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Dore et al. v The City of Fairbanks et al. (09/28/2001) sp-5475
Dore et al. v The City of Fairbanks et al. (09/28/2001) sp-5475
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JASON PAUL DORE, BRANDI SUE )
DORE, and JAMIE ALLAN DORE )
[born JAMIE ALLAN WOLLARD, )
and also known by that name], )
) Supreme Court No. S-9386
Appellants, )
) Superior Court No.
v. ) 4FA-96-2402 CI
)
THE CITY OF FAIRBANKS, THE ) O P I N I O N
POLICE DEPARTMENT OF THE CITY )
OF FAIRBANKS, JOHN DOES I )
through XX, and THE STATE OF )
ALASKA, DEPARTMENT OF MENTAL )
HEALTH, )
)
Appellees. ) [No. 5475 - September 28, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Charles R. Pengilly, Judge.
Appearances: Arthur Lyle Robson, Fairbanks,
for Appellants. Paul J. Ewers, Deputy City Attorney, Fairbanks,
for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
On April 29, 1986, Jack Dore killed his wife Carmen Dore
and then killed himself. Seven days earlier, the Fairbanks police
had obtained a warrant for Jack Dore's arrest for harassing Carmen.
More than ten years later, the Dore children, Jamie, Brandi, and
Jason, brought this action against the city alleging negligence in
protecting Carmen and failing to arrest Jack. The superior court
granted summary judgment in favor of the city, concluding that: the
statute of limitations barred Jamie's and Brandi's claims; the city
owed no duty to Jason Dore; the city enjoyed statutory immunity
from Jason Dore's tort claim; and the city did not breach its duty
to Jason Dore, assuming a duty existed. Because the superior court
did not err in granting summary judgment on the statute of
limitations and duty issues, we affirm.
II. FACTS AND PROCEEDINGS
Jamie, Brandi, and Jason Dore are the children of Carmen
and Jack Dore. Jamie was born February 6, 1972. Brandi was born
October 16, 1974. Jason was born January 5, 1978.
Sometime in late 1985, Jack and Carmen Dore separated.
Jack made oral and written threats to kill Carmen, and he sought
psychiatric treatment. Carmen obtained a civil protective order
against Jack.
At Carmen's request, the Fairbanks authorities filed a
criminal complaint, charging Jack Dore with harassment in violation
of AS 11.61.120. Magistrate John C. Hessin issued an arrest
warrant on April 22, 1986.
Seven days later, Jack Dore killed Carmen Dore and
committed suicide.
In December 1987, and again in August 1996, counsel for
the Dore children sent the City of Fairbanks notice of claim
letters for the death of Carmen Dore. On October 16, 1996, Jamie,
Brandi, and Jason filed this action against the City of Fairbanks.
The Dore children claimed that the city negligently organized,
trained, hired, managed, and controlled the police, failed to
arrest Jack on the warrant, and failed to protect Carmen and them.
The plaintiffs included the State of Alaska Department of Health
and Social Services, Division of Mental Health and Development
Disabilities as defendants in their complaint but later stipulated
to dismissing with prejudice the claims against the state.
The City of Fairbanks moved for summary judgment to bar
the claims of Jamie and Brandi Dore. In a Memorandum Decision and
Order dated May 29, 1998, Superior Court Judge Mary E. Greene
granted the motion and dismissed the claims of Jamie and Brandi
Dore because they failed to file suit before their twentieth
birthdays as required by AS 09.10.140(a) when the plaintiff is a
minor at the time the cause of action accrues.
The City of Fairbanks later moved for summary judgment
against Jason Dore on the remaining three issues: whether the city
had a duty; whether the city had immunity; and, if the city had a
duty, whether the city breached its duty. Superior Court Judge
Charles R. Pengilly granted the city's motion without comment.
The Dore children appeal.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo. [Fn. 1]
All reasonable factual inferences are drawn in favor of the non-
moving party "to determine whether genuine issues of material fact
exist and whether the moving party is entitled to judgment as a
matter of law." [Fn. 2] In reviewing questions of law, we apply
our independent judgment and adopt "the rule of law that is most
persuasive in light of precedent, reason, and policy." [Fn. 3]
IV. DISCUSSION
A. Jamie's and Brandi's Claims Are Barred By the Statute of
Limitations.
