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Ryan v. Yarbrough2/4/2005
ontribution. The City missed the flaw in Patricia's argument--indeed, the City bought into her reasoning so completely that its appellate briefs are pervaded by it. Nevertheless, the error was clear-cut, so we would not wander into uncharted legal territory if we recognized the error and vacated the dismissal. To do that would require only a measured relaxation of the rules of waiver, rather than the wholesale abandonment indulged in by the majority.
It may be that the complaint sufficiently alleged that Patricia breached even a properly formulated standard of care. However, the parties should have had a chance to aid the court in developing the law in an area so laden with policy implications. Had we vacated the dismissal without finding that the complaint stated a cause of action, the parties could have done just that on remand.
One more thing I am unable to comprehend is how the majority can describe the preceding sentences as " he dissent's desire to * hold that a caretaker has no duty to her charge [and thus] eviscerate a basic tenet of tort law." Slip op. at 7. Even a cursory reading of my dissent reveals that I express no desire to hold that a caretaker has no duty to her charge. I do not assert that an argument for such a duty cannot be made; I am merely saying that the majority should not make the argument for the City, thus precluding any responsive argument, and that we should not even address the issue until it is properly before us.
Although I concur that the trial court erred in granting Patricia's motion to dismiss, I must dissent from the majority's decision to hold that the City stated a cause of action. I would have vacated the dismissal and ordered the trial court to deny the motion to dismiss without prejudice, thus allowing the parties to properly frame the issue for the trial court and for us.
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