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Burton v. Waters9/24/2004
an investigatory traffic stop, or its resulting brief detention.
*2 Chipman, 38 S.W.3d at 391.
The Chipman Court went on to explain that for there to be a "special relationship," two conditions are required: "1) the victim must have been in state custody or otherwise restrained by the state at the time the injury producing act occurred, and 2) the violence or other offensive conduct must have been committed by a state actor." Id. at 392. (citations omitted.) The Court was of the opinion that imposing a "special relationship" between the passenger and the officer "would be tantamount to establishing a universal duty of care on the police to prevent any third party harm to each and every citizen with whom they have contact regardless of how slight the interaction or brief the duration." Id. at 393. The Court also cautioned against "substituting the legal concept of 'forseeability' for 'custody' as the threshold in establishing a special relationship." Id. (citations omitted.) And, "Forseeability does not create a duty." Id.
Chipman controls in our case. Burton was a passenger in a traffic stop for a possible alcohol offense. Officer Waters allowed the occupants to proceed. The mere presence in a stopped vehicle creates no duty owed by the officer to the passengers. There was no special relationship between the officer and the passenger since the passenger was not taken into custody and the officer did not commit the injuries to the passenger. KRS 189.520 relates to nonmotorized vehicles which is not the case here. Without a duty, Burton's remaining arguments become moot as to Officer Waters.
The City of Lebanon's potential liability is derivative of liability by Officer Waters. With our opinion that the action against Officer Waters was correctly dismissed, there is no basis for the City's liability. Thus, the trial court was correct in also dismissing the City of Lebanon.
For the foregoing reasons, the summary judgment of the Marion Circuit Court is affirmed and the judgment on the pleadings of the Marion Circuit Court is affirmed.
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