Nelson v. Driscoll

No

No. 97-222

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 193

295 Mont. 363

983 P.2d 972

STEPHEN NELSON, individually and

as Personal Representative of the Estate of

Trina Falcon Nelson, deceased,

Plaintiff and Appellant,

v.

MARK DRISCOLL and BUTTE-SILVER

BOW COUNTY, a political subdivision

of the State of Montana,

Defendants and Respondents.

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APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Butte-Silver Bow County,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bernard J. "Ben" Everett, Knight, Dahood, McLean & Everett, Anaconda, Montana

For Respondent:

Brendon J. Rohan, Poore, Roth & Robinson, Butte, Montana

Submitted on Briefs: December 3, 1998

Decided: August 12, 1999

Filed:

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__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1. Stephen Nelson (Stephen) brought this action in the Second Judicial District
Court, Silver Bow County, against Police Officer Mark Driscoll (Officer Driscoll)
and Butte-Silver Bow County (the County) (collectively the County) for the wrongful
death and violation of the civil rights of Trina Falcon Nelson. The court granted
summary judgment in favor of the County. Stephen appealed. We reverse and
remand for further proceedings consistent with this opinion.

¶2. We restate the issues as follows:

¶3. 1. Did the District Court err in granting the County's motion for summary
judgment on the ground that Officer Driscoll owed no legal duty to protect Trina?

¶4. 2. Did the District Court err in granting the County's motion for summary
judgment on the ground that Stephen did not state an actionable 42 U.S.C. § 1983
claim under the state-created danger theory?

BACKGROUND

¶5. This is the second appeal filed in this case concerning the tragic death of Trina
Falcon Nelson (Trina). See Nelson v. Driscoll (1997), 285 Mont. 355, 948 P.2d 256
(hereinafter Nelson I). Nelson I, involving a procedural matter, provides only a brief

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summary of the facts giving rise to this case. The following paragraphs set forth a
more detailed account of the facts so that we may thoroughly address the issues
raised in this appeal. The facts are undisputed.

¶6. In the early morning hours of February 2, 1995, Trina and Stephen left a casino
in Butte, Montana, and began driving home. While at the casino, between the hours
of 6:30 p.m. and 1:30 a.m., Stephen and Trina had each consumed approximately
fifteen alcoholic beverages. Stephen and Trina were regular casino customers,
frequenting casinos two to four times per week. Stephen described Trina as a
"problem drinker," noting that she would generally consume fifteen or sixteen
drinks each time she visited a casino.

¶7. At approximately 1:43 a.m., Officer Driscoll observed Trina driving her vehicle
in an erratic manner while turning west on Cobban Street from Massachusetts
Avenue. Officer Driscoll observed that in executing her turn, Trina "seemed to cut
the corner too sharp" on the icy road causing her vehicle to fishtail. He observed
Trina correct her turn and continue west on Cobban. Noting the hour, the fact that
the bars were closing, and Trina's erratic driving, Officer Driscoll decided to stop
Trina.

¶8. After stopping Trina, Officer Driscoll noted that she had no trouble pulling over
and parking her vehicle. Officer Driscoll approached Trina and asked whether she
had been drinking. Trina told Officer Driscoll that she had consumed several drinks
throughout the evening, had just left the Double Eagle Casino, and was on her way
home. As Trina was talking, Officer Driscoll looked for signs which would indicate
Trina's possible intoxication. Officer Driscoll noted that Trina was "communicating
fine" with him and did not have slurred speech. He did not detect an odor of alcohol.
In light of Trina's admission that she had been drinking, Officer Driscoll asked Trina
to exit the vehicle and to accompany him to the sidewalk to conduct field sobriety
testing. He asked Trina to remove her eyeglasses and attempted to conduct the
horizontal gaze nystagmus (HGN) test. Trina told Officer Driscoll that she was
"almost blind" and "couldn't see a thing" without her glasses. In later describing
this incident, Officer Driscoll testified that Trina "could not or would not follow" his
instructions regarding the HGN test. Officer Driscoll stated that he did not conduct
the "one leg stand" or the "walk and turn" sobriety tests due to the icy conditions of
the sidewalk. He stated that he himself almost fell while exiting his patrol car and,
given that Trina's shoes appeared to have less traction than his vibram-soled shoes,

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he thought it unsafe to conduct further sobriety testing.

¶9. Officer Driscoll walked to the passenger side of the vehicle and asked Stephen
whether he too had been drinking. Stephen indicated that he had. When Officer
Driscoll walked back to where Trina was standing, Stephen exited the vehicle "in
somewhat of a belligerent manner." After several requests by Officer Driscoll to get
back into the vehicle, Stephen finally obeyed.

