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Burton v. Waters9/24/2004
Steven Burton appeals the summary judgment granted to the City of Lebanon and the judgment on the pleadings dismissing his claim against Officer Jeff Waters for failing to arrest the driver of a vehicle (in which Burton was a passenger) for driving under the influence. [FN1] After a brief stop, Officer Waters allowed the driver to proceed and shortly thereafter, the vehicle was involved in an accident injuring Mr. Burton. The appeals were heard together and we chose to issue one opinion on both appeals. Because there was no duty owed to the passengers of the vehicle by Officer Waters, or any special relationship between the same, we affirm both dismissals.
FN1. KRS 189A.010.
Steven Burton was a passenger in a vehicle that was stopped on July 4, 2001, by Officer Jeff Waters of the Lebanon Police Force. After a brief stop, the officer allowed the driver to proceed. Shortly thereafter, on July 5, 2001, the vehicle was involved in an accident injuring Mr. Burton. Mr. Burton filed suit against the City of Lebanon as Officer Waters's employer and for gross negligence for failure to train its employees. Burton filed suit against Officer Waters for not arresting the driver for DUI at the stop, the theory being that Officer Waters was negligent in failing to arrest the driver for DUI, a non-discretionary duty, the breach of which resulted in the foreseeable accident which injured Mr. Burton.
The trial court dismissed the claim against Officer Waters for a number of reasons, one of which is dispositive of the case. In the City of Florence, Kentucky v. Chipman, Ky., 38 S.W.3d 387 (2001), the Supreme Court was faced with a similar set of circumstances. At a traffic stop the officers arrested the driver of the vehicle which held a passenger. The intoxicated passenger was allowed to leave in another vehicle in which she was subsequently killed. The estate filed suit against the city and the officers involved for wrongful death due to negligence. The Supreme Court discussed some of the same issues in our case: whether there was a special relationship between the passenger and the officer; whether the officer owed a duty to the passenger; whether the officer's duties were discretionary or ministerial; and whether there was a superseding or intervening cause for the death.
The Chipman Court ruled that in order for a negligence claim to be actionable, there has to be a duty owed to the passenger or a special relationship between the officer and the passenger. Our Supreme Court was persuaded by an analysis by the California Court in City of Sunnyvale v. Superior Court of Santa Clara County, 203 Cal.App.3d 839, 250 Cal.Rptr. 214 (1988), which held:
that police officers who had stopped an automobile for an alcohol related traffic matter were not liable in tort when they allowed the occupants to proceed. The California court stated that there is no duty to control the conduct of another or to warn those endangered by such conduct in the absence of a special relationship. Mere presence in a stopped vehicle does not establish any protective duty toward a passenger to be imposed on the officer. Similarly, in Jackson v. Clements, 146 Cal.App.3d 983, 194 Cal.Rptr. 553 (1983), the fact that the officers undertook to investigate and observed the intoxicated condition of some, did not create a special relationship which imposes on the officers a duty to control the citizen's subsequent behavior. See Hernandez v. City of San Jose, 14 Cal.App.4th 129, 17 Cal.Rptr.2d 589 (1993). See also Jones v. Maryland National Capital Park and Planning Com'n, 82 Md.App. 314, 571 A.2d 859 (1990), in which the Maryland court held that there was no special relationship so as to create a duty on the part of an officer to protect third parties arising out of either
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