No. 88-126
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
DENNIS B. PHILLIPS, BETTY PHILLIPS
AND OWEN HAKE,
Plaintiffs and Appellants,
-vs-
CITY OF BILLINGS,
Defendant and Respondent,
-vs-
JAMES BUFFALOHORN,
Defendant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. S ~ e a r e ,Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark D. Parker; Parker Law Firm, Billings, Montana
For Respondent:
Charles R. Cashmore; Crowley Law Firm, Billings,
Montana
Francis X. Lame Bull, Billings, Montana
Submitted on Briefs: June 16, 1988
Decided: August 111 1988
Filed: NU6 1 1 19@'
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal from the Thirteenth Judicial District
involves appellants Phillips' and Hake's (Phillips) claims
against the City of Billings (Billings) for the alleged
negligence of two city police officers. The District Court
granted summary judgment to Billings. We affirm.
The undisputed facts are as follows: At approximately
6:00 a.m., on February 28, 1986, a car driven by James
Buffalohorn entered a Billings intersection against a red
light and collided with a car occupied by "Dennis" Phillips
and Owen Hake. Hake and Phillips suffered injuries as a
result of the collision. Blood alcohol testing indicated
that Buffalohorn was intoxicated at the time of the accident.
Approximately two hours prior to the accident, Billings
police officers Randy Vogel and Keith Buxbaum had detained
and questioned Buffalohorn in connection with a report made
by motorist Shane Stamm. Prior to the report, sheriff's
deputy Bill Michaelis had observed Stamm drive his vehicle
off the road. Michael-is stopped Stamm and questioned him
concerning the accident. Stamm told Michaelis that a light
colored Pinto had swerved into his lane and forced him off
the road.
Stamm's allegation was communicated to Officer Vogel,
and Vogel began to search the area for the Pinto. Moments
later he observed Buffalohorn and a companion standing next
to a light colored Pinto parked on a Billings street. Vogel
drove to the car, detained the two individuals, and. performed
a pat down search for weapons. Vogel noticed that the car
had been recently driven. Buxbaum arrived with Stamm to
identify the car. Stamm viewed the vehicle and insisted that
the Pinto was not involved in the accident. Buxbaum and
Vogel deposed that they suspected Stamm was less than candid
as to the other vehicle involved. They speculated that Stamm
was actually to blame for his vehicle leaving the road, and
that now that police had found the other vehicle, Stamm was
unwilling to blame the individuals driving the car he had
described to police.
Buxbaum and Vogel noticed alcohol on the breath of
Buffalohorn and his companion. Buxbaum noticed pop and beer
cans and other garbage in Buffalohorn's vehicle. The
officers stated that Buffalohorn and his companion were
polite and cooperative, and that even though they smelled of
alcohol, neither appeared to be in a state of extreme
intoxication. Buxbaum and Vogel also stated that they did
not believe probable cause existed to arrest either
individual for a DUI violation because neither was seen in
control of the car. However, Buxbaum remembers Vogel telling
the suspects to refrain from driving the car. The officers
then returned to where Stamm ran off the road, investigated
the accident, and cited Stamm for careless driving and
failure to carry proof of insurance.
On these facts, the District Court granted summary
judgment to Billings. The lower court reasoned that absent
probable cause to arrest, no duty flowed from the officers to
Phillips to protect Phillips from the actions of Buffalohorn.
We agree.
The precise issue here is offered by respondent
Billings: Did the District Court properly grant summary
judgment on the grounds that probable cause to arrest was
absent as a matter of law and no other source of legal duty
exists? Appellant Phillips presents four issues for review.
However, each issue presented by Phillips, as well as the
various contentions under each issue, may be more clearly
discussed as contentions under the single issue offered by
Billings.
The first made by Phillips is that the lower court
failed to justify its decision under any theory of Montana
tort law. This has no bearing on our resolution of the issue
because this Court affirms district court decisions which are
correct regardless of the lower court's reasoning in reaching
its decision. Norwest Bank v. Murnion (Mont. 1984), 684 P.2d
1067, 1071, 41 St.Rep. 1132, 1136. Thus, this contention
fails.
The second contention made by Phillips is that the
District Court erred because it granted summary judgment by
holding that the officers had no duty to Phillips beyond the
mere duty to arrest Buffalohorn. Phillips presents the
following conclusion from the District Court's memorandum:
The court further concludes that under the
circumstances as set forth herein that the police
officers had no duty to stay with either the
suspects or its [sic] vehicle beyond the time that
they did nor did they have any duty to arrest the
suspects or prevent them further from operating
this vehicle.