¶10. Officer Driscoll testified that in assessing the situation, he did not believe he had
sufficient probable cause to arrest Trina for driving under the influence of alcohol
(DUI). Nevertheless, he thought there was a possibility that Trina might be impaired.
Officer Driscoll informed Trina that although she did not appear to be intoxicated,
he thought it unwise for either her or Stephen to drive home given the icy conditions
and the fact that they had been drinking. He directed Trina to park her vehicle
around the corner on a side street. Officer Driscoll told Trina that she and Stephen
could either walk home or he would give them a ride. Trina and Stephen were more
than two miles away from their home. Trina made a motion toward Harrison
Avenue, a main thoroughfare of Butte, and asked if she could call a friend for a ride,
to which Officer Driscoll responded that it was up to her. Trina told Officer Driscoll
that she would call a friend. Officer Driscoll informed Trina that he would remain in
the area to make sure neither she nor Stephen attempted to drive home. When asked
whether he gave Trina and Stephen a warning about returning to their vehicle,
Officer Driscoll answered:

I told them if they come back -- if they try to drive the vehicle again, we might have to,
you know, go further, whatever that would be. It was more of a scare tactic than anything,
I guess.

However, Officer Driscoll later testified that he did not think he had the lawful authority to
prevent Trina and Stephen from driving their vehicle. He stated that, as far as he was
concerned, Trina could have gotten into the vehicle and driven home.

¶11. Officer Driscoll waited for the couple to park their vehicle and watched them
walk west on Cobban Street toward Harrison Avenue. Officer Driscoll circled once
around the block and observed the couple standing at opposite sides of the parking
lot of Taco John's restaurant. It appeared to Officer Driscoll that the two were

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quarreling. Officer Driscoll circled around the block again and observed Stephen
walking toward their vehicle. He did not see Trina. Once Stephen saw Officer
Driscoll, he turned and began walking west on Cobban Street again. Moments later,
Officer Driscoll observed Stephen walking toward the area of their vehicle and
shined his spotlight on Stephen. Undeterred by the spotlight, Stephen continued
walking toward the vehicle. Officer Driscoll circled around once more and observed
Stephen sitting in the passenger seat of the vehicle. Again, Officer Driscoll shined his
spotlight on Stephen and drove on. A few minutes later, Officer Driscoll observed
Stephen walking south on Florence Avenue. The last time Officer Driscoll saw Trina
was when she and Stephen were quarreling in the parking lot of Taco John's. Officer
Driscoll was aware that a public telephone was located in front of Downey Drug,
within a block and a half of Taco John's.

¶12. Two witnesses, driving northbound on Harrison Avenue, observed Trina
wearing dark clothing and walking between the two southbound driving lanes of
Harrison. The witnesses testified that Trina was not stumbling, and did not exhibit
outward signs of intoxication. A third witness, driving in the left southbound driving
lane of Harrison, observed Trina walking in or near the shoulder of the right
southbound driving lane of Harrison. This witness also testified that Trina did not
exhibit outward signs of intoxication.

¶13. Moments later, at approximately 2:15 a.m., Trina was struck and killed by a
motorist later determined to have a blood alcohol content (BAC) of .24. The
coroner's autopsy report indicated that Trina had a BAC of .25.

¶14. Stephen brought this action against Officer Driscoll and the County alleging
negligence and a violation of Trina's constitutional rights pursuant to 42 U.S.C. §
1983. After discovery, the parties filed cross-motions for summary judgment. The
parties agreed that there were no material facts in dispute, but each argued that the
facts supported a different legal conclusion regarding liability.

¶15. In its January 15, 1997 order granting the County's motion for summary
judgment, the District Court concluded that Officer Driscoll lacked probable cause
to place Trina under arrest. The court further concluded that because Officer
Driscoll lacked probable cause to arrest, no special relationship existed between
Officer Driscoll and Trina which would give rise to a duty to protect her from harm.
The court stated that without a duty, Stephen's negligence action failed.

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¶16. The court further concluded that Trina and Stephen were not deprived of any
rights afforded by the United States Constitution. Regarding Stephen's claim that
Officer Driscoll seized Trina's vehicle in violation of the Fourth Amendment right to
be free from unreasonable seizures, the court concluded that the right to drive a car
is not a fundamental right, but a privilege that may be revoked. Regarding Stephen's
claim that Officer Driscoll deprived Trina of her right to life guaranteed by the
Fourteenth Amendment, the court cited to DeShaney v. Winnebago County
Department of Social Services (1989), 489 U.S. 189, for the rule that the Fourteenth
Amendment only limits the state's power to act; it does not require the state to
guarantee a minimal level of safety or security. Pursuant to DeShaney, the court held
that Stephen's 42 U.S.C. § 1983 claim was without merit.

¶17. On January 29, 1997, Stephen filed a motion and supporting brief for
reconsideration of the court's summary judgment ruling. Stephen informed the court
that during the pendency of this case, the Third Circuit Court of Appeals had
formally recognized the "state-created danger theory" as a viable basis on which to
assert a 42 U.S.C. § 1983 cause of action. See Kneipp v. Tedder (3rd Cir. 1996), 95
F.3d 1199. The state-created danger theory provides that a constitutional duty to
protect may be imposed when state actors have affirmatively acted to create a
plaintiff's danger, or to render a plaintiff more vulnerable to danger. Kneipp, 95
F.3d at 1207. Stephen argued that the state-created danger theory directly applied to
the instant case and created triable issues of fact for the jury. The court did not
agree. In denying Stephen's motion for reconsideration, the court stated that this
case was distinguishable from Kneipp and that Officer Driscoll did not create any
danger for which the County was liable. This appeal followed.