The general statute of limitations for tort actions is
two years from the date of accrual of the cause of action. [Fn. 4]
When the cause of action accrues while a person is under the age of
majority or incompetent by mental illness or disability, the
statute of limitations is tolled. [Fn. 5] The person under
disability must file his or her action within two years after the
disability ceases or be barred by the statute of limitations. [Fn.
6]
The claims of both Jamie and Brandi Dore are barred by
the statute of limitations, AS 09.10.140(a). The cause of action
accrued, if at all, on April 29, 1986, the date of Carmen Dore's
murder. At that time, Jamie Dore was fourteen years old, and
Brandi Dore was eleven years old; both were minors under Alaska
law. [Fn. 7] To avoid the statute of limitations, they had to file
suit on or before their twentieth birthdays. [Fn. 8] Jamie Dore
had to file suit on or before February 6, 1992, and Brandi Dore had
to file suit on or before October 16, 1994. They filed suit in
1996. Thus, the statute of limitations bars Jamie's and Brandi's
claims.
The Dore children contend that we should apply a modified
relation back doctrine to save Jamie's and Brandi's claims. They
assert that their claims are for wrongful death and, because Jason
Dore's claim is not barred by the statute of limitations, their
claims on the same "unitary cause of action" should also survive.
This proposed application of the relation back doctrine
is mistaken. The Dore children correctly note that an efficient
judicial system attempts to avoid a multiplicity of lawsuits, that
the statute of limitations is generally disfavored, and that the
relation back doctrine should be construed liberally. However, the
relation back doctrine only applies when an amended pleading, filed
after the statute of limitations has run, relates back to the
original pleading that was filed before the statute of limitations
expired. [Fn. 9] Federal Rule of Civil Procedure 15(c) is similar
to Alaska Civil Rule 15(c). [Fn. 10] Professor Moore explains that
"[i]t is implicit in [Federal Civil Rule 15] that in order to
amend, a party must have a pleading on file." [Fn. 11] Jamie and
Brandi Dore are not filing an amendment to a timely original
pleading; accordingly, the relation back doctrine does not apply.
The Dore children also assert, in one sentence only, that
"because of mental instability Jason, Brandi, and Jamie Dore were
under the subject of a Guardianship action . . . ." Incompetence
due to mental illness or disability can toll the statute of
limitations. [Fn. 12] However, appellants proffered no evidence of
mental disability to support this claim. This bare assertion is
insufficient to raise a genuine issue of material fact or toll the
statute of limitations. [Fn. 13] Thus, Jamie's and Brandi's claims
are barred by the statute of limitations. Because Jason's claim is
not barred by the statute of limitations, we turn to the question
of duty.
B. The City Had No Duty to Arrest a Suspect on an
Outstanding Warrant or Otherwise Prevent Harm to a Possible Crime
Victim.
"Determining whether a duty exists in the type of case
presented is the first analytical step in deciding whether a
negligence action can be maintained." [Fn. 14] In order to reach
the questions of whether the city has statutory immunity or has
breached its duty, we must first determine whether the city owes a
duty in tort to the plaintiff. [Fn. 15]
Almost all jurisdictions hold that police negligent
failure to arrest is not actionable. These courts employ a variety
of reasons: lack of general tort duty, [Fn. 16] statutory immunity,
[Fn. 17] lack of causation, [Fn. 18] lack of breach, [Fn. 19] and
application of the public duty doctrine. [Fn. 20] The few cases
that conclude that the police have an actionable duty to arrest
rely on duty as defined by statute [Fn. 21] or on a combination of
egregious facts and an exception to the public duty doctrine. [Fn.
22]
"The 'precise nature and extent' of a duty 'is a question
of law which can be decided at the summary judgment stage.'" [Fn.
23] We first look to statutes to determine whether an actionable
duty exists. "When it is not governed by statute, the existence of
a legal duty is a public policy question." [Fn. 24]
1. The city had no statutory duty.
The Dore children argue that various portions of the City
of Fairbanks Home Rule Charter and Code of Ordinances impose a
statutory duty of care. Most of the sections cited by appellants
deal generally with the powers of the city. Only sec. 13.4
regarding
an oath of office expresses a concept of duty. However, sec. 13.4
creates a duty to uphold the United States and Alaska Constitutions
and the charter and ordinances of Fairbanks. [Fn. 25] As to the
former, the Dore children have raised no constitutional issues in
this appeal. As to the latter, none creates a duty of care. Thus,
we see no basis in the Fairbanks Charter or ordinances to find the
existence of a duty in this case.
