KAUTZ, J. dissenting, in which GRAY, J., joins.
[¶40] I respectfully dissent.
[¶41] The question presented to us is “does a law enforcement officer acting within the
scope of his or her duties as such owe a duty of care to the suspect(s) in a criminal
investigation to conduct that investigation in a non-negligent manner?” (emphasis added).
Unfortunately, the majority opinion provides no analysis of whether such a duty is owed to
the suspect. Applying the analytical framework this Court consistently uses to determine
whether a duty exists, see, e.g., Gates v. Richardson, 719 P.2d 193, 196 (Wyo.
1986); Ortega v. Flaim, 902 P.2d 199, 203, 206 (Wyo. 1995); Mostert v. CBL &
Assocs., 741 P.2d 1090, 1094 (Wyo. 1987); Duncan v. Afton, Inc., 991 P.2d 739, 744
(Wyo. 1999); Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 44, 49 P.3d 1011, 1024
(Wyo. 2002); Natrona Cnty. v. Blake, 2003 WY 170, ¶ 6, 81 P.3d 948, 951 (Wyo. 2003),
I conclude that an investigating officer does not owe such a duty to a suspect.
[¶42] Rather than performing a duty analysis, the majority jumps to the conclusion that
an investigating officer does owe a duty of care to suspects when conducting investigations.
To reach this conclusion without analysis, the majority relies on a generic duty statement
found in cases where non-suspects claimed they benefited from a general duty of officers
to act reasonably under the circumstances. By leaping from this generic duty applied to
non-suspects to a duty owed to suspects, the majority ignores fundamental tort law which
only recognizes a duty in specific instances—applicable here in the context of the recipient
or beneficiary of that duty. The majority avoids applying our duty analysis which, I
conclude, dictates against finding a duty. By implication, the majority opinion concludes
that an investigating officer owes a duty to everyone everywhere, without regard to their
relationship to the officer or the claimed injury. And, the majority opinion effectively
recognizes a new tort in Wyoming permitting a criminal defendant to sue an investigating
officer for simple negligence because a prosecutor filed criminal charges which were later
dismissed. The majority opinion puts Wyoming in a unique position – it appears every
other state which has considered whether criminal suspects may sue an investigating officer
for negligent investigation has concluded he or she may not.
Tort Law on Duty
[¶43] “The threshold question in a negligence action is whether the defendant owed a legal
duty to the plaintiff.” 57 Am. Jur. 2d Negligence § 70 (emphasis added). This court
recognizes the basic negligence principle that duties are understood and applied only in the
context of a beneficiary or recipient of the duty. “The elements that a plaintiff must
establish to maintain a negligence action in a court of law are: (1) that the defendant owed
to the plaintiff a duty ….” Keehn v. Town of Torrington, 834 P.2d 112, 115 (Wyo. 1992)
(emphasis added). “In order to recover in any negligence action, a plaintiff must establish
that the defendant owed a duty of care to him.” Duncan v. Town of Jackson, 903 P.2d 548,
1
551 (Wyo. 1995) (emphasis added). “To establish negligence, [a plaintiff] must prove: (1)
the defendant owed the plaintiff a duty ….” Cornella v. City of Lander, 2022 WY 9, ¶ 25,
502 P.3d 381, 387 (Wyo. 2022) (emphasis added) (internal quotation marks and citations
omitted).
[¶44] In general, everyone has a basic duty to exercise reasonable care. We have
mentioned this general duty as applicable to police officers, as well as others. This basic
duty, however, only becomes a legal duty owed to a particular plaintiff when the
relationship between the defendant and the plaintiff, and public policy considerations,
indicate a legal duty should exist. 57 Am. Jur. 2d Negligence § 73. “The existence of a
duty turns on the basic nature of the relationship between the parties to the cause of action.
Thus, in determining whether a duty exists, the court should examine the relationship
between the parties.” Id., § 78. Before this case, we have not considered the relationship
between an investigating officer and a suspect to determine whether the officer owes this
duty to a suspect.
