Jon Harper Roberts v. City of Stillwater, Oklahoma

Stillwater, Oklahoma personal injury lawyers represented the Plaintiff on a false arrest theory.

On November 6, 1979, Jon Harper Roberts filed a petition in the District Court of Payne County, Oklahoma. The petition alleges that at about 1:05 o'clock a.m. on June 16, 1979, Roberts was driving his automobile on a city street in Stillwater when he was stopped by Officer Cindy Waterworth and told to get out of his car. The officer then, without consent, searched the car and found a partial bottle of beer. The petition further alleges that the officer did not advise Roberts of his constitutional rights or advise him of the grounds for arrest. Roberts was escorted to the police station, placed in jail and later was released upon posting bail.



Each political subdivision of this state shall be liable for loss resulting from its torts . . . subject to the limitations specified in this act . . . . (emphasis ours)

Such limitations, are found in § 155, entitled "Exemptions from Liability" and read in part as follows:

A political subdivision or an employee acting within the scope of his employment shall not be liable if a loss results from:

* * * * * *

3. Execution or enforcement of the lawful orders of any court;

4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any charter provision, ordinance, resolution, rule, regulation or written policy;

5. Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police or fire protection. (emphasis ours)


¶9 A petition must be liberally construed as against a demurrer and all allegations of fact must be taken as true, together with all reasonable inferences therefrom, and if any fact stated therein entitled plaintiff to any relief, the demurrer should be overruled. Rotramel v. Public Service Co., Okl., 546 P.2d 1015 (1976).

¶11 As we view this case, the pivotal issue is whether Officer Waterworth acted within the scope of her employment and thereby raised the limitations of § 155 supra. In this instance which we believe the limitations rest upon whether or not the arrest was valid.

¶13 In the present case, the petition alleges that Officer Waterworth's arrest report states that she stopped Roberts on "suspicion of drunk driving and [he] had an open bottle of liquor in his vehicle." Roberts was not arrested for the suspected crime of "drunk driving." Under Castellano, supra, if any probable cause to arrest for driving under the influence of alcohol existed it ended when the officer did not arrest Roberts for same. The officer, after determining Roberts was not driving while intoxicated, nevertheless, conducted a search of his automobile without warrant or consent and then arrested him for transporting an "open bottle." Thus, the arrest for transporting an "open bottle" is invalid because it was not based upon probable cause.

Therefore, we conclude appellees are not entitled to exemption from liability under § 155 of the "Political Subdivision Tort Claims Act." The case is reversed and remanded to the trial court with direction to overrule the demurrers and proceed accordingly.