Worthy of note, however, are the state statutes on
domestic violence. [Fn. 26] While AS 18.65.530 does make arrest
mandatory in specified domestic violence situations, it expressly
does not permit civil actions for the police's failure to arrest.
[Fn. 27] Under the domestic violence laws, there is no actionable
duty to arrest. [Fn. 28] The legislature passed these statutes
effective July 1, 1996, long after Carmen's murder in 1986, so they
do not apply here. However, they do suggest that the legislature
has determined that the public policy of Alaska is not to impose an
actionable duty for failure to arrest. We turn now directly to
that question.
2. Public policy does not support imposing a duty.
Actionable duty is a question of law and public policy:
"an expression of the sum total of those considerations of policy
which lead the law to say that the particular plaintiff is entitled
to protection." [Fn. 29] To determine whether actionable duty
exists, we first determine the class of cases to which the duty
would apply. [Fn. 30] If no existing case law covers this class,
we then weigh the factors that support and oppose the imposition of
liability. [Fn. 31]
The issue in this case is whether, after the issuance of
an arrest warrant, the police have a duty to arrest the subject of
that warrant in order to protect a potential victim from possible
harm caused by criminal acts of a third party (the subject of the
arrest warrant). This case is in the class of cases involving the
relationship between the police and a person injured by allegedly
negligent police failure to arrest a third party with dangerous
propensities.
We have previously relied upon the Restatement (Second)
of Torts to assist our determination of whether a defendant has a
duty to protect a victim from third party harm. [Fn. 32] Under the
Restatement, the general tort duty rule is that a person has no
duty to protect a victim from even foreseeable harm caused by a
third person. [Fn. 33] Restatement sec. 315 recognizes two
exceptions: (a) when a special relationship exists between the
defendant and a third person, and (b) when a special relationship
exists between the defendant and the victim. [Fn. 34] A special
relationship between the defendant and a third person can exist
between a third person having dangerous propensities and a
defendant who takes charge of him (sec. 319), between a parent and
child (sec. 316), between a master and servant (sec. 317), and
between a
landowner and licensee (sec. 318). [Fn. 35] A special relationship
between the defendant and the victim can exist between a common
carrier and its passengers (sec. 314A), between an innkeeper and
her
guests (sec. 314A), between a landowner and his invitees (sec.
314A), and
between a victim and a defendant who is required by law or
voluntarily takes custody of the victim under circumstances which
deprive the victim of his normal opportunities for protection (sec.
320). [Fn. 36]
Under the Restatement framework, we perceive no special
relationship between the police and the victims. None of the
relationships in sec. 314A exists. Section 320 does not apply
because
the police did not take the Dore children into protective custody
under circumstances which deprived them of the normal opportunities
for protection.
But is there a special relationship between the police
and Jack Dore as a person with dangerous propensities? Restatement
sec. 319 imposes a duty on those in charge of a person having
dangerous propensities in certain situations:
One who takes charge of a third person whom he
knows or should know to be likely to cause bodily harm to others if
not controlled is under a duty to exercise reasonable care to
control the third person to prevent him from doing such harm.[ [Fn.
37]]
The questions are whether the police "took charge" of Jack Dore and
whether the police knew or should have known he was likely to cause
bodily harm if not controlled.
The Colorado Supreme Court has interpreted the "takes
charge" language of Restatement sec. 319 narrowly and concluded
that
police failure to arrest was not actionable. In Leake v. Cain,
[Fn. 38] the police detained and handcuffed a drunken and
disruptive Ralph Crowe. [Fn. 39] They released Ralph to his
brother who appeared sober and who told officers that he would
drive Ralph home. Instead, the Crowe brothers drove to a
convenience store, changed drivers, and proceeded to another party.
