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FLEMMINGS v. DISTRICT OF COLUMBIA

District of Columbia Court of Appeals.


September 25, 1998

MARY FLEMMINGS, PERSONAL REPRESENTATIVE OF THE ESTATE OF JACQUES FLEMMINGS, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.

APPEAL FROM THE SUPERIOR COURT, JOSE M. LOPEZ, J.

Before Terry and Reid, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge:

Jacques Flemmings, a Metropolitan Police officer, was shot and killed by his girl friend, Vene Lagon, who was also a Metropolitan Police officer. Appellant, Officer Flemmings' mother and the personal representative of his estate, brought this negligence action against the District of Columbia under the wrongful death *fn1 and survival *fn1 statutes, seeking damages for the death of her son. The trial court dismissed the complaint under Super.Ct.Civ.R. 12(b)(6) for failure to state a claim upon which relief could be granted. We affirm the order of dismissal.

In Morgan v. District of Columbia, 468 A.2d 1306 (D.C. 1983) (en banc), a police officer shot and wounded his estranged wife and son, then shot and killed his wife's father. The officer had a prior history of [719 A2d Page 964]

violent behavior toward his wife which was known to his superiors in the police department. *fn2 Nevertheless, this court held that the District of Columbia could not be held liable for damages resulting from the officer's conduct. In so holding, the court applied what has come to be known as the public duty doctrine, under which "law enforcement officials and, consequently, state [and municipal] governments generally may not be held liable for failure to protect individual citizens from harm caused by criminal conduct." Id. at 1310 (citations omitted). Morgan was but one case in a long line of District of Columbia cases applying the doctrine, *fn2 which can be traced back more than a century to a Supreme Court decision several years before the Civil War. *fn2 Only when there has been a "special relationship" between the District and the injured party, coupled with a reliance by the injured party on that relationship, can the District be held liable. See Hines, supra note 4, 580 A.2d at 138 ("justifiable reliance on a specific undertaking to render aid"); Akins, supra note 4, 526 A.2d at 935 (similar language); Morgan, supra, 468 A.2d at 1312-1315. The facts alleged in appellant's complaint, even when read most favorably to appellant, do not establish the kind of "special relationship" of which the cases speak. *fn2 We specifically reject appellant's argument, which has no support in the case law, that the fact that both Jacques Flemmings and Vene Lagon were police officers created such a special relationship. *fn2 We hold, therefore, that Morgan is controlling and requires affirmance of the order dismissing appellant's complaint.

There is an additional, independent ground for affirmance of at least the dismissal of the wrongful death claim. Officer Flemmings was killed on March 16, 1991, but appellant's complaint was not filed until December 30, 1993. The statute of limitations for a wrongful death action, D.C.Code § 16-2702 (1997), requires that the action be filed "within one year after the death of the person injured." The statute may be tolled only on a showing of "fraudulent concealment of the existence of a cause of action. . . ." Emmett v. Eastern Dispensary & Casualty Hospital, 130 U.S.App.D.C. 50, 55, 396 F.2d 931, 936 (1967). Appellant, however, expressly states at page 7 of her brief that she makes no claim of fraudulent concealment, *fn3 and without it the statute cannot be tolled. We therefore conclude that the wrongful death [719 A2d Page 965]

claim was properly dismissed as barred by the statute of limitations. *fn4

The order from which this appeal is taken is accordingly

Affirmed.


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