Cansler v. State, 55599
| Decision Date | 05 January 1984 |
| Docket Number | No. 55599,55599 |
| Citation | 234 Kan. 554,675 P.2d 57 |
| Parties | Douglas E. CANSLER, Plaintiff-Appellant, v. STATE of Kansas and Kansas State Penitentiary, Defendants-Appellants, v. The SHERIFF OF LEAVENWORTH COUNTY, Kansas; the Leavenworth County Sheriff's Department; and Board of County Commissioners of Leavenworth County, Kansas, Defendants-Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is the rule in this state that one who takes charge of a third person, whom he knows or should know to be likely to cause bodily harm to others if not controlled, is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm (Restatement [Second] of Torts § 319 [1965].
2. The State has a duty to exercise reasonable care to confine dangerous inmates in the penitentiary.
3. When major escapes of dangerous criminals occur at the state penitentiary, the State has a duty to notify area residents by some prearranged signal, and to notify area law enforcement officers promptly through the usual police communications channels.
4. One who undertakes to render services to another which he should recognize as necessary for the protection of a third person is liable to the third person for harm resulting from his failure to exercise reasonable care (Restatement [Second] of Torts § 324A [1965].
5. The enforcement of a law exception to the Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6104(c), provides an exemption from 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.
6. The discretionary function exception to the Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6104(d), provides no barrier to claims based upon acts or omissions which are ministerial and not discretionary.
7. The failure of the State to give prompt warning to nearby law enforcement agencies upon the escape of seven dangerous and armed convicts constitutes a breach of common law duty and is not a failure to provide "police protection," under K.S.A.1981 Supp. 75-6104(m).
Charles D. Kugler of Vasos, Kugler & Dickerson, Kansas City, argued the cause, and Thomas E. Osborn of Corson & Osborn, P.A., Kansas City, was with him on briefs for plaintiff-appellant.
Steven D. Treaster, Staff Atty., Kan. Dept. of Corrections, Topeka, argued the cause, and Charles E. Simmons, Chief Legal Counsel, Kan. Dept. of Corrections, Topeka, was with him on brief for defendants-appellants.
Leo L. Logan of Boddington & Brown, Kansas City, argued the cause and was on brief for defendants-appellees.
We are presented in this case with interlocutory appeals by the plaintiff, Douglas E. Cansler, and by the defendant State of Kansas, in this personal injury action filed pursuant to the Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6101 et seq. Named defendants are the State of Kansas and the Kansas State Penitentiary, to whom we shall refer collectively as the State, and the Sheriff of Leavenworth County, the Leavenworth County Sheriff's Department and the Board of County Commissioners of Leavenworth County, to whom we shall refer as the County. The primary issues are whether the State and the County owed a duty to the plaintiff under the facts of this case and, if so, whether the acts or omissions of the defendants fall within the exceptions contained in K.S.A.1981 Supp. 75-6104(c), (d) or (m).
A brief procedural history is necessary to an understanding of the present posture of the case. The State was originally the only named defendant. Its answer alleged that the Sheriff of Leavenworth County, the Leavenworth County Sheriff's Department and the Board of County Commissioners of Leavenworth County should be joined as parties, pursuant to K.S.A. 60-258a(c ), since their negligence contributed to plaintiff's injuries. The trial court sustained the motion and added the additional parties defendant. Plaintiff amended his petition to state a claim against the County. The County and the State then filed motions to dismiss for failure to state a claim upon which relief could be granted, citing K.S.A.1981 Supp. 75-6104(c), (d) and (m). The trial court sustained both motions and dismissed the case. Plaintiff next filed a motion for rehearing and for leave to file a second amended petition. After a hearing, the trial court sustained the motion for leave to file the amended petition as to the State, but denied it as to the County. The second amended petition was filed, with leave of court. Upon application the trial court found that the case involves controlling questions of law, as to which there is substantial ground for difference of opinion, and authorized interlocutory appeals. The plaintiff appeals from the order dismissing his claims as to Leavenworth County, and the State appeals from the trial court's refusal to dismiss plaintiff's claims against it.
This case has not gone to trial and only two depositions are included within the record on appeal. The facts which we recite are either taken from the depositions or are a statement of facts claimed by the plaintiff.
Sometime around the first of September 1981, a complete guard's uniform was missing from the laundry at the Kansas State Penitentiary. Prison officials were aware of this, but the fact that a guard's uniform was in the hands of the inmates was not made known to the prison guards. On Sunday, September 6, 1981, an inmate who had access to the interprison telephone line called Guard Vanderslice, who was on duty in tower No. 12, and told him that he was to be relieved of duty in the tower. Thereafter, an inmate wearing the stolen uniform approached and was admitted into the tower by Vanderslice. Upon gaining entry, the inmate overpowered Vanderslice and let six other prisoners into the tower. They took control of the weaponry in the tower, including two riot guns, one .38-caliber revolver and one .30-.30 rifle. The inmates, all seven of whom were serving life terms for murder, escaped over the prison wall. The escape was effected around 8:30 o'clock a.m.
