Leake v. Cain

¶1concurring:

¶2I 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.

¶3Since 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.

¶4In 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 *165be 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.

¶5Finally, 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).