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12/28/90 NETTIE CUNNINGHAM v. DISTRICT COLUMBIA

December 28, 1990

NETTIE CUNNINGHAM, ET AL., APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Joseph M. Hannon, Trial Judge

Ferren, Terry, and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry

Ricky Brogsdale, a parolee under the supervision of the District of Columbia Board of Parole, shot seven women during a six-week period in September and October 1987. Two of the women died; the other five suffered various injuries, some of them extremely serious. The five surviving victims and the estates and next of kin of the two decedents filed this action against the District of Columbia, Dr. Peter Roemer, and "John Doe One through John Doe Twenty and Jane Doe One through Jane Doe Twenty," all of whom were alleged to be employees of the District of Columbia or Saint Elizabeths Hospital. Seeking damages for the injuries caused by Mr. Brogsdale, the plaintiffs (appellants here) alleged malpractice and negligence on the part of Dr. Roemer, a psychiatrist employed by the District of Columbia who had been directed by the parole board to examine Brogsdale. The claim against the District was based on a theory of respondeat superior. The trial court dismissed the complaint against the District of Columbia under Super. Ct. Civ. R. 12(b)(6) for failure to state a claim, *fn1 and dismissed the complaint against Dr. Roemer "because his actions taken with respect to Ricky Brogsdale were part of a quasi-judicial function, and thus he is immune from civil tort liability." We affirm the trial court's dismissal of appellants' complaint in all respects. *fn2

I

The pertinent facts are not in dispute. Ricky Brogsdale was paroled on May 11, 1987, after serving part of a sentence for carrying a pistol without a license. On June 25, less than two months later, he was arrested on a charge of indecent exposure. Shortly thereafter he was released by the court, although the circumstances of his release are not clear from the record. Despite Brogsdale's arrest, the parole board decided not to revoke his parole at that time, postponing any determination until after the new charge of indecent exposure was resolved. Brogsdale pleaded guilty to that charge on October 23, 1987.

In the meantime, between September 6 and October 17, Brogsdale shot and wounded seven women, two of them fatally. In 1989 he was convicted of first-degree murder in connection with the death of Yvonne Watts, whose mother is one of the appellants in this case, and of various assault charges arising from the shootings of three of the other appellants.

Appellants' complaint alleged that before and during the period when Brogsdale committed his criminal acts, he was both evaluated and treated by Dr. Peter Roemer at the behest of the parole board. Dr. Roemer was at that time employed by the Bureau of Forensic Psychiatry, an agency of the District of Columbia. See D.C. Code § 24-106 (1989). Appellants asserted that he had breached an affirmative duty of care by erroneously advising the parole board that Brogsdale presented no danger to the community, and that his breach of this duty was the proximate cause of their injuries because the parole board, relying on Roemer's advice, allowed Brogsdale to remain at liberty instead of revoking his parole.

The trial court ruled that appellants' claims were barred by the public duty doctrine because the District of Columbia and its agents had violated no duty owed to appellants. This ruling was plainly correct. See, e.g., Klahr v. District of Columbia, 576 A.2d 718, 719 (D.C. 1990); Akins v. District of Columbia, 526 A.2d 933, 935 (D.C.), cert. denied, 484 U.S. 890, 108 S. Ct. 213, 98 L. Ed. 2d 177 (1987); Morgan v. District of Columbia, 468 A.2d 1306, 1310-1311 (D.C. 1983) (en banc); Platt v. District of Columbia, 467 A.2d 149, 151 (D.C. 1983); Warren v. District of Columbia, 444 A.2d 1, 3 (1981) (en banc). *fn3

The dismissal of the claims of appellants Turner and Shaw on the alternative ground that they had failed to give timely notice under D.C. Code § 12-309 (see note 1, supra) was likewise correct. Turner and Shaw assert that a police report can meet the statutory requirement of notice, *fn4 and that each of the shootings committed by Brogsdale was the subject of such a report. We have repeatedly held, however, that section 12-309 must be strictly construed, e.g., Campbell v. District of Columbia, 568 A.2d 1076, 1078 (D.C. 1990), and that a police report must meet specific criteria to serve as the requisite notice. See Allen v. District of Columbia, 533 A.2d 1259, 1261-1263 (D.C. 1987); Jenkins v. District of Columbia, 379 A.2d 1177 (D.C. 1977); Miller v. Spencer, 330 A.2d 250, 251-252 (D.C. 1974); Brown v. District of Columbia, 304 A.2d 292 (D.C. 1973). Appellants failed to show that the police reports about the particular events in question here met the requirements of section 12-309. We find no error whatever in the trial court's ruling on this point.

The only matter that calls for more than cursory Discussion -- indeed, the only aspect of this case that prompts us to issue a published opinion -- is the trial court's ruling with respect to Dr. Roemer. To that we now turn.

II

"The immunity of Judges from liability for damages for acts committed within their judicial jurisdiction" is a strongly founded doctrine in the law of our nation. Pierson v. Ray, 386 U.S. 547, 553-554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). Indeed, the doctrine can be traced back to the Middle Ages, antedating the nation itself by several centuries. It serves to " judicial independence by insulating Judges from vexatious actions prosecuted by disgruntled litigants." Forrester v. White, 484 U.S. 219, 225, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988), citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348, 20 L. Ed. 646 (1871). Judicial immunity is "a general principle of the highest importance to the proper administration of Justice" because it permits a judicial officer to exercise his or her judicial authority freely and impartially, without apprehension of personal liability for what some disappointed litigant may regard as a wrong decision. Id.; see Forrester v. White, supra, 484 U.S. at 226-227. This immunity applies "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Bradley v. Fisher, supra, 80 U.S. (13 Wall.) at 347. A Judge will be subject to liability only when he or she "has acted in the 'clear absence of all jurisdiction.'" Stump v. Sparkman, 435 U.S. 349, 357, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) (citation omitted).

District of Columbia case law accords Judges immunity from liability for acts done in their judicial capacity if the particular act at issue is a "judicial act." Stanton v. Chase, 497 A.2d 1066, 1068 (D.C. 1985), citing Stump v. Sparkman, supra, 435 U.S. at 360-362. Although that term is difficult to define with precision, the Supreme Court offered a working definition in Stump:

The relevant cases demonstrate that the factors determining whether an act by a Judge is a "judicial" one relate to the nature of the act itself, i.e., whether it is a function normally performed by a Judge, and the expectations of the parties, ...


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