McCroskey v. Fettes

• Decision Date: 15 October 1981
• Docket Number: No. 9946,9946
• Parties: Alve W. McCROSKEY, Plaintiff and Appellant, v. Gerard FETTES, Donn Weaver, individually and as members of the Fargo PoliceDepartment, and the City of Fargo, a municipality, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 773

310 N.W.2d 773

Alve W. McCROSKEY, Plaintiff and Appellant, v. Gerard FETTES, Donn Weaver, individually and as members of

the Fargo PoliceDepartment, and the City of Fargo,

a municipality, Defendants and

Appellees.

Civ. No. 9946.

Supreme Court of North Dakota.

Oct. 15, 1981.

Kraemer, Jochim & Beauchene, Fargo, for plaintiff and appellant; argued by Frederick D. Kraemer, Fargo.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendants and appellees; argued by E. Thomas Conmy III, Fargo.

ERICKSTAD, Chief Justice.

The plaintiff, Alve McCroskey, appeals from an order of the District Court of Cass County granting the defendants summary judgment pursuant to Rule 56, N.D.R.Civ.P., upon their motion for dismissal pursuant to Rule 12(b) based upon the court's determination that the defendants were immune from suit and that McCroskey's complaint did not state a claim upon which relief could be granted. We reverse and remand.

We have previously ruled upon the issues raised by McCroskey in a related case based upon the same incident. McCroskey v. Cass County, 303 N.W.2d 330 (N.D.1981). In the present case, McCroskey's action is against the police officers who detained him for detoxification, and against their employer, the City of Fargo.

The undisputed facts are that at approximately 8:00 p. m. on December 5, 1978, the officers saw McCroskey standing by a car, which turned out to be his own, in a downtown parking lot. It appeared to the officers that McCroskey was either urinating or tampering with the car, although Officer Weaver admitted in his deposition that McCroskey could have been unlocking a car door. Officer Weaver approached McCroskey, who was by then sitting in the car with the engine running. He asked McCroskey to sit in the squad car. While sitting in the squad car, Officer Weaver asked McCroskey to blow his breath up toward the front which he did. As McCroskey wished to drive his car home, he refused the officers' offer to give him a ride home or to call a cab for him. The officers then decided to take McCroskey in for detoxification. In dispute is whether or not McCroskey was argumentative and whether or not he smelled of alcohol. McCroskey testified he had not had a drink that evening. When he was taken to the Cass County jail, he was allowed to call his wife.

McCroskey raises the following issues:

"I.

"WHETHER AS A MATTER OF LAW THE INJURIES ALLEGED IN PLAINTIFF'S COMPLAINT FALL WITHIN THE MEANING OF N.D.C.C. 32-12.1-02.

"II.

"WHETHER AS A MATTER OF LAW THE ACTS OF DEFENDANTS WERE NOT PURELY DISCRETIONARY ACTS WITHIN THE MEANING OF N.D.C.C. 32-12.1-03."

The first issue was disposed of in McCroskey v. Cass County, 303 N.W.2d at 335-36, when we said, "We conclude that a 'personal injury,' as contemplated by Ch. 32-12.1, N.D.C.C., includes physical injuries, disease, sickness, mental anguish and suffering." Therefore, the injuries alleged do fall within the meaning of Section 32-12.1-02, N.D.C.C., as injuries for which a political subdivision may be liable.

The law concerning discretionary functions was also discussed in McCroskey v. Cass County, 303 N.W.2d at 332-35. In McCroskey v. Cass County, the defendants moved for judgment on the pleadings as permitted under Rule 12(c), N.D.R.Civ.P. In the present case, the same motion was made; however, affidavits of the officers were considered by the court, thus the court properly treated the motion as one for summary judgment under Rule 56, N.D.R.Civ.P., rather than a Rule 12(c) motion. ¹ In addition to the affidavits, depositions of McCroskey, Fettes, and Weaver are in the record.

The court found that the defendants were engaged in discretionary functions and were immune from suit. In McCroskey v. Cass County, supra, we held that the determination of what to do with an individual after it is determined that he is apparently intoxicated is discretionary. There are, however, non-discretionary functions the officers must do. While an officer has discretion in determining whether or not a subject is apparently intoxicated, it is non-discretionary that he make observations that the subject is apparently intoxicated and constitutes a danger to himself or others prior to taking the subject to jail for detoxification. Also, after placing the apparently intoxicated person in jail, the police officers must notify that person's family as soon as possible. § 5-01-05.1, N.D.C.C.; McCroskey v. Cass County, 303 N.W.2d at 335.

There is no allegation in the defendants' answer or the officers' affidavits that McCroskey's family was notified by the police officers.

Thus, the pleadings and affidavits themselves reveal that the officers failed to perform a non-discretionary function. The defendants, however, point out that in McCroskey's deposition he admitted he was allowed to call his wife and, in fact, notified her of his situation. The question is not whether or not McCroskey at some point in time was able to call some member of his family, but whether or not the record, as it is now reflected, discloses that the police officers knew that McCroskey had called his wife or a member of his family at the time they transferred custody to the officials of the detoxification center. The record is not sufficiently clear as to be dispositive of this issue. When an issue of fact exists, a motion for summary judgment should not be granted. Hoppin v. Fortin, 111 N.W.2d 122, 124 (N.D.1976); Rule 56(c), N.D.R.Civ.P. Accordingly, the trial court should not have granted summary judgment.

It is also non-discretionary that the officers make the observations necessary to determine whether or not the subject is apparently intoxicated and, if so, whether or not he constitutes a danger to himself or others before taking him to jail for detoxification. The actual determination is discretionary as long as it is based upon observations. McCroskey v. Cass County, 303 N.W.2d at 335. In their affidavits, the officers state:

"5. That after questioning and observing Plaintiff, Alve McCroskey, at length, myself and Donn Weaver concluded by reason of McCroskey's speech, actions, and general demeanor, that he was intoxicated and constituted a danger not only to himself, but to other members of the public as well."

"5. That after questioning and observing Plaintiff, Alve McCroskey, at length, myself and Gerard Fettes concluded by reason of McCroskey's speech, actions, and general demeanor, that he was intoxicated and constituted a danger not only to himself, but to other members of the public as well."

Yet, in his deposition, Officer Weaver testified as follows:

"Q. Now did you conduct any field sobriety tests on Mr. McCroskey?

"A. No, sir, I did not.

"Q. So you didn't have him do any Romberg balance tests...