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
from the Superior Court of the Dis
trictofColumbia(Hon.JosephM.Han
non,TrialJudge,No.796)(Hon.Wil
liam C. Pryor, Trial Judge, No. 79
394)OnPetitionforRehearingEnBanc
COUNSEL: StephenA.Friedmanforap
pellants.
Charles L. Reischel, Deputy Corpora
tionCounsel,withwhomJudithW.Ro
gers, Corporation Counsel, and David
P.Sutton,AssistantCorporationCoun
sel, were on the petition, for ap
pellees.
JUDGES: En Banc. Newman, Chief
Judge,andKelly,Kern,Nebeker,Har
ris, Mack, and Ferren, Associate
Judges. OpinionforthecourtbyAs
sociate Judge Nebeker. Opinion con
curringinpartanddissentinginpart
by Associate Judge Kelly, with whom
Associate Judge Mack joins. Opinion
concurring in part and dissenting in
partbyChiefJudgeNewman.
OPINIONBY:NEBEKER
OPINION
[*2] Appellants Carolyn Warren,
MiriamDouglas,andJoanTaliaferroin
No.796,andappellantWilfredNichol
in No. 79394 sued the District of
Columbiaandindividualmembersofthe
Metropolitan Police Department for
negligent failure to provide adequate
policeservices.Therespectivetrial
judgesheldthatthepolicewereunder

nospecificlegaldutytoprovidepro
tection to the individual appellants
[**2] and dismissed the complaints
for failure to state a claim upon
whichreliefcouldbegranted.Super.
Ct.Civ.R.12(b)(6). However,ina
split decision a threejudge division
of this court determined that appel
lants Warren, Taliaferro and Nichol
were owed a special duty of care by
thepolicedepartmentandreversedthe
trialcourtrulings.Thedivisionun
animously concluded that appellant
Douglasfailedtofitwithintheclass
ofpersonstowhomaspecialdutywas
owed, and affirmed the lower court's
dismissalofhercomplaint.Thecourt
en banc, on petitions for rehearing,
vacated the panel's decision. After
rearguments, notwithstanding our sym
pathyforappellantswhowerethetra
gic victims of despicable criminal
acts,weaffirmthejudgmentsofdis
missal.

AppealNo.796
IntheearlymorninghoursofMarch
16, 1975, appellants Carolyn Warren,
Joan Taliaferro, and Miriam Douglas
wereasleepintheirroominghouseat
1112 Lamont Street, N.W. Warren and
Taliaferrosharedaroomonthethird
floor of the house; Douglas shared a
room on the second floor with her
fouryearold daughter. The women
wereawakenedbythesoundoftheback
door being broken down by two men
[**3]lateridentifiedasMarvinKent
and James Morse. The men entered
Douglas'secondfloorroom,whereKent
forced Douglas to sodomize him and

Page 2
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

Morserapedher.
Warren and Taliaferro heard
Douglas'screamsfromthefloorbelow.
Warrentelephonedthepolice,toldthe
officerondutythatthehousewasbe
ingburglarized,andrequestedimmedi
ate assistance. The department em
ployee told her to remain quiet and
assured her that police assistance
would be dispatched promptly. War
ren'scallwasreceivedatMetropolit
an Police Department Headquarters at
6:23a.m.,andwasrecordedasaburg
lary in progress. At 6:26 a.m., a
callwasdispatchedtoofficersonthe
street as a "Code 2" assignment, al
though calls of a crime in progress
should be given priority and desig
natedas"Code1."Fourpolicecruis
ersrespondedtothebroadcast;three
to the Lamont Street address and one
to another address to investigate a
possiblesuspect.
Meanwhile, Warren and Taliaferro
crawledfromtheirwindowontoanad
joiningroofandwaitedforthepolice
toarrive. Whilethere,theysawone
policemandrivethroughthealleybe
hind their house and proceed to the
front of the residence without stop
ping, leaning [**4] out the window,
orgettingoutofthecartocheckthe
backentranceofthehouse. Asecond
officerapparentlyknockedonthedoor
in front of the residence, but left
whenhereceivednoanswer.Thethree
officers departed the scene at 6:33
a.m.,fiveminutesaftertheyarrived.
Warren and Taliaferro crawled back
inside their room. They again heard
Douglas' continuing screams; again
called the police; told the officer
that the intruders had entered the
home, and requested immediate assist
ance. Once again, a police officer
assuredthemthathelpwasontheway.
Thissecondcallwasreceivedat6:42
a.m.andrecordedmerelyas"investig
atethetrouble"itwasneverdis
patchedtoanypoliceofficers.
Believing the police might be in
the house, Warren and Taliaferro
calleddowntoDouglas,therebyalert
ingKenttotheirpresence. Kentand
Morsethenforcedallthreewomen,at
knifepoint, to accompany them to

Kent'sapartment. Forthenextfour
teen hours the women were held cap
tive,raped,robbed,beaten,forcedto
commit sexual acts upon each other,
and madeto submitto thesexual de
mandsofKentandMorse.
Appellants' claims of negligence
included: the dispatcher's failure
[**5] to forwardthe 6:23a.m. call
with the proper degree of urgency;
[*3]therespondingofficers'failure
to follow standard police investigat
ive procedures, specifically their
failuretochecktherearentranceand
position themselves properly near the
doorsandwindowstoascertainwhether
therewasanyactivityinside;andthe
dispatcher's failure to dispatch the
6:42a.m.call.

