Pamp. 1979) (emphasis added). The Court of Appeals, relying on its opinion in Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct.App. 1979), held that the duty imposed by Section 29-1-1 was a duty owed to the general public and that, absent a "special duty" owed to petitioner, failure to perform the duty or an inadequate or erroneous performance would not give rise to an individual cause of action. The Court of Appeals noted the absence of a special duty owed to petitioner in this case and held that the "public duty-special duty" rule precluded petitioner's action.
Such a special duty arises in two circumstances: (1) where there is an affirmative act by the officer causing injury ; and (2) when a specific promise or representation by the officer is made under circumstances creating justifiable reliance. McGeorge v. City of Phoenix , 117 Ariz. 272, 572 P.2d 100 (1977) ; Doe v. Hendricks , 92 N.M. 499, 590 P.2d 647 (1979). Examples of situations within the first category are placing an individual under arrest or committing an assault.
McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (1977); Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (1979). Examples of situations within the first category are placing an individual under arrest or committing an assault.
In contrast, a special relationship does not come into being simply because an individual requests assistance from the police. Hartzler v. City of San Jose, 46 Cal.App.3d 6, 120 Cal.Rptr. 5 (1975) (no duty to protect victim who informs police of imminent danger and requests help); Doe v. Hendricks, 92 N.M. 499, 502-503, 590 P.2d 647, 651 (1979) (no duty to victim to respond promptly to witness' call for help); Riss v. City of New York, supra, 22 N.Y.2d at 579, 240 N.E.2d at 860, 293 N.Y.S.2d at 897 (no duty to comply with victim's repeated request for protection from rejected suitor); see Porter v. City of Urbana, supra, 88 Ill. App. 3d at 446, 43 Ill.Dec. at 613, 410 N.E.2d at 613 (recognizing rule). Otherwise, a police officer's general duty to the public inevitably would narrow to a special duty to protect each and every person who files a complaint with the department and attaches a request for help. Under these circumstances, the no-liability rule is particularly salutary: individual citizens are in no position to direct the discretion of police officers whose primary responsibilities must be focused broadly in attending to the safety of the public at large.
JUSTIFIABLE RELIANCE The appellants Graham contend: ". . . in Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (1979), New Mexico held that even if initially no special relationship exists, a police officer, by voluntarily assuming a special duty, creates a privity by that action, subjects himself and the city to a special relationship, subjecting them to act under a standard of care. The New Mexico court said:
Swanson, supra; Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280. A general duty versus a special duty is a matter of law for the court to decide. Doe v. Hendricks (1979), N.M.Ct.App., 92 N.M. 499, 590 P.2d 647; Crouch v. Hall (1980), Ind. App., 406 N.E.2d 303. We agree with the University that if the court determined that there was no contested issue of material fact giving rise to a special or private duty, then summary judgment is appropriate.
It is well settled that the duty of a law enforcement officer to preserve the peace is one which is owed to the public generally and not to particular individuals; for breach of that duty an officer is not liable to any particular individual but only to the public. South v Maryland, 59 US (18 How) 396; 15 L Ed 433 (1855); Annala v McLeod, 122 Mont. 498; 206 P.2d 811 (1949); Commercial Union Ins Co of New York v Wichita, 217 Kan. 44; 536 P.2d 54 (1975); Trautman v Stamford, 32 Conn. Sup. 258; 350 A.2d 782 (1975); 70 Am Jur 2d, Sheriffs, Police, and Constables, § 54, p 170; Anno: Personal Liability of Policeman, Sheriff, or Similar Peace Officer or His Bond, for Injury Suffered as a Result of Failure to Enforce Law or Arrest Lawbreaker, 41 ALR3d 700. See, generally, 2 Cooley on Torts (4th ed), § 295 et seq.; Massengill v Yuma County, 104 Ariz. 518; 456 P.2d 376 (1969); Doe v Hendricks, 92 N.M. 499; 590 P.2d 647 (1979); Shore v Stonington, 187 Conn. 147; 444 A.2d 1379 (1982). The determination of whether a duty was owed by a defendant to an individual plaintiff is a question of law for the court to decide.
Hern is also contrary to a Court of Appeals opinion noting that immunity from liability under a similar statute is an affirmative defense that may be waived by a governmental entity. See Doe v. Hendricks, 92 N.M. 499, 501, 590 P.2d 647, 649 (Ct. App. 1979). In Hendricks, the Court of Appeals upheld the trial court's legal conclusion that, where the City presented no evidence on the issue of waiver under the former Peace Officers Liability Act (which "protected police officers from liability while in the performance of a public duty," and which was repealed when the NMTCA was enacted, see Schear v. Bd. of Cty. Com'rs, 101 N.M. 671, 672-73, 687 P.2d 728, 729-30 (1984))
Id. at 364, 644 P.2d 458. The court also finds the factual circumstances in Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct.App. 1979) analogous to the case at bar. Doe is cited in Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983) as authority for the existence of the special relationship exception.
See, e.g., Adams v. State, 555 P.2d 235, 241 (Alaska 1976) ("The duty is a limited one, and its beneficiaries a limited class . . . not . . . the public in general"); Halvorson v. Dahl, 89 Wn.2d 673, 676, 574 P.2d 1190, 1192 (1978) (en banc) ("Liability can be founded upon a municipal code if that code by its terms evidences a clear intent to identify and protect a particular and circumscribed class of persons" (citations omitted)); cf. Oleszczuk v. State, 124 Ariz. 373, 604 P.2d 637 (1979) (en banc) (whether duty is owed to the general public or to a specific individual is a material issue of fact precluding summary judgment). In contrast, with the exception of Nelson v. Freeman, supra, the cases on which the District relies are all distinguishable from the case at bar, each of them being a typical public duty case: Morgan v. District of Columbia, supra; Platt v. District of Columbia, supra; Warren v. District of Columbia, supra; Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (N.M.App. 1979); Yearwood v. Town of Brighton, 101 A.D.2d 498, 475 N.Y.S.2d 958, aff'd, 64 N.Y.2d 667, 474 N.E.2d 612, 485 N.Y.S.2d 252 (1984). Appellants also refer us to Brasel v. Children's Services Division, 56 Or. App. 559, 642 P.2d 696 (1982).