actor has voluntarily undertaken. Absent the undertaking, there would be no duty to act and no liability. In Section III of this opinion, I have already found that the FBI did not specifically undertake to provide police protection. The question here, therefore, is not whether there was an undertaking negligently performed, but whether there is a duty to act affirmatively under Pennsylvania law.
The difficulty in deciphering the "special relationship" test enunciated in Berlin and Chapman is that the courts appear to have confused the special relationship exception to the general lack of tort liability for nonfeasance with the concept embodied in the Good Samaritan Rule that once an individual has undertaken to act, the actor is liable for negligent performance of the action.
The first prong of the "special relationship" test enunciated in Berlin and Chapman is clear. A member of the public must be exposed to special danger. It is clear that the facts in the instant case would satisfy the first prong of the test: as a result of the information Bruce Jr. gave the FBI and the state police, both Bruce Jr. and Robin Miller were exposed to special danger. The more difficult question is the meaning of the second prong of the test. The language of the second prong of the test, requiring that the authorities have "undertaken" to provide adequate protection, suggests that Berlin and Chapman did not intend to impose any liability on the police department for nonfeasance. The language of the second prong of the Berlin test appears at first blush to incorporate the Good Samaritan Rule articulated in section 323 of the Restatement (Second) of Torts. It is inconceivable, however, that the undertaking to provide protection required by the second prong of the special relationship test would be identical to the "undertaking" for liability to be imposed under the Good Samaritan Rule. Absent sovereign immunity, the Good Samaritan Rule would apply to municipalities as well as to private individuals and the special relationship test enunciated in Berlin and Chapman would be superfluous.
The courts in Berlin and Chapman therefore, must have intended the "undertaking" required by the second prong of the special relationship test to be different from and lesser than that required by the Good Samaritan Rule. The cases cited by the Berlin opinion support this theory. Distinguishing the case before it, Berlin cited three cases as illustrative of a special relationship: Swanner v. United States, 309 F. Supp. 1183 (M.D. Ala. 1970), Gardner v. Village of Chicago Ridge, 71 Ill. App. 2d 373, 219 N.E. 2d 147 (1966); and Schuster v. New York, 5 N.Y. 2d 75, 180 N.Y.S. 2d 265, 154 N.E. 2d 534 (1958). In Swanner the court held that the government had a duty to protect a "special employee" of the Internal Revenue Service who had aided in an undercover investigation leading to several indictments. The duty arises according to Swanner, "whenever there is reasonable cause to believe that a government agent or employee or any member of his family, is endangered as a result of the performance of his duty to the government . . ." Swanner, 309 F. Supp. at 1187. Swanner did not require a request for protection.
In Gardner a crime victim was summoned by police to identify four defendants and was assaulted by those he identified in the presence of the police. The court held that a duty was owed to protect the plaintiff "once the police asked plaintiff to come to the place of apprehension." 219 N.E. 2d at 150.
In Schuster, the city had a duty to protect a citizen who responded to notices put out by police soliciting information as to the whereabouts of a dangerous fugitive.
The elements common to all three of the cases cited by Berlin are: (1) the police solicited information from the plaintiff; (2) the plaintiff aided the government by giving information; (3) the government knew or should have known that the plaintiff was in danger because he provided the government with information. In none of these cases did the government promise to protect or undertake to protect the plaintiff in the Good Samaritan Rule sense of an undertaking.
Yet, Berlin cites these cases as illustrative of a special relationship that may create municipal liability.
Moreover, both Schuster and Gardner may help to explain the apparent confusion in the Berlin opinion. In both cases, the courts explained that a police department that solicits information from and makes active use of a public citizen as an informant is no longer passive. "They [the police] are active in calling upon the citizen for help, and in utilizing his help when it is rendered. They have gone forward to such a stage . . . that inaction in furnishing police protection to such persons would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury." Schuster, 154 N.E.2d at 538.
Furthermore, the Berlin court distinguished the case before it by stating:
No special circumstances creating a duty from the municipality to the plaintiff as a private individual are present or have been pleaded. Nor is there any element of foreseeability of harm to this particular victim or from the particular source of harm to this individual or any other identifiable member of the public.
Id. at 329.
This distinction, drawn by Berlin coupled with Berlin's citation to Swanner, Gardner, and Schuster lead to the conclusion that the "undertaking" to protect required by the second prong of the special relationship test is not an undertaking in the Good Samaritan Rule sense.
The "undertaking" in the special relationship test includes a solicitation of information by the government, a response by the plaintiff giving the government valuable information, and knowledge or reason to know on the part of the government that the plaintiff is in danger.
When taken in the light most favorable to the plaintiffs, the facts in the case at bar satisfy this definition of "undertaking" as far as Bruce Jr. is concerned. The FBI and state police notified Bruce Jr. that they wanted his cooperation. Bruce Jr. gave the government officials valuable information and testified before the Grand Jury. Bruce Jr. notified FBI Agent Richter of his fear of his father.
There was no relationship between FBI Agent Richter and Robin Miller, but a duty could extend to Robin Miller if she were considered Bruce Jr.'s "family" by the Pennsylvania Supreme Court. Swanner, supra.
The question then arises whether the Pennsylvania Supreme Court would choose to adopt the special relationship test developed in Berlin and impose a duty on a municipality for its failure to protect a police informant and if so, whether that duty would extend to his girlfriend.
In order to predict whether the Pennsylvania Supreme Court would find a Pennsylvania municipality liable for failure to protect a police informant, in addition to considering the Berlin and Chapman opinions, I must examine the decisions of other jurisdictions. McKenna, supra.
Besides the courts deciding Schuster, Swanner and Gardner, a growing number of courts have recognized that a municipality owes a duty to protect an informant with whom it has a special relationship. See Leonhard v. United States, 633 F.2d 599, 623 n. 35 (2d Cir. 1980); Peck v. United States, 470 F. Supp. 1003, 1017 (S.D.N.Y. 1979); Crain v. Krehbiel, 443 F. Supp. 202, 214 (N.D. Cal. 1977); Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214 (1969); Massengill v. Yuma County, 104 Ariz. 518, 523; 456 P. 2d 376, 381 (1969); Henderson v. City of St. Petersburg, 247 So.2d 23, 25 (Fla. Dist. Ct. App. 1971) cert. denied, 250 So.2d 643 (Fla. 1971).
These cases rely on the reasoning of the Swanner, Schuster, and Gardner decisions. The theoretical underpinning of the cases is that a private citizen owes a moral, if not legal, obligation to her government, be it local, state or federal, to aid in the arrest and prosecution of offenders. That obligation engenders a reciprocal duty on the part of the police to protect those cooperating citizens from harm. Schuster cited to In re Quarles, 158 U.S. 532, 39 L. Ed. 1080, 15 S. Ct. 959 (1895), to support its position:
It is the duty of government to see that a private citizen may exercise freely the right to notify the enforcement authorities of law violations, 'and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned but from the necessity of the government itself that its service shall be free from the adverse influence of force and fraud practiced on its agents.'