STANDARD OF REVIEW

¶18. Our standard of review of appeals from summary judgment rulings is de novo.
Motarie v. Northern Mont. Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242,
907 P.2d 154, 156. When we review a district court's grant of summary judgment, we
apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner
v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we
set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has
been accomplished, the burden then shifts to the non-moving party to prove, by more than

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mere denial and speculation, that a genuine issue does exist. Having determined that
genuine issues of fact do not exist, the court must then determine whether the moving
party is entitled to judgment as a matter of law. We review the legal determinations made
by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted). On review, all reasonable inferences that
might be drawn from the evidence are drawn in favor of the party opposing summary judgment. Motarie, 274
Mont. at 242-43, 907 P.2d at 156.

¶19. In this case, Stephen states that while the majority of facts are undisputed, one
fact remains in dispute. He argues that the existence of probable cause to arrest
Trina for DUI is a genuine issue of material fact precluding summary judgment.
However, we have held that where facts are undisputed, the existence of probable
cause to arrest is a question of law. Reece v. Pierce Flooring (1981), 194 Mont. 91, 96,
634 P.2d 640, 642-43. We have also held that the existence of a legal duty is a question
of law. Gibby v. Noranda Minerals Corp. (1995), 273 Mont. 420, 424, 905 P.2d 126,
128. Likewise, we have held that where facts are undisputed, whether a special
relationship exists is a question of law. Story v. City of Bozeman (1990), 242 Mont.
436, 451, 791 P.2d 767, 776. In light of these decisions, we determine that the question
before us is whether the County was entitled to judgment as a matter of law.

DISCUSSION

Issue 1

¶20. Did the District Court err in granting the County's motion for summary judgment on the ground
that Officer Driscoll owed no legal duty to protect Trina?

¶21. It is axiomatic that an action for negligence requires a legal duty. Kreig v.
Massey (1989), 239 Mont. 469, 472, 781 P.2d 277, 278-79. Generally, a police officer
has no duty to protect a particular individual absent a special relationship. Phillips v.
City of Billings (1988), 233 Mont. 249, 253, 758 P.2d 772, 775; Annotation, Drunk
Drivers: Duty to Arrest, 48 A.L.R. 4th 320 at § 2[a]. This rule is derived from the
"public duty doctrine" which expresses the policy that a police officer's duty to
protect and preserve the peace is owed to the public at large and not to individual

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members of the public. Ezell v. Cockrell (Tenn. 1995), 902 S.W.2d 394, 397. Thus, it
has been stated that "a duty owed to all is a duty owed to none." See Beal v. City of
Seattle (Wash. 1998), 954 P.2d 237, 244. The public duty doctrine "serves the
important purpose of preventing excessive court intervention into the governmental
process by protecting the exercise of law enforcement discretion." Ezell, 902 S.W.2d
at 400-01.

¶22. An exception to the public duty doctrine arises when there exists a special
relationship between the police officer and an individual giving rise to special duty
that is more particular than the duty owed to the public at large. Phillips, 233 Mont.
at 253, 758 P.2d at 775; Ezell, 902 S.W.2d at 401. Generally, a special relationship
arises in one of four circumstances.

A special relationship can be established (1) by a statute intended to protect a specific
class of persons of which the plaintiff is a member from a particular type of harm; (2)
when a government agent undertakes specific action to protect a person or property; (3) by
governmental actions that reasonably induce detrimental reliance by a member of the
public; and (4) under certain circumstances, when the agency has actual custody of the
plaintiff or of a third person who causes harm to the plaintiff.

Day v. State (Utah 1999), 1999 WL 289122, at 3. See generally, 48 A.L.R. 4th §§ 3, 4, 6
and 8. See e.g., Azure v. City of Billings (1979), 182 Mont. 234, 596 P.2d 460 (duty via
statute and existence of custodial relationship); Graham v. MSU (1988), 235 Mont. 284,
767 P.2d 301 (duty via existence of custodial relationship); Jackson v. State (1998), 287
Mont. 473, 956 P.2d 35 (duty via government agency's voluntary undertaking to render
services); Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341 (duty via
governmental actions that reasonably induce detrimental reliance by a member of the
public).

¶23. Stephen contends that the District Court erred in holding that no special
relationship existed between Officer Driscoll and Trina which would give rise to a
special duty to protect her. Without specifically addressing the existence of a special
relationship, Stephen argues that Officer Driscoll owed Trina a duty to protect her
because there existed probable cause to arrest her for DUI. As support for his
argument, Stephen cites Phillips, 233 Mont. at 252, 758 P.2d at 775, for the
proposition that a law enforcement officer's duty to protect arises once probable

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cause to arrest exists. Further, Stephen argues:

Officer Driscoll contends he did not have probable cause to arrest Trina Falcon Nelson.
Yet, under his authority as a police officer, he ordered Trina Falcon Nelson to park her
vehicle and to not attempt to drive despite the dark and extreme weather conditions.
Officer [Driscoll] cannot have it both ways. He cannot contend he lacked probable cause
to arrest Trina Falcon Nelson for DUI but nonetheless had the right to deprive her of her
vehicle at 2:00 a.m., in extreme weather conditions while she was more than two miles
from her home.

