This document summarizes two court cases (No. 79-6 and No. 79-394) in which individuals sued the District of Columbia and police department for negligence. In No. 79-6, three women were sexually assaulted after multiple failed responses to their calls for help. The court found that the police department did not have a specific legal duty to provide protection to individuals. In No. 79-394, a man was assaulted after a police officer failed to obtain identification of the assailants. The court again found no specific legal duty was owed to individuals. The court affirmed that governments have a general duty to provide public services to the public at large, but not specific legal duties to individuals absent a special relationship.

1. Page 1
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
LEXSEE 444 A.2D 1
CAROLYN WARREN, ET AL., APPELLANTS, v. DISTRICT OF COLUMBIA,
ET AL., APPELLEES; WILFRED NICHOL, APPELLANT, v. DISTRICT OF
COLUMBIA METROPOLITAN POLICE DEPARTMENT, ET AL., APPELLEES
Nos. 79-6, 79-394
District of Columbia Court of Appeals
444 A.2d 1; 1981 D.C. App. LEXIS 412
April 13, 1981, Argued
December 21, 1981, Decided
PRIOR HISTORY: [**1] Appeals no specific legal duty to provide pro­
from the Superior Court of the Dis­ tection to the individual appellants
trict of Columbia (Hon. Joseph M. Han­ [**2] and dismissed the complaints
non, Trial Judge, No. 79­6) (Hon. Wil­ for failure to state a claim upon
liam C. Pryor, Trial Judge, No. 79­ which relief could be granted. Super.
394) On Petition for Rehearing En Banc Ct. Civ. R. 12(b) (6). However, in a
split decision a three­judge division
of this court determined that appel­
COUNSEL: Stephen A. Friedman for ap­ lants Warren, Taliaferro and Nichol
pellants. were owed a special duty of care by
the police department and reversed the
Charles L. Reischel, Deputy Corpora­ trial court rulings. The division un­
tion Counsel, with whom Judith W. Ro­ animously concluded that appellant
gers, Corporation Counsel, and David Douglas failed to fit within the class
P. Sutton, Assistant Corporation Coun­ of persons to whom a special duty was
sel, were on the petition, for ap­ owed, and affirmed the lower court's
pellees. dismissal of her complaint. The court
en banc, on petitions for rehearing,
JUDGES: En Banc. Newman, Chief vacated the panel's decision. After
Judge, and Kelly, Kern, Nebeker, Har­ rearguments, notwithstanding our sym­
ris, Mack, and Ferren, Associate pathy for appellants who were the tra­
Judges. Opinion for the court by As­ gic victims of despicable criminal
sociate Judge Nebeker. Opinion con­ acts, we affirm the judgments of dis­
curring in part and dissenting in part missal.
by Associate Judge Kelly, with whom
Associate Judge Mack joins. Opinion Appeal No. 79­6
concurring in part and dissenting in
In the early morning hours of March
part by Chief Judge Newman.
16, 1975, appellants Carolyn Warren,
Joan Taliaferro, and Miriam Douglas
OPINION BY: NEBEKER
were asleep in their rooming house at
1112 Lamont Street, N.W. Warren and
OPINION
Taliaferro shared a room on the third
[*2] Appellants Carolyn Warren, floor of the house; Douglas shared a
Miriam Douglas, and Joan Taliaferro in room on the second floor with her
No. 79­6, and appellant Wilfred Nichol four­year­old daughter. The women
in No. 79­394 sued the District of were awakened by the sound of the back
Columbia and individual members of the door being broken down by two men
Metropolitan Police Department for [**3] later identified as Marvin Kent
negligent failure to provide adequate and James Morse. The men entered
police services. The respective trial Douglas' second floor room, where Kent
judges held that the police were under forced Douglas to sodomize him and

2. Page 2
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
Morse raped her. Kent's apartment. For the next four­
teen hours the women were held cap­
Warren and Taliaferro heard tive, raped, robbed, beaten, forced to
Douglas' screams from the floor below. commit sexual acts upon each other,
Warren telephoned the police, told the and made to submit to the sexual de­
officer on duty that the house was be­ mands of Kent and Morse.
ing burglarized, and requested immedi­
ate assistance. The department em­ Appellants' claims of negligence
ployee told her to remain quiet and included: the dispatcher's failure
assured her that police assistance [**5] to forward the 6:23 a.m. call
would be dispatched promptly. War­ with the proper degree of urgency;
ren's call was received at Metropolit­ [*3] the responding officers' failure
an Police Department Headquarters at to follow standard police investigat­
6:23 a.m., and was recorded as a burg­ ive procedures, specifically their
lary in progress. At 6:26 a.m., a failure to check the rear entrance and
call was dispatched to officers on the position themselves properly near the
street as a "Code 2" assignment, al­ doors and windows to ascertain whether
though calls of a crime in progress there was any activity inside; and the
should be given priority and desig­ dispatcher's failure to dispatch the
nated as "Code 1." Four police cruis­ 6:42 a.m. call.
ers responded to the broadcast; three
to the Lamont Street address and one Appeal No. 79­394
to another address to investigate a
possible suspect. On April 30, 1978, at approximately
11:30 p.m., appellant Nichol stopped
Meanwhile, Warren and Taliaferro his car for a red light at the inter­
crawled from their window onto an ad­ section of Missouri Avenue and Six­
joining roof and waited for the police teenth Street, N.W. Unknown occupants
to arrive. While there, they saw one in a vehicle directly behind appellant
policeman drive through the alley be­ struck his car in the rear several
hind their house and proceed to the times, and then proceeded to beat ap­
front of the residence without stop­ pellant about the face and head break­
ping, leaning [**4] out the window, ing his jaw.
