65 F.3d 866 (10th Cir. 1995), 94-3167, Carl v. City of Overland Park, Kan.

Docket Nº:94-3167.
Citation:65 F.3d 866
Party Name:Pennie A. CARL, Plaintiff-Appellant, v. The CITY OF OVERLAND PARK, KANSAS; Myron Scafe, Chief of Police; and Lee Williams, Officer, Defendants-Appellees.
Case Date:September 14, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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65 F.3d 866 (10th Cir. 1995)

Pennie A. CARL, Plaintiff-Appellant,


The CITY OF OVERLAND PARK, KANSAS; Myron Scafe, Chief of

Police; and Lee Williams, Officer, Defendants-Appellees.

No. 94-3167.

United States Court of Appeals, Tenth Circuit

September 14, 1995

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Ronald K. Barker of Kansas City, MO (and Larry E. Benson of Kansas City, KS, with him on the briefs) for plaintiff-appellant.

Donald Patterson of Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendants-appellees.

Before EBEL, Circuit Judge, BRIGHT, [*] and McWILLIAMS, Senior Circuit Judges.

EBEL, Circuit Judge.

Aaron Nelson ("Nelson") died when he drove his car into a tree during a high speed pursuit by Police Officer Lee Williams ("Officer Williams") of the Overland Park Police Department ("OPPD"). Nelson's mother, Plaintiff-Appellant Pennie A. Carl ("Carl"), brought this diversity action against Officer Williams, Police Chief Myron Scafe, and the City of Overland Park, Kansas, seeking damages under state law for the wrongful death of her son. See K.S.A. Secs. 60-1901, 75-6103(a). The district court granted summary judgment to Defendants on alternative grounds, holding that Carl had failed to show either: (1) that Defendants breached a duty to Nelson, or (2) that any breach was the proximate cause of Nelson's death. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm on the second ground set forth by the district court.


At approximately 2:00 a.m. on March 10, 1991, Officer Williams was on routine patrol in a residential area when he noticed a car occupied by two individuals. The driver was Carl's 16-year-old son Nelson, who had borrowed the car from a third party and was driving without a license. Officer Williams claims that the car caught his attention because it had a defective headlight and was weaving within its lane. On that basis, Officer Williams decided to make a traffic stop. After informing the OPPD of his intent, Officer Williams signalled for Nelson to stop his car. Nelson disregarded the signal and began to accelerate. Officer Williams activated his siren and overhead lights, informed the OPPD that he was initiating pursuit, and a high-speed chase ensued.

The 60 to 70 mile per hour pursuit continued in a residential area with posted speed limits of 25 to 30 miles per hour. The road was dry and well-lit, and Officer Williams kept the OPPD informed of his speed and location throughout the pursuit. Both cars sped through the first intersection on a green light. Nelson drove through the second intersection on a red light, which had turned green before Officer Williams drove through. Nelson slowed but failed to stop at the following stop sign, and Officer Williams did the same. After the cars drove through the next intersection, the pursuit entered the jurisdiction of the Prairie Village Police Department

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("PVPD"), an area where Officer Williams had never driven. The PVPD was informed of the pursuit and two PVPD patrol cars began following Nelson's course, without becoming actively involved in the chase. Just past the following intersection, approximately three minutes after the pursuit had begun, Nelson drove his car off the road and into a tree. Nelson's passenger was thrown from the car and died soon thereafter. Nelson was pronounced dead at the scene.

During these events, the OPPD had in place a comprehensive policy governing vehicle pursuits. On October 17, 1990, Police Chief Myron Scafe had agreed with other police chiefs in the county to adopt the uniform provisions of the "Johnson County Police Chiefs' Association Inter-Jurisdictional Pursuit Policy" as standard operating procedure. See Appellant's App. at 3-19. Pursuant to this agreement, the OPPD had incorporated the substance of the Inter-Jurisdictional Policy into its own existing policy, SOP 100-13. See id. at 20-34. The purpose of SOP 100-13 is to provide officers with "guidance and direction" in performing vehicle pursuits. Id. at 20. One section sets forth "factors" that must be considered before a pursuit is initiated; another section defines "conditions" that require termination of a pursuit; and the remainder describes the mechanics of how a pursuit should proceed. Id. at 20-33.

