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Leake v. Cain6/9/1986
JUSTICE ERICKSON delivered the Opinion of the Court.
In this wrongful death action, respondents seek damages for the deaths of their children, who were killed when they were struck by an automobile driven by Ralph Crowe. The trial court granted petitioners' motion for summary judgment. In Cain v. Leake, 695 P.2d 798 (Colo. App. 1984), the court of appeals reversed and remanded the case for trial. We granted certiorari, and we now reverse and remand to the court of appeals with directions to reinstate the trial court's order granting summary judgment.
I.
FACTS
The tragic sequence of events leading to the accident in this case is undisputed. On the evening of September 9, 1978, Ralph Crowe, eighteen years of age, attended a large, outdoor party of teenagers in Commerce City. Over the course of three and one-half hours, Crowe drank eight cups of beer and three cups of alcoholic punch. At approximately 11:30 p.m., Commerce City police officers were dispatched to break up the party after a neighbor complained. When the officers arrived at the party, they ordered the teenagers to disperse. Ralph Crowe became disruptive and was handcuffed and detained by the officers. Shortly thereafter, the officers were approached by seventeen-year-old Eddie Crowe, Ralph Crowe's younger brother. Eddie Crowe requested that Ralph be released to him and told the officers that he would drive Ralph home. After noting that Eddie Crowe appeared sober and after checking his driver's license, the officers agreed to permit Ralph Crowe to leave the party with his brother.
Ralph Crowe and another individual left the party as passengers in a vehicle driven by Eddie Crowe. The Crowe brothers took the individual home and then proceeded to a convenience store, where Ralph Crowe purchased some cookies. When the two youths left the store, Ralph Crowe drove the car. He proceeded to a location near Stapleton Airport, where the party which had been broken up by the Commerce City police was to continue. At the new site of the party, the car driven by Ralph Crowe struck six persons on the street, killing two of them (respondents' decedents). Ralph Crowe's blood alcohol content at the time of the accident was .20, well in excess of the legal presumption of intoxication in Colorado.
Respondents filed a wrongful death action in the Denver District Court against Ralph Crowe, James Crowe (the father of Ralph Crowe), the five Commerce City police officers who responded to the party which Ralph Crowe attended on September 9, 1978, and the City of Commerce City. Respondents alleged that the police officers had reason to believe that Ralph Crowe was intoxicated at the time he was detained, and that they negligently failed to take him into custody. Respondents further alleged that the officers were negligent in releasing Ralph Crowe to his younger brother, that it was foreseeable that Ralph Crowe would drive an automobile in an intoxicated condition, and that injury to the public was a foreseeable consequence of the officers' failure to arrest Ralph Crowe.
The police officers and the City of Commerce City (petitioners) filed a motion for summary judgment, contending that the duty of the officers to enforce the law was a public duty, and that the officers' negligence, if any, was not actionable because they did not owe a special duty to the respondents' decedents. After a hearing, the trial court granted petitioners' motion for summary judgment, stating that:
in order for one to recover on a tort claim of negligence brought against a public official by an individual member of the public, they are required to prove by a preponderance of the evi
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