or getting out of the car to check the
back entrance of the house. A second A Metropolitan Police Department
officer arrived at the scene. In re­
officer apparently knocked on the door
in front of the residence, but left sponse to the officer's direction, ap­
pellant's companion ceased any further
when he received no answer. The three
officers departed the scene at 6:33 efforts to obtain identification in­
formation of the assailants. When the
a.m., five minutes after they arrived.
officer then failed to get the inform­
Warren and Taliaferro crawled back ation, leaving Nichol unable to insti­
inside their room. They again heard tute legal action against his assail­
Douglas' continuing screams; again ants, Nichol brought a negligence ac­
called the police; told the officer tion against the officer, the Metro­
that the intruders had entered the politan Police Department and the Dis­
home, and requested immediate assist­ trict [**6] of Columbia.
ance. Once again, a police officer
The trial judges correctly dis­
assured them that help was on the way.
This second call was received at 6:42 missed both complaints. In a care­
fully reasoned Memorandum Opinion,
a.m. and recorded merely as "investig­
ate the trouble" ­­ it was never dis­ Judge Hannon based his decision in No.
79­6 on "the fundamental principle
patched to any police officers.
that a government and its agents are
Believing the police might be in under no general duty to provide pub­
the house, Warren and Taliaferro lic services, such as police protec­
called down to Douglas, thereby alert­ tion, to any particular individual
ing Kent to their presence. Kent and citizen." See p. 4, infra. The duty
Morse then forced all three women, at to provide public services is owed to
knifepoint, to accompany them to the public at large, and, absent a

3. Page 3
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
special relationship between the po­ (placement of youth with known
lice and an individual, no specific homicidal tendencies in foster
legal duty exists. Holding that no home); Gardner v. Village of
special relationship existed between Chicago Ridge, 71 Ill.App.2d 373,
the police and appellants in No. 79­6, 219 N.E.2d 147 (1966) (return of
Judge Hannon concluded that no specif­ victim to scene for "show up"
ic legal duty existed. We hold that identification of still violent
Judge Hannon was correct and adopt the assault suspects); Schuster v.
relevant portions of his opinion. City of New York, 5 N.Y.2d 75,
Those portions appear in the following 180 N.Y.S.2d 265, 154 N.E.2d 534
Appendix. 1 (1958) (recruitment of citizen
informant in national organized
1 Having based his dismissal on violent crime case).
an absence of duty, Judge Hannon
found it unnecessary to decide [**8] Here the effort to separate
the hostile assailants from the vic­
the adequacy of the notice to the
District of Columbia under D.C. tims ­­ a necessary part of the on­
scene responsibility of the police ­­
Code 1973, § 12­309. Con­
sequently, we do not review that adds nothing to the general duty owed
the public and fails to create a rela­
issue on appeal.
tionship which imposes a special legal
[**7] Judge Pryor, then of the duty such as that created when there
trial court, ruled likewise in No. 79­ is a course of conduct, special know­
394 on the basis of Judge Hannon's ledge of possible harm, or the actual
opinion. In No. 79­394, a police of­ use of individuals in the investiga­
ficer directed Nichol's companion to tion. See Falco v. City of New York,
cease efforts to identify the assail­ 34 A.D.2d 673, 310 N.Y.S.2d 524 (App.
ants and thus to break off the violent Div. 1970), aff'd, 29 N.Y.2d 918, 329
confrontation. The officer's duty to N.Y.S.2d 97, 279 N.E.2d 854 (1972)
get that identification was one dir­ (police officer's [*4] statement to
ectly related to his official and gen­ injured motorcyclist that he would ob­
eral duty to investigate the offenses. tain name of motorist who struck the
His actions and failings were solely motorcycle was a gratuitous promise
related to his duty to the public gen­ and did not create a special legal
erally and possessed no additional duty); Jackson v. Heymann, 126 N.J.
element necessary to create an over­ Super. 281, 314 A.2d 82 (Super. Ct.
riding special relationship and duty. Law Div. 1973) (police officers' in­
2
vestigation of vehicle accident where
pedestrian was a minor child did not
2 It can be seen from cases in create a special legal duty to child's
which a special duty has been parents who were unsuccessful in their
found that an additional element attempt to recover damages because po­
has been injected above the ex­ lice failed to identify drivers of
isting general public duty. E.g., vehicle). We hold that Judge Pryor
Florence v. Goldberg, 44 N.Y.2d did not err in dismissing No. 79­394
189, 404 N.Y.S.2d 583, 375 N.E.2d for failure to state a claim.
763 (1978) (school crossing guard
course of conduct and police re­ In either case, it is [**9] easy
quiring replacement of absent to condemn the failings of the police.
guard together with reliance); However, the desire for condemnation
McCorkle v. City of Los Angeles, cannot satisfy the need for a special
70 Cal. 2d 252, 74 Cal. Rptr. relationship out of which a duty to
389, 449 P.2d 453 (1969) (en specific persons arises. In neither
banc) (use of auto accident vic­ of these cases has a relationship been
tim to aid police investigation alleged beyond that found in general
by walking to point of impact in police responses to crimes. Civil li­
street); Johnson v. States, 69 ability fails as a matter of law.
Cal. 2d 782, 73 Cal. Rptr. 240, APPENDIX
447 P.2d 352 (1968) (en banc)

4. Page 4
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
SUPERIOR COURT OF THE DISTRICT OF sources and upon legislative or admin­
COLUMBIA CIVIL DIVISION istrative determinations concerning
allocation of those resources. Riss
Civil Action No. 4695­76 v. City of [**11] New York, supra.
