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32 Vill. L. Rev. 505 (1987)
Government Liability and the Public Duty Doctrine

handle is hein.journals/vllalr32 and id is 519 raw text is: 1987]
Two children lay dead in Commerce City, Colorado, victims of a
drunken teenage driver.' Just prior to the accident, the teenager had
been in police custody.2 Although the police were aware that the teen-
age driver was intoxicated, they released him into the custody of his
brother.3 The victims' parents thereafter brought a wrongful death ac-
tion against the Commerce City Police Department.4 It is precisely situ-
ations such as this to which the public duty doctrine is applicable.5
1. Leake v. Cain, 720 P.2d 152, 153-54 (Colo. 1986) (wrongful death action
brought on behalf of pedestrians struck by automobile driven by intoxicated
person whom police officers had released in custody of younger brother). For a
discussion of Leake, see infra notes 99-112 and accompanying text.
2. Leake v. Cain, 720 P.2d 152, 154 (Colo. 1986). The Commerce City po-
lice officers were dispatched to break up a teenage party after a neighbor com-
plained. Id. While ordering the teenagers to disperse, 18 year old Ralph Crowe
became disruptive and was handcuffed and detained by the officers. Id.
3. Id. After Ralph Crowe's detention, the police officers were approached
by Ralph's 17 year old brother Eddie Crowe. Id. Eddie Crowe requested that
Ralph be released to him and told the officers that he would drive his brother
home. Id. After noting that Eddie appeared sober and possessed a valid driver's
license the officers agreed to permit Ralph Crowe to leave the party with his
brother. Id.
4. Id. The representatives (respondents) of the two children struck and
killed by Ralph Crowe brought the action against Ralph Crowe, his fatherJames
Crowe, the five Commerce City police officers who responded to the party, and
Commerce City (petitioners). Id. James Crowe was subsequently dismissed
from the action by stipulation of both parties and Ralph Crowe was not a party
to the Colorado Supreme Court appeal. Id. at n.5.
Respondents alleged that the police officers had reason to believe Ralph
Crowe was intoxicated at the time of his detention and were thus negligent in
failing to take him into custody. Id. at 154. Respondents further alleged police
negligence in the release of Ralph Crowe to his younger brother, since it was
foreseeable that Ralph Crowe would drive intoxicated and that injury to the
public was therefore a foreseeable consequence. Id.
After a hearing, the trial court granted petitioners' motion for summary
judgment. Id. at 153. The court of appeals reversed and remanded the case for
trial. Id. (citing Cain v. Leake, 695 P.2d 798 (Colo. Ct. App. 1984)). In 1986 the
Supreme Court of Colorado granted certiorari, and reversed and remanded the
case to the court of appeals with directions to reinstate the trial court's order
granting summary judgment. Id.
5. See id. at 155-56; see also Shore v. Town of Stonington, 187 Conn. 147,
444 A.2d 1379 (1982) (summary judgment granted on basis of public duty doc-
trine in action against town for police officer's failure to arrest drunken driver);
Fryman v. JMK/Skewer, Inc., 137 Ill. App. 3d 611, 484 N.E.2d 909 (1985)
(county found not liable to patrons of restaurant serving contaminated food in-
spected by county health department where duty to warn was public duty); Cox
v. Department of Natural Resources, 699 S.W.2d 443 (Mo. Ct. App. 1985) (pub-
lic duty of state agency to maintain safe swimming area held not actionable by


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