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Dore v. City of Fairbanks9/28/2001
een a landowner and his invitees (§ 314A), and between a victim and a defendant who is required by law or voluntarily takes custody of the victim under circumstances which deprive the victim of his normal opportunities for protection (§ 320).
Under the Restatement framework, we perceive no special relationship between the police and the victims. None of the relationships in § 314A exists. Section 320 does not apply because the police did not take the Dore children into protective custody under circumstances which deprived them of the normal opportunities for protection.
But is there a special relationship between the police and Jack Dore as a person with dangerous propensities? Restatement § 319 imposes a duty on those in charge of a person having dangerous propensities in certain situations:
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
The questions are whether the police "took charge" of Jack Dore and whether the police knew or should have known he was likely to cause bodily harm if not controlled.
The Colorado Supreme Court has interpreted the "takes charge" language of Restatement § 319 narrowly and concluded that police failure to arrest was not actionable. In Leake v. Cain, the police detained and handcuffed a drunken and disruptive Ralph Crowe. They released Ralph to his brother who appeared sober and who told officers that he would drive Ralph home. Instead, the Crowe brothers drove to a convenience store, changed drivers, and proceeded to another party. Arriving at the party, Ralph struck six pedestrians, killing two of them. Representatives of the deceased sued the city for wrongful death. After expressly rejecting the public duty doctrine, the Colorado Supreme Court applied "conventional tort principles" to find that the police had no duty to arrest Ralph.
In its analysis, the Colorado Supreme Court noted the general rule that there is no duty to prevent a third person from harming another, absent a special relationship between the defendant and the wrongdoer or between the defendant and the victim. The court noted that the police had a duty to prevent Ralph from harming others while he was handcuffed, because the police had taken charge of him, citing § 319. However, the police discharged their duty by restraining Ralph until he calmed down. The officers' duty existed only for the time that they had taken charge of Ralph.
The Oregon Court of Appeals also applied Restatement § 319 in reviewing a dismissal of a negligence claim alleging police failure to arrest. In McAlpine v. Multnomah County, the police conducted surveillance of Brian Charlesworth as part of an ongoing drug investigation. Based on the findings of the investigation, the Oregon Parole Board revoked Charlesworth's parole and issued a warrant for his arrest. The police, however, did not immediately arrest Charlesworth. About a month later, Charlesworth assaulted and seriously injured McAlpine. McAlpine sued for the alleged police negligence of failing to arrest Charlesworth on the outstanding warrant.
McAlpine conceded that there was no special relationship between the police and himself as a member of the general public. The court found no special relationship between the police and Charlesworth because there was no allegation of arrest, custody, or otherwise taking charge of Charlesworth.
In the instant case, just as in McAlpine, the police did not take charge of Jack Dore. The police did not take him into custody, and th
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