Arriving at the party, Ralph struck six pedestrians, killing two of
them. Representatives of the deceased sued the city for wrongful
death. After expressly rejecting the public duty doctrine, the
Colorado Supreme Court applied "conventional tort principles" to
find that the police had no duty to arrest Ralph. [Fn. 40]
In its analysis, the Colorado Supreme Court noted the
general rule that there is no duty to prevent a third person from
harming another, absent a special relationship between the
defendant and the wrongdoer or between the defendant and the
victim. [Fn. 41] The court noted that the police had a duty to
prevent Ralph from harming others while he was handcuffed, because
the police had taken charge of him, citing sec. 319. [Fn. 42]
However, the police discharged their duty by restraining Ralph
until he calmed down. The officers' duty existed only for the time
that they had taken charge of Ralph.
The Oregon Court of Appeals also applied Restatement sec.
319 in reviewing a dismissal of a negligence claim alleging police
failure to arrest. In McAlpine v. Multnomah County, [Fn. 43] the
police conducted surveillance of Brian Charlesworth as part of an
ongoing drug investigation. [Fn. 44] Based on the findings of the
investigation, the Oregon Parole Board revoked Charlesworth's
parole and issued a warrant for his arrest. The police, however,
did not immediately arrest Charlesworth. About a month later,
Charlesworth assaulted and seriously injured McAlpine. [Fn. 45]
McAlpine sued for the alleged police negligence of failing to
arrest Charlesworth on the outstanding warrant.
McAlpine conceded that there was no special relationship
between the police and himself as a member of the general public.
[Fn. 46] The court found no special relationship between the
police and Charlesworth because there was no allegation of arrest,
custody, or otherwise taking charge of Charlesworth.
In the instant case, just as in McAlpine, the police did
not take charge of Jack Dore. The police did not take him into
custody, and the Dore children failed to allege that the police
took charge of him in any other manner. (Indeed, the entire
lawsuit is grounded on the police's failure to take him into
custody.) The Dore children did allege that the state negligently
"releas[ed] Jack J. Dore from mental confinement, at Fairbanks
Memorial Hospital," but they subsequently dismissed all claims
against the state. Because the police did not take charge of Jack
Dore, the police had no tort duty to control him under Restatement
sec. 319.
In addition, the Dore children offered no evidence that
the police knew or should have known that Jack Dore was likely to
cause bodily harm. The Dore children offered the warrant for his
arrest, but it charged him with only harassment, a class B
misdemeanor. [Fn. 47] Even if we assume that the police knew of
Jack's death threats to Carmen, the generality of the threats
failed to give the police substantial enough information upon which
to act.
The Dore children contend that City of Kotzebue v. McLean
[Fn. 48] establishes that the city owed a duty to Carmen Dore, her
children, and even Jack Dore. The Dore children argue that the
city, simply by maintaining a police force and responding to the
complaints of death threats, has a duty to all citizens who either
make or are the targets of death threats. The city responds that
the duty of reasonable care set forth in McLean is only applicable
to the class of cases narrowly defined by the facts in McLean and
that the city owes no duty to Jason Dore as the son of a person
injured by police failure to protect.
In McLean, we concluded that the police owed a duty of
care to reasonably respond when police received a death threat from
the assailant who identified himself and the scene of the crime
minutes before committing the crime. [Fn. 49] We expressly defined
the class of cases that McLean governed to include the
circumstances present in McLean: [Fn. 50] (1) a police officer
received a life-threatening call from the would-be assailant, (2)
the police officer knew the identity of the caller-assailant, (3)
the potential assailant identified the likely scene of the crime,
(4) the police officer knew the proper response was to go and check
out the scene, and (5) the police officer failed to contact another
available officer to investigate. [Fn. 51]
In Adams v. State, we rejected the public duty doctrine,
exposing a relatively undeveloped area of law: general tort duties
of the state or local government. [Fn. 52] To facilitate
development of this area, we initially adopted an ad hoc approach
to duty analysis. [Fn. 53] In the light of our recent decisions
urging less fact-specific inquiries in duty analysis, [Fn. 54]
McLean should be understood as imposing a duty of reasonable care
on the police to respond to threats of imminent, life-threatening,
assaultive conduct when given sufficient specific information to
respond. Thus, the specific facts of McLean are important only
insofar as they indicate a relationship between the police and the
imminent crime victim.
