Causes of Action: No universal duty to protect others addressed

The following discussion of common law negligence and duty to protect others was discussed in Gibson v. Hicks, COA, Pub., 7/27/2012:

We first discuss whether Gibson had a common law duty to protect Hicks from her abusers.

-Essential elements of any common law negligence action are that the defendant must have a duty to the plaintiff and have breached that duty. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003). Whether a legal duty exists is a question of law. “If no duty is owed by the defendant to the plaintiff, there can be no breach thereof, and therefore no actionable negligence.” Ashcraft v. Peoples Liberty Bank & Trust Co., Inc., 724 S.W.2d 228, 229 (Ky.App. 1986).

There is no universal duty for every person to protect others against foreseeable injuries. Although Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328 (Ky. 1987), is “cited often by parties advocating a theory of liability or a cause of action where none previously existed and legal authority is otherwise lacking,” the universal duty concept has been repeatedly rejected. James v. Wilson, 95 S.W.3d 875, 891 (Ky.App. 2002).

Public employees, like ordinary citizens, do not have a common law duty to protect individuals from crime. Often referred to as the public duty doctrine, absent a special relationship to the victim, public officials have a duty to the public at large, not to individual crime victims. Ashby v. City of Louisville, 841 S.W.2d 184, 189 (Ky.App. 1992).

The “special relationship” test has been explained by our Supreme Court. In Fryman v. Harrison, 896 S.W.2d 908, 910 (Ky. 1995), the Court reiterated the prevailing view that “[i]n order to establish an affirmative duty on public officials in the performance of their official duties, there must exist a special relationship between the victim and the public officials.” The Court held that the “special relationship” requirement applies to federal civil rights cases and to ordinary tort cases. Id. It approved a two-part test. “It must be demonstrated that 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.” Id. (quotations omitted). Although recognizing that the result is often harsh, in Collins v. Hudson, 48 S.W.3d 1, 6 (Ky. 2001), the Court emphasized that the test is based in logic and public policy. Because Hicks was not in the Cabinet’s custody or otherwise restrained by Gibson or the Cabinet at the time she was neglected and abused, she cannot meet the Fryman test.