## Facts

- Oregon enacted the Abuse Prevention Act to strengthen protection for persons threatened by a spouse or former spouse, including restraining orders and mandatory warrantless arrest upon probable cause of an order violation.
- Henrietta Nearing separated from her husband, Robert Nearing Sr., and obtained a circuit court restraining order barring him from molesting plaintiffs or entering the home; the order was served and provided to the police with proof of service.
- After service of the order, Robert repeatedly entered or attempted to enter the home, damaged property, attempted to remove the children, and assaulted a friend of Henrietta’s.
- Henrietta repeatedly reported these violations to St. Helens police officers Martin Weaver and Paul Sauls; the complaint alleged officers knew of the order and its repeated violations but did not arrest Robert.
- Plaintiffs alleged emotional distress and psychological impairment to Henrietta and the children resulting from the failures to enforce the order.
- The circuit court granted summary judgment to the officers and the City of St. Helens; the Court of Appeals affirmed without explanation.

## Issues

1. Whether the Abuse Prevention Act and related mandatory-arrest statute created a specific duty owed by police to persons protected by a restraining order, permitting a tort action for knowing failure to enforce the order.
2. Whether official discretion, official immunity, or discretionary-function immunity under the Oregon Tort Claims Act bars liability for failure to arrest for violations of an abuse-prevention restraining order.

## Decision

- The Oregon Supreme Court reversed the summary judgment and remanded.
- The court held the statutory scheme imposed a specific duty, for the benefit of the persons named in the restraining order, to make a warrantless arrest upon probable cause of a violation.
- The court held that alleged knowing nonenforcement of that mandatory duty could support tort liability for resulting harm.
- The court rejected immunity and discretion defenses as grounds for summary judgment where the claim alleged failure to perform a mandatory, ministerial statutory duty once statutory conditions were met.
- The court emphasized plaintiffs still must prove ordinary tort elements, including causation and damages.

## Legal Principles

- A statute may create a legally enforceable duty supporting a civil damages claim by the statute’s intended beneficiaries.
- When a statute directs that an officer “shall arrest” upon probable cause that a served abuse-prevention order has been violated, the duty is non-discretionary as to whether to arrest once triggering conditions exist.
- The “public duty” concept does not bar suit where the legislature establishes a specific duty for the protection of a defined class and the duty is applied through a judicial order identifying protected persons.
- Discretionary-function or official immunity does not protect a knowing failure to carry out a ministerial, statutorily required act, though officers may exercise judgment in determining whether probable cause exists.

## Conclusion

The court held that Oregon’s mandatory-arrest provisions for abuse-prevention restraining orders can create a specific duty owed to the named protected persons, allowing a tort claim for knowing nonenforcement, and that immunity and discretion doctrines did not justify summary judgment where plaintiffs alleged breach of that mandatory duty and resulting harm.


Nearing v. Weaver, 670 P.2d 137 (Or. 1983)