Nearing v. Weaver
1983 Ore. LEXIS 1549, 670 P.2d 137, 295 Or. 702 (1983)
Rule of Law:
When a statute imposes a mandatory duty on public officers for the specific protection of identified individuals through a judicial order, the officers and their public body may be held civilly liable for harm, including emotional distress, resulting from their knowing failure to perform that duty, as defenses of official discretion and immunity do not apply to mandatory, non-discretionary acts.
Facts:
- Henrietta Nearing was separated from her husband, Robert Lee Nearing, Sr., in November 1979.
- On April 16, 1980, Robert Nearing, Sr., entered Henrietta's home without permission and physically struck her.
- Henrietta reported the assault to Officer Martin Weaver, leading to Robert Nearing, Sr.'s arrest and an assault charge.
- On April 17, 1980, the circuit court issued a restraining order preventing Robert Nearing, Sr., from molesting Henrietta or her children (Robert Jr. and Jeanette) or entering their family home.
- The restraining order was served on Robert Nearing, Sr., and a copy with proof of service was delivered to the City of St. Helens police department, as required by law.
- On May 12 and 13, 1980, Robert Nearing, Sr., again entered Henrietta's home without permission, first damaging the premises and later attempting to remove the children.
- Henrietta Nearing reported these incidents to Officer Weaver and asked him to arrest her husband, but Weaver declined, stating he had not seen Robert Nearing, Sr., on the premises, despite confirming the restraining order's validity and the damage.
- On three subsequent occasions in May 1980, Robert Nearing, Sr., returned to the home, sought entry, and on the last occasion, assaulted Henrietta’s friend and damaged his van, which Henrietta reported to Officers Weaver and Sauls on May 27, but no arrest was made.
- On June 1, 1980, Robert Nearing, Sr., intercepted Henrietta, her children, and her friend in front of the home, repeated prior threats, and assaulted the friend.
Procedural Posture:
- Henrietta Nearing and her two children, Robert and Jeanette, sued the City of St. Helens and two police officers, Martin Weaver and Sauls, in circuit court (the trial court) for damages, alleging emotional distress and physical injuries due to the officers' failure to arrest her husband.
- Defendants denied the allegations and pleaded affirmative defenses of official immunity and official discretion.
- Plaintiffs moved to strike the affirmative defenses.
- The circuit court denied plaintiffs' motion to strike the affirmative defenses and granted summary judgment in favor of the defendants.
- Plaintiffs appealed the circuit court's summary judgment decision to the Court of Appeals.
- The Court of Appeals affirmed the circuit court's decision without providing an explanation.
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Issue:
Does a public body or its police officers face potential civil liability for psychic and physical harm to an individual when they knowingly fail to enforce a mandatory statutory duty, established for the benefit of specific individuals via a judicial order, despite claims of official discretion and immunity?
Opinions:
Majority - Linde, J.
Yes, public bodies and their police officers can be held potentially liable for harm resulting from their knowing failure to enforce a mandatory statutory duty, specifically a judicial restraining order, because such a duty creates a legally protected interest for the identified beneficiaries, and defenses of official discretion and immunity do not apply to mandatory duties. The court reasoned that Oregon law permits recovery for psychic or emotional harm when a defendant's conduct infringes an independent legal right, which in this case arose from the 1977 Abuse Prevention Act (ORS 107.715, 133.310(3)) combined with the circuit court's restraining order. This statutory scheme imposed a specific, mandatory duty on police officers to arrest individuals violating restraining orders, as indicated by the use of 'shall arrest' rather than 'may arrest.' This mandatory language negates any official discretion regarding enforcement, distinguishing it from general common law duties of due care. Citing McBride v. Magnuson, the court clarified that official discretion immunity (ORS 30.265(3)(c)) applies only to policy judgments and value choices, not to the performance of duties dictated by statute. Furthermore, immunity for making good-faith arrests (ORS 133.315) does not extend to immunity for failing to make an arrest when required, as such an interpretation would contradict the legislative intent to strengthen protection against domestic violence. The court rejected the dissent's characterization of its holding as creating 'strict liability' and reiterated that the Tort Claims Act makes public defendants liable in the same manner as private defendants for failing to perform a mandatory duty for specific beneficiaries.
Dissenting - Peterson, J.
No, public bodies and their police officers should not be held strictly liable without fault for failing to perform a statutory duty, especially when the plaintiff’s claim has consistently been framed in negligence, and judicial creation of such a new tort is inconsistent with prior precedent and carries significant policy implications for public services. Justice Peterson argued that the majority's decision created a new 'strict liability tort,' which is inconsistent with prior Oregon Supreme Court cases, such as Bob Godfrey Pontiac v. Roloff and Burnette v. Wahl, which typically declined to create new private causes of action from statutory violations without explicit legislative intent. The dissent emphasized that tort liability usually requires a showing of 'unreasonable conduct' and that creating liability 'without fault' for public bodies and their employees, given scarce public resources and other mandated duties, should be approached with extreme caution. The legislative history of the Abuse Prevention Act did not suggest an intent to create a civil cause of action against police for non-enforcement. Furthermore, the plaintiffs in this case consistently presented their claim as one of negligence, and the court should not, uninvited and without briefing, convert it into a new strict liability theory. The dissent also contended that the court is ill-equipped to make policy judgments regarding the fiscal and operational impacts on municipalities and law enforcement. If the case were treated as a negligence action, Justice Peterson would affirm the trial court's summary judgment, adhering to the principle from Melton v. Allen that damages for mental distress unaccompanied by physical injury are generally not recoverable in negligence claims unless involving intentional acts of a flagrant character or special circumstances.
Concurring - Jones, J.
Yes, the trial court's summary judgment should be reversed because the plaintiffs have a valid claim, but the majority's creation of a new 'statutory tort' is an unwarranted departure; the case should proceed under a theory of negligence per se. Justice Jones agreed with the reversal of summary judgment but strongly disagreed with the majority’s creation of a 'statutory tort,' arguing that the plaintiffs consistently presented their case as one of negligence, not a new legal theory. He cited plaintiffs' pleadings and trial arguments, where counsel expressly confirmed their theory was negligent performance of a statutory duty or violation of a common law duty of due care. Justice Jones referenced Bob Godfrey Pontiac v. Roloff and Burnette v. Wahl to support the view that the court should be hesitant to create new causes of action when the legislature has not explicitly provided one. He believed that a negligent failure to act is implicit in the legislation and that a violation of the statute should constitute negligence per se. Under this theory, once a statutory violation is proven, the burden shifts to the defendant to show they acted reasonably under the circumstances. Plaintiffs should be able to recover damages for mental distress, even without physical disability, if caused by the statutory violation, with applicable negligence principles like comparative fault. He concurred in the result because the trial court erred in granting summary judgment, but preferred a negligence per se framework rather than introducing a novel 'statutory tort.'
Analysis:
This case significantly clarifies the scope of governmental liability under the Oregon Tort Claims Act, particularly by distinguishing between discretionary and mandatory duties. By holding that official discretion and immunity defenses do not apply to mandatory statutory duties, the court broadened the potential for civil liability for public entities and their employees. This ruling has a substantial impact on domestic violence victims, providing a potential avenue for redress when law enforcement fails to act on restraining orders. It underscores the principle that when legislatures create specific, mandatory duties for the benefit of particular individuals, those duties carry a correlative civil liability for non-performance, even if the resulting harm is primarily emotional. Future cases will likely build upon this distinction to determine whether specific statutory duties are truly 'mandatory' or allow for 'discretionary' action by public officials.