AppealNo.79394
OnApril30,1978,atapproximately
11:30 p.m., appellant Nichol stopped
hiscarforaredlightattheinter
section of Missouri Avenue and Six
teenth Street, N.W. Unknown occupants
inavehicledirectlybehindappellant
struck his car in the rear several
times,andthenproceededtobeatap
pellantaboutthefaceandheadbreak
inghisjaw.
A Metropolitan Police Department
officer arrived at the scene. In re
sponsetotheofficer'sdirection,ap
pellant'scompanionceasedanyfurther
efforts to obtain identification in
formationoftheassailants.Whenthe
officerthenfailedtogettheinform
ation,leavingNicholunabletoinsti
tutelegalactionagainsthisassail
ants,Nicholbroughtanegligenceac
tion against the officer, the Metro
politanPoliceDepartmentandtheDis
trict[**6]ofColumbia.
The trial judges correctly dis
missed both complaints. In a care
fully reasoned Memorandum Opinion,
JudgeHannonbasedhisdecisioninNo.
796 on "the fundamental principle
that a government and its agents are
undernogeneraldutytoprovidepub
lic services, such as police protec
tion, to any particular individual
citizen." See p. 4, infra. The duty
toprovidepublicservicesisowedto
the public at large, and, absent a

Page 3
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

special relationship between the po

lice and an individual, no specific
legal duty exists. Holding that no
special relationship existed between
thepoliceandappellantsinNo.796,
JudgeHannonconcludedthatnospecif
ic legalduty existed. Wehold that
JudgeHannonwascorrectandadoptthe
relevant portions of his opinion.
Thoseportionsappearinthefollowing
Appendix.1
1Havingbasedhisdismissalon
anabsenceofduty,JudgeHannon
found it unnecessary to decide
theadequacyofthenoticetothe
District of Columbia under D.C.
Code 1973, 12309. Con
sequently,wedonotreviewthat
issueonappeal.
[**7] Judge Pryor, then of the
trialcourt,ruledlikewiseinNo.79
394 on the basis of Judge Hannon's
opinion. InNo.79394,apoliceof
ficer directed Nichol's companion to
ceaseeffortstoidentifytheassail
antsandthustobreakofftheviolent
confrontation. Theofficer'sdutyto
get that identification was one dir
ectlyrelatedtohisofficialandgen
eraldutytoinvestigatetheoffenses.
His actions and failings were solely
relatedtohisdutytothepublicgen
erally and possessed no additional
element necessary to create an over
riding special relationship and duty.
2

2Itcanbeseenfromcasesin
which a special duty has been
found that an additional element
has been injected above the ex
istinggeneralpublicduty.E.g.,
Florence v. Goldberg, 44 N.Y.2d
189,404N.Y.S.2d583,375N.E.2d
763(1978)(schoolcrossingguard
courseofconductandpolicere
quiring replacement of absent
guard together with reliance);
McCorklev.CityofLosAngeles,
70 Cal. 2d 252, 74 Cal. Rptr.
389, 449 P.2d 453 (1969) (en
banc)(useofautoaccidentvic
tim to aid police investigation
bywalkingtopointofimpactin
street); Johnson v. States, 69
Cal. 2d 782, 73 Cal. Rptr. 240,
447 P.2d 352 (1968) (en banc)

(placement of youth with known

homicidal tendencies in foster
home); Gardner v. Village of
ChicagoRidge,71Ill.App.2d373,
219N.E.2d147(1966) (returnof
victim to scene for "show up"
identification of still violent
assault suspects); Schuster v.
City of New York, 5 N.Y.2d 75,
180N.Y.S.2d265,154N.E.2d534
(1958) (recruitment of citizen
informant in national organized
violentcrimecase).
[**8]Heretheefforttoseparate
the hostile assailants from the vic
tims a necessary part of the on
sceneresponsibilityofthepolice
addsnothingtothegeneraldutyowed
thepublicandfailstocreatearela
tionshipwhichimposesaspeciallegal
duty such as that created when there
isacourseofconduct,specialknow
ledgeofpossibleharm,ortheactual
use of individuals in the investiga
tion. SeeFalcov.CityofNewYork,
34A.D.2d673,310N.Y.S.2d524(App.
Div.1970), aff'd, 29N.Y.2d918,329
N.Y.S.2d 97, 279 N.E.2d 854 (1972)
(policeofficer's [*4] statementto
injuredmotorcyclistthathewouldob
tain name of motorist who struck the
motorcycle was a gratuitous promise
and did not create a special legal
duty); Jackson v. Heymann, 126 N.J.
Super. 281, 314 A.2d 82 (Super. Ct.
Law Div. 1973) (police officers' in
vestigation of vehicle accident where
pedestrian was a minor child did not
createaspeciallegaldutytochild's
parentswhowereunsuccessfulintheir
attempttorecoverdamagesbecausepo
lice failed to identify drivers of
vehicle). We hold that Judge Pryor
did not err in dismissing No. 79394
forfailuretostateaclaim.
In eithercase, itis [**9] easy
tocondemnthefailingsofthepolice.
However, the desire for condemnation
cannotsatisfytheneedforaspecial
relationship out of which a duty to
specific persons arises. In neither
ofthesecaseshasarelationshipbeen
alleged beyond that found in general
policeresponsestocrimes.Civilli
abilityfailsasamatteroflaw.
APPENDIX

Page 4
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIACIVILDIVISION
CivilActionNo.469576
CAROLYNWARREN,ETAL.,PLAINTIFFS,
v. DISTRICT OF COLUMBIA, ET AL., DE
FENDANTS.
MEMORANDUMOPINION
****
TheCourt,however,doesnotagree
thatdefendantsowedaspecificlegal
dutytoplaintiffswithrespecttothe
allegations made in the amended com
plaint for the reason that the Dis
trict of Columbia appears to follow
the wellestablished rule that offi
cialpolicepersonnelandthegovern
mentemployingthemarenotgenerally
liabletovictimsofcriminalactsfor
failure to provide adequate police
protection.CompareRieserv.District
of Columbia, 183 U.S.App.D.C. 375,
39091, 563 F.2d 462, 47778 (1977)
(rehearing en banc granted and panel
opinionvacatedonothergrounds;pan
el opinion reinstated in pertinent
part, 188 U.S.App.D.C. 384, [**10]
580F.2d647(1978)); WestminsterIn
vestingCorp.v.G.C.MurphyCo.,140
U.S.App.D.C. 247, 25950, 434 F.2d
521, 52324 (1970) and Yohanan v.
Wells, No. 780671 (D.D.C. June 28,
1978),withMassengillv.YumaCounty,
104Ariz.518,456P.2d376(1969)(en
banc); Riss v. City of New York, 22
N.Y.2d 579, 293 N.Y.S.2d 897, 240
N.E.2d860(1968);Annot.,46A.L.R.3d
1084 (1972) and Annot., 41 A.L.R.3d
700 (1972). This uniformly accepted
rulerestsuponthefundamentalprin
ciplethatagovernmentanditsagents
are under no general duty to provide
public services, such as police pro
tection, to any particular individual
citizen.Turnerv.UnitedStates,248
U.S.354,35758,63L.Ed.291,39S.
Ct.109(1919); Rieserv.Districtof
Columbia,supra.
A publicly maintained police force
constitutes a basic governmental ser
viceprovidedtobenefitthecommunity
at large by promoting public peace,
safetyandgoodorder.Theextentand
quality of police protection afforded
to the community necessarily depends
upon the availability of public re

