Burney v. Kansas Dept. of Social and Rehabilitation Services, 75228

• Decision Date: 17 January 1997
• Docket Number: No. 75228,75228
• Citation: 931 P.2d 26,23 Kan.App.2d 394
• Parties: Larry W. BURNEY, Appellee, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellant.
• Court: Kansas Court of Appeals

Page 26

931 P.2d 26

23 Kan.App.2d 394

Larry W. BURNEY, Appellee, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellant.

No. 75228.

Court of Appeals of Kansas.

Jan. 17, 1997.

Syllabus by the Court

1. In carrying out an investigation into a report of alleged child abuse, the Kansas Department of Social and Rehabilitation Services (SRS) owes its only duty to the public at large. There is no duty owed by SRS to the alleged child abuser. Accordingly, SRS may not be held responsible to the alleged child abuser for negligence in conducting the investigation.

2. The terms of the Kansas Manual of Youth Services do not create a duty owed to an alleged child abuser by SRS.

3. Under K.S.A. 75-6104(d), SRS is immune from liability under the Kansas Tort Claims Act for liability premised on its failure to follow or enforce any of its own policies or regulations as set out in the Kansas Manual of Youth Services.

4. Under K.S.A. 75-6104(c), SRS is immune from liability under the Kansas Tort Claims Act for its failure to follow the requirements of a statute or regulation concerning its obligation to furnish alleged child abuse or neglect information to a law enforcement agency.

5. The manner of conducting an investigation into a charge of alleged child abuse is a discretionary function, and SRS is immune from liability in the performance of such an investigation under K.S.A. 75-6104(e).

6. SRS is required by law to furnish information on its investigations into allegations of child abuse to law enforcement agencies. SRS is immune from liability under the Kansas Tort Claims Act for its required furnishing of information to a law enforcement agency. Under the facts of this case, such immunity makes it impossible to establish a case of malicious prosecution against SRS.

7. It is the public policy of this state to encourage SRS and its agents to conduct investigations into charges of child abuse, sexual or otherwise.

8. In an action for malicious prosecution based upon an alleged negligent investigation of a report of child abuse, malice may not be shown by the mere fact that SRS investigators made such an investigation or by the fact that the individuals conducting the investigation were negligent in some aspect.

9. In an action against SRS for malicious prosecution based upon an alleged wrongful investigation on a report of child abuse, a plaintiff must produce direct evidence of malice or prove facts which show that SRS or its agents had a motive or reason for acting maliciously in investigating or reporting the alleged abuse.

Matthew W. Boddington, of Kansas Department of Social and Rehabilitation Services, Topeka, for appellant.

Kirk D. Auston, Prairie Village, for appellee.

Before MARQUARDT, P.J., and LEWIS and GREEN, JJ.

LEWIS, Judge:

Larry W. Burney filed suit against the Kansas Department of Social and Rehabilitation Services (SRS) for negligence and malicious prosecution. The jury returned a verdict in favor of Burney in the amount of $18,250, as adjusted after application of comparative fault. SRS appeals from that verdict. We reverse.

Burney was employed as a substitute teacher at Washington High School in Kansas City. While conducting the sixth hour class at that school, Burney called J.S. to the front of the class to take attendance. While doing so, J.S. was seated beside Burney, behind the desk, in front of the classroom. J.S. maintained that while she was seated in this manner, Burney placed his left hand on her thigh. She says that she then moved her chair and that Burney again placed his hand on her thigh. At this point, J.S. was called out of the room.

J.S. reported the incident to the school counselor. Ultimately, the incident was reported to SRS, which assigned staff members to investigate it.

During the investigation by SRS, at least two other students in the classroom at the time were interviewed. These students verified portions of the story related by J.S.

The investigators also interviewed the director of personnel for Unified School District No. 500. This individual advised SRS that Burney had been previously suspended from substitute teaching at two other high schools due to inappropriate sexual activity with female students and staff. This information was verified by the SRS investigators.

