Fettke v. City of Wichita

• Decision Date: 17 April 1998
• Docket Number: No. 78269,78269
• Citation: 264 Kan. 629,957 P.2d 409
• Parties: , 13 IER Cases 1631 Terry FETTKE, Appellant/Cross-Appellee, v. CITY OF WICHITA, Appellee/Cross-Appellant.
• Court: Kansas Supreme Court

Page 409

957 P.2d 409

264 Kan. 629, 13 IER Cases 1631

Terry FETTKE, Appellant/Cross-Appellee, v. CITY OF WICHITA, Appellee/Cross-Appellant.

No. 78269.

Supreme Court of Kansas.

April 17, 1998.

Syllabus by the Court

In a case involving a claim brought by a police officer seeking damages for emotional distress and stress-related physical injuries resulting from the release of his name to the media after a fatal shooting, violating police department regulations, the record is examined and it is held: No independent duty not to release the officer's name to the media was owing; absent an independent duty, the immunity provisions of K.S.A. 75-6104(d) of the Kansas Tort Claims Act apply; and summary judgment was properly granted in favor of the defendant city.

Mark T. Schoenhofer, Wichita, argued the cause and was on the briefs, for appellant/cross-appellee.

Blaise Plummer, Assistant City Attorney, argued the cause and Gary E. Rebenstorf, City Attorney, was with him on the brief, for appellee/cross-appellant.

SIX, Justice:

This is a case under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The plaintiff, Terry Fettke, a police officer, sued his employer, the City of Wichita (the city) for damages. The claim is based on a violation of police department policy, i.e., releasing the officer's name to the news media after a fatal shooting. The district court, in granting summary judgment for the city, found no independent duty owing to the officer and thus the city was immune under the K.S.A. 75-6104(d). The officer appeals. The city cross-appeals the district court's finding that Fettke's petition was not barred under the police department Policies and Regulations Manual. Our jurisdiction is under K.S.A. 20-3018(c) (a transfer on our motion).

The issue is whether the district court erred in holding that the city was immune from liability under K.S.A. 75-6104(d). Was the district court correct in reasoning that the city owed no duty of care to Fettke not to release his name to the media in connection with the fatal shooting incident, independent of the Policies and Regulations Manual? The answer is, yes. We affirm summary judgment for the city. Because our affirmance disposes of Fettke's claim, we do not reach the city's cross-appeal.

FACTS

The Wichita Police Department has an internal policy on media relations. Section 706.05 of the 1995 Policies and Regulations Manual reads:

"INFORMATION SHALL NOT BE RELEASED PERTAINING TO: (1) Names of officers involved in critical incidents [such as shootings]."

While on duty, Fettke and fellow officer Mark Barnes were in a gun battle. Barnes was wounded. Fettke returned fire, wounding Franchot "Corky" Mitchell. Mitchell was taken to a hospital for treatment, where he died. Fettke is white, Mitchell was black. Fettke's name was released to the news media by either the chief or deputy chief of police. A newspaper reported Fettke's involvement. Radio and television broadcasts also contained Fettke's name. Fettke and his immediate family members received threats of revenge. Fettke alleges that because of the release of his name and resulting threats, he suffered emotional distress and stress-related physical injuries.

Although Fettke's conduct was investigated and later cleared, newspaper accounts raised questions about whether Fettke had fired shots at Mitchell after Mitchell was already down.

Fettke has experienced chest pains, nightmares, loss of sleep, stomach problems, and marital problems because of the aftermath of the shooting incident. He first became aware of the release to the media when he saw his name in the newspaper while at the hospital visiting Barnes. He knew publication of Barnes' name would cause problems for Barnes in the hospital and for himself on the streets. Fettke described several instances that happened to him after he returned to work. Individuals would see Fettke's name tag at a car stop and say things like, "[Y]ou're the one who killed Corky in cold blood and your time's coming."

Shortly after the shooting incident, Fettke's wife, who worked at the hospital where Mitchell had died, heard of threats against her life by people employed in the hospital housekeeping department. Several staff members at the hospital were from the community where the shooting incident took place. Fettke's children received taunts at school about their father being a murderer.

