No. 85SC66Supreme Court of Colorado.
Decided June 9, 1986.
Certiorari to the Colorado Court of Appeals
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Hall Evans, Alan Epstein, Arthur R. Karstaedt, III, for Petitioners.
Leland S. Huttner, P.C., Anne M. Vitek, for Respondents.
EN BANC
JUSTICE ERICKSON delivered the Opinion of the Court.
[1] 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. [2] FACTS
[3] 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.[1] Over the course of three and one-half hours, Crowe drank eight cups of beer and three cups of alcoholic punch.[2] At approximately 11:30 p.m., Commerce City police officers were dispatched to
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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.
[4] 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.[3] [5] Respondents filed a wrongful death action[4] 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.[5]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. [6] 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: [7] “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 evidence . . . that the defendant owes a special duty to the plaintiff and that [the] duty was breached, resulting in damage or injury.” [8] The court concluded that the Commerce City police officers, in exercising their discretion to release Ralph Crowe, did not owe a special duty to the respondents’ decedents. [9] The court of appeals reversed and held that petitioners were not immune from suit. Cain v. Leake, 695 P.2d at 798. In denying immunity, the court of appeals reasoned that (1) the decision of the police officers to release Ralph Crowe was not a
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discretionary act and (2) denying immunity would not unduly interfere with the governmental function. The trial court’s reliance upon the public duty/special duty distinction in granting summary judgment was not addressed by the court of appeals.
II. [10] DUTY
[11] Nothing is more basic to tort law than the requirement that, in order to recover for the negligent conduct of another, the plaintiff must establish (1) the existence of a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) which actually and proximately caused (4) damage to the plaintiff. Franklin v. Wilson, 161 Colo. 334, 422 P.2d 51 (1966); W. Keeton, D. Dobbs, R. Keeton D. Owen, Prosser and Keeton on the Law of Torts 164-65 (5th ed. 1984). This case focuses on the first element. We must decide whether the Commerce City police officers owed a duty to respondents’ decedents to take Ralph Crowe into custody.
A. [12] The Public Duty Doctrine
[13] In granting petitioners’ motion for summary judgment, the trial court relied upon what has become known as the “public duty doctrine.” The origin of the public duty doctrine can be traced to South v. Maryland, 59 U.S. (18 How.) 396 (1855). In South, the plaintiff alleged that he was kidnapped and held for a period of four days and released only when he secured the ransom money demanded by his kidnappers. He also asserted that the local sheriff knew that he had been unlawfully detained yet did nothing to obtain his release. The plaintiff sued the sheriff for refusing to enforce the laws of the state and for failing to protect the plaintiff. The circuit court awarded plaintiff a substantial judgment. The Supreme Court reversed and declared that a sheriff’s duty to keep the peace was “a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.” 59 U.S. (18 How.) at 403.[6]
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1. The Colorado Cases
[14] The public duty rule first surfaced in Colorado in Miller v. Ouray Electric Light Power Co., 18 Colo. App. 131, 70 P. 447 (1902). The plaintiff’s decedent in Miller died while he was incarcerated in the Ouray County jail. The plaintiff alleged that defective wiring in the jail caused a fire which resulted in the death. Plaintiff sought to hold the county commissioners liable for the death based upon a statute that required the county commissioners to inspect the county jail and to correct irregularities. The court of appeals held that the statute created only a public duty to insure the safety of the jail, not an individual duty to any person who was incarcerated in the jail. The opinion stated that the obligation of the county commissioners was “an official duty, owing to the public by virtue of their office, and for a breach of it the statutes specifically provide a remedy by suit upon their official bonds.”18 Colo. App. at 138, 70 P. at 449. Without the protection afforded by the public duty rule, the court concluded, no person would be willing to serve as a public officer because of the fear of exposure to liability.