[¶45] To examine the relationship between the investigator and Ms. Palm-Egle, it is
necessary to restate the context for the question presented to us: A law enforcement officer
investigated an alleged crime and delivered his findings, along with other information, to
a prosecuting attorney. During the investigation someone, apparently on behalf of Ms.
Palm-Egle, gave the investigator information that he apparently discounted and did not
explore further. The prosecuting attorney then filed felony charges against Ms. Palm-Egle.
After a circuit court judge found no probable cause1 to bind those felonies over to district
court, Ms. Palm-Egle sued the investigating officer, claiming he was negligent in
conducting his investigation, apparently because he did not delve further into the
information Ms. Palm-Egle’s agent provided. Although the questions certified to us do not
specifically list the damages Ms. Palm-Egle claims, it is obvious from her argument that
she claims some sort of injury resulting from facing criminal charges.2 The U.S. District
Court submitted its duty question to us in generic terms, rather than in specific terms based
on these facts. If we were directly presented with the duty question, it likely would be “did
this investigator have a duty to follow up on evidence Ms. Palm-Egle believed was
exculpatory before he submitted his information to the prosecutor?” Ideally, the question
would have specified the damages Ms. Palm-Egle claims, because determination of
whether a duty exists always requires an evaluation of the foreseeability of those damages.
Nevertheless, it is possible to answer the more abstract question submitted by the U.S.
District Court.
1
The circuit court concluded there was no probable cause “to find that there was intent to possess …
marijuana ….” However, the crime of possession of a controlled substance is a general intent crime and
does not require specific intent to possess.
2
The majority suggests that other types of damages might result from an improper investigation, such as
property damage or personal injury. Such damages would not result from negligent investigation, but
instead from duties owed by someone taking possession of property to properly care for it, etc. Such
damages are not related to the status of the plaintiff as a suspect or the officer’s investigative actions.
2
[¶46] The majority opinion never examines the relationship between the investigator, Ms.
Palm-Egle, and the charges which were filed to determine if an investigator should owe a
duty to Ms. Palm-Egle. Instead, it relies on general duty of care statements from this Court
which mention an officer’s general duty to act reasonably. It asserts “we already recognize
a duty owed by law enforcement officers to citizens.” However, this Court has never
analyzed nor determined that every law enforcement officer owes a general duty to act
reasonably in every circumstance to every citizen or to suspects, specifically. It is not
appropriate to conclude from the cases relied on by the majority that the “duty to act as a
reasonable peace officer of ordinary prudence under like circumstances” applies beyond
the facts of those cases or applies to every potential plaintiff.
[¶47] In Cornella, ¶ 26, 502 P.3d at 387, we recognized the general duty of reasonable
care on the part of law enforcement officers. However, we stated that a duty arises when
“such a relation exists between the parties that the community will impose a legal
obligation upon one for the benefit of the other ….” Inherent in Cornella was a
consideration of the relationship between the officer and the plaintiffs and the damages
they claimed. Our conclusion in Cornella, although implied rather than specifically stated,
was that an officer who undertakes to deliver a potentially rabid bat for testing, on behalf
of the family exposed to the bat, had a duty to the family to exercise reasonable care in
doing so. The relationship between the plaintiffs and the officer, and the potential
consequences of negligently performing that task, were key to our decision. Cornella did
not consider whether the officer owed that duty to anyone else, including suspects in
criminal investigations. Cornella shows that the duty of reasonable care applies to those
specific circumstances, but it has no relationship to the facts here.
[¶48] Similarly, in Keehn, 834 P.2d at 115, we mentioned the general duty of an officer to
act reasonably. However, all our statements about duty in Keehn are dicta, as the case was
not decided on the basis of duty. Rather, we found the trial court properly granted summary
judgment in favor of the officer because there was no evidence he was negligent.