Other guards who observed the escape were unable to sound an immediate alarm because the general alarm system in the prison, which consisted of a loud horn or siren which would alert everyone within a mile or so of the prison, had not been functional for some years and the available telephones in the prison were "busy." The prison authorities were finally informed of the escape at about 8:40 o'clock a.m. About 9:00 o'clock that morning, the Leavenworth County Sheriff's office received a telephone message from "the captain's office" at the penitentiary that seven inmates had assaulted a guard and taken over a tower, and that the inmates had access to weapons which were in the tower. The caller asked for help from the sheriff's office and told the dispatcher that the Kansas Highway Patrol had been notified. Within five to ten minutes, the dispatcher on duty at the sheriff's office received a report that a pregnant woman had been held at gunpoint by three men and her car stolen. Within two or three minutes thereafter, the dispatcher received a second call from a local man advising that he had been held at gunpoint and his 1975 Maverick had been taken by three men who were in jail clothing. The victim believed them to be from the penitentiary. The dispatcher alerted various Leavenworth County sheriff's officers and the Leavenworth city police. Though the penitentiary at Lansing is perhaps less than three miles from the Wyandotte County line, the dispatcher did not notify the Wyandotte County sheriff's office. He did prepare a teletype message and entered it into the computer, but the computer was down and therefore the message was never transmitted. Had the computer been in operation, the message would have gone to all other Kansas law enforcement terminals.
Cansler, the plaintiff, was a sergeant on the police force at Bonner Springs, Kansas, about ten miles south of the penitentiary. He was the only police officer on duty that Sunday morning and, at about 9:30 o'clock a.m., he was on routine patrol. He saw a green Maverick automobile pass another vehicle in an unlawful manner, and he turned and gave chase. He could see that the occupants of the Maverick were not wearing shirts, but it was a warm day and this fact did not excite his curiosity. Soon he came upon the Maverick, wrecked and in a ditch, and he saw the occupants fleeing on foot toward a nearby home. Cansler did not see them carrying anything. His only radio contact was with the Wyandotte County sheriff's office. He called the Wyandotte County dispatcher and asked for a backup unit, since the men were fleeing and he surmised that the car might be stolen. He parked, grabbed his shotgun, and carefully went around to the back of the house in which the suspects had apparently taken shelter. He saw that the back door was ajar. He called the dispatcher over his walkie-talkie and advised that the suspects had entered the house and the door had been forced open. Cansler backed away from the doorway, and when he was some fifteen feet away he was struck three times by shots fired from the high-powered rifle taken by the inmates from the guard tower. Plaintiff sustained severe personal injuries which required hospitalization and lengthy treatment. He has recovered sufficiently to enable him to return to his employment, and he is the present chief of the Bonner Springs police department.
The first issue is whether the State owed the plaintiff a duty to protect him from the escaped convicts, and whether that duty was breached.
Because the defendants in this case are "governmental entities," as defined in K.S.A.1981 Supp....
To continue reading
Request your trial
-
Henderson v. Montgomery Cnty. Bd. of Comm'rs, No. 120,369
...,] 291 Kan. at 80 (quoting Nero v. Kansas State University , 253 Kan. 567, 585, 861 P.2d 768 [(1993)] ). Compare Cansler v. State , 234 Kan. 554, 570, 675 P.2d 57 (1984) (the State's duties to confine prisoners and warn the public when they escape were imposed by law and therefore nondiscre......
-
Jackson v. City of Kansas City
...ordinance based upon the fact the ordinance had later been held to be invalid. This construction is in accord with Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), wherein we stated: "We construe K.S.A.1981 Supp. 75-6104(c ) to provide an exemption from claimed liability only where claim......
-
Allen v. Board of Com'rs of County of Wyandotte, Civ. A. No. 90-2059-O.
...convicted felony offenders whose actions have been and perhaps promise to be dangerous and inimical to society. Cansler v. State, 234 Kan. 554, 571, 675 P.2d 57, 70 (1984) (emphasis added); see also Jackson v. City of Kansas City, Kan., supra, 235 Kan. at 292, 680 P.2d at 890 (subsection (m......
-
Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc.
...function when they refused to remove a drunken trespasser from the owner's property. 231 Kan. at 362, 644 P.2d 458. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), Cansler, a police officer, sued the State for injuries resulting from the escape of dangerous prisoners from the peniten......
-
The Potential Civil Liability of Law Enforcement Officers and Agencies
...political or taxing subdivision of the state. [FN14]. K.S.A. § 75-6101(b). [FN15]. Id.§ 6102(d). [FN16]. See, e.g., Cansler v. State, 234 Kan. 554, 558-59 (1984) (reviewing common law principles applicable in the context of the KTCA). [FN17]. K.S.A. § 75-6103(a) provides: Subject to the lim......
-
The Kansas Tort Claims Act the Evolving Parameters of Governmental
...1037. [FN19]. 239 Kan. at 372. [FN20]. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 835-37, 877 P.2d 430 (1994). [FN21]. Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984). [FN22]. See Nero, 253 Kan. at 584. [FN23]. Washington v. State, 17 Kan. App. 2d 518, Syl. ¶ 2, 839 P.2d 555, rev. denied......
-
Protecting the Protectors the Public Duty Doctrine
...are now forced to fuse the duty and immunity analyses together when the case involves a personnel policy. [FN96]. See Cansler v. State, 234 Kan. 554, 567, 675 P.2d 57 (1984); Cessna Aircraft Co. v. Metropolitan Topeka Airport Auth., 23 Kan. App. 2d 1038, 1041, 940 P.2d 84 (1997). Ostensibly......
-
Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act
...City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984) (independent duty to operate governmental vehicles safely); Cansler v. State, 234 Kan. 554, 564-65, 675 P.2d 57 (1984) (common law duty to detain prisoners and warn public of their escape); and Lantz v. City of Lawrence, 232 Kan. 4......