sourcesanduponlegislativeoradmin
istrative determinations concerning
allocation of those resources. Riss
v.Cityof [**11] NewYork,supra.
Thepublic,throughitsrepresentative
officials,recruits,trains,maintains
and disciplines its police force and
determinesthemannerinwhichperson
nelaredeployed. Atanygiventime,
publicly furnished police protection
mayaccruetothepersonalbenefitof
individualcitizens,butatalltimes
the needs and interests of the com
munityatlargepredominate. Private
resourcesandneedshavelittledirect
effectuponthenatureofpoliceser
vicesprovidedtothepublic.Accord
ingly, courts have without exception
concludedthatwhenamunicipalityor
other governmental entity undertakes
tofurnishpoliceservices,itassumes
adutyonlytothepublicatlargeand
nottoindividualmembersofthecom
munity. E.g., Trautman v. City of
Stamford,32Conn.Supp.258,350A.2d
782 (1975); Henderson v. City of St.
Petersburg,247So.2d23[*5](Fla.
Dist. Ct. App. 1971); Massengill v.
Yuma County, supra, and Riss v. City
ofNewYork,supra.Derelictioninthe
performance of police duties may,
therefore, be redressed only in the
context of a public prosecution and
not ina privatesuit formoney dam
ages.Massengill,supra.
This ruleof duty[**12] owed to
thepublicatlargehasbeenmostfre
quently applied in cases involving
complaints of inadequate protection
during urban riots or mob violence.
Manyofthesecaseschallengethepre
parednessofthepolicetohandlesuch
situations, while others, such as
Westminster Investing Corp. v. G.C.
MurphyCo.,supra,challengethetac
ticaldecisionsmadetocurtailorre
move police protection from the riot
areas. In Westminster, officials of
the Metropolitan Police Department of
the District of Columbia had decided
to limit police presence in the area
of the Murphy Company's store during
the firey 1968 riots. Murphy's store
wasdestroyedandthecompanyfileda
claimagainsttheDistrictofColumbia
contending that the police department
had deliberately or negligently aban

Page 5
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

doned its policing obligations during

the riots and thereby permitted ri
oters to destroy Murphy's property.
InaffirmingthedismissalofMurphy's
claimagainsttheDistrict,theUnited
States Court of Appeals for the Dis
trict of Columbia Circuit held that
theDistrictofColumbiahadnodirect
legal obligation to Murphy and that
Murphy,therefore,had"nosubstantive
righttorecoverthedamagesresulting
[**13] fromfailureof[the]govern
ment or its officers to keep the
peace." Id.at 252,434 F.2dat 526,
quotingTurnerv.UnitedStates,supra
at358.
Courts have also found no private
dutyandnoliabilityinanassortment
ofothersituationswhichinvolvedal
legedly inadequate police protection.
In Henderson v. City of St. Peters
burg, supra, plaintiff had contacted
theSt. Petersburgpolicedepartment
andmadearrangementsforspecificpo
lice protection while making deliver
iesinadarkandsecludedpartofthe
city. Plaintiff had been previously
attacked while making such deliveries
and,accordingly,reliedupontheas
surancesofpolicepersonnelthatof
ficerswouldbeonthescene.Follow
ing carefully the instructions given
himbythepolice,plaintiffwas,non
etheless,shotbyassailants.Theor
der dismissing plaintiff's complaint
against the city was affirmed on the
groundsthat,intheabsenceofaspe
cialrelationship,notpresentinthe
case,thepolicedepartmentwasunder
no duty to protect plaintiff Hender
son.
It was in Massengill v. Yuma
County, supra, that the Arizona Su
preme Court, in a unanimous en banc
decision,affirmedthedismissalofa
complaint [**14] alleging that a
deputysheriffandthecountyemploy
ing him were negligent in failing to
apprehend two reckless drivers. Ac
cording to the complaint, the deputy
sheriff saw two youths leave a local
tavern and drive their cars away at
excessivespeeds. Thedeputysheriff
thenallegedlyfollowedthetwocars,
watching them weave back and forth,
drive on the wrong side of the road
and attempt to pass on a hill. The

