Request By:
Fonda V. McClellan, Esq.
City Attorney
City of LaGrange
114 East Main Street
LaGrange, Kentucky 40031
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the potential liability of the city's police department when it uses police dogs in a building where a burglary is in progress. The police department wants an opinion as to whether it would incur liability if police dogs were turned loose in a building and a burglary suspect was harmed by a dog which had been trained to attack and subdue. The dogs in question belong to another police department and were brought into your city for use in burglary investigations.
First we will consider municipal liability under state law. Prior to the decision rendered in
Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), the doctrine of sovereign immunity was applicable to cities. The court said in that case that it was receding from prior decisions which held cities immune from liability for ordinary torts. Liability was not imposed on cities in connection with the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions. The court said in part: "Our decision does not broaden the government's obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision." See also
City of Louisville v. Chapman, Ky., 413 S.W.2d 74 (1967).
In
City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968), the court modified the earlier decision in Haney, supra, but did affirm the principle of municipal liability for tort. In determining in what instances and to what extent actions should be permitted against cities, it was recognized that there must be some limitations. A different standard is to be applied, the court concluded, when a claimant seeks to hold a city liable for a risk which is inherently part of the carrying on of the function of government as opposed to when the city is engaging in a function as a private person would do. Where the city's act affects all members of the general public alike, it would be unreasonable to apply to it the broad principles of tort liability. The city will incur liability for its tortious conduct if it seeks out or separates the individual from the general public and deals with him on an individual basis. See also
City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1969) and
Fryar v. Stovall, Ky., 504 S.W.2d 701 (1973).
In
Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977), the court seemed to reapply the test set forth in Louisville Seed Company, supra. The court said a city's relationship to individuals and to the public is not the same as that of a private individual or corporation and its duties are not the same. Where a city undertakes measures for the protection of its citizens (firefighting in this case), it is not held to the same standards of performance that would be required of a professional organization. When the city is engaged in a municipal function affecting all members of the general public, the city owed no duty to the appellants (individual property owners).
In
Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979), the court said that in the enactment of laws designed for the public safety, a city does not undertake to perform the task. It only attempts to compel others to do it, and as one method of enforcing that purpose it may direct one of its officers to perform an inspection function. The failure of its officers and employes to perform that function does not constitute a tort committed against the individual who may incidentally suffer damage or injury in common with others. It is better to have laws for public protection, even haphazardly enforced, than not to have them at all.
In
Com., Dept. of Banking & Securities v. Brown, Ky., 605 S.W.2d 497 (1980), the court said that when a governmental entity is performing a self-imposed protective function the individual citizen has no right to demand recourse against it though he is injured by its failure to efficiently perform that function. The government is not an ensurer of the quality of services its agents render.
For several cases dealing with municipal liability and municipal police officers we direct your attention to
City of Lexington v. Yank, Ky., 431 S.W.2d 892 (1968);
Ellis v. Jordan, Ky., App., 571 S.W.2d 635 (1978);
Brown v. City of Louisville, Ky. App., 585 S.W.2d 428 (1979). In the Brown case, supra, at pages 429-430 of its opinion, the court said in part as follows:
". . . The common thread running through these cases is that when a municipality, through its employees or agents, is performing some municipal function affecting or in behalf of the general public, no duty arises to protect any individual on a personal basis. Therefore, there is no ground for negligence on which the municipality can be held liable. However, if the municipality attempts to deal on an individual level with a person isolated from any general public function and the municipality is negligent in those dealings, then it can be found liable."
Municipal liability under federal law, particularly under the Federal Civil Rights Act (42 U.S.C.A. § 1983), presents a whole new set of problems and the volume of litigation directed against local governments and officials of local governments, alleging violations of the Federal Civil Rights Act, has become a virtual flood in recent years. In
Starstead v. City of Superior, 533 F. Supp. 1365, 1368 (W.D. Wisc. 1982), the court said in part as follows with respect to municipal liability under § 1983:
"It is now clear that cities are 'persons' within the meaning of § 1983 and can be held liable for the unconstitutional conduct of their agents.
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), overruling on this point,
Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). It is equally clear that a 'municipality cannot be held liable under § 1983 on a respondeat superior theory.' Monell, 436 U.S. at 691, 98 S. Ct. at 2036. Municipal liability will be sanctioned only if the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers."
In the Starstead case, supra, plaintiffs alleged that the wanton misuse of police dogs by police officers occurred within the knowledge and under the authority of the police chief and the mayor. They alleged that the deprivation of their rights is the result of the city's inadequate policy and the inadequate implementation of that policy. It was further alleged that the unconstitutional conduct resulted because the police officers were not properly trained and supervised. The court concluded that the plaintiffs have effectively alleged the existence of a municipal policy directing the deprivation of their rights and denied defendant's motion to dismiss the claim.
You may also wish to examine the case of
Hays v. Jefferson County, Ky., 668 F.2d 869 (6th Cir. 1982), concerning alleged acts of wrongdoing by police officers in violation of the Federal Civil Rights Act.
We cannot specifically answer your question under either state or federal law. The fact situation presented is just too brief and any attempt at specificity would require too many assumptions on our part. We have attempted to briefly outline the development of municipal liability under state court decisions and we have at least alerted you to the possibility of municipal liability under the Federal Civil Rights Act. While, obviously, our evaluation of the situation under either state or federal law is by no means complete, it may assist you in your analysis of the problem and the development of a precise answer to the question with which you are concerned.