Allen v. City of Ogden, 46447

• Decision Date: 19 July 1972
• Docket Number: No. 46447,46447
• Citation: 210 Kan. 136,499 P.2d 527
• Parties: Lena B. ALLEN, Appellant, v. CITY OF OGDEN, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 527

499 P.2d 527

210 Kan. 136

Lena B. ALLEN, Appellant, v. CITY OF OGDEN, Kansas, Appellee.

No. 46447.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

1. The operation of a police department by a city is a governmental function and the enforcement of the police power by a police officer is within the scope of governmental immunity from tort liability.

2. A nuisance is an annoyance, and any use of property by one which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance.

3. A statute does not operate retroactively, but operates prospectively, unless there is an intention of the Legislature clearly expressed by the statute that its provisions are to be applied retrospectively.

4. The record in an action to recover damages from the City of Ogden arising out of alleged excessive force incidental to an arrest for double-parking in violation of the Ordinances of the city and continued harassment of the plaintiff by a police officer of the police department of the city is examined, and as more fully set forth in the opinion, it is held: The district court did not err in dismissing the action upon the ground that (1) the doctrine of governmental immunity from tort liability is applicable to the exercise of police power by a police officer of the City of Ogden in the discharge of his duties; (2) the alleged action of the police officer did not constitute a nuisance, and (3) interrogatories propounded by the plaintiff had no bearing on the viability of governmental immunity because the alleged tort occurred prior to the effective date of K.S.A.1971 Supp. 74-4714 et seq.

Robert K. Weary, Junction City, argued the cause and was on the brief for appellant.

John F. Stites, Manhattan, argued the cause and was on the brief for appellee.

FATZER, Chief Justice:

The appellant, Lena B. Allen, commenced this action against the City of Ogden, Kansas, a municipal corporation, alleging that agents of the city conspired to use excessive force in her arrest for double-parking, and that subsequent harassment by public authorities has caused her irreparable physical and mental anguish. The petition sought actual damages of $60,000 and punitive damages in a like amount. It should be noted that neither the officer who made the arrest, the mayor, nor any of the members of the city council of Ogden were made party defendants to this action.

The substance of the appellant's claim is stated in her petition, and pertinent allegations therein are quoted:

'3. That as indicated in said claim, on or about Wednesday, October 22, 1969, the plaintiff, LENA B. ALLEN, asked Mr. R. G. Schultz of the Ogden police force to move his police vehicle from the entrance to her grocery store in Ogden; that her request apparently made him angry as he proceeded immediately to confer with the Mayor of Ogden, Mrs. Geneva Crosby; that apparently acting under instructions from said mayor, he soon returned, obtained the amount of the City's account owed to the store and left indicating he would be right back; that apparently still acting under instructions from said Mayor, he promptly returned and paid off the City's account at the plaintiff's grocery store indicating there would be no further purchases; that the following Saturday night, on or about the 25th day of October, 1969, the plaintiff as she left her store with two of her clerks was followed and stopped by Mr. Schultz purportedly to check her driver's license; that after having done so, he followed her continuously to the places where she discharged the two clerks from her automobile and at the last of the two places after she had carried some groceries into the house of one Mrs. Blueheart, the said Mr. Schultz immediately followed her to the porch of the house demanding that she come out so that he could give her a ticket for double parking; that the plaintiff indicated she would do so as soon as she had unloaded the groceries for Mrs. Blueheart; that, thereupon, said policeman, R. G. Schultz, without any authority whatsoever, unlawfully burst into the house in a violent rage, seized the plaintiff by the arm and dragged her bodily out of the house at the same time removing his mace from its container on his belt and threatening to use the same on plaintiff; that said policeman in grabbing the plaintiff by her left arm caused her right arm and wrist to come in contact with the door jam, which hand and wrist had recently been operated on at the Mayo Clinic because of a carpal tunnel syndrome, to relieve nerve pressure on her wrist; and that furthermore, in the course of removing the plaintiff from the house she was forced or pushed up against the door.'

'5. That said actions and harassment of the policeman, were made known to the Mayor, Mrs. Geneva Crosby, and the other members of the City Council of the City of Ogden, Kansas, but that no corrective action was taken or said policeman restrained in any way; that subsequently, said harassment continued, the said policeman from time to time following the plaintiff around in a very threatening and peculiar manner; that because of his extreme temper and strange behavior, plaintiff experienced a great deal of fear and apprehension; that said continued conduct and harassment was repeatedly brought to the attention of said City officials, including the Mayor and the members of the City Council, but that said policeman was not relieved of his position or restrained in any way.'

'8. That prior to October 25, 1969, the Mayor and City Council of the City of Ogden, Kansas, knew, had reason to know or should have known of the violent and extreme propensities of said R. G. Schultz, and nevertheless continued to allow him to act in his capacity as police officer of Ogden, Kansas.

'9. That the continuing course of conduct and acts herein described were committed by agents of the defendant city; and that they were unlawful, illegal, willful, wanton acts of which the city officials of the City of Ogden, Kansas, knew or should have known and were and have been continued.'

The city filed a motion to dismiss the action upon the ground the petition failed to state a claim upon which relief may be granted. After hearing arguments and giving consideration to the briefs of counsel, the district court sustained the motion. The appellant has appealed, asserting three grounds for reversal.

It is first contended the district court erred in sustaining the city's motion to dismiss the action since the 'judge-made' doctrine of immunity of cities from suit for torts committed by city employees in the exercise of governmental activities should be abolished by this court. The appellant cites and relies upon Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21, where this court abolished the right of the state and its governmental agencies to claim immunity for the negligence of its employees or agents engaged in proprietary activities. The point is not well taken. Carroll recognized the authority of the Legislature to control the entire field of governmental immunity, including matters covered by judicial decision. (Syl. 4.) However, the effect of Carroll was of short duration, and as stated in Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219, the Session of the Legislature following the filing of the opinion in that case, enacted Chapter 200, Laws of 1970, now appearing as K.S.A. 1971 Supp. 46-901 et seq. While the provisions of Section 2 of that Act (K.S.A. 1971 Supp. 46-902) do not apply to or change the liability of local units of government as established by our judicial decisions, such as cities of the state, the same Session of the Legislature enacted ...