(1923). The court thus reaffirmed the public duty rule set forth in Miller v. Ouray Electric Light Power Co. and People v. Hoag. In Richardson, the court added a new rationale for the rule, stating that since counties were not liable for tortious conduct, it would be inconsistent to impose liability on their officers. [19] More recently, we discussed the public duty rule in the context of a claim against the Industrial Commission by an individual who was injured when a machine in the plant where he was employed malfunctioned. Quintano v. Industrial Commission, 178 Colo. 131, 495 P.2d 1137 (1972). The plaintiff relied on a statute charging the Industrial Commission with the responsibility of inspecting factories to protect employees and guests against defective or dangerous machinery. After holding that the Industrial Commission was protected by sovereign immunity, we concluded that the commission members were not individually liable. The issue was whether “the statutory duty is public or is for the actionable
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benefit of an individual.” Id. at 135, 495 P.2d at 1138. We observed that the statutes in Miller, Hoag, and Richardson
[20] “clearly imposed duties for the benefit of the public generally and not for that of particular individuals or classes. In contrast, the statute here under consideration specifically designates the classes of individuals for whose benefit it is intended, viz.: employees and guests. Under [the public duty rule] it might be said that this duty was created for the benefit of the petitioner and that, therefore, nonfeasance by the individual members of the commission subjects them to liability.” [21] 178 Colo. at 135, 495 P.2d at 1138-39. Relying on Evans v. Board of County Commissioners, 174 Colo. 97, 482 P.2d 968 (1971), we said that in the area of sovereign immunity, courts should not attempt to infer the General Assembly’s intent as to whether a statute may be relied upon as a source of duty in a civil action for damages. Because the statute in question did not authorize a private cause of action for its violation, we upheld the trial court’s dismissal of the complaint. [22] In refusing to resolve the case on the basis of the public duty rule Quintano left the viability of the doctrine in this state in considerable doubt. Predictably, subsequent decisions by the court of appeals reached opposite conclusions as to the continued validity of the doctrine in Colorado. Compare Gold Run, Ltd. v. Board of County Commissioners, 38 Colo. App. 44, 554 P.2d 317 (1976) (affirming dismissal of action on the basis of public duty rule) with Martinez v. City of Lakewood, 655 P.2d 1388(Colo.App. 1982) (reversing summary judgment that was premised upon the public duty rule). In Martinez, the court of appeals stated: [23] “[T]he concept of public duty, i.e., a general duty versus a special duty `is [merely] a function of municipal sovereign immunity and not a traditional negligence concept which has a meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing validity of the doctrine of sovereign immunity.’ Commercial Carrier Corp. v. Indian River [371 So.2d 1010 (Fla. 1979)]. The concept of a public duty cannot stand either with the enactment of the statute abrogating sovereign immunity, nor in instances where there is a common law duty of a public entity to the plaintiff. As noted in numerous opinions from various jurisdictions, application of the public duty — special duty dichotomy results in `a duty to none where there is a duty to all.’Stewart v. Schmieder, 386 So.2d 1351 (La. 1980); Commercial Carrier Corp. v. Indian River, [371 So.2d at 1010]; Adams v. Alaska, 555 P.2d 235
(Alaska 1976).” [24] 655 P.2d at 1390. In view of the trial court’s reliance on the public duty rule in granting summary judgment in this case, and because of the conflicting decisions by the court of appeals in Gold Run and Martinez, we are squarely confronted with the question of whether the public duty rule is still good law in Colorado.[7]
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2. Abolition of the Public Duty Rule
[25] The public duty rule is probably followed by the majority of courts See, e.g., Shore v. Town of Stonington, 187 Conn. 147, 444 A.2d 1379
(1982); Fryman v. JMK/Skewer, Inc., 137 Ill. App.3d 611, 484 N.E.2d 909
(1985); Cox v. Department of Natural Resources, 699 S.W.2d 443 (Mo.App. 1985); O’Connor v. City of New York, 58 N.Y.2d 184, 447 N.E.2d 33, 460 N.Y.S.2d 485 (1983); Barrat v. Burlingham, ___ R.I. ___, 492 A.2d 1219
(1985); Chambers-Castenes v. King County, 100 Wn.2d 275, 669 P.2d 451
(Wash. 1983); Annot., Modern Status of Rule Excusing Governmental Unit from Tort Liability on Theory that Only General, Not Particular, Duty was Owed Under Circumstances, 38 A.L.R. 4th 1194 (1985). The two principal rationales offered in support of the doctrine are (1) protection against excessive governmental liability and (2) the need to prevent hindrance of the governing process. J B Development Co., Inc. v. King County, 100 Wn.2d 299, 669 P.2d 468 (1983); Miller v. Ouray Electric Light Power Co., 18 Colo. App. at 131, 70 P. at 447. However, a growing number of courts have concluded that the underlying purposes of the public duty rule are better served by the application of conventional tort principles and the protection afforded by statutes governing sovereign immunity than by a rule that precludes a finding of an actionable duty on the basis of the defendant’s status as a public entity. Adams v. State, 555 P.2d 235
(Alaska 1976); Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982) Commercial Carrier Corp. v. Indian River City, 371 So.2d 1010 (Fla. 1979) Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979); Schear v. Board of County Commissioners of Bernalillo County, 687 P.2d 728 (N.M. 1984); Brennan v. Eugene, 285 Or. 401, 591 P.2d 719 (1979); Coffey v. Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). Significantly, the rule has been repudiated by two courts whose earlier decisions are frequently cited in support of its continued validity. See Ryan v. State, 134 Ariz. at 308, 656 P.2d at 597 (overruling Massengill v. Yuma, 104 Ariz. 518, 456 P.2d 376 (1969)); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979) (overruling Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967)). The public duty rule has also been condemned by commentators and by judges dissenting to opinions upholding the doctrine. Chambers-Castenes, 100 Wn. 2d at 275, 669 P.2d at 451, 460 (Utter, J., concurring); Hage v. Stade, 304 N.W.2d 283, 288 (Minn. 1981) (Scott, J., dissenting); Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, 861
(1968) (Keating, J., dissenting); Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635, 637 (1965) (Desmond, C.J., dissenting); 1A C. Antieau, Municipal Corporation Law § 11.74 (1986); Note, State Tort Liability for Negligent Fire Inspection, 13 Colum. J.L.