CAROLYN WARREN, ET AL., PLAINTIFFS, The public, through its representative
v. DISTRICT OF COLUMBIA, ET AL., DE­ officials, recruits, trains, maintains
FENDANTS. and disciplines its police force and
determines the manner in which person­
MEMORANDUM OPINION nel are deployed. At any given time,
* * * * publicly furnished police protection
may accrue to the personal benefit of
The Court, however, does not agree individual citizens, but at all times
that defendants owed a specific legal the needs and interests of the com­
duty to plaintiffs with respect to the munity at large predominate. Private
allegations made in the amended com­ resources and needs have little direct
plaint for the reason that the Dis­ effect upon the nature of police ser­
trict of Columbia appears to follow vices provided to the public. Accord­
the well­established rule that offi­ ingly, courts have without exception
cial police personnel and the govern­ concluded that when a municipality or
ment employing them are not generally other governmental entity undertakes
liable to victims of criminal acts for to furnish police services, it assumes
failure to provide adequate police a duty only to the public at large and
protection. Compare Rieser v. District not to individual members of the com­
of Columbia, 183 U.S.App.D.C. 375, munity. E.g., Trautman v. City of
390­91, 563 F.2d 462, 477­78 (1977) Stamford, 32 Conn. Supp. 258, 350 A.2d
(rehearing en banc granted and panel 782 (1975); Henderson v. City of St.
opinion vacated on other grounds; pan­ Petersburg, 247 So. 2d 23 [*5] (Fla.
el opinion reinstated in pertinent Dist. Ct. App. 1971); Massengill v.
part, 188 U.S.App.D.C. 384, [**10] Yuma County, supra, and Riss v. City
580 F.2d 647 (1978)); Westminster In­ of New York, supra. Dereliction in the
vesting Corp. v. G.C. Murphy Co., 140 performance of police duties may,
U.S.App.D.C. 247, 259­50, 434 F.2d therefore, be redressed only in the
521, 523­24 (1970) and Yohanan v. context of a public prosecution and
Wells, No. 78­0671 (D.D.C. June 28, not in a private suit for money dam­
1978), with Massengill v. Yuma County, ages. Massengill, supra.
104 Ariz. 518, 456 P.2d 376 (1969) (en
banc); Riss v. City of New York, 22 This rule of duty [**12] owed to
N.Y.2d 579, 293 N.Y.S.2d 897, 240 the public at large has been most fre­
N.E.2d 860 (1968); Annot., 46 A.L.R.3d quently applied in cases involving
1084 (1972) and Annot., 41 A.L.R.3d complaints of inadequate protection
700 (1972). This uniformly accepted during urban riots or mob violence.
rule rests upon the fundamental prin­ Many of these cases challenge the pre­
ciple that a government and its agents paredness of the police to handle such
are under no general duty to provide situations, while others, such as
public services, such as police pro­ Westminster Investing Corp. v. G.C.
tection, to any particular individual Murphy Co., supra, challenge the tac­
citizen. Turner v. United States, 248 tical decisions made to curtail or re­
U.S. 354, 357­58, 63 L. Ed. 291, 39 S. move police protection from the riot
Ct. 109 (1919); Rieser v. District of areas. In Westminster, officials of
Columbia, supra. the Metropolitan Police Department of
the District of Columbia had decided
A publicly maintained police force to limit police presence in the area
constitutes a basic governmental ser­ of the Murphy Company's store during
vice provided to benefit the community the firey 1968 riots. Murphy's store
at large by promoting public peace, was destroyed and the company filed a
safety and good order. The extent and claim against the District of Columbia
quality of police protection afforded contending that the police department
to the community necessarily depends had deliberately or negligently aban­
upon the availability of public re­

5. Page 5
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
doned its policing obligations during officer made no attempt to apprehend
the riots and thereby permitted ri­ the drivers or prevent their reckless
oters to destroy Murphy's property. conduct. Shortly thereafter the two
In affirming the dismissal of Murphy's reckless drivers collided with an on­
claim against the District, the United coming vehicle causing the deaths of
States Court of Appeals for the Dis­ five of the six persons involved. The
trict of Columbia Circuit held that Arizona Superior Court had concluded
the District of Columbia had no direct that the duty of defendants to arrest
legal obligation to Murphy and that the reckless drivers was a duty owed
Murphy, therefore, had "no substantive to the general public and not to the
right to recover the damages resulting deceased occupants of the oncoming
[**13] from failure of [the] govern­ vehicle. The Arizona Supreme Court
ment or its officers to keep the agreed. Accord, Trautman v. City of
peace." Id. at 252, 434 F.2d at 526, Stamford, supra. [Footnote 1 omitted.]
quoting Turner v. United States, supra
The general duty owed to the public
at 358.
may become a specific duty owed to an
Courts have also found no private individual if the police and the indi­
duty and no liability in an assortment vidual are in a special relationship
of other situations which involved al­ different from that existing between
legedly inadequate police protection. the police and citizens generally.
