Special duty exception applies where officers failed to arrest man violating protective order

Law Reporter, Sep 1999

Matthews v. Pickett County, _ S.W.2d _, No. 0lS019801-FD-00005, 1999 WL 382107 (Tenn. June 14, 1999).

The Tennessee Supreme Court held that the public duty doctrine's special duty exception applies where officers failed to arrest a man violating a protective order.

Here, after being assaulted by her estranged husband, Matthews obtained an order of protection prohibiting him from threatening her, among other acts, and providing that he would be arrested by an officer without a warrant if the officer had reasonable cause to believe he was in violation of the order. A month later, Matthews's husband threatened to kill her and attempted to break into her home. She called the police, who arrived and spoke to-but did not arrest-her husband. The police escorted Matthews out of the county, and returned briefly to her home. They saw her husband leaving the house but did not stop or question him. The house burned to the ground after they left.

Matthews sued the county, alleging negligence. The trial court held that the action was barred by the public duty doctrine-which provides immunity to public entities and employees for injuries caused by a breach of a duty owed to the public at large.

The Sixth Circuit Court of Appeals certified the questions whether the existence of an order of protection gives rise to a special duty to protect, and if so, does the special duty extend to protection of property. Answering both questions in the affirmative, the state high court noted that the public duty doctrine is subject to a special duty exception applicable when a public official affirmatively undertakes to protect a plaintiff who relies on that undertaking.

Here, the court found, the order of protection specifically identified plaintiff and was issued solely for her protection. She demonstrated her reliance on the order by contacting the sheriff's department and requesting protection under the order. Thus, the court held the special duty exception applies here.

The court rejected defendant's argument that even if a special duty does exist, it applies only to personal injury and not to property damage. The focus is on the relationship between the parties-not the specific harm, the court said. Ifa special relationship does exist, the public duty doctrine defense is negated, and immunity conferred by the doctrine is removed.

Consequently, the court held defendant may be liable for property damage.

Plaintiff's Counsel: Joseph H. Johnston, Nashville, Tenn. Max Mendelsohn, Nashville, Tenn. [Documents in this case are available through the Court Documents section in the back section of this issue, courtesy of Mr. Johnston.]