We note that in his summary judgment brief to the District Court, Stephen argued:

[B]ecause Officer Driscoll indeed took control over Trina and her vehicle despite, as he
contends, he had no probable cause to arrest, a special relationship of control over Trina
Falcon Nelson was created. That relationship of control created the duty to protect. Kreig
v. Massey (1989), Mont. , 781 P.2d 277, 278-79.

Also in his summary judgment brief, Stephen argued that even if a party has no duty to
perform an act, if the party voluntarily undertakes to perform the act, he or she must
exercise reasonable care in doing so. Stewart v. Standard Publishing Co. (1936), 102
Mont. 43, 50, 55 P.2d 694, 696.

¶24. At first glance, Stephen's argument is confusing. Although not explicit, it
appears that Stephen is arguing that Officer Driscoll's special duty to Trina arose in
this case because there existed probable cause to arrest her for DUI, or, in the
alternative, because Officer Driscoll affirmatively acted to prevent Trina from
driving and to ensure her safety in reaching her home. After researching and
reviewing the pertinent case law in Montana, as well as the law in other jurisdictions,
it appears to this Court that Stephen has combined three separate bases on which to
assert that Officer Driscoll owed a duty to protect Trina. Stephen's argument weaves
three important but distinct duties which have been determined by courts to fall
within the special relationship exception to the public duty doctrine: (1) a police
officer's special duty to protect third persons from one who is in the custody or
control of the police officer; (2) a police officer's special duty to protect a person who
is in the custody or control of the police officer; and (3) a police officer's special duty
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to protect an individual for whom the police officer has voluntarily undertaken to
provide some service. See generally, 48 A.L.R.4th at §§ 3, 4, 6 and 8; Stuart M.
Speiser et al., The American Law of Torts § 4:11 at 608, 616 and § 9:23 at 1142-44
(1985); Restatement (Second) of Torts §§ 314A(4), 319, 320, 323, 324. For ease in
deciding the issue raised, we will discuss separately the application of these special
duties to this case.

A. Police officer's duty to protect third persons

from one who is in his or her custody or control

¶25. In Phillips, this Court confronted the issue of whether police officers owed a
special duty to Phillips to protect him from the dangerous actions of an intoxicated
driver who collided with Phillips only two hours after having been detained and
questioned by police officers concerning an unrelated incident. During this
detainment and questioning, police officers noticed beer cans in the driver's vehicle
and smelled alcohol on his breath. However, the officers reported that the driver was
polite and cooperative, and did not appear to be in a state of extreme intoxication.
Believing that probable cause was absent, the police officers did not arrest the driver
for DUI. Phillips, 233 Mont. at 250-51, 758 P.2d at 773-74.

¶26. Phillips brought an action for negligence against the City of Billings alleging
that the police officers owed him a duty to control the potentially dangerous actions
of the driver. As support for his allegation, Phillips cited § 319 of the Restatement
(Second) of Torts (hereinafter § 319) which provides:

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.

We rejected Phillips' argument, stating that "imposition of a duty under § 319 depends on
the ability to control the third person." We added, "absent probable cause, no duty
existed." Phillips, 233 Mont. at 252, 758 P.2d at 774-75.

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¶27. Stephen interprets Phillips as setting forth the rule that if probable cause exists,
there is a duty to protect. He arrives at this rule by extracting the above phrase,
"absent probable cause, no duty existed" and stating it in the converse. We note that
the District Court interpreted Phillips the same way. In its order granting summary
judgment, the court cited Phillips for the proposition that "once probable cause is
established, the ability to control under [§ 319] is established and a greater duty may
be imposed by a special relationship." In applying what he claims to be the Phillips
rule to the instant case, Stephen argues that probable cause existed to arrest Trina
for DUI and, therefore, Officer Driscoll owed a duty to protect her from danger. We
reject Stephen's argument for several reasons.

¶28. First, we do not agree with Stephen's interpretation of Phillips. If any rule can
be gleaned from Phillips, it is that imposition of a duty to protect under § 319
depends on whether the police officer takes charge of the alleged dangerous person.
See § 319 Restatement (Second) of Torts ("One who takes charge of . . . ."). In charge
of is defined as "in the care or custody of." Black's Law Dictionary 685 (5th ed.
1979). The term custody is defined as "immediate charge and control . . . actual
imprisonment or physical detention or mere power, legal or physical, of imprisoning
or of taking manual possession." Black's Law Dictionary at 347. Applying the plain
and ordinary meaning of the words takes charge of, as we must, see Werre v. David
(1996), 275 Mont. 376, 385-86, 913 P.2d 625, 631, we determine that the special duty
described in § 319 arises not when probable cause exists, as Stephen suggests, but
when the police officer takes a person into custody, or exerts some legal or physical
restraint on his or her liberty. Although the Court's statement "absent probable
cause, no duty existed" was technically correct, a more accurate statement of the law
is "absent a custodial relationship, no duty existed."

¶29. Our rejection of Stephen's argument is further buttressed by the fact that
Montana law does not impose on police officers an absolute duty to arrest once
probable cause exists. Rather, a police officer's authorization to arrest is permissive.
Section 46-6-311, MCA, states:

[A] peace officer may arrest a person when a warrant has not been issued if the officer has
probable cause to believe that the person is committing an offense or that the person has
committed an offense and existing circumstances require immediate arrest. (Emphasis
added.)

