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  1. #1
    Join Date
    Mar 2009
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    3

    Default Public Duty Doctrine

    My question involves civil rights in the State of: West Virginia

    I am looking for information about the Public Duty Doctrine. Is it the same nationwide or does each state alter it to fit their needs? I recently had a summary judgment granted because of the public duty doctine, I failed to meet the requirments of the "special relationship" exception.

    I've been doing some research and have found that many states also have a "egregious conduct" exception to teh doctrine, which I would definitely be covered by, but I can't find this exception in my state (West Virginia).

    The only exception I can find for WV is the special relationship exception which apparently I don't meet. Is there any way to find WV's Public Duty doctrine or find out of the egregious conduct exception applies here?

    Any help is appreciated!

  2. #2

    Default Re: Public Duty Doctrine

    We'd need to know under what circumstances you fall under the additional burden. Why do you meet the special requirement?
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  3. #3
    Join Date
    Mar 2009
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    3

    Default Re: Public Duty Doctrine

    Actually it's a long story.

    My neighbor has been harassing me for three years by riding obnoxiously loud ATVs past my house all day every day. My city has an ATV ordinance that prohibits ATVs from riding on city streets, and a noise ordinance that prohibits excess noise. He also rode the ATVs on my street in excess of 45mph and the speed limit is 15mph. I complained to the city every day, begging them to stop the harassment by enforcing their laws, but they did nothing to stop him and eventually told me to stop bothering them because they weren't interested.

    I ended up filing two lawsuits, a nuisance suit against my neighbor and a suit against the city for failing to protect me. The quiet peace and enjoyment of my home is my constitutional right, plus he devalued my property by making the constant noise.

    I won the nuisance case, the judge permanently enjoined my neighbor from riding ATVs on my street or any residential street in the city! I wasn't as lucky with my case against the city though. The Judge said that the public duty doctrine protected city officials from being sued for failure to enforce ordinances, and the only exception to the doctrine is called the "special relationship exception" which I didn't meet the requirements for.

    I've been researching the public duty doctrine in general (I can't find one specifically for the state of WV) and in most states there are two exceptions:

    1. The "special relationship exception" that I didn't meet the requirements for, and

    2. The "egregious conduct exception", which says that "the government entity created or allowed for the persistance of circumstances that forced a reasonably prudent person into a position of extreme peril, and then failed to remedy that peril in a reasonable time".

    I feel that the second exception would definitely apply to my case, however, I can't find any information saying that it is a recognized exception in the state of WV. According the the city's attorney's the only recognized exception to the doctrine is the special relationship exception, which I wasn't able to meet the requirements for.

    I'm trying to find out if the egregious conduct exception to the public duty doctrine applies in West Virginia.

  4. #4

    Default Re: Public Duty Doctrine

    Let me put it do you this way: EGREGIOUS means so incredibly reckless that it's almost beyond imagining. Even women who have been battered unconscious and had their children murdered by persons with restraining orders against them don't fall under the special relationship in most cases anymore when government (ie police) fails to act. Noise isn't going to cut it. If you've got SuperAttorney who can convince a jury that noise put you in imminent peril, go for it. But if you win, expect the decision to be reversed. The Supreme Court VERY strongly guards most government entities against such action. Try Googling cases like Castle Rock v. Gonzalez or Kentucky Dept. of Corrections v. Thompson, and see the extent to which public officials have discretion to grant or deny enforcement actions, how little LEGAL right an individual has to such protections, and how little LEGAL obligation the government actually has to individuals (society, yes, individuals, no).


    PS Good going on the nuisance suit though! You'd make more $$ putting up a website or writing a book about how you won THAT case than you'd get out of suing the government. The law enforcement agency (state level) that I work for gets SO many complaints about them, and our officers are as frustrated as homeowners over the LACK of enforceability of the crappy statutes in place regarding ATV's and the damage and noise they cause when buttheads are behind the wheel. There are many thousands of other people nationwide who'd LOVE to be able to win a similar suit. Kuddos!
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  5. #5
    Join Date
    Aug 2007
    Posts
    3,837

    Default Re: Public Duty Doctrine

    Quote Quoting noisy12
    View Post
    The Judge said that the public duty doctrine protected city officials from being sued for failure to enforce ordinances, and the only exception to the doctrine is called the "special relationship exception" which I didn't meet the requirements for.

    Read this thread for some general insight.


    http://www.expertlaw.com/forums/show...t=relationship


    You would need to pay a visit to a law library and find some WV case law on the subject. Try various headings in the WV Jurisprudence volumes.

    These are Treatises on legal subjects.

  6. #6
    Join Date
    Mar 2009
    Posts
    3

    Default Re: Public Duty Doctrine

    Thanks to everyone, I appeciate the advice. I found out that Rhode Island is the only state that recognizes the second exception to the doctrine, but my attorney called me into his office today and said that the judge made such a bad decision that four lawyers had already contacted him in just a two hour period, and they all said that they absolutely couldn't believe the ruling (it was printed in the local paper here). There have also been numerous residents that have said the same thing. He recommended that we appeal the decision to the state supreme court but I haven't decided yet if I want to take on the financial burden considering the amount I've already lost.

  7. #7

    Default Re: Public Duty Doctrine

    While I'm not a lawyer, I've been told of the importance of checking applicable state law, for instance:

    "On February 27, 1979, the Oregon Supreme Court followed the trend and abrogated the public duty rule in Brennen v. City of Eugene. 186..." source:https://litigation-essentials.lexisn...2a9ab1088fbfd2

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