Ray, 386 U. S. 547, 555 (87 SC 1213, 18 LE2d 288) (1967), overruled on other grounds Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982)). “ ‘[A] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.’ ” A police officer’s lot is now that unhappy in Georgia. When considering this undesirable result of the majority opinion coupled with the inescapable fact that there is no valid basis for the majority’s expansion of a police officer’s duty in this case to plaintiff, I must conclude that the order of the trial court granting summary judgment in favor of the defendants was correct and should be affirmed.

I am authorized to state that Judge Andrews joins in this dissent.