Appeal from the Superior Court of the District of Columbia (CA5717-02) (Hon. A. Franklin Burgess, Jr., Trial Judge)
Before Steadman, Schwelb and Glickman, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Concurring opinion by Associate Judge SCHWELB
This tragic case, which arises from the accidental death of two children in a fire, requires us once again to consider the reach of the "public duty" doctrine, which generally protects the District, inter alia, from liability for alleged negligence on the part of police officers and firefighters in carrying out rescue operations. Nadia Miller, individually and as a personal representative of the estates of her deceased minor children, Tionna Blanchard and Kenisha Blanchard, appeals from an order, entered on October 31, 2002, dismissing with prejudice her action against the District. Ms. Miller brought her suit under the survival and wrongful death statutes, and she also alleged negligent infliction of emotional distress. Ms. Miller contends that if the facts alleged in her pleading are true, as they must be assumed to be for purposes of the District's motion to dismiss, the police owed and breached a special duty of care to her and to the two deceased children, so that the public duty doctrine does not apply. Concluding that the trial court's disposition is mandated by our precedents, we affirm.
In her Am ended Complaint, M s. Miller alleged that on July 14, 2 001, a fire broke out at her home at 446 Lamont Street, N.W., Washington, D.C., at which she was living with her husband and her five children; in addition, a niece and a cousin were sleeping at her home on the day of the fire. The fire was promptly reported but, allegedly, as a result of gross negligence on the part of the District, there was an unreasonable delay in the arrival of firefighters and firefighting equipment. Before the firefighters arrived, Ms. Miller's husband threw three of the children out of the window to safety on the ground, where police officers were providing assistance. The Amended Complaint further alleges as follows:
15. After saving the first three children, Nadia Miller looked out the window from her bedroom and saw a Metropolitan Police Department officer, who had been assisting with the rescue of the three children.
16. The police officer called to Ms. Miller, telling her that she should leave the burning house. She responded to the officer that there were two more children trapped in the dwelling who[m] she needed to rescue. At that time the police officer called to Ms. Miller and said that the other two children were safely out of the home and that they were on the side of the house. Only at that time, having been led to believe that all five of her children were safe, did Ms. Miller, with the assistance of her husband, jump from the dwelling. Mr. Miller followed her.
17. After jumping from the burning house[,] Ms. Miller was taken around the side of the house to where the two children described by the police officer were located. It was only then that Ms. Miller discovered that the children were not her children but were a niece and cousin, who had been sleeping on the first floor. Tragically, Ms. Miller's remaining two children remained in the burning house.
The foregoing paragraphs reveal the essence of Ms. Miller's allegations, namely, that by negligently representing to Ms. Miller that all of her children were safe, the police induced her and her husband to jump prematurely from the building, and thus prevented the Millers from rescuing the two children who perished in the fire. *fn1
The District filed a m otion to dismiss the complaint with prejudice, claiming that the action was barred by the public duty doctrine. The trial judge granted the motion in a seventeen-page written opinion. Correctly noting that, in ruling on the motion, he was required to accept the allegations of the amended complaint as true, *fn2 the judge "assume[d] that the plaintiff can prove that but for the mistake of the police, she would have remained and rescued the children." Nevertheless, relying, inter alia, on Allison Gas Turbine v. District of Columbia, 642 A.2d 841 (D.C. 1994), the judge applied the public duty doctrine and ruled that the District did not owe "a special duty to the [children], greater than or different from any duty which it owed to the general public." Klahr v. District of Colum bia, 576 A.2d 718, 719 (D.C. 1990) (citations omitted). Ms. Miller filed a timely notice of appeal.
We conclude, as did the trial judge, that Allison controls. Although there is an arguably significant distinction between Allison and the present case, reliance on ...