Soc. Probs. 303 (1977); Note, Court of Claims Act, 58 St. John’s L. Rev. 199 (1983).
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[26] Even where the rule still prevails, its scope has been substantially narrowed by the creation of significant exceptions. For example, the public duty rule cannot be used to avoid liability where a “special relationship” exists between the public entity and the plaintiff. Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975) (city electrical inspector knew of nonconforming underwater lighting system and of extreme danger to residence near stream but failed to disconnect the lighting system). Nor is the rule applicable where the tortious conduct of the public entity violated a statute or ordinance enacted for the benefit of the class of persons to which the plaintiff belonged. Compare Irwin v. Town of Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984) (statutes created duty on the part of police officer to arrest intoxicated driver for the benefit of the motoring public) with Dinsky v. Town of Framingham, 386 Mass. 801, 438 N.E.2d 51(1982) (building code did not create special duty to individual property owners upon which an action for negligent issuance of building permits could be predicated). [27] The major criticism leveled at the public duty rule is its harsh effect on plaintiffs who would be entitled to recover for their injuries but for the public status of the tortfeasor. A duty to all, it has been said, is a duty to none. Commercial Carrier, 371 So.2d at 1010; Adams, 555 P.2d at 235. Courts that have abandoned the rule have sometimes relied on provisions in statutes abrogating sovereign immunity stating that public entities are to be treated like private parties for purposes of determining liability. E.g., Shear v. Board of County Commissioners of Bernalillo County, 687 P.2d at 728. Cf. § 24-10-107, 10 C.R.S. (1982) (“Where sovereign immunity is abrogated as a defense under section 24-10-106, liability of the public entity shall be determined in the same manner as if the public entity were a private person.”). In apparent contravention of these statutes, the public duty rule makes the public status of the defendant a crucial factor in determining liability. Courts rejecting the public duty rule reason that proof of one of the elements in an action for negligence should not be made more difficult simply because the defendant is a public entity. [28] It has also been argued that the same rationales that were used to justify absolute sovereign immunity — the financial impact on government and interference with governmental operations — are asserted in defense of the public duty rule. Ryan, 134 Ariz. at 308, 656 P.2d at 597; Chambers-Castenes, 100 Wn. 2d at 275, 669 P.2d at 451, 460
(Utter, J., concurring). Those justifications were rejected with the abrogation of absolute sovereign immunity and should likewise be rejected as a policy basis for the public duty rule. The argument is particularly compelling if the public duty doctrine is seen as a function of sovereign immunity, rather than as an independent concept of negligence. See Commercial Carrier, 371 So.2d at 1010. [29] Perhaps the most persuasive reason for the abandonment of the public duty rule is that it creates needless confusion in the law and results in uneven and inequitable results in practice. Ryan, 134 Ariz. at 308; 656 P.2d at 597; J B Development Co., Inc. v. King County, 100 Wn.2d 299, 669 P.2d 468, 474 (1983) (Utter, J. concurring); Note, State Tort Liability for Negligent Fire Inspection, 13 Colum. J.L. Soc. Problems 303 (1977); Note, Court of Claims Act, 58 St. John’s L. Rev. 199 (1983). As the Supreme Court of Arizona said in abandoning the public duty rule, “[w]e shall no longer engage in the speculative exercise of determining whether the tort-feasor has a general duty to the injured party, which spells no recovery, or if he had a specific individual duty which means recovery.”Ryan, 656 P.2d at 597. Instead, the court stated, “the parameters of duty owed by the state will ordinarily be coextensive with those owed by others.” Id.[8]
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[30] In our view, the problems associated with the public duty rule far outweigh the benefits of the rule, which are more properly realized by other means. The fear of excessive governmental liability is largely baseless in view of the fact that a plaintiff seeking damages for tortious conduct against a public entity must establish the existence of a duty using conventional tort principles, such as foreseeability, in the same manner as if the defendant were a private entity. City of Kotzbebue v. McLean, 702 P.2d 1309 (Alaska 1985). Another hurdle the plaintiff must surmount in order to recover is proof of proximate cause. The traditional burdens of proof tied to tort law adequately limit governmental liability without resort to the artificial distinctions engendered by the public duty rule. [31] Nor do we believe that the abolition of the public duty rule will unduly interfere with governmental operations. By this decision, we create no new cause of action which would make a public official hesitant in the performance of his duties. Public officials will continue to enjoy qualified