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270873 WHITE - CITV Cl_ERK ������ PINK - FINANCE GITY OF SAINT PAUL Council �� CANARV - DEPARTMENT BLUE - MAVOR File NO. �� �� -ncil Resolution Presented By Referred To Committee: Date Out of Committee By Date RESOLVED, that upon execution and delivery of a release in . full to the City of Saint Paul, the proper City officers are hereby auth:orized and directed to pay out of the Tort Liability Fund 09070-511-000 to Rita A. Updyke the sum of $35,000 in full compromise and settlement of her claim for personal injury arising out of an incident on April 25, 1975, at the Little Dipper Bar, � as more fully set out in a s�mtnons and complaint in Updyke v. City of Saint Pau1, Albert Gorz, Little Dipper, Inc. , District Court File No. 412771. COUNCILMEN Requested by Department of: Yeas Nays � Butler Houa In Favor Hunt �/ Levine v sY Roedler __ Against -- Sytvester Tedesco �PR 9 3 19T� Form Approved by City Attorney Adopted by C i : Date f Certif assed ounci tary BY y Appr ve by ;Vlavoc t _ � �9�� Approved by Mayor for Submission to Council By _ _ By _ �t,at.,sH4� APR � � ,�.-_� . . r ' r ���-���� ���CITY °'��, CITY OF SAINT PAUL � _;;;�;:.. ; OFFICE OF THE CITY ATTORNEY �� ... ~c HARRIET LANSING, CITY ATTORNEY George Latimer City Hail,Saint Paul,Minnesota 55102 Mayor 612-298-5121 April 3, 1978 M E M 0 R A N D U M T0: City Council Members FROM: Mary Ann Barrows Wark Assistant City Attorney RE: Compromise and Settlement of Updyke v. City of St. Paul, Albert Gorz and The Little Dipper, Inc. and, David Anderson vs. City of St. Paul, Albert Gorz and The Little Dipper, Inc. These two personal injury cases arose out of a shooting in the Little Dipper Bar on April 25, 1975. A police officer, Albert Gorz, was off-duty and was drinking off-duty several hours prior to the incident. He stated that he had been shot at €rom a moving car while sitting in front of his house. He believed his obligation as a policeman was to purs�e the felons. He tried to follow them in his personal automobile. While he admitt�d he lost sight of the car, he still believed he could find out informa.tion in the Little Dipper Bar on the whereabouts of the felons. While he was trying to find the felons, prior to going to the Little Dipper Bar, he was involved in a hit and run accident, causing dama.ge to the car of a neighbor. When the neighbor confronted him in the parking lot of the Little Dipper Bar, Albert Gorz pointed a gun at the neighbor. When he entered the bar, he stated he was looking for persons who shot at his house or informa.tion about the identity of suspects. He had conversation with plaintiff Updyke since he knew her. He loaded his gun in plain sight of the patrons at the bar. He was agitated, abrupt and abusive with several patrons of the bar. He argued with a female patron and struck her in the back with the holster he was carrying. Then he was jumped from behind by a person whose fiance had been struck. A struggle ensued. He had Tiis finger on �O �' ( ���� City Council Members Page 'I`wo April 3, 1978 the trigger of his service revolver, and two or th�ee shots were fired, hitting three innocent bystanders, two of whom are plaintiffs in these cases. The third innocent bystander received no serious injuries. Mrs. Updyke was wounded in the hand as she was trying to leave the bar during the scuffle. She sustained permanent in- juries leaving three fingers on her favored hand mostly unusable for work. Mr. Anderson was wounded in the ankle and, again, had permanent injuries. There were two proceedings arising out of this incident prior to these civil cases. In the criminal trial against Albert Gorz on three counts of aggravated assault and one count of aggravated assault inflicting bodily harm, the jury acquitted Gorz. There was also a discharge hearing brought as a result of this incident before the Civil Service Board, and Gorz was discharged from the Police Department. Plaintiff Rita Updyke demanded $322,457.00 in damages and plaintiff Anderson demanded $35,000.00 damages. Plaintiffs claims were based on two theories. First, that police officer Gorz committed a tort in the course and scope of his employment as a police officer; therefore, the City was liable under Minn. Stat. � 466.02. Secondly, they alleged the City negligently retained Officer Gorz and negligently supervised him and, therefore, was also responsible under Minn. Stat. � 466.02, because they alleged the City had notice that officer Gorz had a known propensity for violent and hysterical outbursts, was emotionally unstable, had shot his gun similarly in another bar without causing personal injury, and had on other occasions threat- ened and assaulted other citizens. Officer Gorz was sued individually in the suits and had cross- claimed against the City when the City refused to defend him. The