The present case is not in the same class as the imminent
harm case of McLean. It is significant that in McLean the police,
advised by the assailant, knew the likely time and place of the
crime. [Fn. 55] In this case, the Fairbanks police had little idea
when or where Jack might carry out his threat, or even if he would
do so. Therefore, this case is not governed by the McLean duty of
the police to reasonably respond to situations of imminent danger.
[Fn. 56]
We conclude that the police had no tort duty to control
Jack Dore because this case is not governed by McLean and because
the requirements of Restatement sec. 319 are not met. Because this
case falls within the class of cases using the Restatement
framework to determine if a defendant has tort duty to protect a
victim from third party harm, we need not proceed with the weighing
of the D.S.W. v. Fairbanks North Star Borough School District [Fn.
57] factors.
Our conclusion today should not be read to say that the
police could never be responsible for injuries inflicted by
dangerous third persons. Indeed, we have already so held in
McLean, finding a duty in time-, location-, and actor-specific
situations involving imminent, almost certain danger. [Fn. 58] And
other courts have imposed a duty on police to respond to situations
involving less imminent danger. [Fn. 59] However, there is no
evidence in the present case that the police took charge of Jack
Dore and that the police knew or should have known of his dangerous
propensities. Guided by Restatement sec. 319, we conclude that the
police owed no tort duty.
Because we hold that the city had no actionable duty to
protect the Dore children, we need not reach the issues of whether
summary judgment in favor of the city was proper on the issues of
immunity and breach.
V. CONCLUSION
Because the superior court did not err in granting
summary judgment that Jamie's and Brandi's claims were barred by
the statute of limitations and that the city had no actionable
duty, we AFFIRM.
FOOTNOTES
Footnote 1:
See Brady v. State, 965 P.2d 1, 8 (Alaska 1998).
Footnote 2:
United Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259, 1262
(Alaska 1999) (citing West v. City of St. Paul, 936 P.2d 136, 138
(Alaska 1997)).
Footnote 3:
State, Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d
453, 456 (Alaska 1997) (citing Great Am. Ins. Co. v. Bar Club,
Inc., 921 P.2d 626, 627 (Alaska 1996)).
Footnote 4:
See AS 09.10.070(a).
Footnote 5:
AS 09.10.140(a) provides in pertinent part:
[I]f a person entitled to bring an action
mentioned in this chapter is at the time the cause of action
accrues either (1) under the age of majority, or (2) incompetent by
reason of mental illness or mental disability, the time of a
disability identified in (1) or (2) of this subsection is not a
part of the time limit for the commencement of the action. . . .
[T]he period within which the action may be brought is not extended
in any case longer than two years after the disability ceases.
Footnote 6:
See id.
Footnote 7:
See AS 25.20.010 ("A person is considered to have arrived at
majority at the age of 18 . . . .").
Footnote 8:
See AS 09.10.140(a); Haakanson v. Wakefield Seafoods, Inc.,
600 P.2d 1087, 1092 (Alaska 1979) (holding that the tolling of the
statute of limitations in wrongful death claims is based on the age
of the minor beneficiary).
Footnote 9:
See Alaska R. Civ. P. 15(c):
Relation Back of Amendments. Whenever the
claim or defense asserted in the amended pleading arose out of the
conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the
date of the original pleading.
Footnote 10:
See Farmer v. State, 788 P.2d 43, 47 (Alaska 1990) ("Federal
Rule 15(c) largely parallels the state rule regarding the relation
back of amendments . . . .").
Footnote 11:
3 James Wm. Moore et al., Moore's Federal Practice sec.
15.19[1],
at 15-78 (3d ed. 1998).
Footnote 12:
See AS 09.10.140(a).
Footnote 13:
See Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783 (Alaska
1975) ("Assertions of fact in pleadings and memoranda are not
admissible in evidence and cannot be relied upon for the purposes
of summary judgment.").
Footnote 14:
Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998).
Footnote 15:
See Stephens v. State, Dep't of Revenue, 746 P.2d 908, 910
(Alaska 1987) ("Before we determine whether a statutory immunity
applies to a given case, we will determine whether the State would
be liable to the plaintiff in the absence of the immunity.").