Nevertheless, when we discussed duty in Keehn, we recognized the officer’s duty was more
specific than a general reasonableness obligation, and that there were specific beneficiaries
of his duty to investigate DUI cases. We said “peace officers have a general duty to
apprehend, arrest, and remove drunk drivers from Wyoming’s roadways. This duty
emanates from Wyoming’s drunk driving law, Wyo. Stat. § 31-5-233 (June 1989). Section
31-5-233, [was] enacted for the protection of the public at large as well as for the individual
inebriate and his/her passengers.” Id. (citation omitted). Consistent with standard tort law,
we did not simply impose on the officer a general duty of reasonable care applicable to the
entire public, but rather we considered the relationship of the parties and identified the
beneficiaries of the officer’s specific duties. We must do the same in this case.
[¶49] In Duncan, 903 P.2d 548, we considered a claim by the family of a victim in a car
crash. The family claimed an officer failed to adequately investigate the scene of the crash
3
to determine if the victim was still in the car. Although the Court quoted Keehn stating
that an officer generally has a duty to act reasonably under the circumstances, that
statement was not the basis of the decision. Id. at 552. We did not consider whether such
a duty might apply to every citizen, or even to the victim of the crash. Rather, we
recognized that questions of whether the officer had a legal duty to the victim of that crash
remained unanswered and would necessarily be decided later in the trial proceedings. We
said “[g]enuine issues of material fact exist, and they include but are not limited to: . . . 3)
whether, even if [the officer] was not required to respond to the emergency, once he did
respond he owed a legal duty to [the victim] ….” Id. at 553.
Duncan did not analyze or establish that an officer owes a duty of reasonableness to every
citizen, nor did it consider whether an officer investigating a potential crime owes any
duties to a suspect. It did not discuss the relationships between an officer and every citizen,
or between an officer and a suspect, to determine if any legal duty exists. Like Cornella
and Keehn, Duncan did not determine what, if any, duties apply between an investigating
officer and a suspect.
Duty Factors
[¶50] Because this Court has never analyzed the relationship between an investigating
officer and a suspect to determine what legal duties, if any, apply between them, it is
necessary to do so here.
[¶51] In deciding “whether a duty should be imposed based on a particular relationship,”
this Court considers multiple factors: “(1) the foreseeability of harm to the plaintiff, (2)
the closeness of the connection between the defendant’s conduct and the injury suffered,
(3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to
the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the
burden upon the defendant, (7) the consequences to the community and the court system,
and (8) the availability, cost and prevalence of insurance for the risk involved.” Natrona
Cnty., ¶ 6, 81 P.3d at 951. Analysis of these factors shows a law enforcement officer acting
within the scope of his or her duties does not owe a duty of care to a suspect in a criminal
investigation to conduct the investigation in a non-negligent manner.
[¶52] The first factor, foreseeability of harm to the plaintiff, “is the most important … and
‘is the fulcrum on which duty—its existence or absence—rests.’” Wilcox v. Sec. State
Bank, 2023 WY 2, ¶ 40, 523 P.3d 277, 287 (Wyo. 2023) (citation omitted). The alleged
harm (the filing of criminal charges which are eventually dismissed) to any suspect cannot
be a foreseeable result from simple negligence on the part of the investigating officer
because the prosecutor alone makes the charging decision. See Hirsch v. State, 2006 WY
66, ¶ 11, 135 P.3d 586, 591 (Wyo. 2006) (recognizing that “[t]he prosecutor is vested with
the exclusive power to determine who to charge with a crime and with what crime to charge
them”) (alteration added) (citation omitted).
4
[¶53] In addition to the general lack of foreseeability described above, the foreseeability
requirement presents two specific problems for Ms. Palm-Egle’s claim that she was harmed
by the officer’s investigation. First, her claim requires a determination that the prosecutor
should not and would not have filed the charges had the officer conducted additional
investigation. If the prosecutor would have filed the charges in any event, Ms. Palm-Egle
cannot establish harm from the investigation. However, no one could foresee whether this
prosecutor would or should file charges, with or without any additional investigation.
