Georgia's Public Duty Doctrine: the Supreme Court Held Hostage - R. Perry Sentell, Jr.

• Publication year: 1999

Georgia's Public Duty Doctrine: The Supreme Court Held Hostageby R. Perry Sentell, Jr.^*

A study published in 1994 sought to determine the single most litigated topic in Georgia local government law over the past thirty years.¹ What legal issue of local government administration had most often confronted Georgia's appellate courts over that recent but considerable span of time?² The revealed answer to that inquiry commanded serious consideration—not because of its unexpectedness but rather its unequivocal conclusiveness:

Local government liability for the alleged misconduct of officers and employees dwarfs all other subtopics. For the past thirty years, liability has extracted more time and attention from Georgia's appellate courts than any other subject of local government law. "Liability" will assuredly constitute this century's thorn in the crown of local government administration.³

A companion inquiry of the 1994 study engaged the oracles themselves—the justices and judges of Georgia's appellate courts.⁴ That inquiry sought insight into the appellate judiciary's assessment of legal issue complexity. How would the jurists generally characterize the level of substantive difficulty inherent in local government cases that came before them? Comparatively evaluated, could the analytical challenges of local government law be even roughly calculated? Once again, the results counseled rapt attention:

"As compared with issues in other cases," the question elaborated, would respondents rate local government law issues to be: "of average complexity"; "of less than average complexity"; or "of more than average complexity"? Here, not a single respondent declined to answer; four checked "average complexity," and seven deemed "greater than average" to be the appropriate characterization.⁵

Ironically, at that precise point in time the Georgia Supreme Court was initiating an epoch that would dramatically mesh the two surveyed facets: (a) local government liability and (b) judicial complexity.⁶ The object of rather routine announcement, the formative issue would emerge with deceptive casualness and, over a remarkably short evolution, completely paralyze the court's analytical processes. Rarely in Georgia law has the court so promptly suffered doctrinal default upon a deed of its own doing.

Rarely has the court devolved to such devastating analytical divisive-ness as that generated by the "Doctrine of Public Duty."

I.

One of the hornbook essentials to the tort of negligence is that of "duty"⁷ As a prerequisite to establishing a negligence cause of action, plaintiff must affirmatively answer the following inquiry: "[D]id the defendant owe the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others?"⁸ A failure to furnish that answer dooms plaintiff's claim to dismissal, and no immunity issue ever arises.⁹ Duty, as negligence law proclaims it, constitutes a part of plaintiff's case and not a part of defendant's defense.¹⁰

The "duty limitation" upon negligence liability looms large in the common law's distinction between misfeasance and nonfeasance: misfeasance breaches a legal duty; nonfeasance generally does not.¹¹ Traditionally, therefore, the law refuses to impose a duty upon one individual to take affirmative action for the benefit of another.¹² A legendary instance of that refusal finds application in the context of controlling the conduct of third parties.¹³ Absent a special relationship between them, one individual is under no duty to prevent a third person from causing physical harm to another.¹⁴ A plaintiff injured by the third person thus shows no breach of legal duty by the defendant's inaction and fails to establish the tort of negligence.¹⁵

These general negligence principles permeate local government law. Thus, one suing a local government in negligence must prove the existence of a duty owed to the plaintiff and a breach of that duty by the local government.¹⁶ A plaintiff proves no such breach by showing only a local government's inaction. Under the historical doctrine of public duty, the local government owes its protections to the public at large and not to any particular individual.¹⁷ A local government's failure to provide police or fire protection, for instance, breaches no duty to an injured individual and affords that individual no claim in negligence.¹⁸ Accordingly, plaintiff's suit suffers dismissal, and no issue of local government immunity ever arises. Absent a "special relationship" between local government and victim, "the overwhelming current of decisions continues to reject liability based on a general failure to provide police protection."¹⁹

II.