Footnote 16:
See, e.g., McAlpine v. Multnomah County, 883 P.2d 869, 872-73
(Or. App. 1994) (holding that police had no duty to arrest on
warrant where there was no special relationship and no general
foreseeability due to the intervening criminal act).
Footnote 17:
See Howard v. City of Denver, 837 P.2d 255, 258 (Colo. App.
1992).
Footnote 18:
See, e.g., Mack v. City of Monroe, 595 So. 2d 353, 358 (La.
App. 1992).
Footnote 19:
See Hardy v. Bowie, 744 So. 2d 606, 614-15 (La. 1999).
Footnote 20:
The public duty doctrine is a form of sovereign immunity which
shields public officials from liability where the official breaches
a general duty owed to the public at large. See Adams v. State,
555 P.2d 235, 241-42 (Alaska 1976). The Supreme Court long ago
established that neglect of a general duty to the public was not
actionable by an individual; rather, such neglect was "punishable
by indictment only." South v. Maryland, 59 U.S. (18 How.) 396, 403
(1855). A majority of states still applies the public duty
doctrine. See Leake v. Cain, 720 P.2d 152, 158 (Colo. 1986)
(citing cases); John H. Derrick, Annotation, Modern Status of Rule
Excusing Governmental Unit from Tort Liability on Theory that Only
General, Not Particular, Duty Was Owed Under Circumstances, 38
A.L.R. 4th 1194, 1197-203 (1985 & Supp. 2000); 57 Am. Jur. 2d
Municipal, County, School, and State Tort Liability sec.sec. 141 &
144 (1988). Alaska does not. See Adams, 555 P.2d at 241-42.
Footnote 21:
See Nearing v. Weaver, 670 P.2d 137, 140-41 (Or. 1983)
(finding a duty to arrest based on domestic violence mandatory
arrest statute and probable cause that husband violated restraining
order); Schear v. Board of County Comm'rs, 687 P.2d 728, 729 (N.M.
1984) (holding that police have a duty to investigate a reported
crime in progress); California First Bank v. State, 801 P.2d 646,
655-56 (N.M. 1990) (extending Schear to impose on police a duty to
arrest in drunk driving context); Torres v. State, 894 P.2d 386,
393 (N.M. 1995) (holding that police have a duty to exercise
reasonable care in criminal investigations and allowing a claim for
negligent investigation of murder suspect who killed plaintiff's
decedent).
Footnote 22:
See, e.g., Mastroianni v. County of Suffolk, 691 N.E.2d 613,
614 (N.Y. 1997) (holding that police had an actionable duty to
reasonably respond when deceased had a protective order, a warrant
existed for the husband's arrest, the deceased contacted the
police, and the police assured her that they would do whatever they
could).
Footnote 23:
Smith v. State, 921 P.2d 632, 634 (Alaska 1996) (quoting
Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n.4 (Alaska 1993)).
Footnote 24:
Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998).
Footnote 25:
"I do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States, the Constitution of
the State of Alaska, the Charter and ordinances of the City of
Fairbanks, and that I will faithfully discharge my duties as
________________ to the best of my ability." Fairbanks, Alaska,
Code of Ordinances pt. I, art. XIII, sec. 13.4 (2000).
Footnote 26:
See AS 18.65.510-90.
Footnote 27:
See AS 18.65.530(a) & (f).
Footnote 28:
The duties of a peace officer investigating a crime of
domestic violence include: (1) transporting any victims from the
place of the offense to a safe place in the community, (2)
assisting the victim in removing from the residence any essential
items belonging to the victim, (3) assisting any victims in
obtaining medical treatment, and (4) providing notice of the rights
of victims and services available. See AS 18.65.515(a)(1)-(4).
Footnote 29:
Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998) (quoting
William L. Prosser, The Law of Torts sec. 53, at 325 (4th ed.
1971)).
Footnote 30:
See id. at 450 (citing City of Kotzebue v. McLean, 702 P.2d
1309, 1314 (Alaska 1985)).
Footnote 31:
See Waskey v. Municipality of Anchorage, 909 P.2d 342, 343-44
(Alaska 1996).
Footnote 32:
See P.G. v. State, Dep't of Health and Human Servs., Div. of
Family and Youth Servs., 4 P.3d 326 (Alaska 2000) (applying sec.