Prosecutors are not required to have perfect cases before they file charges. They are not
even required to have probable cause, although lack of probable cause can quickly create
problems for their case. The decision on whether to file charges was in the exclusive
discretion of this prosecutor, based on whatever factors he found appropriate.
[¶54] A second specific foreseeability problem that disconnects the officer’s investigation
from any claimed harm by Ms. Palm-Egle is that there was no foreseeable connection
between the officer’s investigation and at least some of the charges being dismissed. The
charges were a foreseeable harm to Ms. Palm-Egle only if it was axiomatic that they would
be dismissed. If the charges were not dismissed, Ms. Palm-Egle could not claim to
wrongfully have been damaged. In this case it could not have been foreseeable that the
circuit judge would determine there was no probable cause for some of the felony charges,
nor that the circuit judge would incorrectly dismiss the possession charge based on intent.
[¶55] In sum, the kind of damages a charged suspect would claim, based on charges being
filed and then dismissed, simply are not a foreseeable result of an investigator’s negligent
actions.
[¶56] The second factor, the closeness of the connection between the defendant’s conduct
and the injury claimed, “is ‘a corollary of foreseeability,’” and “considers other
contributions to the harm.” Wilcox, ¶ 43, 523 P.3d at 288 (citations omitted). Assuming
that the filing of charges constitutes harm to a suspect, many other factors may contribute
to that action beyond the officer’s investigation. The prosecutor decides to file the charges.
At some point a judicial officer must determine whether there is probable cause to support
felony charges. There is not a close connection between an officer’s negligent investigation
and a suspect’s “damage” from facing criminal charges.
[¶57] The third factor, the degree of certainty that the plaintiff suffered injury, also weighs
against finding a peace officer has a duty to a suspect to conduct an investigation in a
“nonnegligent” manner. The suspect here apparently claims injury from the criminal
charges having been filed. In contrast to the more typical injury cases, where there is a
higher degree of certainty that injury resulted from the defendant’s actions, a suspect’s
claim for negligent investigation does not present an obvious physical injury. See, e.g.,
Becker v. Mason, 2006 WY 143, ¶¶ 1, 4, 145 P.3d 1268, 1269 (Wyo. 2006) (plaintiff sought
wrongful death damages after the decedent was killed in a motor vehicle collision with a
drunk driver the deputy sheriff failed to stop from driving); Bd. of Cnty. Comm’rs ex rel.
5
Teton Cnty. Sheriff’s Dep’t v. Bassett, 8 P.3d 1079, 1082 (Wyo. 2000) (plaintiffs sought
damages for injuries suffered in motor vehicle collision partially caused by officers’ failure
to enforce a roadblock); Duncan, 903 P.2d at 550 (plaintiff sought damages for decedent’s
wrongful death based on law enforcement’s alleged negligent motor vehicle accident
investigation); DeWald v. State, 719 P.2d 643, 645-46 (Wyo. 1986) (plaintiff sought
damages for wrongful death of decedent killed in motor vehicle collision caused by law
enforcement’s negligent high speed chase). Other potential claimed damages, such as
emotional distress or attorney fees, are not obviously the result of facing criminal charges
and have limited availability in Wyoming.
[¶58] The fourth factor, the moral blame attached to the defendant’s conduct, assesses
“whether the defendant is morally culpable before imposing liability.” Larsen v. Banner
Health Sys., 2003 WY 167, ¶ 30, 81 P.3d 196, 205 (Wyo. 2003). “Moral blame generally
results from situations in which the defendant had direct control over establishing and
ensuring proper procedures to avoid the harm caused or where the defendant is the party
best in the position to prevent the injury.” Moses Inc. v. Moses, 2022 WY 57, ¶ 39, 509
P.3d 345, 356 (Wyo. 2022) (citations omitted). As with the other factors, the prosecutor
has control over the quality of the information used as the basis for criminal charges. The
prosecutor, not the investigator, controls the filing of charges. Certainly, an officer who
damages a suspect’s property, violates constitutional rights, or causes personal injury is
morally culpable for those actions because he has primary control over his actions.