The Georgia Supreme Court announced adoption of the public duty doctrine in its 1993 decision of City of Rome v. Jordan.²⁰ Plaintiff in City of Rome alleged injury from an attack in her home; she also alleged the city's negligent failure to dispatch police in response to several telephone calls for assistance.²¹ Reversing the court of appeals,²² the supreme court sustained the trial court's summary judgment that "the City owed no duty to the [plaintiff] upon which liability could be based."²³

The supreme court's groundbreaking opinion, expressing the view of six justices,²⁴ initially pared the case of extraneous concerns. First, the "threshold issue" was duty,²⁵ a question preceding "any discussion of sovereign immunity."²⁶ This fact rendered immaterial to the case any immunity waiver the state may have created for local governments.²⁷ Decreasing immunity could not increase duty.²⁸ Second, "this case involve[d] [a] municipality's failure to act, as opposed to any affirmative act of negligence."²⁹ The court thus perpetuated as seemingly pivotal the common law's nonfeasance-misfeasance dichotomy.

As its primary ground for embracing the public duty doctrine, the court stressed parity between governmental and private tortfeasors.³⁰ "To impose liability on the City based on a general duty to protect all citizens from the actions of third parties" would surpass both the "duty and potential liability" traditionally imposed on individuals.³¹ Contrarily, the public duty doctrine would confine governmental liability "similarly to the manner in which the liability of a private party is restricted."³² As a secondary justification for adopting public duty, the court stressed nonparity between governmental and private tortfeasors.³³ Providing police protection to citizens was limited "'by the resources of the community;'" it called for a '"legislative-executive decision'" on deployment, a function "'better left to the discretion of the policy makers.'"³⁴ The adoption of the public duty doctrine freed the exercise of that governmental discretion from the pressures of potential tort liability.

Melding those contrasting rationales, the court enunciated its doctrine of public duty: "[W]here failure to provide police protection is alleged, there can be no liability based on a municipality's duty to protect the general public."³⁵

With duty limitation in place, the court immediately emphasized its restriction to "the general public."³⁶ Thus, the public duty doctrine presented no bar to one possessing a special relationship to the local government.³⁷ That status "sets the individual apart from the general public and engenders a special duty" entailing municipal obligation "for the nonfeasance of its police department."³⁸ The court adumbrated three requirements for determining special relationship:³⁹ (a) the municipality's "explicit assurance" of aid; (b) municipal knowledge that "inaction could lead to harm"; and (c) the injured individual's "justifiable and detrimental reliance" on the municipal undertaking.⁴⁰

Finally, the court applied its test to plaintiff and held her lacking in "detrimental reliance."⁴¹ Evidence revealed plaintiff to be unaware of any police promise of assistance.⁴² "Any reliance on her part on the police arriving was based solely on a belief that the police would come if called, not on any promise made by the police."⁴³ Absent appropriate reliance, plaintiff enjoyed no special relationship to the municipality.⁴⁴ Absent special relationship, plaintiff fell among the general public to whom the municipality's inaction breached no duty.⁴⁵ Accordingly, plaintiff's negligence action became the first casualty of Georgia's public duty doctrine.⁴⁶

The only justice disagreeing with the court's exercise in City of Rome feared, not its limitation on liability, but rather its potential lessening of municipal immunity.⁴⁷ The public duty doctrine's special relationship limitation "creates an across-the-board exception to governmental immunity that is applicable where such immunity would otherwise be a complete defense to the negligent performance of discretionary acts."⁴⁸

City of Rome thus introduced Georgia local governments to the public duty doctrine. A near-unanimous supreme court lifted the principle from the general negligence nucleus of common law torts, emphasizing its conceptual isolation from governmental immunity. The court also located the doctrine within its traditional context of nonfeasance—a failure to act as opposed to an affirmative duty. So fashioned, the doctrine served the court's contrasting policy grounds of both parity and nonparity between private and governmental tortfeasors.

As announced, the doctrine operated subject to the exception of special relationship, an exception imposing a rare tort duty of affirmative action.

City of Rome not only structured the test for determining that relationship, it also instanced the supreme court's initial application. Special relationship, that exercise indicated, would not find casual applicability.

Even at its inception, public duty drew disagreement within the court itself. A dissenting opinion for a single justice not only confirmed that point, it also demonstrated the confusing ease with which the doctrine could be...