Montgomery v. Saleh
| Decision Date | 30 March 2018 |
| Docket Number | Nos. 117,518,117,519,s. 117,518 |
| Parties | Shelby MONTGOMERY and Scott E. Bennett, Appellants/Cross-appellees, v. Patrick R. SALEH, and State of Kansas, Appellees/Cross-appellants. |
| Court | Kansas Court of Appeals |
Richard L. Budden and Lynn R. Johnson, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, for appellants/cross-appellees.
Rachael D. Longhofer, assistant attorney general, and Derek Schmidt, attorney general, for appellees/cross-appellants.
Before McAnany, P.J., Gardner, J., and Timothy L. Dupree, District Judge, assigned.
Scott E. Bennett and Shelby Montgomery brought these consolidated negligence actions against Kansas Highway Patrol Trooper Patrick R. Saleh and the State of Kansas for the injuries and damages they sustained as a result of a collision with a vehicle being driven by fleeing suspect Robert Horton who was being pursued by Trooper Saleh. The district court's entry of summary judgment in favor of Trooper Saleh and the State of Kansas brings the matter to us for our de novo review. The defendants cross-appeal on a number of issues raised in the district court. Because we consider the defendants' summary judgment motion de novo, we need not concern ourselves with the holding of the district court and will address the issues in the cross-appeal in ruling de novo on the defendants' summary judgment motion.
Based upon our review of the record and being ever mindful of our fundamental policy of preserving for resolution by the jury disputed issues of fact, we conclude that there remain genuine issues of material fact regarding the claims of fault against Trooper Saleh, and vicariously against the State, which must await trial. Summary judgment is not appropriate on these claims. But with respect to the separate claims of direct negligence against the State, it is apparent that there is no genuine issue of material fact and the plaintiffs have abandoned them. Accordingly, the State is entitled to judgment as a matter of law on those claims.
The plaintiffs commenced separate actions against Trooper Saleh and the State of Kansas. They claim that Trooper Saleh initiated and continued a high-speed chase in reckless disregard for the safety of others, without a valid and legal reason for initiating and continuing pursuit, and in violation of the Kansas Highway Patrol's pursuit policy and procedure.
In their separate action against the State of Kansas, the plaintiffs claim the State is vicariously liable for Trooper Saleh's actions and that the Kansas Highway Patrol and Troop K of the Kansas Highway Patrol/Capitol Police negligently failed to establish and enforce appropriate pursuit policies and procedures. In addition, they assert that the Kansas Highway Patrol was negligent in its hiring, retention, supervision, education, training, and instruction of Trooper Saleh. These separate suits were consolidated for discovery purposes.
After discovery was complete, the defendants moved for summary judgment. They claim (1) the plaintiffs fail to establish a prima facie case; (2) the defendants are entitled to immunity under the Kansas Tort Claims Act (KTCA); (3) the defendants fail to state a claim that the State negligently failed to establish and enforce appropriate pursuit policies and procedures; and (4) as a matter of law the State was not negligent in its hiring, retention, supervision, education, training, and instruction of Trooper Saleh.
The uncontroverted facts disclose that on the evening of August 23, 2010, Kansas Highway Patrol Sergeant Tim Tillman was stopped at a red light at the intersection of Topeka Boulevard and 32nd Terrace in Topeka. He stopped next to a red Toyota also travelling northbound on Topeka Boulevard. He observed the front passenger holding a knife and speaking to the Toyota's driver. He could not hear their conversation. When the light turned green and the Toyota began to drive away, Sergeant Tillman saw the Toyota passenger swing the knife toward the driver, but he did not know whether the Toyota passenger was being physically aggressive or merely fooling around. (After the crash, no knife was found in the vehicle.) Sergeant Tillman reported the Toyota's license plate to dispatch and was informed that the plate number belonged to a 1992 Oldsmobile.
Because he was in plain clothes and driving an unmarked vehicle, Sergeant Tillman requested that Trooper Terry Fields and Trooper Saleh, who were in the area of 10th Avenue and Topeka Boulevard, stop the Toyota. Troopers Saleh and Fields spotted the Toyota near the intersection of Topeka Boulevard and 21st Street. Trooper Saleh took the lead. He activated his red lights, siren, and dashboard video camera which recorded the pursuit. The pursuit lasted approximately 1 minute and 32 seconds.
After Trooper Saleh activated his emergency equipment, the driver of the Toyota turned right onto 20th Street, rapidly accelerated as he headed east, and ran a stop sign as he was turning right onto Kansas Avenue, where he proceeded south. Trooper Saleh continued pursuing the vehicle as it crossed the yellow line on Kansas Avenue and weaved across the southbound lanes.
Trooper Saleh accelerated to 80 to 90 miles per hour, but he estimated that the Toyota was travelling in excess of 100 miles per hour. He decided to terminate pursuit " ‘[s]omewhere around the Wonder Bread outlet store’ " which was located between 27th Street and 29th Street on Kansas Avenue. But he did not actually terminate his pursuit at any point before the Toyota sped through a red traffic light at the intersection of Kansas Avenue and 29th Street and collided with the Chevy pickup truck occupied by plaintiffs Bennett and Montgomery. At the time of the collision, Trooper Saleh was about two and a half blocks behind the Toyota. The impact caused the Chevy pickup truck to spin into several other vehicles. The driver of the Toyota was later confirmed to be Horton, and his passenger was a minor female who had been reported as a runaway by her foster mother.
Throughout the course of these events, Trooper Saleh was acting within the scope and course of his employment with the State of Kansas.
The defendants' expert, Special Agent Kenneth R. Wallentine, a Utah law enforcement officer, opined that Trooper Saleh's pursuit was reasonable and consistent with generally accepted policies, practices, and training. He concluded:
The defendants contend:
Futhermore, the defendants allege that the plaintiffs did not present evidence supporting their claim that the State of Kansas negligently failed to establish and enforce appropriate pursuit policies and procedures and in its hiring, retention, supervision, education, training, and instruction of Trooper Saleh.
In response to the defendants' summary judgment motion, the plaintiffs submitted the affidavit of expert criminologist Geoffrey Alpert, Ph.D., who opined that Trooper Saleh's pursuit became futile once the Toyota ran the stop sign on 20th Street because it was more likely than not that the driver would continue to flee as long as he was being chased. In his opinion, "the pursuit should have been terminated between 20th and 21st street and no later than when [Horton] ran the red light at 21st street in an attempt to elude the police." According to Alpert, "[h]ad the police terminated their active attempt to apprehend [Horton], it is more likely than not that he would not have crashed into the pick-up driven by [Bennett] at 29th." Alpert concluded that Trooper Saleh's continued pursuit of Horton was a proximate cause of the crash.
The plaintiffs argued that "had Trooper Saleh terminated his pursuit once he became aware that it was unjustified in light of the dangers presented, the Toyota would not have crashed into Plaintiffs' vehicle and caused Plaintiffs' injuries." In support, the plaintiffs note:
The plaintiffs assert that a reasonable jury could have found that Horton would have slowed through the intersection at 29th Street and Kansas Avenue if Trooper Saleh had terminated pursuit. Likewise, they assert a reasonable jury could find Horton's collision with plaintiffs' vehicle was foreseeable to Trooper Saleh because he had watched a near-miss when Horton sped through the stoplight at 21st Street and Kansas Avenue.
The plaintiffs noted that K.S.A. 8-1506(a) - (c) grants drivers of...
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