In Henderson v. City of St. Peters­ Thus, when the New York police depart­
burg, supra, plaintiff had contacted ment [**15] solicited confidential
the St. Petersburg police department information to aid in apprehension of
and made arrangements for specific po­ gangster Willie Sutton, the police as­
lice protection while making deliver­ sumed a special duty to the informant
ies in a dark and secluded part of the who came forward. Schuster v. City of
city. Plaintiff had been previously New York, 5 N.Y.2d 75, 180 N.Y.S.2d
attacked while making such deliveries 265, 154 N.E.2d 534 (1958). Similarly,
and, accordingly, relied upon the as­ a special relationship was created
surances of police personnel that of­ when the police arranged a confronta­
ficers would be on the scene. Follow­ tion between a suspect and a witness
ing carefully the instructions given to a crime, [*6] thereby giving the
him by the police, plaintiff was, non­ suspect an opportunity to assault the
etheless, shot by assailants. The or­ witness. Gardner v. Village of Chica­
der dismissing plaintiff's complaint go Ridge, 71 Ill. App. 2d 373, 219
against the city was affirmed on the N.E.2d 147 (1966). In McCorkle v. City
grounds that, in the absence of a spe­ of Los Angeles, 70 Cal. 2d 252, 74
cial relationship, not present in the Cal. Rptr. 389, 449 P.2d 453 (1969), a
case, the police department was under police officer investigating a traffic
no duty to protect plaintiff Hender­ accident led plaintiff into the middle
son. of the highway where plaintiff was
then struck by another car. The Cali­
It was in Massengill v. Yuma fornia Court found that a special duty
County, supra, that the Arizona Su­ had been created by the officer's af­
preme Court, in a unanimous en banc firmative conduct. Likewise, a parole
decision, affirmed the dismissal of a officer was held to have been in a
complaint [**14] alleging that a special relationship with individuals
deputy sheriff and the county employ­ operating a foster home and, there­
ing him were negligent in failing to fore, under an obligation to disclose
apprehend two reckless drivers. Ac­ the violent character of a juvenile
cording to the complaint, the deputy whom he sought to place in the foster
sheriff saw two youths leave a local home. Johnson v. State, 69 Cal. 2d
tavern and drive their cars away at 782, 73 Cal. Rptr. 240, 447 P.2d 352
excessive speeds. The deputy sheriff (1968). [**16] 2 The United States
then allegedly followed the two cars, Court of Appeals for the District of
watching them weave back and forth, Columbia recognized a similar special
drive on the wrong side of the road relationship between a government men­
and attempt to pass on a hill. The

6. Page 6
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
tal hospital and the family of a viol­ held that plaintiff's pleas for help
ent, assaultive patient who the hos­ did not create a special relationship
pital planned to discharge and who the between herself and the police and
hospital knew had previously attacked could not serve as the basis of liab­
family members. Hicks v. United ility.
States, 167 U.S.App.D.C. 169, 511 F.2d
407 (1975). The plaintiff in Antique Arts Cor­
poration v. City of Torrance, 39 Cal.
2 A similar factual situation App. 3d [**18] 588, 114 Cal. Rptr.
is presented in Rieser v. Dis­ 332 (1974), arranged to have its burg­
trict of Columbia, supra. This lar alarm directly wired to the Tor­
rance police station. Plaintiff con­
case involved a woman who was
raped and murdered by a District tended that the alarm went off during
the course of a burglary but the po­
of Columbia parolee who had been
assisted by a parole officer in lice dispatcher negligently delayed
ten minutes before transmitting the
obtaining employment at the
apartment complex where the alert, thereby allowing the burglars
to escape with plaintiff's goods.
murder took place. The de­
cedent's father filed suit for Plaintiff argued that the alarm hookup
created a special relationship with
damages under the District of
Columbia Wrongful Death Act the police, but the Court rejected
this contention, concluding that "an
against the owners of the apart­
ment complex, the parolee, the alert from an alarm, irrespective of
how transmitted, is no more than a
parole officer and the District
of Columbia. The Court of Ap­ complaint that a crime has been or is
being committed." Id. at 592, 114 Cal.
peals, MacKinnon, Circuit Judge,
held inter alia that an action­ Rptr. at 334.
able duty exists where a special As noted above, the Florida Appeals
relationship has been established Court dismissed the complaint in
between the governmental unit and Henderson v. City of St. Petersburg,
plaintiff. supra, notwithstanding plaintiff's
having requested and specifically dis­
[**17] Plaintiffs in this action
contend that they, too, entered a spe­ cussed plans for police protection.
After reviewing cases in which the po­
cial relationship with the police when
Warren and Taliaferro telephoned to lice or other government agency were
under a 'special duty' different from
request assistance. Courts which have
had the opportunity to consider com­ that owed to the public generally, the
Florida Court concluded that a request
parable situations have concluded that
a request for aid is not in itself for police protection, even when ac­
companied by a promise that protection
sufficient to create a special duty.
In Riss v. City of New York, supra, would be provided, does not create the
"special duty" necessary [**19] to
the plaintiff had complained to the
police numerous times about a rejected establish tort liability. Id. at 25.
suitor who had threatened her re­ Plaintiffs have adopted a more nov­
peatedly. In response to plaintiff's el theory in an attempt to distinguish
desperate pleas for help, the police this case from those discussed above.
rendered only nominal assistance and Plaintiffs contend [*7] that al­
refused to help plaintiff further. though the Metropolitan Police Depart­
Plaintiff received a "last chance" ment may not have been under a specif­
threat from the suitor and once more ic duty to these plaintiffs at the
called the police without success. time of the initial telephone com­
The following day, the suitor carried plaint, the police undertook an oblig­
out his threat by "having a hired thug ation by taking some action toward
throw lye in [plaintiff's] face." Id. rendering assistance. Plaintiffs seem
at 584, 293 N.Y.S. 2d at 900, 240 to be saying that no liability would
N.E.2d at 862. Distinguishing Schuster have attached had the police operator
v. City of New York, supra, the Court refused plaintiffs' call, had the dis­

7. Page 7
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
patcher refused to transmit the mes­ the defendant police officers in this
sage, or had the officers refused to action, those alleged omissions and
respond. However, plaintiffs' argu­ failures, too, constituted [**21] no
ment continues, once the operator, more than a similar withholding of a
dispatcher and officers took some ac­ benefit.
