Dissenting Opinion
Hoffman, J.I dissent to the majority opinion. Indiana Rules of Procedure, Trial Rule 12(B)(6), allows for the dismissal of a cause for failure to state a claim upon which relief can be granted. In the case at bar the complaint alleges merely a failure of the City of Fort Wayne to fulfill a promise for police protection of property during a riot. Under no circumstances could such promise and duty of fulfillment become more than a general obligation of the government to its citizenry. Campbell; Knotts v. State (1972), 259 Ind] 55, 284 N.E.2d 733. Therefore a legal theory of special duty is nonexistent under the pleadings. Roberts v. State (1974), 159 Ind. App. 456, 307 N.E.2d 501 (transfer denied).
While the propriety of a motion to dismiss is the salient issue here, we ought not discount the fact that inherent in the right to exercise police power is the right to determine the strategy and tactics for its deployment. The sovereign authorities should be left free to exercise their discretion during a riot situation without worry over general allegations of negligence. Wong v. City of Miami (Fla. 1970), 237 So. 2d 132.
There are no facts available in the pleadings upon which to establish a claim. Moreover under no theory could one be raised. Indiana Suburban Sewers, Inc. v. Hanson (1975), 166 Ind. App. 165, 334 N.E.2d 720 (transfer denied).
I would affirm the judgment of the trial court.
Note. — Reported at 357 N.E.2d 285.