Washington Did police have duty to stop random murder? Court dismisses city's motion for summary judgment

By Pat Murphy

The Daily Record Newswire

BOSTON, MA -- Trying to establish liability for the criminal acts of a third party is about as treacherous a task as any personal injury attorney can undertake.

When that third party is an unstable young man with a shotgun, what are the odds that a court would find anyone, especially police, potentially liable for failing to prevent his random attack?

On Monday, the Washington Court of Appeals did indeed conclude that the city of Seattle and two of its police officers had a duty to prevent 17-year-old Samson Berhe from flagging down a car, putting a shotgun in the window, and shooting the driver in the face.

The inexplicable murder occurred around 7:30 p.m. on June 26, 2005. Berhe flagged down a car as he was walking down Southwest Marginal Way in Seattle. The unfortunate driver, Michael Robb, should have kept right on going because Berhe was carrying a long gun case.

When Robb pulled over, Berhe pulled out a shotgun, stuck it in the car's window, and pulled the trigger. The blast struck Robb in the face, killing him.

The state initially charged Berhe with first degree murder, but the young man was ultimately committed to Western State Hospital as not guilty by reason of insanity.

Elsa Robb, Michael's mother, sued Seattle and two of its police officers for wrongful death.

The two police officers, Kevin McDaniel and Ponha Lim, had stopped Berhe and his friend, Raymond Valencia, just two hours before he fatally shot Michael Robb.

Berhe and Valencia were suspects in a local burglary. The officers arrested Valencia, but let Berhe go, even though he was allegedly incoherent and a number of shotgun shells could be seen scattered on the ground near where the two men had been stopped.

As if these circumstances weren't alarming enough, police had had a number of previous run-ins with Berhe, run-ins that probably should have placed the officers on notice that Berhe needed to be handled more carefully.

For example, in May 2004, Seattle police twice took Berhe to a hospital for a mental evaluation. Police at that time acted at the request of Berhe's parents who said they were afraid because of the young man's erratic and destructive behavior.

The week before Berhe randomly shot Michael Robb, police were allegedly notified that Berhe was again engaging in bizarre and aggressive behavior. Moreover, at that time they allegedly learned that Berhe possessed a shotgun.

In defending Elsa Robb's claims of negligence, the city contended that it was immune under the public duty doctrine, reasoning that the obligation of its officers to protect Michael Robb from the criminal acts of Berhe was indistinct from their responsibility to protect the public generally.

But the Washington Court of Appeals on Monday decided that the evidence in the case could support liability under Restatement (Second) of Torts 302B, which recognizes a potential duty to guard another person against a foreseeable risk of harm caused by a third person.

Pertinent to Robb's case is Section 302B comment e, which recognizes a duty of care when a "special relationship" exits or "where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would take into account."

This was the clincher for the state court of appeals, which on Monday affirmed the denial of the city's motion for summary judgment.

"[I]t should not be surprising that tort liability can be imposed if officers take control of a situation and then depart from it leaving shotgun shells lying around within easy reach of a young man known to be mentally disturbed and in possession of a shotgun. ...

"A jury could find that the affirmative acts of the officers in connection with the burglary stop created the risk of Berhe coming back for the shells and using them intentionally to harm someone, a risk that was recognizable and extremely high. Under these circumstances, the officers owed Robb a duty in tort to protect against Berhe's criminal misconduct," the court said. (Robb v. Seattle).

Published: Thu, Dec 30, 2010

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