tion to assist plaintiffs, they all
became personally answerable in money Moreover, volunteer liability is
premised in large part upon the as­
damages for failing to render assist­
ance adequate to meet plaintiffs' sumption that the volunteer is free to
assess each rescue situation, weigh
needs. Without any supporting author­
ity, plaintiffs contend that defendant the risks involved, and determine
whether to shoulder the obligation or
police employees were "at least" in
the position of volunteers and must be leave it to someone else. 3 Police of­
ficers clearly are not in a position
held liable as volunteers for any dam­
ages resulting from their negligent to make such choices on a case by case
basis and it would be absurd to pre­
omissions. Plaintiffs' argument mis­
apprehends both the legal status of sume that an individual assumes a per­
manent "volunteer" status when he be­
the police officer and [**20] the
legal status of the volunteer. comes a police officer. Again, in the
words of Judge Cardozo:
In the classic case, H.R. Moch Co.,
Inc. v. Rensselaer Water Co., 247 N.Y. An intention to assume an
160, 159 N.E. 896 (1928), then Judge obligation of indefinite ex­
Cardozo delineated the liability of a tension to every member of
volunteer: the public is seen to be the
more improbable when we re­
It is ancient learning call the crushing burden
that one who assumes to act, that the obligation would
even though gratuitously, impose . . . A promisor
may thereby become subject will not be deemed to have
to the duty of acting care­ had in mind the assumption
fully, if he acts at all . . of a risk so overwhelming
. . The hand once set to a for any trivial reward.
task may not always be with­ [Id. at 166, 159 N.E. at
drawn with impunity though 897­98.]
liability would fail if it
had never been applied at
all . . . If conduct has
gone forward to such a stage
that inaction would commonly 3 The District of Columbia
result, not negatively Court of Appeals recently re­
merely in withholding a be­ frained from implying an adoption
nefit, but positively or of the rescue doctrine in this
actively in working an in­ jurisdiction. Gillespie v. Wash­
jury, there exists a rela­ ington, D.C.App., 395 A.2d 18, 21
tion out of which arises a (1978). This Court's discussion
duty to go forward. [Id. at of the rescue doctrine and its
167, 159 N.E. at 898.] applicability to plaintiffs'
claim should likewise not be con­
sidered an adoption of the doc­
The Moch case involved a suit against trine.
a water company for failure to supply
[**22] Plaintiffs have also con­
adequate water to fight a city fire.
Judge Cardozo found that the failure strued the issues in this case as giv­
ing rise to "negligent performance of
to provide adequate water to fight the
fire constituted, at most, a nonac­ police duties." In an attempt to avoid
the overwhelming case law barring
tionable withholding of a benefit.
Whatever the omissions and failures of private suits over negligent omissions
in the performance of police duties,

8. Page 8
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
plaintiffs seek to bring this action Department, officers are subject to
within the orbit of cases allowing re­ criminal charges and a penalty of two
covery for injuries caused by negli­ years imprisonment [**24] for failure
gent acts of police officers in the to arrest law breakers. D.C. Code
performance of their official duties. 1973, § 4­143. Additionally, officers
The cases cited by plaintiffs include are answerable to their superiors and
the negligent handling of a police ultimately to the public through its
dog, negligent operation of a police representatives, for dereliction in
vehicle, and the negligent use of a their assigned duties. D.C. Code 1973,
police weapon. Such cases involve § 4­121.
acts of affirmative negligence, for
The absence of a duty specifically
which anyone ­­ police or civilian ­­
would be liable: negligent handling of enforceable by individual members of
the community is not peculiar to pub­
an attack dog, negligent operation of
a motor vehicle, and negligent use of lic police services. Our representat­
ive form of government is replete with
a firearm. Those acts [*8] of or­
dinary negligence do not change in duties owed to everyone in their capa­
city as citizens but not enforceable
character because they happen to have
been committed by a police officer in by anyone in his capacity as an indi­
vidual. Through its representatives,
the course of his duties. However, the
allegations of negligence in the the public creates community service;
through its representatives, the pub­
present case derive solely from de­
fendants' status as police employees lic establishes the standards which it
demands of its employees in carrying
and from plaintiffs' contention that
defendants failed to do what reason­ out those services and through its
representatives, the public can most
ably prudent police employees would
[**23] have done in similar circum­ effectively enforce adherence to those
standards of competence. As members
stances. The difference is between
ordinary negligence on the one hand of the general public, individuals
forego any direct control over the
and a novel sort of professional mal­
practice on the other. A person does conduct of public employees in the
same manner that such individuals
not, by becoming a police officer, in­
sulate himself from any of the basic avoid any direct responsibility for
compensating public employees.
duties which everyone owes to other
people, but neither does he assume any Plaintiffs in this action would
greater obligation to others individu­ have the Court and a jury of twelve
ally. The only additional duty under­ additional community representatives
taken by accepting employment as a po­ join in the [**25] responsibility of
lice officer is the duty owed to the judging the adequacy of a public em­
public at large. ployee's performance in office.
