Barber v. Williams, 62207

• Citation: 767 P.2d 1284,244 Kan. 318
• Decision Date: 20 January 1989
• Docket Number: No. 62207,62207
• Parties: Dorothy BARBER, Appellant, v. Sylvia Lang WILLIAMS a/k/a Unknown aliases, Laura Linda Williams a/k/a Laura Lang a/k/a Unknown aliases, and City of Topeka, Appellees.
• Court: United States State Supreme Court of Kansas

Page 1284

767 P.2d 1284

244 Kan. 318

Dorothy BARBER, Appellant, v. Sylvia Lang WILLIAMS a/k/a Unknown aliases, Laura Linda Williams a/k/a Laura Lang a/k/a Unknown aliases and City of Topeka, Appellees.

No. 62207.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

1. Summary judgment is proper where the only questions presented are questions of law.

2. The legislature intentionally omitted the "due care" provision found in 28 U.S.C. § 2680(a) (1982) when it enacted K.S.A.1987 Supp. 75-6104(c).

3. Where the language of a statute is plain and unambiguous, this court's responsibility is to give effect to the intent of the legislature as expressed, and not to rearrange the legislature's work to express what the court thinks the law should or should not be.

4. A city is immune from liability, pursuant to K.S.A.1987 Supp. 75-6104(c), when it is negligent in enforcing an ordinance.

Alan V. Johnson, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, argued the cause, and W. Thomas Stratton and Martha A. Peterson, Topeka, were on the briefs, for appellant.

J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and was on the brief, for appellee City of Topeka.

MILLER, Chief Justice.

The plaintiff, Dorothy Barber, brought this action for damages against Sylvia and Laura Williams. Plaintiff later amended her petition, naming the City of Topeka as an additional defendant. Judgment has been entered for plaintiff and against Sylvia and Laura Williams. That judgment is final, and neither Sylvia nor Laura are parties to this appeal. Plaintiff claims that her damages were caused by the City's negligence in licensing a fortunetelling business operated by the Williamses. The trial court entered summary judgment on plaintiff's claims against the City of Topeka, and she appeals.

It will be helpful to first state some of the rules relating to summary judgment. In Meyers v. Grubaugh, 242 Kan. 716, 717-18, 750 P.2d 1031 (1988), we said:

"Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, is required to search the record and determine whether issues of material fact exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Hunt v. Dresie, 241 Kan. 647, 652-53, 740 P.2d 1046 (1987)."

Summary judgment is useful and particularly appropriate when the facts are not disputed. As we noted in Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, Syl. p 7, 624 P.2d 971 (1981): "Summary judgment is proper where the only question or questions presented are questions of law."

See Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 (1985).

The facts are not disputed. In late 1983, Sylvia Williams applied to the City of Topeka for a fortunetelling license. She submitted three letters of recommendation with her application. Detective Stevens of the Topeka Police Department was assigned the task of conducting a background check on Sylvia Williams. He ran record checks with several law enforcement agencies, including the Lawrence, Kansas, Police Department, but found no police record of anyone by that name. Detective Stevens eventually submitted a report recommending approval of Sylvia Williams' application, and the City issued a license to her. During the ensuing year, Detective Stevens learned that Laura Williams was participating in the business with her daughter Sylvia. He planned to oppose the renewal of Sylvia's license, but the license was renewed without his knowledge or recommendation.

Laura Williams, mother of Sylvia Williams, had operated a palm reading and astrology business in Lawrence. After complaints were filed against her, she returned money to the complainants and the charges were apparently dismissed. When Laura moved with her family to Topeka, the Lawrence police notified the Shawnee County Sheriff's Office and the Kansas Bureau of Investigation. Officer Crady of the Shawnee County Sheriff's Office received the information about Laura Williams. He also learned from an FBI rap sheet that Laura had pled guilty to felony theft in Duluth, Minnesota, and that she had paid restitution in Colorado Springs. However, Detective Stevens, of the Topeka Police Department, was not aware of this information until after Sylvia's license had been issued.