City refused to defend him based on our position that Officer Gorz Zaas not within the course and scope of his employment when the shooting occurred. Gorz argued that the City owed him for any amount of damages he was liable for because of the collective bargaining contract clause with the Police Association in which the City has agreed to indemnify all people acting within the course and scope of their employment. He believed that it was his duty to cha.se the person(s) who ha.d shot at him. ��<1���� City Council Members Page Three April 3, 1978 Plaintiffs took the position that the City was liable for the acts of Albert Gorz under Minn. Stat. § 466.02, using the following arguments: 1. That the Police Ma.nual stated that a policeman had certain powers, duties and responsibilities 24 hours a day; 2. That a police officer had responsibility to pursue felons after witnessing a felonp; 3. That he believed he was in legitima.te and good faith pursuit of a felon; 4. That the officer used a revolver that he used on the job as a police officer; 5. That it was customa.ry for police officers to have access to a gun 24 hours a day. The City had available defenses that: 1. The officer was not acting within the course and scope of his employment under the Police Manual and/or the facts and circumstances of this par- ticular situation; he was acting in pursuit of personal goals and goals that were against the interests of the �ity. 2. That if he were dec�med an employee, his acts were in willful and wanton neglect of his tiuties; so that, indemnification of Gorz was not legal under statute or the collective bargaining agreement. The City Attorney' s Office recommends settlement in the amount of $35,000.00 for the claim of Rita Updyke and $3,500.00 for the claim of David Anderson from the City. As part of the settlement, the insurance company for the police officer has agreed to pay its policy limits of $25,000.00; $20,000.00 for plaintiff Updyke and $5,000.00 for plaintiff Anderson, subject to the crossclaim of Gorz against the City which was reserved, but limited to the maximum amount of $25,000.00. The Little Dipper Bar agreed to pay $7,000.00; $5,000.00 to Updyke and $2,000.00 to Anderson. Therefore, Updyke will receive $60,000.00, Anderson $10,500.00. ''��r� � � �'���� City Council Members Page Four April 3, 1978 The City Attorney recommends settlement based on the following considerations of risk factors regarding liability and damages : 1. The issue for "course and scope of employment" is a jury issue. The sympathy of the jury for innocent bystanders with the City being the "deep pocket" can not be ignored. 2. If the jury found Gorz acting as a policeman, the indemnification issue perhaps left the City exposed abo�e the statutory $50,000.00 limits because the issue of excess liability over the statutory limit has not been resolved by the Supreme Court. 3. The Court had limited the liability of the City' s co-defendant, the Little Dipper Bar, leaving only two defendants, the City and Gorz, with the possibility that the City would have to indemnify Gorz, thus paying 100%. 4. Based on discussions at the pretrial conference, there was little if any liability on the part of the plaintiffs. 5. In regard to the proof of willful and wanton neglect, the acquittal of Gorz in the criminal trial ma.de proof more difficult; so that it was question- able whether the City would have been found immune and not liable in indemnification to Gorz. 6. The plaintiffs�' injuries were permanent and the medical damages to date were in the amount of approxima.tely $3,600 for Updyke and approxima.tely $800 for Anderson. 7. The testimony on all items of damages for Rita Updyke were strong (with the exception of the wage loss dama.ges which were substantial but not as high as the $150,000.00 dema.nd on that item would indicate. ) �.I������:� � City Council Members Page Five April 3, 1978 8. Because the cases had been consolidated for trial, there was a risk that Anderson would have been awarded greater damages because of the combined impact of the plaintiffs ' testimony. Further, in considering possible appellate issues, there were two possibilities on liability, one the effect of the Police Manual on the issue of course and scope of employment and s�condly, whether the conduct of the City Supervisors was dis- cretionary and, therefore, immune from liability under Minn. Stat. § 466.03, Subd. 5 and 6. This case has been viewed as a very serious one froim. a public relations standpoint of the Police Department, given the sub- stantial injuries to innocent people involving an off-duty police officer with 182 years on the police force. The City Attorney' s Office recommends the above settlement based on the severe risk of considerable liability and considerable exposure for damages in the above cases. MABW:jr