# Marie Ellsworth & Paul Ellsworth v. City of Racine, a Municipal Corporation

> Court of Appeals for the Seventh Circuit · September 23, 1985 · 774 F.2d 182

URL: https://www.frixlaw.com/law-library/cases/9474049

## Case

- **Full name:** Marie ELLSWORTH & Paul Ellsworth, Plaintiffs-Appellants, v. CITY OF RACINE, a Municipal Corporation, Defendant-Appellee
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** September 23, 1985
- **Citations:** 774 F.2d 182; 1985 U.S. App. LEXIS 23357
- **Precedential status:** Published
- **Opinion:** Concurrence by Coffey
- **Judges:** Coffey, Flaum, Gibson
- **Cited by:** 287 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474049

## How later opinions describe it (automated extraction)

- noting that there “may be situations when a municipal employee and the municipality have, by virtue of the employment relationship, a special relationship for purposes of § 1983,” but finding no such relationship on the facts of that case
- holding that the City of Racine’s limited duty to protect plaintiff for eight hours a day did not extend beyond that time period

## Opinion text

COFFEY, Circuit Judge,
concurring.
Paragraph 20 of the plaintiff’s complaint states that at the time the police officer assigned to protect the plaintiff left her on July 21, 1980, the plaintiff “informed the police officer that she [the plaintiff] did not think it was necessary for [the officer] to stay.” I concur in the judgment because I believe this admission precludes recovery by the plaintiff on her Section 1983 claim. I write separately because I believe that if it were not for this admission, the plaintiff’s complaint would state a cause of action under 42 U.S.C. § 1983 (1982).
A Section 1983 claim contains two elements. The first element is “the conduct complained of [must have been] committed by a person acting under color of state law.” Parratt v. Taylor, 451 U.S. 527, 535 , 101 S.Ct. 1908, 1912 , 68 L.Ed.2d 420 (1981) (“Parratt ”). Conduct is “under col- or of state law” if it is committed pursuant to either the execution of an official policy such as a statute or executive decision, or a state custom. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-91 , 98 S.Ct. 2018, 2035-36 , 56 L.Ed.2d 611 (1978). The plaintiff’s complaint alleges that “at all times relevant, the [city] acted under the statutes, customs, ordinances and usage of the State of Wisconsin, the City of Racine, and the Racine Police Department.” I read this as alleging that the defendant acted pursuant to an official policy or custom when, through its officers in *187 the Racine Police Department, the defendant made the decision to provide the plaintiff with police protection. This satisfies the first element of a Section 1983 action.
The second element of a Section 1983 action is that the defendant’s conduct must have deprived the plaintiff of rights, privileges or immunities secured by the Constitution of the United States. Parratt, 451 U.S. at 535 , 101 S.Ct. at 1912 . The due process clause of the 14th Amendment encompasses a right to be free from “unjustified intrusions on personal security” such as the plaintiff suffered at the hands of her attacker. Ingraham v. Wright, 430 U.S. 651, 673 , 97 S.Ct. 1401, 1413 , 51 L.Ed.2d 711 (1976). See also, White v. Rochford, 592 F.2d 381, 383 (7th Cir.1979) (“White”). Although the City has no general duty to protect members of the public from such danger, Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984) (“Byrne ”); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.1983) (“Joliet”)) a constitutional duty to protect the personal security of specific members of the public exists under certain “special relationship[s]”. Byrne, 738 F.2d at 1446-47 . I agree with the majority that “what constitutes a ‘special relationship’ ... [is] hazy and indistinct.” However, I would not be as hasty as the majority to conclude that “[u]pon reviewing the facts of this case, we are unable to include within the concept of ‘special relationship’ the relationship between the city and the [plaintiff].”
A review of the cases suggests at least two factors to consider in deciding whether a special relationship exists. One factor that has been stressed is whether the danger which the defendant allegedly had a duty to prevent was directed at the public at large or only at a specific individual. See Martinez v. California, 444 U.S. 277, 285 , 100 S.Ct. 553, 559 , 62 L.Ed.2d 481 (1980); Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983). Another factor to consider is how closely the danger to the plaintiff is linked to actions of the defendant. See Byrne, 738 F.2d at 1446 . Taking the allegations of the complaint as true, in the instant case, the defendant had clear notice of a specific danger to the plaintiff. The danger was limited to the plaintiff and her family and did not encompass the general public. Moreover, the danger arose as a result of the City’s actions in investigating and prosecuting illegal drug dealings in the City of Racine. I am not prepared to say that, given these allegations, no “special relationship” between the city and the plaintiff could be found in this case.
Finally, the defendant’s brief raises the issue of whether the City may be held liable for negligence in protecting the plaintiff even if state action and a “special relationship” are shown. This court has accepted the view that in a Section 1983 action the state of mind of the defendant is irrelevant. See State Bank v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983). Though simple negligence may not give rise to a cause of action under Section 1983, gross negligence clearly gives rise to a cause of action. White, 592 F.2d at 385 . Gross negligence in this context is ignoring a known, specific danger. Id. Taking the allegations of the complaint as true, the City could be found to have been grossly negligent when after having been informed of potential danger to the plaintiff, the City’s police officer assigned to protect the plaintiff left her unguarded after the officer observed a suspicious automobile drive slowly past the plaintiff’s home. However, because the plaintiff’s complaint admits that she was left unguarded as a result of her own decision, I believe the City cannot be held responsible for failing to protect her from subsequent events. Accordingly, I concur in the judgment of the majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474049. Public record. Not legal advice.