The public duty concept has drawn Plaintiffs' proposition would lead to
results which the Massengill Court
some criticism for purportedly creat­
ing the rule that: "'Because we owe a aptly described as "staggering." Mas­
duty to everybody, we owe it to sengill v. Yuma County, supra at 523,
nobody.'" Riss v. City of New York, 456 P.2d at 381. In this case
plaintiffs ask the Court and jury to
supra at 585, 293 N.Y.S.2d at 901, 240
N.E.2d at 862 (Keating, J., dissent­ arrogate to themselves the power to
determine, for example, whether de­
ing). A duty owed to the public,
however, is no less enforceable be­ fendant Officer Thompson acted in a
manner consistent with good police
cause it is owed to "everybody." Pub­
lic officials at all levels remain ac­ practice when he volunteered to stake
out a suspect's house rather than vo­
countable to the public and the public
maintains elaborate mechanisms to en­ lunteering to report to the crime
scene. Consistent with this contention
force its rights ­­ both formally in
the courts and less formally through then, should a Court and jury also un­
dertake to sift through clues known to
internal disciplinary proceedings. In
the case of the Metropolitan Police the police in order to determine
whether a criminal could reasonably

9. Page 9
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
have been apprehended before commit­ (In Part)
ting a second crime? Should a Court
also be empowered to evaluate, in the DISSENT BY: KELLY (In Part); NEWMAN
context of a tort action, the handling (In Part)
of a major fire and determine whether
the hoses were properly placed and the DISSENT
firemen correctly allocated? Might a
KELLY, Associate Judge, with whom
Court also properly entertain a tort
claim over a school teacher's ability MACK, Associate Judge, joins, concur­
ring in part and dissenting in part:
to teach seventh grade English or over
a postman's failure to deliver The basic premise underlying the
promptly an important piece of mail? dismissals of these complaints is cor­
Establishment [**26] by the Court rect: unless a "special duty" to a
particular individual can be shown,
of a new, privately enforceable duty
to use reasonable diligence in the public officials and governmental
units owe only a general, nonaction­
performance of public functions would
not likely improve services rendered able duty to members of the public to
provide services such as fire and po­
to the public. The creation of dir­
ect, personal accountability between lice protection. Chandler v. District
each government employee and every of Columbia, D.C.App., 404 A.2d 964
member of the community would effect­ (1979); Duran v. City of Tucson, 20
ively bring the [*9] business of Ariz. App. 22, 509 P.2d 1059 (1973);
government to a speedy halt, "would Trautman v. City of Stamford, 32 Conn.
dampen the ardor of all but the most Supp. 258, 350 A.2d 782 (1975);
resolute, or the most irresponsible in Trujillo v. City of Albuquerque, 93
the unflinching discharge of their du­ N.M. 564, 603 P.2d 303 (1979); 18 E.
ties," 4 and dispatch a new generation McQUILLAN, MUNICIPAL CORPORATIONS
[**28] §§ 53.04a, b (3d ed. 1977).
of litigants to the courthouse over
grievances real and imagined. An As stated in 2 T. COLLEY, LAW OF
TORTS:
enormous amount of public time and
money would be consumed in litigation
The rule of official re­
of private claims rather than in bet­
tering the inadequate service which sponsibility, then, appears
to be this: That if the duty
draws the complaints. Unable to pass
the risk of litigation costs on to which the official authority
imposes upon an officer is a
their "clients," prudent public em­
ployees would choose to leave public duty to the public, a fail­
ure to perform it, or an in­
service.
adequate or erroneous per­
formance, must be a public,
4 Gregoire v. Biddle, 177 F.2d
579, 581 (2d Cir. 1949). not an individual injury,
and must be redressed, if at
Although recognizing the obligation all, in some form of public
of public employees to perform [**27] prosecution. On the other
their duties fully and adequately, the hand, if the duty is a duty
law properly does not permit that ob­ to the individual, then a
ligation to be enforced in a private neglect to perform it, or to
suit for money damages. Accordingly, perform it properly, is an
the Court concludes that plaintiffs individual wrong, and may
have failed to state claims upon which support an individual action
relief may be granted and accordingly, for damages. "The failure
the action is dismissed as to all de­ of a public officer to per­
fendants. [Footnote 5 omitted.] form a public duty can con­
stitute an individual wrong
JOSEPH M. HANNON, Judge only when some person can
Dated: November 21, 1978 show that in the public duty
was involved also a duty to
CONCUR BY: KELLY (In Part); NEWMAN himself as an individual,

10. Page 10
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
and that he has suffered a Stamford, supra, a plaintiff who was
special and peculiar injury struck by a car while standing on a
by reason of its nonperform­ public sidewalk sued the city and two
ance." [Id. § 300, at 385­86 police officers, alleging a negligent
(4th ed. 1932); citation and failure to stop drag racing on the
footnotes omitted.] street adjacent to the sidewalk. In
finding that no special duty was owed
the plaintiff, the court stated, "the
allegations of the instant case
This general duty/special duty di­ nowhere assert any conduct directed
chotomy is illustrated by our decision specifically by the defendant police
in Chandler v. District of Columbia, officers toward the plaintiff indi­
supra. There, the District of vidually. The conduct of the defend­
Columbia, for financial reasons, de­ ant patrolmen is directed . . . toward
cided to close several randomly chosen the general public of which the
fire [**29] stations, one of which plaintiff happened to be a part at the
was near Mrs. Chandler's home. After time in question." Id. at 259, 350
a fire broke out in her home and her
A.2d at 783. The same rule has been
two children died from smoke inhala­ applied in finding no special duty to
tion, Mrs. Chandler sued for wrongful protect a young man from violence in a
death, alleging that her children's city park, Trujillo v. City of Al­
deaths resulted from the District's buquerque, supra; to warn a motel em­
negligence in closing the fire sta­ ployee of suspicious persons in the
tion. Recognizing the general rule of motel parking lot, Sapp v. City of
municipal nonliability, this court Tallahassee, 348 So.2d 363 (Fla. Dist.
found that the facts of Mrs. Chandler­ Ct. App. 1977); to arrest a drunk
's case did not give rise to a special driver whose car collided with the
duty or "special relationship." Id. at plaintiff's decedent's car, Massengill
966­67. By way of further analysis, v. Yuma County, 104 Ariz. 518, 456
fire protection services are meant to P.2d 376 (1969); to protect [**31] a
benefit the community as a whole, and young lady from the threats of her es­
because Mrs. Chandler's children were tranged boyfriend, Riss v. City of New
members of the general public, with York, 22 N.Y.2d 579, 293 N.Y.S.2d 897,
nothing to single them out as specific 240 N.E.2d 860 (1968); and to protect
individuals to whom a duty was owed, property during a civil disturbance,
no special duty had arisen. Without Westminster Investing Corp. v. G.C.
the critical element of duty, an ac­ Murphy Co., 140 U.S.App.D.C. 247, 434
tion in negligence does not lie. 1 F.2d 521 (1970).