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Courts in other jurisdictions have held that "liability [can] not be predicated on a peace
officer's failure to restrain a drunk driver, where, since the officer had discretion to enforce
drunk driving laws in the manner he deemed appropriate in the circumstances, he had no
absolute, certain, or imperative duty to anyone in that regard." See 48 A.L.R. 4th at 334, §
5 (citations omitted). Thus, even if there exists probable cause to arrest, an officer is under
no duty to arrest and, therefore, no § 319 duty to protect arises simply by a determination
of probable cause. A § 319 duty to protect arises only when a police officer actually makes
an arrest, or otherwise takes possession or custody of an individual.

¶30. Finally, aside from Stephen's erroneous interpretation of Phillips, we believe
that Stephen's reliance on Phillips is misplaced. Under § 319, a police officer's duty to
protect is owed to third persons, not to the person with whom the officer has a
custodial relationship. In Phillips, the plaintiff argued, though unsuccessfully, that
under § 319 the police officer owed a duty to protect him, a third person, from the
dangerous actions of the intoxicated driver. That is not the case here. Rather,
Stephen argues the opposite. He argues that Officer Driscoll owed a duty to protect
Trina from the dangerous actions of third persons. Under these circumstances, we
determine that Phillips is distinguishable from and inapplicable to the instant case.

¶31. We need not reach Stephen's argument that probable cause existed to arrest
Trina for DUI because, as discussed above, probable cause is not the determining
factor for imposition of a special duty under § 319. For this reason, and upon the
foregoing, Stephen's argument that Officer Driscoll owed a special duty to protect
Trina because there existed probable cause to arrest her for DUI is without merit.

B. Police officer's duty to protect

a person in his custody or control

¶32. In his brief to the District Court, Stephen cited Kreig as support for his
argument that Officer Driscoll owed a special duty to protect Trina. In Kreig, the
plaintiff brought a wrongful death action against the decedent's landlord claiming
that the landlord was negligent in failing to prevent the decedent's suicide. While
walking past decedent's open apartment door, the landlord observed the decedent
holding a pistol and threatening suicide. The landlord managed to take the gun from

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the decedent and, thinking the decedent to have calmed down, placed the gun on top
of the closet in decedent's room and left. Decedent thereafter shot and killed himself.
Kreig, 239 Mont. at 470-71, 781 P.2d at 278.

¶33. In ruling on the issue of the landlord's negligence, we noted the general rule that
negligence actions for the suicide of another will not lie because the suicide is
considered a superseding, intervening act. We also noted an exception to this rule.
The exception imposes a duty to prevent suicide when a custodial relationship exists
and the suicide is foreseeable. We ultimately held that the landlord was not liable for
the decedent's death because there was no custodial relationship between the two.
Kreig, 239 Mont. at 472-73, 781 P.2d at 279. We impliedly held that a landlord-
tenant relationship is not custodial by nature. Kreig, 239 Mont. at 473, 781 P.2d at
279.

¶34. Stephen maintains that the facts of this case mandate the opposite result from
that reached in Kreig. He argues that here, a custodial relationship was created when
Officer Driscoll directed Trina to park her car and instructed her that either she
could walk home or he would give her a ride home. We disagree.

¶35. As discussed in the preceding section, the terms custody and custodial
relationship contemplate a degree of control akin to possession, or a degree of control
which results in a physical or legal restraint on one's liberty. Examples of
relationships which are custodial in nature include the following: school-minor pupil,
parent-child, jailer-inmate, carrier-passenger, innkeeper-guest, and hospital-patient.
See Graham v. MSU (1988), 235 Mont. 284, 288-89, 767 P.2d 301, 303-04 (school-
minor pupil); Azure v. City of Billings (1979), 182 Mont. 234, 242-43, 596 P.2d 460,
465 (jailer-inmate). See generally Speiser, supra § 4:11 at 602; Prosser and Keeton,
supra § 56 at 376-77; Restatement (Second) of Torts § 314A(4) at 120-21, § 320 at
130. Here, the facts do not establish that Officer Driscoll exerted the requisite degree
of control over Trina sufficient to create a custodial relationship. Although Officer
Driscoll directed Trina to park her vehicle and instructed her not to drive, his actions
do not amount to possession of her, or a physical or legal restraint of her liberty. The
right to drive a car is not a fundamental right, but a privilege that may be revoked.
State v. Skurdal (1988), 235 Mont. 291, 295, 767 P.2d 304, 307. Once Trina parked
her vehicle, she was free to go and then do as she pleased. On this basis, we conclude
that no custodial relationship existed between Officer Driscoll and Trina giving rise
to a special duty to protect her from harm.

