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Dore v. City of Fairbanks9/28/2001
r on a combination of egregious facts and an exception to the public duty doctrine.
"The 'precise nature and extent' of a duty 'is a question of law which can be decided at the summary judgment stage.'" 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."
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 § 13.4 regarding an oath of office expresses a concept of duty. However, § 13.4 creates a duty to uphold the United States and Alaska Constitutions and the charter and ordinances of Fairbanks. 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. 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. Under the domestic violence laws, there is no actionable duty to arrest. 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." To determine whether actionable duty exists, we first determine the class of cases to which the duty would apply. If no existing case law covers this class, we then weigh the factors that support and oppose the imposition of liability.
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. 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. Restatement § 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. 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 (§ 319), between a parent and child (§ 316), between a master and servant (§ 317), and between a landowner and licensee (§ 318). A special relationship between the defendant and the victim can exist between a common carrier and its passengers (§ 314A), between an innkeeper and her guests (§ 314A), betw
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