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WOODRUFF v. CITY OF OTTAWA12/30/1997
Plaintiffs Rebecca and Max Woodruff brought an action against the City of Ottawa, Kansas, (City) for wrongful death and personal injury arising when the Woodruffs' car was struck by an automobile driven by Douglas A. Totton, who was operating his vehicle under the influence of alcohol. At the time of the accident,
Rebecca Woodruff was pregnant with a daughter who later died as a result of the accident. The plaintiffs alleged in the petition that they were injured due to the Ottawa police officers' failure to arrest, detain, and prevent the intoxicated Totton from driving his vehicle. The district court granted the City's motion for summary judgment, concluding that because the City did not have a written policy requiring an officer to arrest Totton or take him into custody to prevent him from operating a motor vehicle, the City owed no duty to the plaintiffs.
On March 26, 1994, Officers David Fitzgerald and Matthew Weidl, who were employed by the City police department, responded to a disturbance call at the Walkman's Club in Ottawa. When the officers arrived at the club, an altercation between Totton and Charles Likes had ended. Totton was inside the club and Likes was standing outside.
Officer Fitzgerald entered the club and ordered Totton to exit the club. Fitzgerald noted in his report that Totton appeared to be drunk. Neither Totton nor Likes pressed charges against the other, and no arrests were made. Neither Officer Fitzgerald nor Weidl saw Totton drive away. Fitzgerald stated that if he had observed Totton attempting to drive a vehicle, he would have advised Totton to find another way to leave. The City does not have a written policy which requires an officer to take an intoxicated individual into custody under such circumstances. The officers left to respond to another call before Totton left the premises. Shortly after Totton left the club, the vehicle he was driving collided with plaintiffs' vehicle, causing injury to the plaintiffs and the death of their unborn child.
Plaintiffs filed a wrongful death and personal injury action against the City, the City police department, and the Chief of Police. Plaintiffs alleged that Officers Fitzgerald and Weidl were negligent in failing to arrest, detain, or otherwise prevent Totton from operating a vehicle when they were aware he was under the influence of intoxicating liquor. The petition claimed that the defendant "owed a duty to the users of the roadway to have prevented an obviously intoxicated individual from operating a vehicle upon the roadways." Plaintiffs later dismissed the police department and the police chief from the suit.
Subsequently, the City filed a motion for summary judgment claiming that (1) the officers owed no duty to plaintiffs; (2) the officers were immune because the decision whether to take Totton into custody was a discretionary act under K.S.A. 75-6104 of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.; and (3) the officers' acts were not the proximate cause of plaintiffs' injuries. In ruling that the officers owed no duty to plaintiffs, the district court stated:
" he damage to the Plaintiff did not come to the Plaintiff because [Totton] left the premises or failed to leave the premises. . . . t came about because the person ordered to leave thereafter drove an automobile.
. . . .
"I specifically note that uncontroverted fact six indicates the officer left to respond to another call before Totton left the premises . . . .
"[Fact] Thirty-two of the Plaintiffs is [that] no officer was aware of Totton or Mr. Likes leaving after they were told to leave [the club].
"The dut
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