Allen v. Anderson, 91-1514

• Decision Date: 25 June 1992
• Docket Number: No. 91-1514,91-1514
• Citation: 490 N.W.2d 848
• Parties: Janet ALLEN, Administrator of the Estate of Kathy Annette Allen, Deceased; and Donald Allen and Janet Allen, As Parents of Kathy Annette Allen, Deceased, Appellants, v. Jack ANDERSON, Dennis Massey, and Art R. LeTourneau, Individually and As Employees of the City of Ottumwa, Iowa; and the City of Ottumwa, Iowa, A Municipality, Appellees.
• Court: Iowa Court of Appeals

Page 848

490 N.W.2d 848

Janet ALLEN, Administrator of the Estate of Kathy Annette Allen, Deceased; and Donald Allen and Janet Allen, As Parents of Kathy Annette Allen, Deceased, Appellants, v. Jack ANDERSON, Dennis Massey, and Art R. LeTourneau, Individually and As Employees of the City of Ottumwa, Iowa; and the City of Ottumwa, Iowa, A Municipality, Appellees.

No. 91-1514.

Court of Appeals of Iowa.

June 25, 1992.

Joni L. Keith and Lloyd E. Keith of Keith, Orsborn, Bauerle, Milani & Neary, Ottumwa, and Vern M. Ball, Bloomfield, for appellants.

David Hester and Thomas M. Walter of Johnson, Hester & Walter, Ottumwa, for appellee Anderson.

Thomas F. Kintigh of Griffin, Dew & Kintigh, Ottumwa, for remaining appellees.

Heard by DONIELSON, P.J., and SACKETT and HABHAB, JJ.

DONIELSON, Presiding Judge.

In the early morning hours of April 11, 1987, Donald Gene Petary and Andrew Six drove to the home of Donald and Janet Allen at Hidden Valley Trailer Park located on Highway 34, west of Ottumwa, Iowa. When Petary and Six arrived, Donald and Janet Allen were asleep in their mobile home with their two daughters, Christine, age sixteen, and Kathy, age twelve. Petary and Six awoke the Allens and asked about an older model pickup truck the Allens had advertised for sale. Janet Allen agreed to take Petary and Six for a test drive.

During the test drive, Petary and Six threatened Janet with a knife and bound her with duct tape. When they returned to the Allen home, Petary and Six also bound Donald Allen with duct tape, and they raped Christine Allen. Kathy Allen awoke as Six attempted to place duct tape over her mouth. Janet heard Kathy crying, and Six told Janet to "tell her to shut up or I'll kill every one of you right now." Janet tried to calm Kathy telling her "You don't want to die and you don't want us to die, do you, Kathy?" Kathy replied, "No mommy, but I'm scared." Kathy then remained silent.

Petary placed Kathy and Christine in the station wagon that Petary and Six had driven to the Allen residence. Six followed, attempting to force Donald and Janet into the station wagon as well. As Six held Janet with a knife to her throat, Donald broke away and ran to the home of a neighbor, Gladys Bishop. As Janet struggled with Six, Christine attempted to pull Kathy from the station wagon, but she was unable to free her. Christine then ran to the home of another neighbor, Ruth Cubbage. Janet's struggle with Six ended when he cut her throat with the knife, and Janet fell to the ground.

Gladys Bishop immediately called 911. The call came in at 12:44 a.m. according to ambulance records from the Ottumwa Regional Health Center. Gladys Bishop informed Ottumwa Police Dispatcher Diane Franklin of the incident and requested an ambulance be sent. Franklin dispatched the Wapello County Sheriff to the Allen residence.

As Gladys Bishop made her phone call, Donald and neighbor Tony Steele saw Petary and Six leave with Kathy in the station wagon, and at 12:44 the dispatcher put out a bulletin using a description of the station wagon.

Upon hearing the dispatch, Ottumwa Police Department Officer Mark Hall immediately drove to the intersection of Highway 63 and West Fourth to watch for the described vehicle. He arrived at the intersection within one minute of the dispatch. Highway 63 was the only direct route to the destination of Petary and Six, the Betty Six residence at 307 North Clay in Ottumwa. Officer Hall testified he remained at that spot until a few minutes after 1:00 a.m. when he saw a car he thought was the suspect vehicle. After following the car for approximately one minute, he determined it was not the Petary and Six station wagon, and he returned to the intersection. He then stayed at the intersection for at least twenty minutes until he was summoned to the Wapello County Courthouse parking lot.

Sheriff's Chief Deputy Don Kirkendall arrived at the Allen residence at 12:56 a.m. After speaking briefly with Donald Allen, Deputy Kirkendall called the Ottumwa Police Department to report the kidnapping, report the destination of Petary and Six, and request a second ambulance for Christine. The call was made before 1:04 a.m., and the Ottumwa Regional Health Center's records show the second ambulance was dispatched at 1:04 a.m. Deputy Kirkendall was placed on hold by the dispatcher three times during the conversation; once to dispatch the ambulance, twice to dispatch officers to an illegally-parked car on Elm Street in Ottumwa.