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C. Police officer's duty to protect an individual

for whom he or she has voluntarily undertaken to

provide some service

¶36. In his brief to the District Court, Stephen relied upon Stewart v. Standard
Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694, as support for his argument that
Officer Driscoll owed Trina a special duty to protect her because he took affirmative
steps to prevent Trina from driving and to ensure her safety in reaching her home. In
Stewart, the plaintiff brought a negligence action to recover damages for injuries she
sustained after falling on the icy sidewalk abutting the defendant's place of business.
The plaintiff conceded that the city had the initial duty to maintain the sidewalk, but
alleged the defendant assumed this duty when it undertook to remove the ice and
snow from the sidewalk. We agreed. We applied the established rule that:

[W]here a person undertakes to do an act or discharge a duty by which the conduct of
another may be properly regulated and governed, he is bound to perform it in such a
manner that those who are rightfully led to a course of conduct or action on the faith that
the act or duty will be properly performed shall not suffer loss or injury by reason of
negligent failure so to perform it.

Stewart, 102 Mont. at 50, 55 P.2d at 696.

¶37. The above rule echos the long-standing principle of tort law that "one who
assumes to act, even though gratuitously, may thereby become subject to the duty of
acting carefully, if he acts at all." Speiser, supra, § 9:22 at 1140. See also Restatement
(Second) of Torts § 323. The rule has been applied in several Montana cases where
this Court has imposed a duty of reasonable care in the performance of an
undertaking. See Jackson v. State (1998), 287 Mont. 473, 490, 956 P.2d 35, 46
(holding that adoption agency assumed a duty to refrain from making negligent
misrepresentations when it began volunteering information to potential adoptive
parents); Kopischke v. First Continental Corp. (1980), 187 Mont. 471, 481-82, 610
P.2d 668, 673-74 (holding that retail dealer who undertook to repair and recondition

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a used truck for resale owed a duty to the public to use reasonable care in the making
of tests for the purpose of detecting defects and in the making of repairs necessary to
render the truck reasonably safe for use upon the public highways); Sult v. Scandrett
(1947), 119 Mont. 570, 573-77, 178 P.2d 405, 406-07 (holding that seller of cattle
assumed a duty to either continue its weighing service, or give reasonable notice of its
discontinuance, when he undertook the performance of the weighing service); Vesel
v. Jardine Mining Co. (1939), 110 Mont. 82, 92, 100 P.2d 75, 80 (holding that
employer who gratuitously assumed to render medical services to injured employee,
though no duty to do so was imposed by statute or contract, was bound to exercise
reasonable care in performance of such services).

¶38. Stephen contends that the rule in Stewart applies to the instant case. He argues
that while Officer Driscoll may not have initially owed Trina a duty to protect her
from harm, Officer Driscoll assumed this duty when he prevented Trina from
driving her vehicle and kept a close eye on her from his car to ensure that she did not
attempt to drive. We agree. The uncontroverted facts show that Officer Driscoll
knew Trina had been drinking and thought there was a possibility she might be
impaired. He thought it unwise for Trina to drive home given the icy conditions and
her possible impairment. He directed Trina to park her vehicle and told her that she
and Stephen could either walk home or he would give them a ride. After Trina
indicated she would call a friend for a ride, Officer Driscoll circled the block three
times to ensure that Trina did not drive home. We conclude, as a matter of law, that
by taking these affirmative steps to ensure Trina's safety, Officer Driscoll assumed a
duty to protect Trina from harm.

¶39. Although we agree with the application of Stewart to this case, an analysis
concerning legal duty is incomplete without a discussion of foreseeability. See Busta
v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 916 P.2d 122. In Busta, we held that
"absent foreseeability, there is no duty . . . ." Busta, 276 Mont. at 363, 916 P.2d at 134
(citation omitted). We conclude that the foreseeability component of duty does not
weigh against the existence of a duty in this case. Given the fact that Trina had been
drinking, was headed for a busy street, and was alone, coupled with the icy
conditions, the frigid temperature, and the darkness, any negligent exercise of
Officer Driscoll's actions in ensuring Trina's safety involved a foreseeable risk of
harm to Trina.

¶40. Having concluded, as a matter of law, that Officer Driscoll assumed a duty to

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protect Trina from harm, the question now becomes whether Officer Driscoll
breached that duty, or in other words, whether Officer Driscoll failed to exercise
reasonable care in his undertaking. Ordinarily, breach of a legal duty to exercise
reasonable care is a question of fact for the jury. Smith v. Kerns (1997), 281 Mont.
114, 117, 931 P.2d 717, 719. Thus, summary disposition of this case is improper. We
hold that the District Court erred in granting the County's summary judgment
motion on Stephen's negligence claim.

Issue 2

¶41. Did the District Court err in granting the County's motion for summary judgment on the ground
that Stephen did not state an actionable 42 U.S.C. § 1983 claim under the state-created danger theory?

¶42. A government official who, while acting under color of state law, deprives an
individual of constitutionally protected rights may be subject to personal liability for
civil damages pursuant to 42 U.S.C. § 1983 (hereinafter § 1983). Dorwart v.
Caraway, 1998 MT 191, ¶ 114, 290 Mont. 196, ¶ 114, 966 P.2d 1121, ¶ 114. The Fifth
and Fourteenth Amendments to the United States Constitution and Article II,
Section 17 of the Montana Constitution, prohibit a government entity from depriving
persons of life, liberty, or property without due process of law. Mysse v. Martens
(1996), 279 Mont. 253, 260, 926 P.2d 765, 769. In this case, the parties do not dispute
that Officer Driscoll was a government official acting under color of state law when
he detained and questioned Trina. Likewise, the parties do not dispute that Trina's
right to life is a constitutionally protected right. The parties dispute only whether
Officer Driscoll deprived Trina of her life without due process of law.