1 The Chandler case was also The general, nonactionable duty to
decided on the basis of sovereign provide police services may narrow,
immunity; because the decision to however, to a special, actionable duty
close the stations was a discre­ if two factors are present. First,
tionary act, the city could not there must be some form of privity
be sued. Id. at 966. See gener­ between the police department and the
ally Wade v. District of victim that sets the victim apart from
Columbia, D.C.App., 310 A.2d 857 the general public. See, e.g., City of
(1973) (en banc). Tampa v. Davis, 226 So. 2d 450, 454
(Fla. Dist. Ct. App. 1969). That is,
As the Chandler court noted, the victim must become a reasonably
the questions of sovereign im­ foreseeable plaintiff. Second, there
munity and duty require separate must be specific assurances of protec­
analysis. Chandler, supra. No tion that give rise to justifiable re­
question of sovereign immunity is liance by the victim. See, e.g., Sapp
raised in these appeals. v. City of Tallahassee, supra at 365­
[**30] [*10] The same reasoning 66.
applies in police protection cases. In Bloom v. City of New York, 78
For example, in Trautman v. City of Misc.2d 1077, 357 N.Y.S.2d 979 (1974),

11. Page 11
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
several store owners sued the city for busy intersection in Brooklyn. For
negligent failure to protect their the first two weeks of school, the in­
property during a civil disturbance in fant plaintiff's mother accompanied
1968. The complaints alleged that him to school and saw a guard at the
city officials gave specific assur­ intersection every day. When the
ances of police protection, but negli­ mother accepted employment, she sent
gently [**32] failed to take steps to the child to school by himself, rely­
carry out the promises. The city ing on the guard's presence at the in­
moved to dismiss the complaint, rely­ tersection. [*11] One day, the guard
ing on the general rule of municipal was ill and the police department
nonliability. The court denied the failed to provide a replacement or to
motion, easily distinguishing the case notify school officials that there
from those cases in which there is no would be no guard at the crossing. The
special duty: child was struck by a taxi cab as he
tried to cross the street alone; the
In the case at bar it is mother sued the city in negligence.
alleged that the plaintiffs Upholding a jury verdict for the
were ready, willing and able child, the court emphasized two
to protect their premises factors distinguishing that case from
but that they were re­ general duty cases. First, the duty
strained by the police who assumed by the police was a limited
assured them that proper po­ one; it was directed toward a specific
lice protection would be class of individuals rather than to­
provided. There is there­ ward the public in general. Id. at
fore alleged an affirmative 196­97, 404 N.Y.S.2d at 587, 375
series of acts by which the N.E.2d at 767. Second, the mother had
city assumed a special witnessed the provision of services
duty . . . . [Id. at 1078, and had relied to her detriment on
357 N.Y.S.2d at 981.] [**34] the guard's performance. Id.
The combination of these two factors
led the court to conclude that the
See also Silverman v. City of Fort general duty to provide police ser­
Wayne, 171 Ind. App. 415, 357 N.E.2d vices had become a special duty owed
285 (Ind. App. 1976) (dismissal of to that child. 3
negligence complaint arising from
failure to protect property during 3 Appellees attempt to distin­
riot reversed in light of personal guish Florence from the case at
promise of protection). 2 bar by arguing that the police in
Florence breached a statutory
2 The allegations of specific duty to provide crossing guards.
assurances of protection in Bloom It is clear from the opinion,
and Silverman distinguish those however, that the police depart­
cases from Westminster Investing ment regulations referred to by
Corp. v. G.C. Murphy Co., supra, appellees dealt only with the
a case relied on by the trial procedures to be followed if a
judge in No. 79­6. The school guard, once gratuitously
plaintiffs in Westminster were assigned, was unable to report
members of the general public, to for duty. The initial assumption
whom no promises of protection of the duty to provide a crossing
had been made, and to whom the guard was completely voluntary.
District therefore owed no spe­ Florence, supra at 196, 404
cial duty. N.Y.S.2d at 587, 375 N.E.2d at
767.
[**33] In Florence v. Goldberg,
44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 As both the Bloom and Florence
N.E.2d 763 (1978), the police depart­ courts noted, the concept of special
ment voluntarily assigned a school duty is actually no more than an ap­
crossing guard to cover a particularly plication of the cardinal principal of

12. Page 12
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
tort law that, even where no duty to ances of police services that create
act may exist originally, once one un­ justifiable reliance by the victim.
dertakes to act, he has a duty to do Without both of these elements, the
so with due care. [**35] Florence v. duty to provide police services re­
Goldberg, supra at 196, 404 N.Y.S.2d mains a general, nonactionable duty to
at 587, 375 N.E.2d at 766; Bloom v. the public at large.
