This appeal from an order of the Superior Court presents one issue, namely: Is a municipality immune from liability as a matter of law for the (alleged) negligence of City firemen during a civil disturbance?
The facts are stated in the opinion of the Trial Judge, Biloon's Elec. Serv. v. City of Wilmington, Del.Super., 401 A.2d 636 (1979), to which reference is made. The few facts necessary to put this opinion in context are as follows:
On October 20, 1975, a "civil disturbance" developed in the City of Wilmington during which a number of fires were started. The area on which we focus is bordered by Third Street on the south, Fifth Street on the north, Broom Street on the west and Jackson Street on the east. Plaintiffs conducted a business at 1135 West Fourth Street, which is within that area.
Because of the fires, the Chief of Battalion Two of the Wilmington Bureau of Fire was called to the area, as were City police officials. The Fire Chief consulted with the police who informed him that "the temper of citizens in the area [is] at the breaking point." In view of the obvious dangers, the Chief ordered that fire apparatus not be dispatched to the area unless and until (a) a report of a fire was confirmed and, (b) arrangements were made for the firefighters to be escorted by the police. His concern for the safety of his men was justified: when the firefighters moved into the area in response to a confirmed call that plaintiffs' store was on fire, they were bombarded with bricks, bottles and other debris, and denied access to fire hydrants. Although police were on the scene, the bombardment continued until tear gas was used to disperse the rioters. The firefighters then donned breathing apparatus, connected the
Plaintiffs sued the City of Wilmington for damages which they sustained from the fire, alleging that the City's negligence, that is, its failure to provide adequate and timely fire protection, was a proximate cause of the loss.
The Trial Judge granted the City's motion for summary judgment. He held that plaintiffs' allegations of negligence were irrelevant because the City's actions were a product of "public policy considerations (riot control tactics)" and as such were insulated from judicial review.
We agree with the decision of the Trial Court and affirm its judgment, but on somewhat different grounds.
Under well established principles of law, a municipality does not have an actionable obligation to protect private property from riotous conduct and, for that reason, a citizen does not have a "substantive right to recover the damages resulting from failure of a government or its officers to keep the peace." Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919); Westminster Investing Corp. v. G. C. Murphy Co., D.C.Cir., 434 F.2d 521 (1970) (and cases cited therein). Instead, the right to compensation for riot damage "is simply a measure of legislative policy...." Louisiana ex rel. Folsom v. New Orleans, 109 U.S. 285, 3 S.Ct. 211, 27 L.Ed. 936 (1883).
There is not a Delaware statute which establishes a right to recover damages sustained during a civil disturbance. Thus, to afford plaintiffs the possibility of relief we would have to "move beyond the general rule and judicially create ... a principle of municipal responsibility." Westminster, supra, at 523. In taking such a step, we would necessarily be "marching straight into a difficult region, never before plotted by courts acting alone."
For present purposes, we assume that, under common law principles, the Court may have the power to create a duty on the part of the City and a concomitant potential right of recovery on the part of plaintiffs. However, it is also true that we may refuse, "without passing on its `rightness', to recognize a claim until the legislature (or, in proper cases, the executive) has acted."