Finally, Deputy Kirkendall was able to specifically request that officers of the Ottumwa Police Department respond to the Betty Six residence at 307 North Clay which was the destination of Petary and Six with the kidnapped Kathy. The dispatcher agreed to dispatch vehicles to investigate that residence, and Deputy Kirkendall advised Donald Allen that officers from the Ottumwa Police Department would be sent to the address. Relying upon the Ottumwa Police Department, Deputy Kirkendall and Donald Allen refrained from immediately going on their own to the Betty Six residence.

The station is approximately three minutes from the Betty Six residence. At least two officers were within one minute of the Betty Six residence.

However, instead of putting out an all-points bulletin for Petary and Six, the dispatcher took a call regarding nuisance telephone calls. Finally, she wrote a note to Ottumwa Police Officer Jack Anderson, the 11:00 a.m. to 7:00 a.m. shift supervisor, who was in the police station working on a computer. In response to the dispatcher's note, Officer Anderson simply advised the dispatcher to have Officer Chiles come to the station. The dispatcher called Officer Chiles, who was investigating an illegally-parked car, to request he come to the station. However, the dispatcher failed to use the emergency code or to otherwise inform Officer Chiles the situation was an emergency. After waiting at least fifteen minutes at the station for Officer Chiles to arrive, Officer Anderson asked the dispatcher where Officer Chiles was located. Officer Anderson then left the station and drove to find Officer Chiles. He found Officer Chiles still investigating an illegally-parked car.

Officer Anderson then instructed all but one of the officers on his shift to report to the parking lot of the Wapello County Courthouse. When they were all assembled, the officers were given some information about the situation, but they were not informed Kathy had been kidnapped. All then proceeded to the Betty Six residence.

Deputy Kirkendall met the Ottumwa Police Officers when they arrived at 1:37 a.m., thirty-three minutes after Deputy Kirkendall had requested their assistance. After having completed some further investigation at the Allen residence, Deputy Kirkendall had gone to the Betty Six residence, arriving at 1:32 a.m. It had taken him between seven and ten minutes to make the drive. After several minutes of discussion, Deputy Kirkendall, Officer Anderson, and several other officers knocked on Betty Six's door. A few minutes later, Betty Six answered the door and told the officers Petary and Six had left between ten and twenty minutes ago. She said the two had talked with her and switched vehicles before leaving. Betty Six had seen an unidentified female in the car. Betty Six stated that as Petary and Six drove away in a Mercury Lynx, she had looked out the window and observed Deputy Kirkendall's car pull into view.

Kathy Allen was killed by Petary and Six later that morning after they attempted to rape her.

Officer Anderson had been hired by the Ottumwa Police Department on June 1, 1974. He completed his 240-hour basic recruit class at Indian Hills Community College on June 28, 1974. He resigned on November 4, 1977, to work for the Ottumwa Postal Service. With no additional training, he was again hired by the Ottumwa Police Department on July 7, 1979.

Officer Anderson received no in-service training until May 21, 1980, when he was certified in the use of the intoxilyzer. On June 1, 1982, he received training in the use of the baton, other striking instruments, and in precision driving. On July 2, 1986, he attended a one-hour course on the 1986 revisions to the Iowa Code. On November 20, 1986, he attended a one-hour course on the use of chemical agents.

On August 30, 1985, Anderson received a serious head injury in a hot pursuit motor vehicle accident. He filed a lawsuit against the other driver alleging in his petition that he suffered permanent personal injuries including the inability "to perform all the normal tasks and duties required him in his work; he will in the future be unable to perform all the normal tasks and duties required of him in his work; he has since said collision been disabled; he will in the future be disabled." Since August 1985 Anderson has received medical treatment and prescription medication for his condition.

Later in 1985 Anderson took a leave of absence from his position with the Ottumwa Police Department to campaign for a seat on the Ottumwa City Council. After being elected, he took a one-year leave of absence from January 1, 1986, to January 24, 1987. During Anderson's term as a city councilman, Police Chief LeTourneau approached him about returning to law enforcement and offered him a position as a supervisor responsible for administration and budgeting. Without properly qualifying through the civil service, Anderson was rehired and promoted to the position of supervisor of the 11:00 p.m. to 7:00 a.m. shift. The duties of the position were not administration and budgeting. Anderson had no supervisor training and had no training in hostage or kidnapping situations. Anderson had not advised his superiors of his continuing physical and psychological problems resulting from the motor vehicle accident.

On April 1, 1987, ten days before Kathy Allen was kidnapped, Officer Anderson was accused of sleeping on the job. He denied the accusation and attributed his behavior to...