After the interviews, SRS made a determination that Burney had, more likely than not, committed the acts alleged. The notice of this decision was mailed to the school, to Burney, and to the Kansas City Police Department.

Burney requested a review of the determination, and during that review, advised SRS that the allegations were untrue and that they must have been made to retaliate again him for a bad grade he had given one of the friends of J.S.

Pursuant to statutory directives, SRS made the results of its investigation known to the Kansas City Police Department. The Kansas City Police Department then assigned a detective to investigate the allegations. After the detective completed his investigation, he made a report to the Wyandotte County District Attorney's office. That office reviewed the report and made a decision to file criminal charges against Burney, charging him with aggravated sexual battery.

A preliminary hearing was conducted on the charges against Burney. The judge presiding over the preliminary hearing held that the evidence was sufficient to show probable cause that a crime had been committed and that Burney had committed the crime, and Burney was bound over for trial. In due Judge Robinson apparently reviewed the SRS file and asked if there were any more files relating to the case. This request resulted in the production of an SRS social services file concerning J.S. This file had apparently not been uncovered during the investigation and had not been hitherto disclosed.

time, the matter came on for trial, presided over by District Judge Bill D. Robinson, Jr.

We have no idea as to what was in the social services file. It is not part of the record on appeal, and its contents were not revealed in any place in the record on appeal. However, apparently as a direct result of the production of this file, the Wyandotte County District Attorney's office dismissed the charges against Burney.

Burney then filed this lawsuit, accusing SRS of negligence in its investigation and of malicious prosecution. The focus of his claim apparently is the failure of SRS to discover or produce the social services file with the mysterious and unknown contents.

EXISTENCE OF A DUTY

The first question as to the negligence claim against SRS is whether SRS owed a duty to Burney.

"Negligence consists of the following elements: a duty owed to the plaintiff, breach of that duty, that the breach of duty was the proximate cause of the plaintiff's injury, and that the plaintiff suffered damages. Honeycutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992)." (Emphasis added.) P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). If there is no duty owed to the plaintiff, then there can be no breach of that duty and, hence, there can be no negligence for which a defendant may be held responsible.

The existence of a duty is a question of law. Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993). Our scope of review on a question of law is unlimited. See Dutta v. St. Francis Regional Med. Center, Inc., 254 Kan. 690, 693, 867 P.2d 1057 (1994). In order for SRS to have been liable for negligence, it must have owed a duty to Burney.

Burney points out that SRS did not raise this issue at trial. Ordinarily, issues not raised to the trial court cannot be raised on appeal. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 827-28, 888 P.2d 832 (1995). However, as with most rules, there is an exception. We may address such issue where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case. See State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995). In Fudge v. City of Kansas City, 239 Kan. 369, 372, 720 P.2d 1093 (1986), the Supreme Court dealt with such an issue and explained its decision to do so as follows:

"In order for an individual to be liable for a negligent or wrongful act, there must be a duty to act. Appellants, relying upon the 'public duty doctrine,' argue the City of Kansas City and its police officers did not owe a duty of care to James Fudge. The public duty doctrine provides a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party. Under this doctrine, the police officers owed a duty to the public at large, rather than to any individual. While this issue is raised for the first time on appeal, and thus may not ordinarily be considered (Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 [1984] ), we hold that because it involves a legal issue arising from proven facts determinative of a significant issue in the case, it will be considered as an exception to the rule. Wortman v. Sun Oil Co., 236 Kan. 266, 271, 690 P.2d 385 (1984); Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967)." (Emphasis added.)

We adopt the approach of Fudge and deal with the issue since we deem it to be determinative of this case.

The question is whether in the factual scenario in which this case arises SRS owed duties to the public at large or specifically to Burney. As we understand the law of this state, the duty of SRS in this case was owed to the public at large.

P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 877 P.2d 430, is controlling. In that case, SRS was alleged to have been negligent in investigating claims of child abuse at a day care center. As a result, the plaintiffs alleged that they and their children were abused and suffered damages. The trial court found that a duty was owed to the parents and to the children by SRS. The Supreme Court reversed,...