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12/16/94 ANGELA O. FLINT v. CITY OZARK

December 16, 1994

ANGELA O. FLINT, AS ADMINISTRATRIX OF THE ESTATE OF JEFFERY WAYNE O'QUINN, DECEASED
v.
CITY OF OZARK, ET AL.



Appeal from Dale Circuit Court. (CV-92-267). P.B. McLauchlin, Jr., TRIAL JUDGE.

Released for Publication March 25, 1995.

Almon, Shores, Houston, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Almon

ALMON, JUSTICE.

Angela Flint, as administratrix of the estate of Jeffery Wayne O'Quinn, appeals a summary judgment in favor of the City of Ozark and in favor of Sergeant John Bottoms and Officer Edward Farr, both of the Ozark Police Department, in her action alleging wrongful death. Flint alleged that the officers had negligently or wantonly failed to arrest Justin Pridgen, an underage person, who was consuming alcoholic beverages at a party that the officers investigated, and that their failure in that regard proximately caused the death of Jeffery O'Quinn. After leaving the party, Pridgen was involved in a one-vehicle automobile accident that killed O'Quinn, his passenger.

The issue is whether police officers may be held liable for failing to arrest an underage person who has been consuming alcohol, but who the officers do not know is intoxicated.

This case is very similar to Nunnelee v. City of Decatur, 643 So. 2d 543 (Ala. 1993). In Nunnelee this Court held that the City of Decatur and its police officers could not be liable for failing to arrest a motorist, because there was no evidence that the officers had known that the motorist was intoxicated. Nunnelee involved the driver of an automobile that crossed the median of Interstate Highway 65 and struck an oncoming car, killing both occupants of the oncoming car. The administrator of the estates of the two persons killed filed a wrongful death action against the City of Decatur and several of its police officers, alleging that the officers had acted negligently in failing to arrest the driver after they had stopped him for a suspected DUI violation an hour and a half before the fatal accident. The officers had stopped the driver after his vehicle had nearly struck the officers' patrol car. The officers administered a field sobriety test; the driver passed the test and the officers released him.

In Nunnellee this Court affirmed a summary judgment for the officers and the City of Decatur. In its opinion it quoted at length from the special concurrence in Thetford v. City of Clanton, 605 So. 2d 835, 843-44 (Ala. 1992):

"'The principles of substantive immunity are particularly applicable to a case such as this one, where an officer is required to make difficult decisions on the spur of the moment. The need to attract and keep capable officers, the allocation of scarce resources for law enforcement, and the need for officers to make decisions based on the requirements of the circumstances rather than on their potential for personal liability are among the reasons for the doctrine of substantive immunity for public officers. This Court said in Calogrides [v. City of Mobile, 475 So. 2d 560 (Ala. 1985)]:

"'"'For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits....

"'"'....

"'"'... There is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public.'"

"' 475 So. 2d at 562, quoting Riss v. City of New York, 22 N.Y.2d 579, 582-83, 293 N.Y.S.2d 897, 897-98, 240 ...


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