Burgess v. West

• Decision Date: 25 March 1993
• Docket Number: Civ. A. No. 92-2088-0.
• Citation: 817 F. Supp. 1520
• Parties: Gary BURGESS and Marilee Burgess, Plaintiffs, v. Michael WEST and The City of Overland Park, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

817 F. Supp. 1520

Gary BURGESS and Marilee Burgess, Plaintiffs, v. Michael WEST and The City of Overland Park, Kansas, Defendants.

Civ. A. No. 92-2088-0.

United States District Court, D. Kansas.

March 25, 1993.

COPYRIGHT MATERIAL OMITTED

Thomas E. Foster, Foster & Foster, Overland Park, KS, for plaintiffs.

A. Bradley Bodamer, Eric D. Braverman, Morrison & Hecker, Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on defendants' motions for summary judgment (Docs. # 8, 31, 33, 35, and 37). For the reasons set forth below, the several motions will be granted in part and denied in part.

I. Factual Background

This matter arises from an October 13, 1989, incident involving plaintiffs and Officer West, a reserve police officer for the defendant City of Overland Park ("City"). The undisputed facts relevant to the motions in question are as follows. At all pertinent times, defendant Michael West was a reserve police officer with the City of Overland Park. West had received all standard police officer training as required for the job of reserve officer. The City had a written policy concerning use of force by police officers. Officer West had knowledge of that policy. All acts of defendant West were done with express or implied authority of defendant City and were within the scope of West's employment with the City.

At 10:03 p.m. on October 13, 1989, Officers West and McCullough were dispatched to respond to a complaint about a loud party at 9410 West 89th Street, Overland Park, Kansas. The juvenile resident at that address asked the officers to aid in breaking up the party and the officers proceeded to do so. There were "wall-to-wall" people and "wall-to-wall" cars in the street in front of 9410 West 89th Street when plaintiff Gary Burgess drove his Triumph convertible down the 9400 block of 89th Street where Officer West was attempting to break up the party. Plaintiff Marilee Burgess was a passenger in the car at the time. The top on the convertible was down. Officer West heard plaintiffs' car approach and saw the headlights. Officer West motioned with his flashlight to try to slow or stop the plaintiffs' car. However, Gary Burgess continued down the street. An encounter ensued between Officer West and the plaintiffs. The exact details of the encounter are disputed. However, the parties agree that both plaintiffs' car and Marilee Burgess were hit by Officer West's flashlight. Gary Burgess then stopped the car, got out, and approached Officer West.

Officer West smelled alcohol on Gary Burgess's breath. Burgess admits that he had consumed at least three to four beers earlier that evening. Burgess took a field sobriety test which he admits he did not pass. Gary Burgess was then arrested for (and later charged with) driving under the influence of alcohol ("DUI") and aggravated assault on a law enforcement officer. Burgess was transported to the Overland Park Police Station where he took an intoxilyzer test. His blood alcohol content registered .101. All criminal charges against Gary Burgess relating to this incident were eventually dismissed.

Plaintiffs filed a notice of claim with the City of Overland Park pursuant to K.S.A. 12-105b(d) on August 28, 1990. Plaintiffs' attorney, Thomas Foster, met with Michael R. Santos, Assistant City Attorney, on September 19, 1990. In that meeting Santos told Foster that the City specifically rejected plaintiffs' claims but that a counteroffer might well be forthcoming. Foster advised Santos that plaintiffs would be filing suit in the near future but would delay service on the City pending the counteroffer. Santos sent a letter dated October 18, 1990, to plaintiffs which stated, "we find no basis for compensation of this claim." However, the letter also contained a "one-time" offer to settle the case for $9,500 in return for a complete release by both plaintiffs.