However, those are not the damages or relationships which are relevant to the question
before us. In general, the investigating officer has no control over the charges being filed
against a suspect. Even if the officer was negligent, the choice to file the charges rests
exclusively with the prosecutor.
[¶59] The fifth factor, the policy of preventing future harm, weighs against an officer’s
duty to conduct a “non-negligent” investigation of a suspect. As discussed, a peace
officer’s investigation does not cause harm to a suspect, i.e., the filing of charges and
attendant consequences. The entity with the strongest motivation and ability to prevent
harm (if it is harm) from the filing of criminal charges is the prosecuting attorney, not the
investigating officer. When a peace officer presents investigatory materials to a prosecutor,
the prosecutor has the sole responsibility to assess whether criminal charges are appropriate
or whether the law enforcement officer should conduct additional investigation. Once a
prosecutor files charges, a judicial officer reviews the charges and supporting affidavits to
make a probable-cause determination, and if that judicial officer finds probable cause, the
adversarial process commences, affording the defendant additional opportunities to
challenge the filing of charges. Our system of criminal justice already has substantial and
appropriate procedures to protect against the type of “harm” a criminal suspect would claim
as a result of facing charges.
[¶60] The sixth factor we consider in determining whether there is a legal duty, the burden
upon the defendant, considers the negative consequences to the defendant of imposing a
6
duty in a particular relationship. Recognition of a duty to conduct a “non-negligent”
investigation for the benefit of suspects will have substantial negative consequences to law
enforcement officers. It will create a new tort in Wyoming – the tort of negligent
investigation. It will invite every criminal defendant who is acquitted or has charges
dismissed after a preliminary hearing to sue police officers claiming negligent
investigation. Officers will be reluctant to investigate, especially in close cases, for fear of
being sued. Many courts have recognized that imposing on investigators a duty of care to
a suspect impairs vigorous prosecution and has a chilling effect on law enforcement. See
Lahm v. Farrington, 90 A.3d 620, 624 (N.H. 2014) (stating “police officers’ interest in
conducting criminal investigations without fear of liability for negligence … weighs
heavily against the significant interests of criminal suspects”); Smith v. State, 324 N.W.2d
299, 301 (Iowa 1982) (“to assure continued vigorous police work, those charged with that
duty [to investigate crime] should not be liable for mere negligence”); Wimer v. State, 841
P.2d 453, 455 (Idaho 1992) (“[w]e agree with the policy that to hold investigators liable for
their negligent acts would impair vigorous prosecution and have a chilling effect on law
enforcement”); Dever v. Fowler, 816 P.2d 1237, 1242 (Wash. Ct. App. 1991), as amended
824 P.2d 1237, 1238 (Wash. Ct. App. 1992) (“The reason courts have refused to create a
cause of action for negligent investigation is that holding investigators liable for their
negligent acts would impair vigorous prosecution and have a chilling effect upon law
enforcement.”)
[¶61] The seventh factor, the consequences to the community and the court system, “has
generally been thought of as weighing the negative aspects of creating a new cause of
action.” Larsen v. Banner Health Sys., 2003 WY 167, ¶ 32, 81 P.3d 196, 205 (Wyo. 2003).
It considers the negative consequences of recognizing a duty not on the officer (sixth
factor) but on the court system and the public.
[¶62] This factor weighs heavily against a legal duty of non-negligent investigation owed
by officers to suspects. Recognition of such a duty would not only negatively impact
officers in their investigations, but it would also have significant negative consequences on
the community and the court system. This duty would invite litigation, impair vigorous
prosecution, and have a chilling effect on law enforcement. The Iowa Supreme Court
summarized this public policy consideration well: “The public has a vital stake in the
active investigation and prosecution of crime. Police officers and other investigative agents
must make quick and important decisions as to the course an investigation shall take. Their
judgment will not always be right; but to assure continued vigorous police work, those
charged with that duty should not be liable for mere negligence.” Smith, 324 N.W.2d at
301.
