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
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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 � � ,�.-_�
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���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
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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.
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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.
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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. )
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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