No. 88-126
IN THE SUPREME COURT OF THE STATEOF MONTANA 1988

DENNISB. PHILLIPS, BETTY PHILLIPS AND OWEN HAKE, PlaintiffsandAppellants,-vsCITY OF BILLINGS, Defendantand Respondent,-vsJAMES BUFFALOHORN, Defendant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County ofYellowstone, The Honorable William J. S~eare, Judge presiding.
COUNSELOF RECORD:
ForAppellant: Mark D. Parker;ParkerLaw Firm,Billings,Montana
For Respondent: CharlesR. Cashmore;Crowley Law Firm,Billings, Montana FrancisX. LameBull,Billings,Montana

Submitted on Briefs: June 16, 1988 Decided: August 1111988
Filed:

## NU611

### 19@'

ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District involves appellants Phillips' and Hake's (Phillips) claims against the City of Billings (Billings) for the alleged negligence of two city police officers. The District Court granted summary judgment toBillings. We affirm. The undisputed facts are as follows: At approximately 6:00 a.m., on February 28, 1986, a car driven by James Buffalohorn entered a Billings intersection against a red light and collided with a car occupied by "Dennis" Phillips and Owen Hake. Hake and Phillips suffered injuries as a result of the collision. Blood alcohol testing indicated thatBuffalohornwas intoxicatedat the time of the accident. Approximately two hours prior to the accident,Billings police officers Randy Vogel and Keith Buxbaum had detained and questioned Buffalohorn in connection with a report made by motorist Shane Stamm. Prior to the report, sheriff's deputy Bill Michaelis had observed Stamm drive his vehicle off the road. Michael-is stopped Stamm and questioned him concerning the accident. Stamm told Michaelis that a light colored Pinto had swerved into his lane and forced him off the road. Stamm's allegation was communicated to Officer Vogel, and Vogel began to search the area for the Pinto. Moments later he observed Buffalohorn and a companion standing next to a light colored Pintoparked on a Billings street. Vogel drove to the car,detained the two individuals,and.performed
a pat down search for weapons. Vogel noticed that the car had been recently driven. Buxbaum arrived with Stamm to identify the car. Stammviewed the vehicle and insisted that the Pinto was not involved in the accident. Buxbaum and

### Vogel deposed that they suspected Stammwas less than candid
as to the other vehicle involved. They speculated that Stamm
was actually to blame for his vehicle leaving the road,and that now that police had found the other vehicle, Stammwas unwilling to blame the individuals driving the car he had described topolice. Buxbaum and Vogel noticed alcohol on the breath of Buffalohorn and his companion. Buxbaum noticed pop and beer
cans and other garbage in Buffalohorn's vehicle. The officers stated that Buffalohorn and his companion were polite and cooperative, and that even though they smelled of alcohol, neither appeared to be in a state of extreme intoxication. Buxbaum and Vogel also stated that they did not believe probable cause existed to arrest either individual for a DUI violation because neither was seen in controlof the car. However,Buxbaum remembers Vogel telling the suspects to refrain from driving the car. The officers then returned to where Stamm ran off the road, investigated the accident, and cited Stamm for careless driving and failureto carry proof of insurance. On these facts, the District Court granted summary judgment to Billings. The lower court reasoned that absent probable cause to arrest,noduty flowed from the officers to Phillips toprotect Phillips from the actions ofBuffalohorn. We agree. The precise issue here is offered by respondent Billings: Did the District Court properly grant summary judgment on the grounds that probable cause to arrest was absent as a matter of law and no other source of legal duty exists? Appellant Phillips presents four issues for review. However, each issue presented by Phillips, as well as the various contentions under each issue, may be more clearlydiscussed as contentions under the single issue offered by Billings. The first made by Phillips is that the lower court failed to justify its decision under any theory of Montana tort law. Thishas nobearing on our resolution of the issue because this Court affirms district court decisionswhich are correctregardlessof the lower court'sreasoning in reaching its decision. Norwest Bank v. Murnion (Mont. 1984), 684P.2d 1067, 1071, 41 St.Rep. 1132, 1136. Thus, this contention fails. The second contention made by Phillips is that the District Court erred because it granted summary judgment by holding that the officershad no duty to Phillipsbeyond the
mere duty to arrest Buffalohorn. Phillips presents the following conclusion from the District Court's memorandum:
The court further concludes that under the circumstances as set forth herein that the police officers had no duty to stay with either the suspects or its [sic] vehicle beyond the time that they did nor did they have any duty to arrest the suspects or prevent them further from operating thisvehicle. Phillips, citing

### S 319 of the Restatement (Second)of Torts, argues that the officers had a duty to control the potentially dangerous actions ofBuffalohorn. Section 319 of the Restatement (Second)of Torts,reads: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled isunder a duty to exercise reasonable care to control the third person to preventhim fromdoing such harm.