immunity. See Trimble v. City and County of Denver, 697 P.2d 716(Colo. 1985). [32] Finally, whether or not the public duty rule is a function of sovereign immunity, the effect of the rule is identical to that of sovereign immunity. Under both doctrines, the existence of liability depends entirely upon the public status of the defendant. The doctrine of sovereign immunity was abrogated in Evans v. Board of County Commissioners, 174 Colo. 97, 482 P.2d 968 (1971). Nothing in the provisions of the statutes dealing with governmental immunity, sections 24-10-101 to -118, 10 C.R.S. (1982 1985 Supp.), leads us to conclude that the General Assembly intended to reintroduce a concept so closely related to absolute sovereign immunity. Quite the contrary, section 24-10-107 instructs courts to resolve the plaintiff’s claim without regard to the public status of the defendant. [33] Accordingly, we reject the public duty rule in Colorado. Henceforth, for purposes of determining liability in a negligence action, the duty of a public entity shall be determined in the same manner as if it were a private party.
B. [34] Duty of the Commerce City Police Officers
[35] Having discarded the concept that the existence and extent of the police officers’ duty is dependent on status, we now analyze the duty question by applying conventional tort principles.
1. The Special Relation Rule
[36] Where a person should reasonably foresee that his act, or failure to act, will involve an unreasonable risk of harm to another, there is a duty to avoid such harm. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo. 1981); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (Colo. 1971). However, there is no duty to prevent a third person from harming another, absent a special relation between the actor and the wrongdoer or between the actor and the victim. Restatement (Second) of Torts § 315 (1965).
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served. Ralph Crowe was handcuffed after he attempted to interfere with the officers’ efforts to disperse the group attending the party. The officers in this case did not release an intoxicated person knowing that he would thereafter operate an automobile. Instead, the officers permitted Ralph Crowe’s younger brother, Eddie Crowe, who appeared sober, to drive Ralph Crowe home.
[38] While the officers obviously had a duty to prevent Ralph Crowe from harming others while he was handcuffed at the party, see Restatement (Second) of Torts § 319 (1965) (duty of those in charge of person having dangerous propensities), the officers discharged their duty by restraining Crowe until he calmed down. The officers’ duty, as it related to the conduct of Ralph Crowe, began and ended at the party. It did not extend to the period after Ralph Crowe was released to his younger brother, who assured the officers that he would drive Ralph Crowe home.[9] The officers did not assume a duty to the respondents’ decedents, induce reliance, or create a peril or change the nature of an already existing risk. See Jackson v. Clements, 146 Cal.App.3d 983, 194 Cal.Rptr. 553(1983).[10] [39] In support of their contention that a special relationship existed between the Commerce City police officers and the respondents’ decedents, respondents cite Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984). I Irwin, police officers stopped a car suspecting that the driver was intoxicated. Plaintiffs alleged that the officers negligently failed to arrest the driver, and that plaintiffs were entitled to recover for injuries sustained when the driver collided with the plaintiffs’ car after he was released by the police. The Supreme Judicial Court of Massachusetts held that “there is a special relationship between a police officer who negligently fails to remove an intoxicated motorist from the highway, and a member of the public who suffers injury as a result of that failure.” 467 N.E.2d at 1303-04. Contra Harris v. Smith, 157 Cal.App.3d 100, 203 Cal. Rptr. 541 (1984). In finding a special relationship, the court relied on Massachusetts statutes relating to a police officer’s authority to arrest intoxicated persons operating automobiles. The court determined that the statutes indicated a legislative intent to protect intoxicated persons and other members of the motoring public and concluded that the foreseeable consequences of releasing an intoxicated driver were all too obvious. [40] Quite apart from the question of whether this court would recognize a special relationship under the circumstances of Irwin v. Ware, the case is readily distinguishable
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from this case. Here, the Commerce City police officers did not contact Ralph Crowe while he was driving an automobile. During their entire encounter with Ralph Crowe, the officers had no reason to believe that he had been driving under the influence of alcohol or that he intended to do so in the immediate future. In fact, the officers released Ralph Crowe to his younger brother only after receiving assurances from both men that Eddie Crowe would drive Ralph Crowe home. The potential harm resulting from the release of Ralph Crowe was far less foreseeable than the release of the intoxicated driver in Irwin v. Ware.