officer made no attempt to apprehend

thedriversorpreventtheirreckless
conduct. Shortly thereafter the two
recklessdriverscollidedwithanon
coming vehicle causing the deaths of
fiveofthesixpersonsinvolved.The
Arizona Superior Court had concluded
thatthedutyofdefendantstoarrest
the reckless drivers was a duty owed
to thegeneral publicand notto the
deceased occupants of the oncoming
vehicle. The Arizona Supreme Court
agreed. Accord, Trautman v. City of
Stamford,supra.[Footnote1omitted.]
Thegeneraldutyowedtothepublic
maybecomeaspecificdutyowedtoan
individualifthepoliceandtheindi
vidual are in a special relationship
different from that existing between
the police and citizens generally.
Thus,whentheNewYorkpolicedepart
ment [**15] solicited confidential
informationtoaidinapprehensionof
gangsterWillieSutton,thepoliceas
sumedaspecialdutytotheinformant
whocameforward.Schusterv.Cityof
New York, 5 N.Y.2d 75, 180 N.Y.S.2d
265,154N.E.2d534(1958).Similarly,
a special relationship was created
whenthepolicearrangedaconfronta
tion between a suspect and a witness
toacrime, [*6] therebygivingthe
suspectanopportunitytoassaultthe
witness.Gardnerv.VillageofChica
go Ridge, 71 Ill. App. 2d 373, 219
N.E.2d147(1966).InMcCorklev.City
of Los Angeles, 70 Cal. 2d 252, 74
Cal.Rptr.389,449P.2d453(1969),a
policeofficerinvestigatingatraffic
accidentledplaintiffintothemiddle
of the highway where plaintiff was
thenstruckbyanothercar.TheCali
forniaCourtfoundthataspecialduty
hadbeencreatedbytheofficer'saf
firmativeconduct.Likewise,aparole
officer was held to have been in a
special relationship with individuals
operating a foster home and, there
fore,underanobligationtodisclose
the violent character of a juvenile
whomhesoughttoplaceinthefoster
home. Johnson v. State, 69 Cal. 2d
782,73Cal.Rptr.240,447P.2d352
(1968). [**16] 2 The United States
Court of Appeals for the District of
Columbia recognized a similar special
relationshipbetweenagovernmentmen

Page 6
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

talhospitalandthefamilyofaviol
ent, assaultive patient who the hos
pitalplannedtodischargeandwhothe
hospital knew had previously attacked
family members. Hicks v. United
States,167U.S.App.D.C.169,511F.2d
407(1975).
2 A similar factual situation
is presented in Rieser v. Dis
trict of Columbia, supra. This
case involved a woman who was
rapedandmurderedbyaDistrict
ofColumbiaparoleewhohadbeen
assisted by a parole officer in
obtaining employment at the
apartment complex where the
murder took place. The de
cedent's father filed suit for
damages under the District of
Columbia Wrongful Death Act
againsttheownersoftheapart
ment complex, the parolee, the
parole officer and the District
of Columbia. The Court of Ap
peals, MacKinnon, Circuit Judge,
held inter alia that an action
abledutyexistswhereaspecial
relationshiphasbeenestablished
betweenthegovernmentalunitand
plaintiff.
[**17] Plaintiffsinthisaction
contendthatthey,too,enteredaspe
cialrelationshipwiththepolicewhen
Warren and Taliaferro telephoned to
requestassistance.Courtswhichhave
had the opportunity to consider com
parablesituationshaveconcludedthat
a request for aid is not in itself
sufficient to create a special duty.
In Riss v. City of New York, supra,
the plaintiff had complained to the
policenumeroustimesaboutarejected
suitor who had threatened her re
peatedly. Inresponsetoplaintiff's
desperate pleas for help, the police
rendered only nominal assistance and
refused to help plaintiff further.
Plaintiff received a "last chance"
threat from the suitor and once more
called the police without success.
Thefollowingday,thesuitorcarried
outhisthreatby"havingahiredthug
throwlyein[plaintiff's]face." Id.
at 584, 293 N.Y.S. 2d at 900, 240
N.E.2dat862.DistinguishingSchuster
v.CityofNewYork,supra,theCourt

held that plaintiff's pleas for help

didnotcreateaspecialrelationship
between herself and the police and
couldnotserveasthebasisofliab
ility.
Theplaintiffin AntiqueArtsCor
porationv.CityofTorrance,39Cal.
App. 3d [**18] 588, 114 Cal. Rptr.
332(1974),arrangedtohaveitsburg
lar alarm directly wired to the Tor
rancepolicestation. Plaintiffcon
tendedthatthealarmwentoffduring
the courseof aburglary butthe po
lice dispatcher negligently delayed
ten minutes before transmitting the
alert, thereby allowing the burglars
to escape with plaintiff's goods.
Plaintiffarguedthatthealarmhookup
created a special relationship with
the police, but the Court rejected
this contention, concluding that "an
alert from an alarm, irrespective of
how transmitted, is no more than a
complaintthatacrimehasbeenoris
beingcommitted."Id.at592,114Cal.
Rptr.at334.
Asnotedabove,theFloridaAppeals
Court dismissed the complaint in
Henderson v. City of St. Petersburg,
supra, notwithstanding plaintiff's
havingrequestedandspecificallydis
cussed plans for police protection.
Afterreviewingcasesinwhichthepo
lice or other government agency were
undera'specialduty'differentfrom
thatowedtothepublicgenerally,the
FloridaCourtconcludedthatarequest
for police protection, even when ac
companiedbyapromisethatprotection
wouldbeprovided,doesnotcreatethe
"special duty" necessary [**19] to
establishtortliability.Id.at25.
Plaintiffshaveadoptedamorenov
eltheoryinanattempttodistinguish
thiscasefromthosediscussedabove.
Plaintiffs contend [*7] that al
thoughtheMetropolitanPoliceDepart
mentmaynothavebeenunderaspecif
ic duty to these plaintiffs at the
time of the initial telephone com
plaint,thepoliceundertookanoblig
ation by taking some action toward
renderingassistance.Plaintiffsseem
to be saying that no liability would
haveattachedhadthepoliceoperator
refusedplaintiffs'call,hadthedis

Page 7
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

patcher refused to transmit the mes

sage, or had the officers refused to
respond. However, plaintiffs' argu
ment continues, once the operator,
dispatcherandofficerstooksomeac
tion to assist plaintiffs, they all
became personally answerable in money
damagesforfailingtorenderassist
ance adequate to meet plaintiffs'
needs.Withoutanysupportingauthor
ity,plaintiffscontendthatdefendant
police employees were "at least" in
thepositionofvolunteersandmustbe
heldliableasvolunteersforanydam
ages resulting from their negligent
omissions. Plaintiffs' argument mis
apprehends both the legal status of
the police officer and [**20] the
legalstatusofthevolunteer.
Intheclassiccase,H.R.MochCo.,
Inc.v.RensselaerWaterCo.,247N.Y.
160, 159 N.E. 896 (1928), then Judge
Cardozodelineatedtheliabilityofa
volunteer:

It is ancient learning
thatonewhoassumestoact,
even though gratuitously,
may thereby become subject
tothedutyofactingcare
fully,ifheactsatall..
..Thehandoncesettoa
taskmaynotalwaysbewith
drawn with impunity though
liability would fail if it
had never been applied at
all . . . If conduct has
goneforwardtosuchastage
thatinactionwouldcommonly
result, not negatively
merely in withholding a be
nefit, but positively or
actively in working an in
jury, there exists a rela
tion out of which arises a
dutytogoforward.[Id.at
167,159N.E.at898.]

