Bradford v. Mahan
| Decision Date | 10 April 1976 |
| Docket Number | No. 47914,47914 |
| Citation | 219 Kan. 450,548 P.2d 1223 |
| Parties | Lowell R. BRADFORD, Appellant, v. M. L. MAHAN and The City of Olathe, Kansas, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an appeal from an order dismissing a petition on the ground it fails to state a claim upon which relief can be granted, the sufficiency of the petition must be determined upon the well pleaded facts considered in a light most favorable to the plaintiff.
2. A municipality is not liable for the negligence or the misconduct of its police officers when the officers are engaged in the performance of governmental functions.
3. The notice requirements of K.S.A. 12-105 apply only to actions for injury to person or property against a municipality and are not a condition precedent to bringing an action against a police officer, even though said officer was engaged in the performance of a governmental function.
4. Personal liability exists against police officers who needlessly, maliciously or wantonly injure a person even when they are engaged in a governmental function.
5. Privileged communications in defamation actions are divided into two classes: absolute privilege and conditional or qualified privilege. It has been said that absolute privilege is recognized in cases where the public service or the administration of justice requires complete immunity, as in legislative, executive, or judicial proceedings, the occasion for the immunity being not so much for those engaged as for the promotion of the public welfare.
6. Unless absolute privilege can be claimed on the basis of publication during a judicial or legislative function, the statements and reports made by police officers in the exercise of their official duties are subject to a qualified privilege only.
7. The provisions of K.S.A. 12-105 requiring the filing of a written statement of injury to person or property as a prerequisite to bringing an action against a city have no application to a claim against a city for expungement or correction of allegedly false and incorrect records.
8. The Division of Vehicles of the Department of Revenue of the State of Kansas is not an indispensable party to an action brought against a city for correction or expungement of police accident reports.
9. A court through its equitable powers may order inaccurate police records corrected or expunged when unwarranted adverse consequences to a citizen are shown to outweigh the public interest in the right of law enforcement agencies to maintain and disseminate reports useful for the purpose of identification, apprehension, and arrest of individuals for criminal activity.
10. Expungement or correction of police reports should be limited to cases involving extreme circumstances where such relief is necessary and appropriate to preserve basic legal rights, where for example arrests or false reports are made without probable cause for purposes of harassment and under circumstances which constitute police misconduct.
Edward H. Powers, Jr., Kansas City, argued the cause and was on the brief for appellant.
Allen R. Slater of Haskin, Hinkle & Slater, Olathe, argued the cause and was on the brief for appellees.
This action arose from an arrest made at the scene of a one car accident in the city of Olathe, Kansas. The plaintiff was arrested for careless driving and an accident report was prepared and filed by a police officer of the city of Olathe. The plaintiff, Lowell R. Bradford, thereafter filed a petition in two separate counts against the police officer and the city.
In count one of the petition plaintiff seeks damages for alleged libelous statements set forth in the accident report. This claim is filed against M. L. Mahan, the police officer.
In count two of the petition plaintiff seeks to have these alleged libelous statements corrected or expunged from the accident report which is maintained and kept by the police department of the city of Olathe. The claim in count two is filed against the city of Olathe.
The two defendants joined in a motion to dismiss the petition.
Officer Mahan asserted that plaintiff failed to state a claim against him upon which relief could be granted because: (1) plaintiff failed to plead compliance with the statutory notice requirements of K.S.A. 12-105; (2) plaintiff alleged defendant was acting as a police officer in a governmental function and as such he and the city were immune from suit; and (3) the preparation of the accident report was required by K.S.A.1973 Supp. 8-523(d) and an absolute privilege attached.
The municipality asserted that plaintiff failed to state a claim against it upon which relief could be granted because: (1) plaintiff failed to comply with the statutory requirement of notice to a municipality set forth in K.S.A. 12-105; and (2) that plaintiff failed to join an indispensable party, the Division of Vehicles of the Department of Revenue of the State of Kansas.
The trial court sustained the joint motion of the city and of the police officer, and dismissed the plaintiff's petition without stating any specific reason for such action. The plaintiff has appealed.
In an appeal from an order dismissing a petition on the ground it fails to state a claim upon which relief can be granted, the sufficiency of the petition must be determined upon the well pleaded facts considered in a light most favorable to the plaintiff. (Woolums v. Simonsen, 214 Kan. 722, 522 P.2d 1321.)
Because the district court did not state the basis for dismissing the petition we must examine all grounds raised by the defendants in their motion.
We will first consider the petition as it relates to the claim of libel against the police officer.
After identifying the parties, the plaintiff made the following allegations in the petition:
'(4) That on April 21, 1973, the defendant Mahan investigated a one car accident in which plaintiff herein was involved which occurred on Kansas City Road approximately one-tenth of a mile north of the intersection of Kansas City Road and Santa Fe, within the corporate limits of the defendant The City of Olathe, Kansas. That as a part of the said accident investigation, the defendant Mahan filled out a 'Kansas Department of Revenue/Vehicle Accident Report,' a copy of which is attached hereto as Exhibit 'A' and incorporated herein as a part of this petition.
'5. That on page two of the said report, in the section headed 'Alcohol Intake', the defendant Mahan stated that alcoholic intake was an 'accident factor'. That such statement would naturally and presumably be understood as accusing plaintiff of a crime, to-wit: violation of K.S.A. 8-530.
"6. . . .
'That the making of said statement in writing as a part of the said accident report by the defendant Mahan constitutes imputation of a crime and its libel per se.
'7. That the said libelous statement by the defendant Mahan, either by virtue of its inherent nature or by virtue of the wilful, malicious character thereof, as alleged herein, is not privileged.
'8. That the defendant Mahan acted wilfully and maliciously in the making and the publication of the said statement in that although his statement that the consumption of alcoholic beverages by the plaintiff was a 'accident factor' and therefore clearly within the purview of K.S.A. 8-1001 the defendant Mahan intentionally and wilfully refused to administer a chemical test of '. . . breath, blood, urine or saliva for the purpose of determining the alcoholic content. . . .' of plaintiff's blood as the said statute requires. That plaintiff repeatedly and earnestly requested the defendant Mahan to adminster such a chemical test, but that the defendant Mahan wilfully and maliciously refused to do so.
'That the said libelous statement made by the defendant Mahan was wholly and completely false and contrary to the facts then existing and which were or should have been apparent to the defendant Mahan.
The defendant Mahan argues that plaintiff failed to state a cause of action by failing to allege that the statutory notice required by K.S.A. 12-105 was filed with the city. The statutory notice requirement in K.S.A. 12-105 in pertinent part reads as follows:
'No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within six (6) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, the circumstances relating thereto and a demand for settlement and payment of damages: . . .'
We have held that a plaintiff must not only give such notice to the city but also plead performance of the notice requirement in the petition in order to state a cause of action in tort against the city. (James v. City of Wichita, 202 Kan. 222, 447 P.2d 817.) However, the claim for libel in the present case is not brought against the city. Count one of the petition states a cause of action for libel against M. L. Mahan, the officer.
A municipality is not liable for the negligence or the misconduct of its police officers when the officers are engaged in the performance of governmental...
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