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Dewald v. State5/23/1986
gligent acts. Had the officers negligently operated their vehicles and become involved in an accident which would have resulted in liability in ordinary circumstances, we would have no hesitancy about the case. But, where the officers are performing a duty required of them by law and the course of action they must choose is about evenly balanced, more is required than speculation as to the result from choosing either course.
Having held the patrolmen not liable, we must also hold that the appellee, State of Wyoming, cannot be held liable, the reason being that if the conduct of the patrolmen did not amount to negligence that caused the accident, then neither could their training by the State nor could rules have been a cause of the accident. Stated another way, it would have had to appear that, because of inadequate training or failure to follow departmental rules, the officers acted in a negligent manner and caused this accident. We have held that did not occur.
THE PUBLIC-DUTY RULE
The State of Wyoming and Officers Baltimore and Keigley have appealed the court's finding that in the absence of qualified immunity, a duty was owed DeWald. They contend that the duty owed by the officers is a public duty only — that, therefore, no duty was owed to DeWald individually and the officers cannot be liable for his death. The source of the "public duty only" rule seems to be Cooley on Torts § 300 at 389 (4th ed. 1932) wherein, referring to policemen's duty, it is stated:
"His duty is to serve criminal warrants, to arrest persons who commit offenses in his view, to bring nightwalkers to account, and to perform various offices of similar nature. Within his beat he should watch the premises of individuals, and protect them against burglaries and arsons. But suppose he goes to sleep on his beat, and while thus off duty a robbery is committed or a house burned down, either of which might have been prevented had he been vigilant, — who shall bring him to account for this neglect of duty? Not the individual who has suffered from the crime, certainly, for the officer was not his policeman; was not hired by him, paid by him, or controlled by him; and consequently owed to him no legal duty." (Footnote omitted)
The public-duty/special-duty rule was in essence a form of sovereign immunity and viable when sovereign immunity was the rule. The legislature has abolished sovereign immunity in this area. The public duty only rule, if it ever was recognized in Wyoming, is no longer viable.
In Schear v. Board of County Commissioners of Bernalillo County, 101 N.M. 671, 687 P.2d 728, 731 (1984), the court stated:
" he development in the law has been to abolish it in those jurisdictions where the matter has been more recently considered or reconsidered. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982) (overruling Massengill); Adams v. State; Martinez v. City of Lakewood [655 P.2d 1388 (Colo. App. 1982)]; Commercial Carrier Corp. v. Indian River County [371 So.2d 1010 (Fla. 1979)] (declaring Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967) to have no effect following legislative waiver of governmental immunity); Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976).
` he trend in this area is toward liability. The "public duty" doctrine has lost support in four of the eight jurisdictions relied upon by the city [for its argument that it owed no duty of ordinary care to an individual citizen].' Wilson v. Nepstad, 282 N.W.2d at 667. Those courts have demonstrated a reasoned reluctance to apply a doctri
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