Phillips, citing S 319 of the Restatement (Second) of Torts,
argues that the officers had a duty to control the
potentially dangerous actions of Buffalohorn. Section 319 of
the Restatement (Second) of Torts, reads:
One who takes charge of a third person whom he
knows or should know to be likely to cause bodily
harm to others if not controlled is under a duty to
exercise reasonable care to control the third
person to prevent him from doing such harm.
Restatement (Second) of Torts, S 319 (1965) (emphasis added).
We reject this argument because imposition of a duty under S
319 depends on an ability to control the third person.
Abernathy v. United States (8th ~ i r . 1985), 773 F.2d 184,
189. Thus, under the circumstances of this case, absent
probable cause, no duty existed. See, e. g. , Harris v. Smith
(Cal.App. 1984), 157 Cal.App.3d 100, 203 Cal.Rptr. 541; Leake
v. Cain (Colo.App. 1986), 720 P.2d 152.
Phillips contends liability may be predicated on a duty
to investigate effectively because an effective investigation
would have ripened into probable cause and resulted in arrest
of Buffalohorn. We disagree. Closeness of the connection
between the defendant's conduct and the injury suffered is a
factor courts have considered in imposing a duty of due care.
Harris, 203 Cal.Rptr. at 545. Here, the possibility that
further investigation could have ripened into probable cause
provides only a tenuous connection between the officer's
conduct and Phillips' injuries. See, e.g., Harris, 203
Cal.Rptr. at 545; Leake, 720 P.2d at 161. Moreover, Phillips
can only speculate as to how a more thorough investigation
would have revealed probable cause to arrest. Thus, this
contention fails.
Phillips argues the duty exists here because the risk
was foreseeable. We disagree. Courts consider other factors
in addition to foreseeability in deciding the existence of a
duty. Harris, 203 Cal.Rptr. at 545. Some of these factors
include: the moral blame attached to the defendant's conduct,
the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of
insurance for the risk involved. Harris, 203 Cal.Rptr. at
545. Thus, we refuse to find the duty here on the basis of
foreseeability alone.
Phillips contends that the officers' duty to plaintiffs
as members of the traveling public created a duty in this
case. The majority rule states that the general duty to
protect does not give rise to liability for a particular
individual's injury absent a greater duty imposed by a
special relationship. See Annotation, Drunk Drivers: Duty to
Arrest, 48 A.L.R.4th 320, 326. Under the facts of this case,
we agree with the majority rule and refuse to find a duty
based on the officers' general duty to protect the traveling
public.
Phillips contends that the officers' duty to act with
reasonable care under the circumstances exists as a duty
apart from any specific duty, and thus summary judgment was
improper. We disagree. See Whitfield v. Therriault Corp.
(Mont. 1987), 745 P.2d 1126, 1128, 44 St.Rep. 1896, 1898.
Without a showing that the officers had a duty to protect
Phillips from danger posed by Buffalohorn, we conclude that
the District Court properly granted summary judgment.
Whitfield, 745 P.2d at 1128.
Phillips contends that the officers had probable cause
to arrest Buffalohorn. We disagree. Stamm's failure to
identify Buffalohorn and his vehicle, coupled with the lack
of any other information indicating that Buffalohorn had
operated the vehicle, constituted lack of probable cause to
arrest Buffalohorn for DUI or any charge in connection with
operation of the car.
Phillips contends that the presence of beer cans in the
vehicle gave the officers probable cause to arrest for
violation of the Billings open container ordinance. This
connection is too tenuous to establish duty for failure to
restrain Buffalohorn.
Phillips contends that summary judgment was improper
under this Court's decision in Lindquist v. Moran (1983), 203
Mont. 268, 662 P.2d 281. The facts of this case distinguish
-
Lindquist. Tn Lindquist the officers had the ability to
control the tortfeasor's operation of the vehicle in
question. No such showing was made here.
Fourth amendment rights naturally compete with a police
officer's duty to protect the public. Court's facing the
issue we face today are wary to force police officers to
choose between liability for failure to arrest, and liability
for false arrest. Lack of probable cause denied the officers
in this case the legal authority to arrest. Thus, we agree
with the District Court that lack of probable cause
demonstrates lack of a material fact question, and entitles
Rillinqs to judgment as a matter of Law. Whitfield, 745 P.2d
at 1128.
s-cy./ d , /
/ Ehief Justice