¶43. Generally, a government official's failure to protect an individual from harm
does not constitute a violation of the due process clause. DeShaney v. Winnebago
County Dep't of Social Services (1989), 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249.
The underlying rationale for this rule is that the due process clause "is phrased as a
limitation on the State's power to act, not as a guarantee of certain minimal levels of
safety and security." DeShaney, 489 U.S. at 195. Thus, inaction by the state, even
where a danger is known, is insufficient to trigger a due process clause obligation.
DeShaney, 489 U.S. at 200.

¶44. However, courts have recognized an exception to this general rule pursuant to

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the "state-created danger theory." See e.g., Kallstrom v. City of Columbus (6th Cir.
1998), 136 F.3d 1055; Kneipp v. Tedder (3rd Cir. 1996), 95 F.3d 1199; Graham v.
Independent School District No. I-89 (10th Cir. 1994), 22 F.3d 991; Reed v. Gardner
(7th Cir. 1993), 986 F.2d 1122; Dorothy J. v. Little Rock School District (8th Cir.
1993), 7 F.3d 729; Cornelius v. Town of Highland Lake (11th Cir. 1989), 880 F.2d
348; Wood v. Ostrander (9th Cir. 1989), 879 F.2d 583. The state-created danger
exception was derived from the following excerpt from DeShaney:

While the State may have been aware of the dangers that [the victim] faced in the free
world, it played no part in their creation, nor did it do anything to render him any more
vulnerable to them . . . . [T]he State . . . placed him in no worse position than that in which
he would have been had it not acted at all . . . .

Huffman v. County of Los Angeles (9th Cir. 1998), 147 F.3d 1054, 1059 (quoting
DeShaney, 489 U.S. at 201); Kneipp, 95 F.3d at 1205.

¶45. The state-created danger exception provides that a constitutional duty to protect
may be imposed when state actors have affirmatively acted to create plaintiff's
danger, or to render him or her more vulnerable to it. Kneipp, 95 F.3d at 1207;
Wood, 879 F.2d at 589-90. While the state-created danger theory is recognized by
most jurisdictions, the test used by courts in applying it slightly varies among
jurisdictions. Cf. Kneipp, 95 F.3d at 1208, with Huffman, 147 F.3d at 1061. The Ninth
Circuit Court of Appeals has articulated the following test for application of the state-
created danger theory:

[T]he danger creation plaintiff must demonstrate, at the very least, that the state acted
affirmatively, and with deliberate indifference, in creating a foreseeable danger to the
plaintiff, leading to the deprivation of the plaintiff's constitutional rights.

Huffman, 147 F.3d at 1061 (citations omitted).

¶46. Stephen contends that the state-created danger theory directly applies to the
instant case and creates triable issues of fact for the jury, making summary judgment
improper. As support for his contention, he cites Kneipp, wherein the Third Circuit
Court of Appeals sustained a § 1983 claim, pursuant to the state-created danger
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theory, under facts similar to those presented in this case. Kneipp, 95 F.3d at 1211.

¶47. In Kneipp, a husband and wife were returning home on foot after a night of
drinking at a local tavern in Philadelphia. It was a cold January evening. The wife
was visibly intoxicated and required her husband's assistance in reaching their home.
Shortly after midnight, the couple began quarreling and a police officer stopped the
couple for causing a disturbance. At this point, the couple was only one-third of a
block from their home. The officer questioned the husband and wife separately and
found each to be intoxicated. While questioning the wife, the officer smelled alcohol
on her breath and noted that she was leaning on his patrol car, unable to stand by
herself. Meanwhile, three other police officers arrived at the scene. The husband
went to these officers and asked whether he could go home, as he and his wife had
employed a babysitter and were supposed to be home. The officers told him he could
go. When the husband left to go home, his wife was still being questioned by the
police officers. The husband assumed that the police officers would take his wife to
either the police station house or the hospital. However, the police officer questioning
the wife sent her home alone. The wife never reached her home. She was found
unconscious at the bottom of an embankment next to a parking lot across the street
from the couple's home. Kneipp, 95 F.3d at 1201-03.

¶48. The wife's legal guardians brought a § 1983 action against the City of
Philadelphia and several police officers pursuant to the state-created danger theory.
The plaintiffs alleged that the officers were aware of the wife's intoxication and the
risk of harm she faced due to her impairment; that the officers assumed
responsibility for her protection when they told the husband he could leave; and that
by later abandoning the wife, the officers affirmatively created a danger and
increased the risk that the wife would be harmed. The plaintiffs further alleged that
the officers' conduct made the wife more vulnerable by interfering with her
husband's efforts to guide her safely home. Finally, the plaintiffs alleged that because
the officers acted with deliberate indifference, the wife was deprived of her
constitutional liberty interest in personal security without due process of law. The
district court found that the plaintiffs had failed to prove a constitutional violation
under the danger creation exception and granted the defendants' summary judgment
motion. Kneipp, 95 F.3d at 1203-04.