315); R.E. v. State, 878 P.2d 1341 (Alaska 1994) (applying sec.sec.
314-15); Division of Corrections, Dep't of Health and Social Servs.
v.
Neakok, 721 P.2d 1121 (Alaska 1986) (applying sec. 315); Syacek v.
Shelley, 359 P.2d 127 (Alaska 1961) (adopting sec. 317).
Footnote 33:
Restatement (Second) of Torts sec. 314 (1965) provides that
"[t]he fact that the actor realizes or should realize that action
on his part is necessary for another's aid or protection does not
of itself impose upon him a duty to take such action."
Footnote 34:
Restatement (Second) of Torts sec. 315 (1965) provides:
There is no duty so to control the conduct of
a third person as to prevent him from causing physical harm to
another unless
(a) a special relation exists between the
actor and the third person which imposes a duty upon the actor to
control the third person's conduct, or
(b) a special relation exists between the
actor and the other which gives to the other a right to protection.
Footnote 35:
See id. sec.sec. 315 cmt. c. & 316-19.
Footnote 36:
See id. sec.sec. 315 cmt. c., 314A & 320.
Footnote 37:
Id. sec. 319.
Footnote 38:
720 P.2d 152 (Colo. 1986).
Footnote 39:
See id. at 153-54.
Footnote 40:
See id. at 158-62.
Footnote 41:
See id. at 160.
Footnote 42:
See id. at 161.
Footnote 43:
883 P.2d 869 (Or. App. 1994).
Footnote 44:
See id. at 870.
Footnote 45:
See id. at 871.
Footnote 46:
See id. at 872.
Footnote 47:
See AS 11.61.120(b).
Footnote 48:
702 P.2d 1309 (Alaska 1985).
Footnote 49:
Id. at 1314-15.
Footnote 50:
Id. at 1314.
Footnote 51:
See id. The last specific fact -- that the police officer
failed to contact another available officer to investigate -- is
not properly a part of the duty analysis. "[F]act-intensive
inquiries pertain to the issues of breach, causation, and damages,
not the threshold legal question of whether a duty exists." Bolieu
v. Sisters of Providence, 953 P.2d 1233, 1241 (Alaska 1998).
"Particular conduct becomes important only when a duty is imposed;
the conduct then helps to determine the applicable standard of care
. . . ." Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998). That
the police failed to act indicates that they breached a duty.
Footnote 52:
See Adams, 555 P.2d 235, 241-42 (Alaska 1976); see alsoMcLean, 702 P.2d at 1313.
Footnote 53:
See McLean, 702 P.2d at 1313.
Footnote 54:
See, e.g., Mesiar, 964 P.2d at 448; Kooly v. State, 958 P.2d
1106, 1109 (Alaska 1998); Bolieu, 953 P.2d at 1241.
Footnote 55:
"[T]his case does not make the city responsible for injuries
sustained by victims of criminal activity when the police receive
vague, nonspecific calls in which the victim, the assailant, and
the assailant's location remain unidentified." McLean, 702 P.2d at
1314-15.
Footnote 56:
See id. at 1315.
Footnote 57:
628 P.2d 544 (Alaska 1981).
Footnote 58:
702 P.2d at 1314-15.
Footnote 59:
See Raucci v. Town of Rotterdam, 902 F.2d 1050, 1055-58 (2d
Cir. 1990) (affirming a jury verdict finding police duty to protect
where plaintiff had a protective order and police arrested
estranged husband for aggravated harassment but failed to present
evidence of death threats, allowing husband to be released on $500
bail and then kill plaintiff's son); Mastroianni, 691 N.E.2d at
614; Sorichetti v. City of New York, 482 N.E.2d 70, 75 (N.Y. 1985)
(affirming jury verdict finding police duty where plaintiff had a
protective order and police failed to investigate plaintiff's
report of a death threat and delayed surrender of child custody);
Zwart v. Town of Wallkill, 192 A.D.2d 831, 834 (N.Y. App. Div.
1993) (affirming denial of police summary judgment motion on lack
of special relationship where plaintiff's decedent had a
restraining order against former boyfriend and police had an arrest
warrant for his violation of the order). We do not imply that
similar fact situations should have the same outcome under
principles of Alaska law.