Restatement (Second)of Torts,S 319 (1965) (emphasisadded). We reject this argumentbecause impositionof a duty under S 319 depends on an ability to control the third person.Abernathy v. United States (8th ~ir. 1985), 773 F.2d 184, 189. Thus, under the circumstances of this case, absent probable cause,no duty existed. See,e.g.

## ,Harris v. Smith

(Cal.App. 1984), 157Cal.App.3d 100,203 Cal.Rptr. 541;Leake

v. Cain (Colo.App. 1986), 720 P.2d 152. Phillips contends liabilitymay be predicated on a duty to investigateeffectively because an effective investigation would have ripened intoprobable cause and resulted in arrest of Buffalohorn. We disagree. Closeness of the connection between the defendant's conduct and the injury suffered is a factor courts have considered in imposing aduty ofdue care. Harris, 203 Cal.Rptr. at 545. Here, the possibility that further investigation could have ripened intoprobable cause provides only a tenuous connection between the officer's conduct and Phillips' injuries. See, e.g., Harris, 203 Cal.Rptr. at 545;Leake, 720 P.2d at 161. Moreover, Phillips
can only speculate as to how a more thorough investigation would have revealed probable cause to arrest. Thus, this contention fails. Phillips argues the duty exists here because the risk
was foreseeable. We disagree. Courts considerother factors in addition to foreseeabilityin deciding the existence of a duty. Harris, 203 Cal.Rptr. at 545. Some of these factors include: the moral blame attached to thedefendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing aduty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. Harris, 203 Cal.Rptr. at 545. Thus, we refuse to find the duty here on the basis of foreseeabilityalone. Phillips contends that the officers' duty to plaintiffs
as members of the traveling public created a duty in thiscase. The majority rule states that the general duty to protect does not give rise to liability for a particular individual's injury absent a greater duty imposed by a special relationship. SeeAnnotation,Drunk Drivers: Duty to Arrest, 48A.L.R.4th 320, 326. Under the factsof this case,
we agree with the majority rule and refuse to find a duty based on the officers'general duty toprotect the traveling public. Phillips contends that the officers' duty to act with reasonable care under the circumstances exists as a duty apart from any specific duty, and thus summary judgmentwas improper. We disagree. See Whitfield v. Therriault Corp. (Mont. 1987), 745 P.2d 1126, 1128, 44 St.Rep. 1896, 1898. Without a showing that the officers had a duty to protect Phillips from danger posed by Buffalohorn,we conclude that the District Court properly granted summary judgment. Whitfield, 745 P.2d at 1128. Phillips contends that the officers had probable cause to arrest Buffalohorn. We disagree. Stamm's failure to identify Buffalohorn and his vehicle, coupled with the lack of any other information indicating that Buffalohorn had operated the vehicle, constituted lack of probable cause to arrest Buffalohorn for DUI or any charge in connection with operation of the car. Phillips contends that the presence of beer cans in the vehicle gave the officers probable cause to arrest for violation of the Billings open container ordinance. This connection is too tenuous to establish duty for failure to restrainBuffalohorn. Phillips contends that summary judgment was improper under this Court's decision inLindquistv. Moran (1983), 203 Mont. 268, 662 P.2d 281. The facts of this case distinguish Lindquist. - Tn Lindquist the officers had the ability tocontrol the tortfeasor's operation of the vehicle 

### in question. No such showingwasmade here. Fourth amendment rights naturally compete with apolice officer's duty to protect the public. Court's facing the issue we face today are wary to force police officers to choose between liability for failure to arrest,and liability for falsearrest. Lack ofprobable causedenied the officers in this case the legal authority to arrest. Thus,we agree with the District Court that lack of probable cause demonstrates lack of a material fact question, and entitles Rillinqs to judgment as amatter of Law. Whitfield, 745 P.2d at 1128.



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