¶49. On appeal, the Third Circuit Court of Appeals observed that the cases from
other circuits which had recognized the state-created danger theory as a basis for

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recovery under § 1983 had four elements in common:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) the state actor acted in willful disregard for the safety of the plaintiff;

(3) there existed some relationship between the state and the plaintiff;

(4) the state actors used their authority to create an opportunity that otherwise would not
have existed for the third party's crime to occur.

Kneipp, 95 F.3d at 1208. The court then applied this four-part test to the facts and determined that the plaintiffs
had adduced sufficient evidence to raise a material issue of fact with respect to each element. Kneipp, 95 F.3d at
1208-09. The court formally recognized the state-created danger theory as a viable basis for imposing
constitutional liability under § 1983, and held that application of the theory to the facts of that case created a
triable issue of fact making summary judgment improper. Kneipp, 95 F.3d at 1211.

¶50. Our research reveals another case, with facts similar to those presented here, in
which the Ninth Circuit Court of Appeals held that a triable issue of fact existed as to
whether the state actor affirmatively acted to create or increase a plaintiff's danger
thereby triggering a due process duty of protection. In Wood v. Ostrander (9th Cir.
1989), 879 F.2d 583, police officers arrested a drunk driver and impounded his car,
leaving the driver's female passenger stranded in a high-crime area at 2:30 a.m. The
woman was later raped after accepting a ride home from a stranger. The woman
thereafter brought a § 1983 action against the police officer. The district court
granted summary judgment for the police officer on the ground that he owed no
constitutional duty of protection and was entitled to good faith qualified immunity.
Wood, 879 F.2d at 586. In reversing the district court, the Ninth Circuit Court of
Appeals held that the plaintiff had raised triable issues of fact regarding the police
officer's knowledge of danger, and whether the police officer affirmatively and with
deliberate indifference placed the plaintiff in danger. Wood, 879 F.2d at 589-90. See
also White v. Rochford (7th Cir. 1979), 592 F.2d 381(reversing order of dismissal and
holding that plaintiffs, on behalf of three minor children, stated an actionable § 1983
claim where a police officer pulled over the children's uncle with whom the children
were riding, arrested him for drag racing, and left the children stranded in the car
on the side of a busy highway).

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¶51. Stephen claims that, as in Kneipp, application of the state-created danger theory
to the facts of the instant case creates a triable issue of fact as to whether Officer
Driscoll affirmatively placed Trina in danger, or affirmatively increased her
vulnerability to danger, thereby triggering a due process duty of protection. He urges
this Court to formally recognize the state-created danger theory as a viable basis on
which to assert constitutional liability under § 1983, apply the Kneipp test, and hold
that, as applied to this case, the state-created danger theory creates triable issues of
fact making summary judgment improper.

¶52. Our research concerning the state-created danger theory reveals that it is widely
accepted by most jurisdictions as a viable basis on which to assert a § 1983 claim. In
light of this weight of authority, and believing the state-created danger theory to be
grounded in sound legal reasoning, we adopt the state-created danger theory as a
viable basis on which to assert a § 1983 claim. With respect to the proper test to
apply in determining the applicability of the state-created danger theory, we
conclude that the Huffman test, as set forth by the Ninth Circuit Court of Appeals, is
most appropriate. Therefore, we hold that to state an actionable § 1983 claim
pursuant to the state-created danger theory, the plaintiff must demonstrate that: (1)
the state acted affirmatively, (2) with deliberate indifference, (3) in creating a
foreseeable danger to the plaintiff, (4) leading to the deprivation of the plaintiff's
constitutional rights. See Huffman, 147 F.3d at 1061.

¶53. Applying the Huffman test to the facts of this case, we believe Stephen has
presented sufficient evidence to raise a material issue of fact concerning each element
of the test. A triable issue of fact exists as to whether Officer Driscoll acted
affirmatively when, after determining absence of probable cause, he directed Trina
to park her vehicle, instructed her to either walk home or accept a ride from him,
and then circled the block three times to make sure she did not attempt to drive.
Likewise, a triable issue of fact exists regarding Officer Driscoll's knowledge of the
danger that Trina faced. Officer Driscoll thought Trina was impaired. He knew it
was a dark, frigid evening, knew the roads were icy, knew Trina was headed for a
street with heavy traffic, and knew she was walking alone. A triable issue of fact
exists regarding whether Officer Driscoll acted with deliberate indifference in
creating a danger, or making Trina more vulnerable to a danger. Finally, a triable
issue of fact exists as to whether Officer Driscoll's actions led to the deprivation of
Trina's right to life.

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¶54. In sum, Stephen has stated an actionable § 1983 claim under the state-created
danger theory. Pursuant to the Huffman test, and in light of the Kneipp and Wood
decisions, we determine that Stephen has adduced sufficient evidence to raise genuine
issues of material fact as to whether Officer Driscoll affirmatively and with
deliberate indifference placed Trina in danger, or increased her vulnerability to
danger, thereby triggering a due process duty of protection. We hold that the District
Court erred in granting the County's motion for summary judgment on Stephen's
federal § 1983 claim.

¶55. Reversed and Remanded for further proceedings consistent with this opinion.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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