2. The Emergency Commitment Statute
[41] Respondents rely on section 25-1-310(1), 11 C.R.S. (1982), as a source of the officers’ duty in this case.
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intoxicated person into the “custody” of an apparently sober and responsible relative.
[49] Since we conclude that the respondents’ decedents were not included within the class of persons that section 25-1-310(1) was designed to protect, the respondents may not rely on the statute as a source of the officers’ duty in this case. [50] The respondents in this case have failed to establish that a duty was owed to their decedents by the Commerce City police officers. Therefore, they have not established a prima facie case of negligence. Although the trial court granted summary judgment on the basis of the public duty rule, which we have repudiated in this decision, the order of summary judgment was proper since respondents failed to establish a legally cognizable duty. Accordingly, the court of appeals erred in vacating the trial court’s order of summary judgment. [51] Our conclusion that the Commerce City police officers did not owe a duty to respondents’ decedents under the facts of this case is the basis for our decision reversing the court of appeals. However, it is necessary to address the issue of immunity because the court of appeals erroneously narrowed the scope of official immunity afforded police officers. III. [52] IMMUNITY
[53] A public official performing discretionary acts within the scope of his office enjoys qualified immunity. Trimble v. City and County of Denver, 697 P.2d 716 (Colo. 1985). He is protected against civil liability if his conduct is not willful, malicious or intended to cause harm. Id. The court of appeals held that the Commerce City police officers were not protected by official immunity because the decision to take Ralph Crowe into custody was not discretionary. We disagree.
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officer arguably has no discretion but to arrest the suspect. By contrast, an officer who encounters an intoxicated person who is not driving has no authority to take such person into protective custody under section 25-1-310(1) unless the officer has probable cause to believe that the intoxicated person is “clearly dangerous to the health and safety of himself or others.” § 25-1-310(1). While it may be said under Irwin v. Ware that the General Assembly has determined as a policy matter that an intoxicated driver is a public danger, and that an officer encountering such a person accordingly has no choice in determining whether to arrest or release the person, the same is not true with respect to the emergency commitment statute. Under section 25-1-310(1), it is the officer who must determine whether the intoxicated person is clearly dangerous. The General Assembly plainly did not intend for the police to take into protective custody every intoxicated person they meet. Instead, the General Assembly designated a specific class of intoxicated persons who are subject to emergency commitment and left the determination of whether a particular individual is clearly dangerous to the police. Accordingly, the decision to take a person into protective custody is discretionary and protected by official immunity.
[60] Respondents have also asserted that since the officers did not take Ralph Crowe into protective custody, the officers should have at least escorted him to his home. Section 25-1-310(1) states: “Nothing in this subsection (1) shall preclude an intoxicated or incapacitated person who is not dangerous to the health and safety of himself or others from being assisted to his home or like location by the law enforcement officer or emergency service patrolman.” Whether the officers should have taken the action suggested by respondents was a discretionary judgment. Therefore, the decision by the Commerce City police officers not to assist Ralph Crowe to his home is protected by official immunity. [61] Accordingly, we reverse the court of appeals and remand to the court of appeals with directions to reinstate the trial court’s order granting summary judgment to petitioners. [62] JUSTICE ROVIRA specially concurs.D. Owen, Prosser and Keeton on the Law of Torts 1049 (5th ed. 1984).
text pp. 15-16.
As the majority points out, the public duty rule is controversial; and while there may
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be a trend towards abolition of the rule, majority op. at 11, the majority of states probably still adhere to the rule, majority op. at 10. Without the benefit of briefs by the parties and interested amici, the court is in a poor position to determine whether the public duty rule has force and content independent of the doctrine of sovereign immunity. A determination of the continuing vitality of the rule would be better left for a later day.
[67] Finally, I note that to the extent that the public duty rule is either a function of sovereign immunity or identical in effect to sovereign immunity, see majority op. at 16, the legislature clearly has the power to reimpose the public duty rule in statutory form. “If the General Assembly wishes to restore sovereign immunity and governmental immunity in whole or in part, it has the authority to do so.” Evans v. Board of County Commissioners, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971).