The Moch caseinvolvedasuitagainst

awatercompanyforfailuretosupply
adequate water to fight a city fire.
Judge Cardozo found that the failure
toprovideadequatewatertofightthe
fire constituted, at most, a nonac
tionable withholding of a benefit.
Whatevertheomissionsandfailuresof

thedefendantpoliceofficersinthis
action, those alleged omissions and
failures,too,constituted[**21] no
more than a similar withholding of a
benefit.
Moreover, volunteer liability is
premised in large part upon the as
sumptionthatthevolunteerisfreeto
assess each rescue situation, weigh
the risks involved, and determine
whethertoshouldertheobligationor
leaveittosomeoneelse.3Policeof
ficers clearly are not in a position
tomakesuchchoicesonacasebycase
basis andit wouldbe absurdto pre
sumethatanindividualassumesaper
manent"volunteer"statuswhenhebe
comesapoliceofficer.Again,inthe
wordsofJudgeCardozo:

Anintentiontoassumean
obligationofindefiniteex
tension to every member of
thepublicisseentobethe
more improbable when we re
call the crushing burden
that the obligation would
impose . . . A promisor
will not be deemed to have
had in mind the assumption
of a risk so overwhelming
for any trivial reward.
[Id. at 166, 159 N.E. at
89798.]

3 The District of Columbia

Court of Appeals recently re
frainedfromimplyinganadoption
of the rescue doctrine in this
jurisdiction.Gillespiev.Wash
ington,D.C.App.,395A.2d18,21
(1978). This Court's discussion
of the rescue doctrine and its
applicability to plaintiffs'
claimshouldlikewisenotbecon
sidered an adoption of the doc
trine.
[**22] Plaintiffshavealsocon
struedtheissuesinthiscaseasgiv
ingriseto"negligentperformanceof
policeduties."Inanattempttoavoid
the overwhelming case law barring
privatesuitsovernegligentomissions
in the performance of police duties,

Page 8
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

plaintiffs seek to bring this action

withintheorbitofcasesallowingre
covery for injuries caused by negli
gent acts of police officers in the
performance of their official duties.
Thecasescitedbyplaintiffsinclude
the negligent handling of a police
dog, negligent operation of a police
vehicle, and the negligent use of a
police weapon. Such cases involve
acts of affirmative negligence, for
whichanyonepoliceorcivilian
wouldbeliable:negligenthandlingof
anattackdog,negligentoperationof
amotorvehicle,andnegligentuseof
afirearm. Thoseacts [*8] ofor
dinary negligence do not change in
characterbecausetheyhappentohave
beencommittedbyapoliceofficerin
thecourseofhisduties.However,the
allegations of negligence in the
present case derive solely from de
fendants' status as police employees
and from plaintiffs' contention that
defendants failed to do what reason
ably prudent police employees would
[**23] have done in similar circum
stances. The difference is between
ordinary negligence on the one hand
andanovelsortofprofessionalmal
practiceontheother. Apersondoes
not,bybecomingapoliceofficer,in
sulate himself from any of the basic
duties which everyone owes to other
people,butneitherdoesheassumeany
greaterobligationtoothersindividu
ally.Theonlyadditionaldutyunder
takenbyacceptingemploymentasapo
lice officeris theduty owedto the
publicatlarge.
The public duty concept has drawn
some criticism for purportedly creat
ingtherulethat:"'Becauseweowea
duty to everybody, we owe it to
nobody.'" Riss v. City of New York,
supraat585,293N.Y.S.2dat901,240
N.E.2d at 862 (Keating, J., dissent
ing). A duty owed to the public,
however, is no less enforceable be
causeitisowedto"everybody."Pub
licofficialsatalllevelsremainac
countabletothepublicandthepublic
maintains elaborate mechanisms to en
force its rights both formally in
the courts and less formally through
internaldisciplinaryproceedings.In
the case of the Metropolitan Police

Department, officers are subject to

criminalchargesandapenaltyoftwo
yearsimprisonment[**24]forfailure
to arrest law breakers. D.C. Code
1973,4143.Additionally,officers
areanswerabletotheirsuperiorsand
ultimately to the public through its
representatives, for dereliction in
theirassignedduties.D.C.Code1973,
4121.
Theabsenceofadutyspecifically
enforceable by individual members of
thecommunityisnotpeculiartopub
licpoliceservices.Ourrepresentat
iveformofgovernmentisrepletewith
dutiesowedtoeveryoneintheircapa
city as citizens but not enforceable
byanyoneinhiscapacityasanindi
vidual. Through its representatives,
the public creates community service;
through its representatives, the pub
licestablishesthestandardswhichit
demands of its employees in carrying
out those services and through its
representatives, the public can most
effectivelyenforceadherencetothose
standards of competence. As members
of the general public, individuals
forego any direct control over the
conduct of public employees in the
same manner that such individuals
avoid any direct responsibility for
compensatingpublicemployees.
Plaintiffs in this action would
have the Court and a jury of twelve
additional community representatives
joininthe[**25] responsibilityof
judging the adequacy of a public em
ployee's performance in office.
Plaintiffs' proposition would lead to
results which the Massengill Court
aptly described as "staggering." Mas
sengillv.YumaCounty,supraat523,
456 P.2d at 381. In this case
plaintiffs ask the Court and jury to
arrogate to themselves the power to
determine, for example, whether de
fendant Officer Thompson acted in a
manner consistent with good police
practicewhenhevolunteeredtostake
outasuspect'shouseratherthanvo
lunteering to report to the crime
scene.Consistentwiththiscontention
then,shouldaCourtandjuryalsoun
dertaketosiftthroughcluesknownto
the police in order to determine
whether a criminal could reasonably