[¶63] An additional negative consequence to the public and the courts from recognition
of this new duty and tort is that criminal defendants will be able to circumvent the strict
requirements of a malicious prosecution claim. Until now a criminal defendant who
7
wished to sue an investigating officer or the prosecutor (effectively suing the state) was
required to bring a malicious prosecution claim or a claim under 42 U.S.C. § 1983. These
claims provide appropriate avenues for recovery by a suspect who alleges to have been
improperly charged or investigated, while protecting the public’s interest in vigorous
investigation and prosecution of crimes. We recognized in Cates v. Eddy, 669 P.2d 912,
918 (Wyo. 1983), that allowing actions for malicious prosecution could have a chilling
effect on law enforcement but concluded that the heightened requirements of a malicious
prosecution claim – malice and lack of probable cause – sufficiently balanced the interest
of the public in having wrongs investigated and prosecuted against the interest of redress
for actual wrong and damage. Recognition of a duty on peace officers to conduct a non-
negligent investigation for the benefit of suspects abandons that balance, at the expense of
the public interest. Criminal defendants who have a charge dismissed or are acquitted
would entirely avoid well-reasoned requirements for a malicious prosecution by claiming
an officer acted “unreasonably.”
[¶64] The courts and the public will encounter practical difficulties as a result of the
majority decision—additional negatives related to the seventh factor. The first of these
difficulties results from the majority’s conclusion that police officers always owe a duty of
reasonableness to everyone, without regard to the relationship of the parties or the
foreseeability of the injury. If that is true, then an officer’s duty in investigating a crime
benefits anyone and everyone. Anyone and everyone, even those remote to the case, could
sue the officer, claiming the investigation somehow harmed them. Employers of suspects
could sue police officers, claiming a negligent investigation of an employee resulted in
criminal charges and the employer lost money due to the employee’s absence. Unpaid
creditors of a suspect could sue police officers, claiming negligence in investigation
resulted in the suspect’s failure to pay an obligation. Before this decision, claims of this
sort would be dismissed at the outset, because the relationship between the investigating
officer and the plaintiff did not create the existence of a duty owed to the plaintiff. Now,
because the majority declares an officer has a duty to everyone without regard to
relationship, the viability of remote claims like these will not be tested as a question of
duty—a matter of law—but as a factual question of causation.
[¶65] Another practical difficulty resulting from this new tort of negligent investigation is
that prosecutors will be called to court to explain their charging decisions. Juries will be
required to allocate fault between investigating officers and prosecutors for the charges
which were filed. It is difficult to imagine how a jury will be instructed to determine the
percentage of “fault,” if any, which is allocated to the investigating officer and the
percentage which is allocated to the prosecutor who could have or should have reviewed
the officer’s work more carefully.3 Prosecutors, who should have complete discretion as
to charging decisions, will no longer enjoy that status.
3
The jury will also be required to allocate the percentage of fault applicable to the plaintiff.
8
[¶66] As we have no information about the availability of insurance to cover the tort of
negligent investigation resulting in wrongful criminal charges, we cannot consider the
eighth factor in our duty analysis.
[¶67] An analysis of the factors used to determine whether a duty applies to a particular
relationship leads to only one conclusion – Wyoming should not recognize a legal duty
owed by a law enforcement officer to suspects to conduct an investigation in a non-
negligent manner. Had the majority engaged in such an analysis, it would have reached
the same conclusion.
CONCLUSION
[¶68] I would answer “No” to the question presented to us: “Does a law enforcement
officer acting within the scope of his or her duties as such owe a duty of care to the
suspect(s) in a criminal investigation to conduct that investigation in a non-negligent
manner?”
9