Plaintiffs filed an original petition in Johnson County District Court on October 12, 1990. In that petition, plaintiff Gary Burgess asserted claims for false arrest and imprisonment, malicious prosecution, and intentional damage to personal property. Marilee Burgess also asserted claims for battery and negligent use of a weapon. On February 5, 1992, plaintiffs filed an amended petition alleging civil rights violations for false arrest and excessive force pursuant to 42 U.S.C. § 1983. Defendants removed the case to this court on March 3, 1992.

II. Discussion

A. Summary Judgment Standards:

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. "Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Clemmons v. Bohannon, 956 F.2d 1523, 1525 (10th Cir.1992) (quoting Fed.R.Civ.P. 56(c)). An issue is "material" only when the controversy is over facts that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.

"A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Thus, the mere existence of some alleged factual dispute between parties will not defeat an otherwise properly supported motion for summary judgment. Id.

When the nonmoving party makes a showing of contested facts, the court must consider factual inferences tending to show triable issues in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

B. The Statute of Limitations Issues:

Defendants seek summary judgment on plaintiffs' state law claims for failure to comply with K.S.A. 12-105b(d). Section 12-105b(d) requires a party with a claim against a municipality "which could give rise to an action brought under the Kansas tort claims act" to file a written notice of claim with the municipality as a prerequisite to commencing a legal action against the municipality. "Once notice of a claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first." Id.

The crux of defendants' argument is that Santos did not, on behalf of the City, deny the plaintiff's claim during the September 19, 1990, meeting. Defendants do not controvert plaintiffs' attorney Foster's account of what was said at the meeting. Rather, they contend that Santos's statements were merely "non-binding indications that negotiations were possible and in fact probable." Defendants thus conclude that Santos's statements were not a denial of plaintiff's claim under section 12-105b(d).

We disagree. K.S.A. 12-105b(d) merely requires a denial—in whole or in part—prior to filing suit. Santos's statement that the City was specifically rejecting plaintiffs' claims was such a denial notwithstanding his discussion of a possible counteroffer in the future. A counteroffer would certainly have at least amounted to a denial of part of plaintiffs' claims.¹

Defendant City² seeks summary judgment on plaintiffs' section 1983 claims claiming they are barred by the two-year statute of limitations. See, Hamilton v. City of Overland Park, 730 F.2d 613 (10th Cir. 1984), cert. denied, 471 U.S. 1052, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985) (The statute of limitations for § 1983 claims is two years.) Defendants contend that plaintiffs' amended petition could not relate back to the original petition because the original petition was invalid for failure to comply with the requirements of K.S.A. 12-105b(d). We have already decided that plaintiffs' original petition complied with section 12-105b(d). Thus, the original petition was valid and the amendment related back under Federal Rule of Civil Procedure 15(c). Accordingly, defendants' motion for summary judgment on the section 1983 claims on statute of limitations grounds will be denied.

C. The State Law Claims

Plaintiff Gary Burgess alleges state law violations in Count I for intentional damage to property, in Count III for false arrest, false imprisonment and malicious prosecution, and in Count IV for excessive force against his automobile. Plaintiff Marilee Burgess alleges state law violations in Count II for personal injury and in Count IV for excessive force against her person.

In Kansas, actions against a governmental entity or any employee of such entity acting within the scope of employment are governed by The Kansas Tort Claims Act ("KTCA"), K.S.A. XX-XXXX-XXXX (1989 & Supp.1992). Pursuant to the KCTA, defendants claim that they are insulated from liability on plaintiffs' state law claims by K.S.A. 75-6104(c) and (e). We note that the KTCA is an "open-ended" act; liability is to be the rule while immunity is to be the exception. Kansas State Bk. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d 587, 599 (1991). In addition, defendants bear the burden of establishing immunity under section 75-6104. Id., 819 P.2d at 600.

Defendants claim that West was performing a "discretionary function" in clearing the area and directing traffic. K.S.A. 75-6104(e) provides that governmental entities and their employees who are acting within the scope of employment are exempt from liability for "any claim based upon the exercise or performance ... of a discretionary function or duty on the part of a governmental entity or employee,...