holding that the public-duty rule contravened Colorado statute providing that “liability of the public entity shall be determined in the same manner as if the public entity were a private person,” Colo.Rev.Stat. 24-10-107
How later courts described this case
- holding that the public-duty rule contravened Colorado statute providing that “liability of the public entity shall be determined in the same manner as if the public entity were a private person,” Colo.Rev.Stat. 24-10-107
- holding police officers who took temporary charge of a drunken youth at a party owed duty to the public under § 319 while youth was actually in their custody, but owed no duty to the public after releasing him to his brother
- quoting, Thomas M. Cooley, A Treatise on the Law of Torts, 379 (1879)
- noting “the effect of the rule is identical to that of sovereign immunity. Under both doctrines, the existence of liability depends entirely upon the public status of the defendant”
Written by the judges who cited it.
The opinion
ROYIRA, Justice, specially
concurring:
I agree with the majority’s conclusions, that respondents’ claims against the Com-’ merce City police officers fail on conventional tort principles and that the decision by the officers not to take Ralph Crowe ¡ into custody or assist him home is protected by official immunity. However, I disagree with the conclusion that “we are squarely confronted with the question of whether the public duty rule is still good law in Colorado,” majority op. at 157, and therefore do not join in part II A of the majority opinion.
Since respondents’ claims fail under traditional tort analysis, I see no need to address the public duty issue in this case. As the majority points out, the public duty issue was not addressed by the court of appeals. Majority op. at 154. Moreover, the issue upon which certiorari was granted relating to petitioners’ duty to respondents did not specifically raise the public duty question. In granting certiorari we asked the parties to address: “Whether the defendants owed a duty to plaintiffs and their decedents such that the defendants’ failure to protect them is actionable.” Both parties responded by presenting traditional tort duty arguments, and neither addressed the public duty issue.
In my view, the court should not decide an issue of considerable public importance, such as the abolition of the public duty rule, which was not briefed and is not necessary for resolution of the case at bar. 1 As the majority points out, the public duty rule is controversial; and while there may *165 be a trend towards abolition of the rule, majority op. at 158, the majority of states probably still adhere to the rule, majority op. at 158. Without the benefit of briefs by the parties and interested amici, the court is in a poor position to determine whether the public duty rule has force and content independent of the doctrine of sovereign immunity. A determination of the continuing vitality of the rule would be better left for a later day.
Finally, I note that to the extent that the public duty rule is either a function of sovereign immunity or identical in effect to sovereign immunity, see majority op. at 160, the legislature clearly has the power to reimpose the public duty rule in statutory form. “If the General Assembly wishes to restore sovereign immunity and governmental immunity in whole or in part, it has the authority to do so.” Evans v. Board of County Commissioners, 174 Colo. 97, 105 , 482 P.2d 968, 972 (1971).
. Neither of the parties cited any of the cases discussed by the majority in part II A 1, The Public Duty Doctrine. This clearly reflects their lack of understanding that the public duty rule was to be considered due to the failure of the court to frame the certiorari issue in a manner which would result in a discussion by the parties of the public duty doctrine.