Page 9
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

have been apprehended before commit

ting asecond crime? Shoulda Court
alsobeempoweredtoevaluate,inthe
contextofatortaction,thehandling
ofamajorfireanddeterminewhether
thehoseswereproperlyplacedandthe
firemencorrectlyallocated? Mighta
Court also properly entertain a tort
claimoveraschoolteacher'sability
toteachseventhgradeEnglishorover
a postman's failure to deliver
promptlyanimportantpieceofmail?
Establishment[**26] bytheCourt
of a new, privately enforceable duty
to use reasonable diligence in the
performance of public functions would
not likely improve services rendered
to thepublic. The creationof dir
ect, personal accountability between
each government employee and every
memberofthecommunitywouldeffect
ively bring the [*9] business of
government to a speedy halt, "would
dampen theardor ofall butthe most
resolute,orthemostirresponsiblein
theunflinchingdischargeoftheirdu
ties,"4anddispatchanewgeneration
of litigants to the courthouse over
grievances real and imagined. An
enormous amount of public time and
moneywouldbeconsumedinlitigation
ofprivateclaimsratherthaninbet
tering the inadequate service which
drawsthecomplaints. Unabletopass
the risk of litigation costs on to
their "clients," prudent public em
ployees would choose to leave public
service.
4 Gregoirev.Biddle,177F.2d
579,581(2dCir.1949).
Althoughrecognizingtheobligation
ofpublicemployeestoperform[**27]
theirdutiesfullyandadequately,the
lawproperlydoesnotpermitthatob
ligation to be enforced in a private
suitformoneydamages. Accordingly,
the Court concludes that plaintiffs
havefailedtostateclaimsuponwhich
reliefmaybegrantedandaccordingly,
theactionisdismissedastoallde
fendants.[Footnote5omitted.]
JOSEPHM.HANNON,Judge
Dated:November21,1978
CONCUR BY: KELLY(InPart);NEWMAN

(InPart)
DISSENT BY: KELLY(InPart);NEWMAN
(InPart)
DISSENT
KELLY, Associate Judge, with whom
MACK, Associate Judge, joins, concur
ringinpartanddissentinginpart:
The basic premise underlying the
dismissalsofthesecomplaintsiscor
rect: unless a "special duty" to a
particular individual can be shown,
public officials and governmental
units owe only a general, nonaction
abledutytomembersofthepublicto
provideservicessuchasfireandpo
liceprotection. Chandlerv.District
of Columbia, D.C.App., 404 A.2d 964
(1979); Duran v. City of Tucson, 20
Ariz. App. 22, 509 P.2d 1059 (1973);
Trautmanv.CityofStamford,32Conn.
Supp. 258, 350 A.2d 782 (1975);
Trujillo v. City of Albuquerque, 93
N.M. 564,603 P.2d303 (1979); 18E.
McQUILLAN, MUNICIPAL CORPORATIONS
[**28] 53.04a, b (3d ed. 1977).
As stated in 2 T. COLLEY, LAW OF
TORTS:

Theruleofofficialre
sponsibility, then, appears
tobethis:Thatiftheduty
whichtheofficialauthority
imposesuponanofficerisa
dutytothepublic,afail
uretoperformit,oranin
adequate or erroneous per
formance, must be a public,
not an individual injury,
andmustberedressed,ifat
all,insomeformofpublic
prosecution. On the other
hand,ifthedutyisaduty
to the individual, then a
neglecttoperformit,orto
perform it properly, is an
individual wrong, and may
supportanindividualaction
for damages. "The failure
ofapublicofficertoper
formapublicdutycancon
stitute an individual wrong
only when some person can
showthatinthepublicduty
wasinvolvedalsoadutyto
himself as an individual,

Page 10
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

and that he has suffered a

special and peculiar injury
byreasonofitsnonperform
ance."[Id.300,at38586
(4thed.1932);citationand
footnotesomitted.]

This general duty/special duty di

chotomyisillustratedbyourdecision
in Chandler v. District of Columbia,
supra. There, the District of
Columbia, for financial reasons, de
cidedtocloseseveralrandomlychosen
fire [**29] stations, one of which
wasnearMrs.Chandler'shome. After
afirebrokeoutinherhomeandher
two children died from smoke inhala
tion,Mrs.Chandlersuedforwrongful
death, alleging that her children's
deaths resulted from the District's
negligence in closing the fire sta
tion.Recognizingthegeneralruleof
municipal nonliability, this court
foundthatthefactsofMrs.Chandler
'scasedidnotgiverisetoaspecial
dutyor"specialrelationship."Id.at
96667. By way of further analysis,
fireprotectionservicesaremeantto
benefitthecommunityasawhole,and
because Mrs. Chandler's children were
members of the general public, with
nothingtosinglethemoutasspecific
individuals to whom a duty was owed,
no special duty had arisen. Without
the critical element of duty, an ac
tioninnegligencedoesnotlie.1
1 The Chandler case was also
decidedonthebasisofsovereign
immunity;becausethedecisionto
closethestationswasadiscre
tionary act, the city could not
besued. Id.at966. Seegener
ally Wade v. District of
Columbia,D.C.App.,310A.2d857
(1973)(enbanc).
As the Chandler court noted,
the questions of sovereign im
munity and duty require separate
analysis. Chandler, supra. No
questionofsovereignimmunityis
raisedintheseappeals.
[**30][*10]Thesamereasoning
applies in police protection cases.
For example, in Trautman v. City of