Meanwhile, in February of 1984, Dorothy Barber went to see an astrologer, Sylvia Williams. Mrs. Barber continued to see Sylvia and later saw Laura Williams concerning problems with her husband. In May 1984, Dorothy Barber gave the Williamses $33,000. She was told that they were going to burn the money and bury the ashes in a cemetery to remove an evil spirit from her. In March 1985, she gave the Williamses an additional $20,000. She was told that this money would be returned to her. After she realized that she would not receive her money back, she filed suit against Sylvia and Laura Williams, and later named the City as an additional defendant. Dorothy Barber contends that the City was negligent both in issuing and in renewing Sylvia Williams' fortunetelling license, and that this negligence was the direct cause of her loss. Mrs. Barber was not aware that the City had licensed the fortunetelling business until long after she had paid the money to the Williamses.

The first and primary issue is whether the City is immune from liability under K.S.A.1987 Supp. 75-6104(c) when it is negligent in licensing a business. The Kansas Tort Claims Act, of which 75-6104(c) is a part, exempts from liability certain governmental action. The subsection which is at issue reads:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

....

"(c) enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution."

Under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., liability is the rule immunity the exception. Ordinarily a strict or narrow interpretation must be applied to statutory exceptions. The burden is upon the governmental entity to establish that its actions come within the immunity provisions of the act. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).

Plaintiff concedes that the City is not liable for damages resulting from the enforcement of or failure to enforce a law or ordinance. She argues, however, that 75-6104(c) does not protect the City from liability where it has acted negligently in enforcing or failing to enforce its ordinances. Put differently, her argument is that once the City undertakes the licensing of fortunetellers, the City has a duty to act with due care, and if it does not and loss or injury results, the City is liable. The issue we must decide is whether negligence in the enforcement of an ordinance removes the action from the protection of the 75-6104(c) exception to governmental liability.

Jackson is the most recent case on point. There, the City of Kansas City appealed a judgment for damages which was entered against the City following a jury trial. The City contended that the failure of one of its employees to abide by a departmental regulation concerning the operation of emergency vehicles was the equivalent of the failure to enforce an ordinance or regulation, and thus liability was barred by 75-6104(c). We did not agree. Relying on Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), we explained that tortious conduct outside the scope of the regulation or ordinance, which would be negligence at common law, is an actionable tort for which the government is not immune. We quoted from Cansler:

" 'We construe K.S.A.1981 Supp. 75-6104(c) to provide an exemption from claimed liability only where claimant's sole asserted claim of causal negligence is the public entity's enforcement or failure to enforce a law. That section does not provide an exemption where the agency, in enforcing or failing to enforce a law, commits some additional tortious act or omission which would be negligence at common law, and which act or omission causes damage.' 234 Kan. at 568 ." (Emphasis supplied.) 235 Kan. at 285-86, 680 P.2d 877.

We then observed that "[o]bviously, the claim of negligence herein relative to driving at an excessive speed, driving without due regard for the safety of others, etc. would be negligence at common law." 235 Kan. at 286, 680 P.2d 877. As a result of that determination, we held that the negligence action was not barred by K.S.A.1987 Supp. 75-6104(c).

In the case at hand, the trial court ruled that the City's action with regard to the ordinance did not constitute negligence at common law. Plaintiff, however, submits that there is a common-law duty to investigate and license with due care. In support of that argument, plaintiff relies on Restatement (Second) of Torts § 308 (1963):

"Permitting Improper Persons to Use Things or Engage in Activities. It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others."

While the forerunner of Restatement (Second) of Torts § 308 was recognized by this court in Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962), and Blakey v. Zirkle, 187 Kan. 562, 358 P.2d 758 (1961), both cases are distinguishable. Wroth concerned the negligent placement of a firearm within the reach of a child. The dangerous character of the firearm elevated the duty of...