Nearing v. Weaver

Supreme Court of Oregon · 1983 · Torts

670 P.2d 137 (1983)

Updated July 23, 2026

Tortsstatutory dutygovernment liabilityemotional distresspolice dutymandatory arrestrestraining orderdomestic violence

Facts

After plaintiff Henrietta Nearing obtained a restraining order against her husband, the order was served on him and a copy with proof of service was delivered to the St. Helens police department. Plaintiffs alleged that on several occasions the husband violated the order by entering or seeking entry to the home, damaging property, attempting to remove the children, and making threats and assaults, and that the defendant officers were informed of these facts and knew of the order. The officers allegedly refused to arrest him despite the statutory arrest requirement. Plaintiffs claimed that this failure caused Henrietta severe emotional distress and physical injuries and caused the children acute emotional distress and psychological impairment.

Issue

Whether police officers who knowingly fail to enforce a restraining order under the Abuse Prevention Act may be civilly liable to the protected persons for resulting psychic, emotional, and physical harm. The court also considered whether discretionary-function immunity or statutory good-faith arrest immunity barred such a claim.

Rule

When a statute imposes a specific duty for the benefit of particular individuals identified by a judicial order, failure to perform that duty can support civil liability for harm of the type the statute and order were designed to prevent, including psychic or emotional injury. Under ORS 133.310(3), an officer shall arrest without a warrant when the officer has probable cause to believe a qualifying restraining order exists, has been served and filed, and has been violated; that duty is mandatory, not a protected discretionary function. ORS 133.315 grants immunity for making good-faith arrests under ORS 133.310(3), not for failing to make such arrests.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Salem, Dana Ruiz obtained a court order restraining her former cohabitant, Eli Mercer, from contacting her or entering her apartment. The order was served, and a true copy with proof of service was filed with the local police department. After Dana repeatedly reported that Eli had come to her door, pounded on it, and threatened her, an officer who confirmed the order told Dana he would not arrest Eli unless Dana first suffered a physical attack; Dana later developed severe anxiety and insomnia.

If Dana sues the officer and city for her resulting emotional injuries, what is the strongest argument that her complaint states a claim?

Explanation. The majority held that this type of claim is not merely negligent infliction of emotional distress. When a statute imposes a specific duty for the benefit of identified individuals protected by a judicial order, failure to perform that duty can support civil liability for resulting psychic, emotional, and physical harm of the kind the statute was designed to prevent. Liability is not automatic, but the complaint states a claim on that basis.