Stamford, supra, a plaintiff who was

struck by a car while standing on a
publicsidewalksuedthecityandtwo
police officers, alleging a negligent
failure to stop drag racing on the
street adjacent to the sidewalk. In
findingthatnospecialdutywasowed
theplaintiff,thecourtstated,"the
allegations of the instant case
nowhere assert any conduct directed
specifically by the defendant police
officers toward the plaintiff indi
vidually. Theconductofthedefend
antpatrolmenisdirected...toward
the general public of which the
plaintiffhappenedtobeapartatthe
time in question." Id. at 259, 350
A.2d at 783. The same rule has been
appliedinfindingnospecialdutyto
protectayoungmanfromviolenceina
city park, Trujillo v. City of Al
buquerque,supra;towarnamotelem
ployee of suspicious persons in the
motel parking lot, Sapp v. City of
Tallahassee,348So.2d363(Fla.Dist.
Ct. App. 1977); to arrest a drunk
driver whose car collided with the
plaintiff'sdecedent'scar,Massengill
v. Yuma County, 104 Ariz. 518, 456
P.2d376(1969);toprotect[**31] a
youngladyfromthethreatsofheres
trangedboyfriend,Rissv.CityofNew
York,22N.Y.2d579,293N.Y.S.2d897,
240N.E.2d860(1968);andtoprotect
property during a civil disturbance,
Westminster Investing Corp. v. G.C.
MurphyCo.,140U.S.App.D.C.247,434
F.2d521(1970).
The general, nonactionable duty to
provide police services may narrow,
however,toaspecial,actionableduty
if two factors are present. First,
there must be some form of privity
betweenthepolicedepartmentandthe
victimthatsetsthevictimapartfrom
thegeneralpublic.See,e.g.,Cityof
Tampa v. Davis, 226 So. 2d 450, 454
(Fla. Dist. Ct. App. 1969). That is,
the victim must become a reasonably
foreseeable plaintiff. Second, there
mustbespecificassurancesofprotec
tionthatgiverisetojustifiablere
liancebythevictim.See,e.g.,Sapp
v.CityofTallahassee,supraat365
66.
In Bloom v. City of New York, 78
Misc.2d1077,357N.Y.S.2d979(1974),

Page 11
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

severalstoreownerssuedthecityfor
negligent failure to protect their
propertyduringacivildisturbancein
1968. The complaints alleged that
city officials gave specific assur
ancesofpoliceprotection,butnegli
gently[**32]failedtotakestepsto
carry out the promises. The city
movedtodismissthecomplaint,rely
ing on the general rule of municipal
nonliability. The court denied the
motion,easilydistinguishingthecase
fromthosecasesinwhichthereisno
specialduty:

Inthecaseatbaritis
alleged that the plaintiffs
wereready,willingandable
to protect their premises
but that they were re
strained by the police who
assuredthemthatproperpo
lice protection would be
provided. There is there
fore alleged an affirmative
seriesofactsbywhichthe
city assumed a special
duty....[Id.at1078,
357N.Y.S.2dat981.]

See also Silverman v. City of Fort

Wayne, 171 Ind. App. 415, 357 N.E.2d
285 (Ind. App. 1976) (dismissal of
negligence complaint arising from
failure to protect property during
riot reversed in light of personal
promiseofprotection).2
2 The allegations of specific
assurancesofprotectioninBloom
and Silverman distinguish those
cases from Westminster Investing
Corp.v.G.C.MurphyCo.,supra,
a case relied on by the trial
judge in No. 796. The
plaintiffs in Westminster were
membersofthegeneralpublic,to
whom no promises of protection
had been made, and to whom the
District therefore owed no spe
cialduty.
[**33] In Florence v. Goldberg,
44 N.Y.2d 189, 404 N.Y.S.2d 583, 375
N.E.2d763(1978),thepolicedepart
ment voluntarily assigned a school
crossingguardtocoveraparticularly

busy intersection in Brooklyn. For

thefirsttwoweeksofschool,thein
fant plaintiff's mother accompanied
himtoschoolandsawaguardatthe
intersection every day. When the
mother accepted employment, she sent
thechildtoschoolbyhimself,rely
ingontheguard'spresenceatthein
tersection.[*11]Oneday,theguard
was ill and the police department
failedtoprovideareplacementorto
notify school officials that there
wouldbenoguardatthecrossing.The
childwasstruckbyataxicabashe
tried to cross the street alone; the
mother sued the city in negligence.
Upholding a jury verdict for the
child, the court emphasized two
factors distinguishing that case from
general duty cases. First, the duty
assumed by the police was a limited
one;itwasdirectedtowardaspecific
class of individuals rather than to
ward the public in general. Id. at
19697, 404 N.Y.S.2d at 587, 375
N.E.2dat767.Second,themotherhad
witnessed the provision of services
and had relied to her detriment on
[**34] theguard'sperformance. Id.
The combination of these two factors
led the court to conclude that the
general duty to provide police ser
vices had become a special duty owed
tothatchild.3
3 Appelleesattempttodistin
guish Florence from the case at
barbyarguingthatthepolicein
Florence breached a statutory
duty to provide crossing guards.
It is clear from the opinion,
however, that the police depart
ment regulations referred to by
appellees dealt only with the
procedures to be followed if a
school guard, once gratuitously
assigned, was unable to report
for duty. The initial assumption
ofthedutytoprovideacrossing
guard was completely voluntary.
Florence, supra at 196, 404
N.Y.S.2d at 587, 375 N.E.2d at
767.
As both the Bloom and Florence
courts noted, the concept of special
duty isactually nomore thanan ap
plicationofthecardinalprincipalof

Page 12
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

tort lawthat, evenwhere noduty to

actmayexistoriginally,onceoneun
dertakestoact,hehasadutytodo
sowithduecare.[**35] Florencev.
Goldberg, supra at 196, 404 N.Y.S.2d
at 587, 375 N.E.2d at 766; Bloom v.
CityofNewYork,supra at ,357
N.Y.S.2d at 981. Cf. Security Na
tional Bank v. Lish, D.C.App., 311
A.2d833,834(1973)("onewhoassumes
toact,eventhoughgratuitously,may
therebybecomesubjecttothedutyof
actingcarefully,ifheactsatall.")
(quoting Glanzerv.Shepard,233N.Y.
236, 239, 135 N.E. 275, 276 (1922)).
Moreprecisely,onewhobeginstoper
form a service to another, whether
gratuitouslyornotmustperformwith
reasonable care; thus, he subjects
himself to liability for any harm
suffered because the other reasonably
and foreseeably relied upon the act
or'sperformance.SeeW.PROSSER,THE
LAWOFTORTS56(4thed.1972);2F.
HARPERandF.JAMES,THELAWOFTORTS
18.6(1956);2 RESTATEMENT(SECOND)
OFTORTS323 (1965). Inthewords
ofChiefJudgeCardozo:

Ifconducthasgonefor
ward to such a stage that
inactionwouldcommonlyres
ult, not negatively merely
in withholding a benefit,
but positively or actively
in working an injury, there
exists a relation out of
which arises a duty to go
forward.[MochCo.v.Rens
selaer Water Co. [**36] ,
247N.Y.160,167,159N.E.
896, 898 (1928); citation
omitted.]