Pamphlets had been circulated calling for retaliation against Fettke. Fettke was told of T-shirts with Corky Mitchell's picture on the front and words similar to "give Fettke justice" or "Corky gone but not forgotten" on the back. Fettke learned of a local radio broadcast in which various people expressed strong feelings that justice was not being done to Fettke.

Every police recruit's training includes reading every provision in the policy manual. They are tested on it. Fettke was taught that Section 706.05 meant exactly what it said, with no exceptions.

The police chief admitted briefing the press at the hospital on the night of the shooting but denied having released Fettke's name to the media at any time. Fettke believes that the chief first released his name to the media on the night of the shooting. The chief interpreted Section 706.05 to mean that "the ranking officer at the scene of an incident will not release the name of an officer involved in a critical incident." The only time an officer's name should not be released concerning a shooting would be at the scene. The chief did not view the policy as prohibiting release from a location other than the scene. He acknowledged that a normal consequence of identifying an officer involved in a shooting would be threats to the officer or members of his family. However, he also believed that threats on a police officer's life are "just part of that police officer's duty."

The deputy police chief admitted verifying Barnes' and Fettke's names to the press as being involved in the shooting, on the morning following the shooting. At the time of the verification, the deputy was told by another officer that the chief had released the names to the press at the hospital. The deputy chief believed that the chief had the ultimate authority to contravene a particular policy in a particular incident. However, no written provision in the policy manual could be identified. The deputy chief also acknowledged that release of Fettke's name to the press may have placed Fettke at risk. He viewed the risk as "part of the job."

Mike Watson, the current police chief, said that in his view, the chief can do something contrary to policy if it is something that is in the best interests of the police department or city. He could not recall any shooting incident when the name of the officer was released to the media. The current chief acknowledged that Fettke's safety should have been a factor considered before the release of his name.

Fettke, relying on negligence and the Civil Rights Act, 42 U.S.C. § 1983 et seq. (1994), claimed personal injury and violation of his civil rights.

The city filed for summary judgment, arguing: (1) the city owed no duty of silence to Fettke, who was a police officer and a public official with no right of privacy; (2) no proximate cause is shown between the city's release of Fettke's identity to the media and Fettke's alleged damages; (3) the city is immune from liability under K.S.A. 75-6104(c) (law enforcement), (d) (written personnel policy), (e) (discretionary function), (i) (assumption of risk), and (n) (police protection); and (4) Fettke's 42 U.S.C. § 1983 claim fails because alleged negligent conduct is not a sufficient basis for such a claim.

The district court granted summary judgment, reasoning the city was immune from liability under K.S.A. 75-6104(d). Fettke's 42 U.S.C. § 1983 claim was denied. Fettke has not briefed and has thus abandoned his 42 U.S.C. § 1983 civil rights claim. See Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 (1992).

DISCUSSION

We are reviewing a summary judgment ruling. As Fettke points out, summary judgments are to be granted with caution in negligence actions. See Honeycutt v. City of Wichita, 251 Kan. 451, Syl. p 8, 836 P.2d 1128 (1992). We are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of Fettke. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). It is apparent that conclusions of law are involved. Our standard of review is unlimited. See Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997). For a discussion of the familiar rules on summary judgment, see Jarboe, 262 Kan. at 621, 938 P.2d 1293.

In resolving this appeal, we consider the impact of the KTCA on Fettke's claim. The common-law rule is that a state as the sovereign is immune from suit unless it consents. Woodruff v. City of Ottawa, 263 Kan. 557, 951 P.2d 953 (1997), (involving application of K.S.A. 75-6104[e], the "discretionary function" exception). The KTCA provides the consent, subject to certain exceptions. Liability is the rule and immunity the exception. K.S.A. 75-6103 sets forth the general rule of liability. The burden is on the State to establish any of the exceptions. C.J.W. v. State, 253 Kan. 1, 13, 853 P.2d 4 (1993).

The exception the district court correctly applied here to exclude liability is K.S.A. 75-6104(d):

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

....

"(d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons' health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence."

In Jarboe, we affirmed summary judgment in favor of the Kansas Department...