Believing that Officer Williams had violated numerous provisions in this policy, Carl brought this action against Officer Williams, Chief Scafe, and the City of Overland Park, Kansas, seeking damages under state law for the wrongful death of her son. 1 See K.S.A. Secs. 60-1901 et seq. (Kansas Wrongful Death Statute); Secs. 75-6101 et seq. (Kansas Tort Claims Act). The district court granted summary judgment to the Defendants, and it is from that final order that Carl now appeals.


We review the grant of summary judgment de novo, applying the same legal standard as the district court under Fed.R.Civ.P. 56(c). Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). Summary judgment is appropriate if, viewing the record in the light most favorable to Carl, the nonmoving party, there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law. See id. at 1529.

Because this is a diversity action, we apply Kansas choice of law rules. See Robert A. Wachsler, Inc. v. Florafax Int'l Inc., 778 F.2d 547, 549 (10th Cir.1985). Because the events at issue occurred within the Kansas border, Kansas choice of law rules dictate the use of Kansas substantive law. See Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731, 735 (1985).

Kansas law provides a wrongful death cause of action for damages. K.S.A. Secs. 60-1901 et seq. When the wrongful death is caused by a government employee acting within the scope of employment, the Kansas Tort Claims Act extends liability to the employing governmental entity. See K.S.A. Sec. 75-6103(a). To prove a wrongful death claim, Carl must demonstrate the standard elements of a tort cause of action: (1) that Defendants owed Nelson a legal duty; (2) that Defendants breached that duty; (3) damages; and (4) that the breach was the actual and proximate cause of Nelson's death. See Hammig v. Ford, 246 Kan. 70, 785 P.2d 977, 980 (Kan.1990). Defendants may affirmatively defend against this claim by demonstrating entitlement to immunity under an exception to the Kansas Tort Claims Act. See Allen v. Board of Comm'rs of the County of Wyandotte, 773 F.Supp. 1442, 1454 (D.Kan.1991).

Relying on these legal standards, Defendants moved for summary judgment on alternative grounds. First, they argued that Carl

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could not prevail on the merits of her claim because she had failed to show the essential elements of breach of duty or proximate cause as a matter of law. Second, Defendants argued that they could not be held liable in any event, because they were immune from suit under the discretionary function exception to the Kansas Tort Claims Act. K.S.A. Sec. 75-6104(e).

The district court did not rule on Defendants' immunity defense, but focused instead on the elements of Carl's claim. The court first held that Carl had failed as a matter of law to show that initiating or continuing pursuit constituted a breach of any legal duty owed to Nelson. In so holding, the court relied in part on certain driving privileges bestowed on emergency vehicle operators under K.S.A. Sec. 8-1506. Alternatively, the court held that any alleged breach of duty could not be considered the proximate cause of Nelson's collision, because Nelson's "voluntary decision to elude and evade a police officer and to travel at a speed greatly in excess of the posted limit" was the legal cause of Nelson's own death.

In this appeal, Carl argues that the district court failed to consider the impact of SOP 100-13. Carl contends that the standards contained in certain portions of SOP 100-13 imposed on Defendants a duty of care to Nelson once pursuit had been initiated, and that violations of the policy should therefore have been considered in the court's breach of duty analysis. Carl concludes that Nelson's conduct was arguably foreseeable when the alleged violations took place, and, therefore, a reasonable jury could have deemed Defendants' acts to be the legal cause of Nelson's death, rather than treating Nelson's conduct as an intervening cause. In response, Defendants challenge Carl's analysis and reassert their entitlement to immunity under the discretionary function exception, K.S.A. Sec. 75-6104(e).

Because we may affirm on any ground supported by the record, see Medina v. City & County of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992), we have given careful consideration to three possible bases upon which the...

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