This is not, of course, a theory of

strictliability;theactorneedonly
dothatwhichisreasonableunderthe
circumstances.PROSSER,supra.
To summarize, there are two pre
requisites to a finding of a special
duty.First,theremustbedirectcon
tact or some other form of privity
betweenthevictimandthepolicede
partmentsothatthevictimbecomesa
reasonably foreseeable plaintiff.
Second,theremustbespecificassur

ances of police services that create

justifiable reliance by the victim.
Without both of these elements, the
duty to provide police services re
mainsageneral,nonactionabledutyto
thepublicatlarge.
II
In reviewing the trial courts'
grantsofthemotionstodismiss,"we
mustaccepteverywellpleadedallega
tion of material fact . . . as true
and indulge all reasonable inferences
whichmayarisetherefrom."EarlySet
tlers Insurance Co. v. Schweid,
D.C.App., 221 A.2d 920, 922 (1966).
Thedismissalswillbesustainedonly
if it appears "beyond doubt that the
plaintiff[s]canprovenosetoffacts
in support of [their claims] which
wouldentitle[them]torelief." Con
ley [**37] v.Gibson,355U.S.41,
4546, 2 L. Ed. 2d 80, 78 S. Ct. 99
(1957).SeealsoOwensv.TiberIsland
CondominiumAssociation,D.C.App.,373
A.2d890,893(1977).
[*12] Underthisstandardofre
view,Iwouldholdthatthecomplaints
of appellants Warren, Taliaferro (No.
796), and Nichol (No. 79394), con
tainfactsthat,ifproved,aresuffi
cienttoestablishthatthePoliceDe
partmentowedeachaspecialduty.Ap
pellantsWarren'sandTaliaferro'sur
genttelephonecallstotheMetropol
itan Police Department removed them
from the broad class of the general
public.AppellantNichol'sdirectcon
tactwiththeofficeronthesceneof
the assault made him a reasonably
foreseeable plaintiff. Any duty as
sumedbythepolicefromthosepoints
onwasnotadutytothecommunityas
awhole,butaspecificdutytoiden
tifiablepersons.
Allthreeoftheseappellantshave
also alleged specific assurances of
police protection that may have cre
ated justifiable reliance on their
parts. When a police department em
ployeetellsfranticcallersthathelp
isontheway,asinNo.796,orthat
he will obtain vital information for
an injured person, as in No. 79394,
it is reasonably foreseeable [**38]
thatthepersonssoassuredmayfore
go,totheirdetriment,otheravenues

Page 13
444 A.2d 1, *; 1981 D.C. App. LEXIS 412, **

of help. Once the police embarked

upon services under circumstances
where it was reasonably foreseeable
that a citizen might rely on their
performance, they assumed a duty to
performwithduecare.

a reasonable fashion in the

context of actions arising
from the negligent acts of
police...personnel.The
argumentis...madeasif
there were no such legal
principlesasfault,proxim
atecauseorforeseeability,
allofwhichoperatetokeep
liability within reasonable
bounds. Nooneiscontend
ingthatthepolicemustbe
atthesceneofeverypoten
tial crime . . . . They
need only act as a reason
able man would under the
circumstances. [Riss v.
City of New York, supra at
586, 293 N.Y.S.2d at 902,
240 N.E.2d at 863 (Keating,
J.,dissenting).]

Appellant Douglas does not fit

withintheclassofpersonstowhoma
special duty was owed. Although she
arguablymeetsthefirstprerequisite,
4
she does not fulfill the second.
Becauseshewasunawareofeitherthe
telephone calls to the police or the
police's assurances to the other wo
men, she could not have justifiably
relied to her detriment on those as
surances. Therefore, the dismissal as
tohermustbeaffirmed.
4 Whether she removed herself
from the class of the general
public is, as stated, a factual
question:fromthepointofview
of the police department, with
its knowledge from the telephone
call, was appellant Douglas a
foreseeable victim or merely
still a member of the general
public?
I do not ignore appellees'
"floodgates[**39]oflitigation"ar
gument and have carefully considered
thetrialjudge'sfearthat"thecre
ationofadirect,personalaccountab
ilitybetweeneachgovernmentemployee
and every member of the community
would effectively bring the business
ofgovernmenttoaspeedyhalt...
anddispatchanewgenerationoflit
igants to the courthouse over griev
ances real and imagined." 5 The duty
whichIrecognizeinthisopinionwill
not create such broad liability.
Moreover,theargument

assumesthatastrictli
ability standard is to be
imposed and that the courts
would prove completely un
able to apply general prin
ciples of tort liability in

[**40]
5SeeAppendixinfraat9.
In my judgment, the complaints of
appellants Warren, Taliaferro and
Nichol contain sufficient facts from
which they may prove that a special
duty was owed to them; consequently,
the trial judges erred in dismissing
theircomplaintsforfailuretostate
a claim upon which relief could be
granted.Tome,also,gratuitouscom
ments about condemning the recognized
"failings" of the police in these
cases is no substitute for an inde
pendent and objective decisional ana
lysis of an important and sensitive
issue.
NEWMAN, Chief Judge, concurring in
partanddissentinginpart:
Iconcurinthemajorityopinionas
to appellant Nichol (No. 79394). I
jointhedissentastoappellantsWar
ren, Douglas and Taliaferro (No. 79
6).