Nearing v. Weaver

670 P.2d 137 (1983)

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Nature of the Case

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Facts

Nearing (P) (and her two minor children) were separated from her husband in November 1979. On April 16, 1980, the husband entered P's home without permission and struck P. P reported this to the police. Officer Weaver (D) arrested the husband for assault. The circuit court issued an order restraining the husband from molesting Ps or entering the family home. The order was served on the husband, and a copy of the order and proof of service were delivered to D. On May 12 and 13, 1980, the husband again entered P's home without permission, first damaging the premises, and thereafter attempting to remove the children. P reported these incidents to D and asked him to arrest her husband because she was frightened of his violent proclivities. The officer confirmed the validity of the restraining order and the damage to P's home but declined to arrest the husband on the ground that the officer had not seen the husband on the premises. Three more times this same scenario played itself out. The husband returned to P's address, sought entry to the home, assaulted P's friend and damaged his van. A few days later the husband, telephoned P and threatened to kill her friend. D told P he would be arrested, but no action was taken. P sued D. The complaint alleges that Ds' failure to arrest P caused her to suffer 'severe emotional distress and physical injuries' and that the children have suffered 'acute emotional distress,' have been 'upset,' have had difficulty sleeping, and have suffered 'psychological impairment.' Ds pleaded the affirmative defenses of immunity and discretion. Ds got summary judgment, and this was affirmed by the Court of appeals. P appealed.