City of New York, supra at , 357
II
N.Y.S.2d at 981. Cf. Security Na­
tional Bank v. Lish, D.C.App., 311 In reviewing the trial courts'
A.2d 833, 834 (1973) ("one who assumes grants of the motions to dismiss, "we
to act, even though gratuitously, may must accept every well­pleaded allega­
thereby become subject to the duty of tion of material fact . . . as true
acting carefully, if he acts at all.") and indulge all reasonable inferences
(quoting Glanzer v. Shepard, 233 N.Y. which may arise therefrom." Early Set­
236, 239, 135 N.E. 275, 276 (1922)). tlers Insurance Co. v. Schweid,
More precisely, one who begins to per­ D.C.App., 221 A.2d 920, 922 (1966).
form a service to another, whether The dismissals will be sustained only
gratuitously or not must perform with if it appears "beyond doubt that the
reasonable care; thus, he subjects plaintiff[s] can prove no set of facts
himself to liability for any harm in support of [their claims] which
suffered because the other reasonably would entitle [them] to relief." Con­
and foreseeably relied upon the act­ ley [**37] v. Gibson, 355 U.S. 41,
or's performance. See W. PROSSER, THE 45­46, 2 L. Ed. 2d 80, 78 S. Ct. 99
LAW OF TORTS § 56 (4th ed. 1972); 2 F. (1957). See also Owens v. Tiber Island
HARPER and F. JAMES, THE LAW OF TORTS Condominium Association, D.C.App., 373
§ 18.6 (1956); 2 RESTATEMENT (SECOND) A.2d 890, 893 (1977).
OF TORTS § 323 (1965). In the words
of Chief Judge Cardozo: [*12] Under this standard of re­
view, I would hold that the complaints
If conduct has gone for­ of appellants Warren, Taliaferro (No.
ward to such a stage that 79­6), and Nichol (No. 79­394), con­
inaction would commonly res­ tain facts that, if proved, are suffi­
ult, not negatively merely cient to establish that the Police De­
in withholding a benefit, partment owed each a special duty. Ap­
but positively or actively pellants Warren's and Taliaferro's ur­
in working an injury, there gent telephone calls to the Metropol­
exists a relation out of itan Police Department removed them
which arises a duty to go from the broad class of the general
forward. [Moch Co. v. Rens­ public. Appellant Nichol's direct con­
selaer Water Co. [**36] , tact with the officer on the scene of
247 N.Y. 160, 167, 159 N.E. the assault made him a reasonably
896, 898 (1928); citation foreseeable plaintiff. Any duty as­
omitted.] sumed by the police from those points
on was not a duty to the community as
a whole, but a specific duty to iden­
This is not, of course, a theory of tifiable persons.
strict liability; the actor need only All three of these appellants have
do that which is reasonable under the also alleged specific assurances of
circumstances. PROSSER, supra. police protection that may have cre­
To summarize, there are two pre­ ated justifiable reliance on their
requisites to a finding of a special parts. When a police department em­
duty. First, there must be direct con­ ployee tells frantic callers that help
tact or some other form of privity is on the way, as in No. 79­6, or that
between the victim and the police de­ he will obtain vital information for
partment so that the victim becomes a an injured person, as in No. 79­394,
reasonably foreseeable plaintiff. it is reasonably foreseeable [**38]
Second, there must be specific assur­ that the persons so assured may fore­
go, to their detriment, other avenues

13. Page 13
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **
of help. Once the police embarked a reasonable fashion in the
upon services under circumstances context of actions arising
where it was reasonably foreseeable from the negligent acts of
that a citizen might rely on their police . . . personnel. The
performance, they assumed a duty to argument is . . . made as if
perform with due care. there were no such legal
principles as fault, proxim­
Appellant Douglas does not fit ate cause or foreseeability,
within the class of persons to whom a all of which operate to keep
special duty was owed. Although she liability within reasonable
arguably meets the first prerequisite, bounds. No one is contend­
4
she does not fulfill the second. ing that the police must be
Because she was unaware of either the at the scene of every poten­
telephone calls to the police or the tial crime . . . . They
police's assurances to the other wo­ need only act as a reason­
men, she could not have justifiably able man would under the
relied to her detriment on those as­ circumstances. [Riss v.
surances. Therefore, the dismissal as
City of New York, supra at
to her must be affirmed. 586, 293 N.Y.S.2d at 902,
240 N.E.2d at 863 (Keating,
4 Whether she removed herself J., dissenting).]
from the class of the general
public is, as stated, a factual
question: from the point of view
of the police department, with
its knowledge from the telephone [**40]
call, was appellant Douglas a
foreseeable victim or merely 5 See Appendix infra at 9.
still a member of the general
public? In my judgment, the complaints of
appellants Warren, Taliaferro and
I do not ignore appellees' Nichol contain sufficient facts from
"floodgates [**39] of litigation" ar­ which they may prove that a special
gument and have carefully considered duty was owed to them; consequently,
the trial judge's fear that "the cre­ the trial judges erred in dismissing
ation of a direct, personal accountab­ their complaints for failure to state
ility between each government employee a claim upon which relief could be
and every member of the community granted. To me, also, gratuitous com­
would effectively bring the business ments about condemning the recognized
of government to a speedy halt . . . "failings" of the police in these
and dispatch a new generation of lit­ cases is no substitute for an inde­
igants to the courthouse over griev­ pendent and objective decisional ana­
ances real and imagined." 5 The duty lysis of an important and sensitive
which I recognize in this opinion will issue.
not create such broad liability.
Moreover, the argument NEWMAN, Chief Judge, concurring in
part and dissenting in part:
assumes that a strict li­
ability standard is to be I concur in the majority opinion as
to appellant Nichol (No. 79­394). I
imposed and that the courts
would prove completely un­ join the dissent as to appellants War­
ren, Douglas and Taliaferro (No. 79­
able to apply general prin­
ciples of tort liability in 6).