Opinion
NO. 2012-CA-001105-MR
07-03-2014
PAUL GRANT AND PATRICIA GRANT APPELLANTS v. CITY OF RACELAND, KENTUCKY; RACELAND POLICE DEPARTMENT; DON SAMMONS AND ELAIN ELDER APPELLEES
BRIEF FOR APPELLANTS: Michael J. Curtis Ashland, Kentucky BRIEF FOR APPELLEES: Nolan Carter, Jr. James B. Cooper Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 10-CI-00551
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Paul Grant and Patricia Grant appeal from an order dismissing their complaint.
The Grants are the stepfather and mother of Daniel "Buddy" Ellison. Daniel was found hanging in a closet at his home on October 17, 2001. The Raceland City Police Department and the coroner investigated his death and concluded he died from a suicidal hanging.
The Grants did not believe Daniel committed suicide based on evidence at the scene that a struggle occurred and blood splatter. On December 6, 2003, an inmate reported another inmate's detailed confession to killing Daniel, his motive for doing so and then staging his body to make it appear Daniel committed suicide.
The Grants hired experts to investigate the cause of Daniel's death. Pursuant to a court order, in 2008, the Grants were allowed to exhume Daniel's body and have an autopsy performed. A series of experts hired by the Grants opined the injuries to Daniel's body were inconsistent with a suicide and consistent with homicide. Daniel had a defensive wound to his right hand and the force necessary to cause the traumatic cervical injuries which killed him could not be caused by a suicidal hanging. Other experts concluded the police erred in failing to investigate his death and the details given in the 2003 confession were consistent with the autopsy findings as to how the death occurred.
In light of this evidence, the Grants attempted to have Daniel's death declared a homicide and investigated further. The coroner's office changed Daniel's cause of death to undetermined and a review by the Justice and Public Safety Cabinet concurred in that finding. However, no criminal investigation occurred.
On August 9, 2010, the Grants filed a lawsuit against the City of Raceland, the Raceland Police Department, Sammons and Elain Elder (the defendants), claiming the defendants were jointly and severally liable for gross negligence in the training of police officers and in their investigation into Daniel's death.
The defendants filed a motion to dismiss the complaint based on failure to state a cause of action, the expiration of the statute of limitations, the Grants lacking standing to sue and failure to state a justiciable controversy. The circuit court granted the motion to dismiss and the Grants appealed.
The parties agree the issue before our Court is whether the Grants can maintain a cause of action for negligent investigation. The Grants argue for a change in the law to allow Kentucky courts to recognize a cause of action for reckless or gross negligence in investigation regardless of any special relationship. We conclude Kentucky law does not provide for this type of cause of action and affirm.
We review the dismissal of a complaint pursuant to CR 12.02(f) for failure to state a claim as a matter of law. James v. Wilson, 95 S.W.3d 875, 883-884 (Ky.App. 2002).
Although police officers have a general duty to protect citizens from crime, this duty is owed to the public as a whole and cannot be breached by failure to protect an individual in the absence of a special relationship. Ashby v. City of Louisville, 841 S.W.2d 184, 189-190 (Ky.App. 1992). There is no "special relationship" resulting in a special duty unless "the victim was in state custody or was otherwise restrained by the state at the time in question, and that the violence or other offensive conduct was perpetrated by a state actor." Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995) (quoting Ashby, 841 S.W.2d at 190). See also Grogan v. Commonwealth, 577 S.W.2d 4, 5-6 (Ky. 1979) (determining a city could not be liable for failing to enforce its public safety laws).
The fact that the police owe a general duty to the public to investigate crimes does not establish the police or any of the other defendants owed any duty to the Grants to properly investigate Daniel's death. The Grants have failed to establish any special relationship between Daniel or themselves and the defendants. Therefore, as a matter of law, there was no duty to be breached and the circuit court acted appropriately in dismissing the case.
Accordingly, we affirm the Greenup Circuit Court's order granting the motion to dismiss.
ALL CONCUR. BRIEF FOR APPELLANTS: Michael J. Curtis
Ashland, Kentucky
BRIEF FOR APPELLEES: Nolan Carter, Jr.
James B. Cooper
Lexington, Kentucky