Ellis v. Jordan
| Decision Date | 07 April 1978 |
| Citation | 571 S.W.2d 635 |
| Parties | Steven B. ELLIS and City of St. Matthews and City of Woodlawn Park, Appellants, v. Stephen J. JORDAN, Appellee. CITY OF WOODLAWN PARK, City of St. Matthews, and Steven B. Ellis, Appellants, v. Stephen J. JORDAN, Appellee. |
| Court | Kentucky Court of Appeals |
C. Alex Rose, Louisville, for Steven B. Ellis and City of St. matthews.
Woosley M. Caye, Louisville, for City of Woodlawn Park.
Thomas A. Dockter, Richard D. Heideman, Louisville, for appellee.
Before HOWERTON, LESTER and WHITE, JJ.
This appeal arises from a judgment based upon jury verdict for compensatory ($4,000.00) and punitive ($1.00) damages rendered against the appellants occasioned by appellee's complaint for false arrest and false imprisonment.
Stephen J. Jordan, a former resident of Waynesville, Ohio, was an employee of the United States Army Corps of Engineers whose duties required him to be in the Jefferson County area during a portion of October, 1974. While so engaged, Jordan was temporarily staying at a residence in the community of Woodlawn Park which is adjacent to the City of St. Matthews, a municipal corporation of the fourth class. The home was occupied by Mary Ann Goodwyn whose estranged husband was Frank Goodwyn, a fellow employee of appellee's both of whom had been long-time friends of Jordan.
Appellant, Steven B. Ellis, was a member of the regular police department of St. Matthews, who was referred to in the testimony as a twenty-four hour patrolman because he kept the city's cruiser in his possession around the clock.
On October 28, 1974, appellee and Frank Goodwyn decided to get something to eat. Mary Ann testified they left her house between 2:00 P.M. to 3:00 P.M. while Jordan maintains the time was around 7:00 P.M. to 7:30 P.M. The pair went to the Pizza Hut on Shelbyville Road where they ate and Jordan had one or two beers. Leaving the restaurant, they travelled to a local bistro known as Dutch's Tavern arriving there sometime between 8:00 P.M. and 9:00 P.M. whereat they indulged in a bit of malt beverage consumption. Appellee admitted having consumed four or five beers while Goodwyn's recollection on the particular point was "cloudy". Close to midnight, Frank drove his friend back to Ashland Avenue in Woodlawn Park and stopped the car about four doors from his wife's house, and for some undisclosed reason, they turned the dome light on.
During the late evening of October 28, 1974, appellant, Ellis, had been working on an assignment for the St. Matthews Police Department in civilian clothes. He was armed and had his handcuffs with him. In order to get from his place of employment to his home, it was necessary for Ellis to travel through a portion of Woodlawn Park, and upon termination of his duties on the night in question, he was driving along Ashland Avenue at about the same time Jordan and Goodwyn were sitting in the latter's car with the interior light on. The sight aroused the officer's "curiosity", and so after passing the stopped car, he turned around and proceeded in its direction. While Ellis was doing this, appellee Jordan alighted from Frank's vehicle and started to walk to Mary Ann's house, and Frank drove away.
Having set the scene, we now come to the actual confrontation that resulted in three court actions and this appeal.
Officer Ellis pulled his cruiser to within a short distance of appellee. There is a diversity of opinion as to whether the headlights were on or not with Jordan saying they were not and Ellis agreeing with him at one point while later stating that not only were they on but also that the spotlight was on the appellee. For that matter, there are two distinctive views as to the parties' demeanor which vary from appellee's description of himself as sober and apprehensive of the unidentified stranger's approach to Ellis' view that Jordan was "incoherent", "babbling", "clumsy", "abusive" and had the "smell of alcohol all over him." Both asked each other for identification. Jordan said Ellis refused to make any available while Ellis says that he had his badge in his hand. Appellee denies seeing it or that appellant told him he was a policeman. In any event, the officer searched Jordan by leaning him against the cruiser for the purpose of determining if there were any weapons present. Ellis maintains that appellee attempted to hit him while Ellis was patting him down. On the other hand, Jordan testified that appellant drew his gun from his waistband, cocked it, and held it to appellee's head. Ellis denies this portion of the story.
The officer handcuffed Jordan, put him in the rear of the cruiser with the seat belt around him, and after charging him with being drunk in a public place and disorderly conduct, lodged him in the Jefferson County jail. On November 18, 1974, appellee was convicted upon an amended charge of breach of the peace which he appealed to the Jefferson Circuit Court resulting in a dismissal of the charge. This civil litigation followed. The trial court directed the jury to find that an assault and battery and a false imprisonment had been committed upon the plaintiff below since Ellis had searched Jordan before he told him he was under arrest. On the other hand, the jury found that appellee had committed the misdemeanor of drunk in a public place and/or disorderly conduct in the presence of appellant and that there was no false arrest or imprisonment. The jury next determined, under the court's instructions, that Ellis used no more force than was necessary in transporting Jordan to jail. In addition to the compensatory damages of $4,000.00 under the directed verdict for assault and battery, the panel awarded $1.00 in punitive damages. Finally, the jury concluded that Ellis was acting on behalf of both appellant cities.
At the conclusion of plaintiff's case, all defendants moved for directed verdicts, and after trial, all moved for judgment notwithstanding the verdict. In part, all of the motions had as their foundation the question of agency, and it is upon that issue of law that we must reverse as to the cities.
The doctrine of respondeat superior applies to the liability of a municipality the same as it does to any other corporation or individual, and it must therefore appear that the agent was acting within the scope of his authority at the time the act complained of occurred. 57 Am.Jur.2d Municipal, School, and State Tort Liability § 88 at 99 and 63 C.J.S. Municipal Corporations § 757 at p. 45. Moreover, in 57 Am.Jur.2d Municipal, School, and State Tort Liability § 254 at 221, we note that a municipality may or may not be liable for acts done or injuries inflicted by an off-duty policeman, depending on whether the policeman was acting in furtherance of the municipality's business and incident to the performance of his duties. Where, however, the act was clearly not in furtherance of municipal business, there is no liability on the part of the city. There can be no argument with the facts that Ellis was "off-duty" as related to his employment with St. Matthews and that what he did in connection with the Jordan affair certainly was not in the furtherance of the municipal business of appellant St. Matthews. Moreover,
A municipality is not liable for an assault and battery committed by a policeman beyond the territorial limits of the municipality. See 57 Am.Jur.2d Municipal, School, and State Tort Liability § 246 at 215.
We do not subscribe to the foregoing principle in all situations, but we consider it applicable under the circumstances where the officer is off-duty. It must be remembered that St. Matthews employed Ellis to perform police functions in that city and not in Woodlawn Park, either on or off-duty. We have closely examined the kinds of conduct necessary to bring an act within a scope of...
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...appear that the agent was acting within the scope of his authority at the time the act complained of occurred." Ellis v. Jordan, 571 S.W.2d 635, 638 (Ky. Ct. App. 1978). A municipality may be held liable for an intentional tort committed by one of its employees if the purpose of the intenti......
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