Fudge v. City of Kansas City

• Decision Date: 13 June 1986
• Docket Number: No. 58240,58240
• Citation: 239 Kan. 369,720 P.2d 1093
• Parties: Deborah K. FUDGE, et al., Appellees, v. CITY OF KANSAS CITY, Kansas, et al., Appellants.
• Court: Kansas Supreme Court

Page 1093

720 P.2d 1093

239 Kan. 369

Deborah K. FUDGE, et al., Appellees, v. CITY OF KANSAS CITY, Kansas, et al., Appellants.

No. 58240.

Supreme Court of Kansas.

June 13, 1986.

Syllabus by the Court

1. As a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special duty owed an individual, liability will not lie for damages.

2. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

3. Where police officers are subject to a specific, mandatory set of guidelines to use with regard to handling intoxicated persons, the officers and the employing municipality are subject to liability under the Kansas Tort Claims Act for the failure to follow those guidelines.

4. So long as a verdict manifests the intentions and findings of the jury upon the issues submitted, it will not be overthrown for irregularities in form.

5. Evidence of the remarriage of a surviving spouse is inadmissible in a wrongful death action.

6. The standard of evaluation by which an award for pain and suffering is measured is such amount as reasonable persons estimate to be fair compensation when that amount appears to be in harmony with the evidence and arrived at without passion or prejudice.

Daniel B. Denk, Kansas City, argued, and Robert J. Watson, City Atty., and Jody Boeding, Asst. City Atty., were with him on brief, for appellants.

Bryson R. Cloon, of Cloon & Bennett, Overland Park, argued and was on brief, for appellees.

HERD, Justice:

This is a wrongful death and survival action arising out of an automobile accident. The City of Kansas City and Kansas City police officers appeal from a jury verdict finding them 18% at fault for the accident.

The facts are that on the night of July 29, 1981, and in the early morning hours of July 30, 1981, Delmar Henley was drinking with friends at the Sixteenth Round bar located at 2847 Roe Lane, Kansas City, celebrating his sister-in-law's birthday. Henley was very drunk, having consumed, by his own estimate, 29 to 30 beers and 10 "kamikazees". He stumbled around, knocked over chairs and was belligerent, loud and obnoxious. Janice Heckman, the bartender, asked Henley to leave. Henley refused and Ms. Heckman called the Kansas City police. Before the police arrived, all of the bar patrons, including Delmar Henley, left the bar and migrated to the adjoining parking lot.

According to witnesses, two police officers arrived at the scene while Henley was in the parking lot. The officers got out of their cars, approached to within four or five feet of Henley and observed his intoxicated condition. The policemen, Officers Conchola and Gorham, instructed those patrons remaining in the parking lot to leave the scene. Everyone complied, leaving on foot, except Henley, who left in his car. These same witnesses testified the officers told Henley to get in his car and leave. Henley corroborated this testimony. The policemen denied these statements, testifying instead that they did not see Henley and that there was no disturbance in the parking lot while they were there. Testimony of two other officers who arrived at the parking lot after it had been vacated corroborated the testimony of Conchola and Gorham.

Janice Heckman testified that when Delmar Henley drove out of the parking lot he veered his car into the southbound lane of Roe Lane, heading north. His action nearly resulted in a collision with a southbound Kansas City police car, which stopped to avoid an accident. Henley then swerved into the proper traffic lane and proceeded north, as the policeman continued south on Roe Lane.

Simultaneously with these events, James E. Fudge left his home with his son, Jamie, to deliver Kansas City Star newspapers to coin-operated dispensers in Wyandotte County. Fudge was driving south on Roe Lane when Henley's car approached from the opposite direction, swerving from lane to lane. Henley's car collided with Fudge's delivery van, throwing Fudge out the open door and pinning him beneath the van until firefighters and emergency medical personnel were able to lift the van off him. James Fudge died twenty days later of injuries received in the accident.

The results of a blood alcohol test taken shortly after the accident showed Henley's blood alcohol level to be .26%. As a result of the accident, Henley was convicted of vehicular homicide and served six months in jail.

The wife and children of James Fudge brought a wrongful death and survival action against Delmar Henley and the City of Kansas City. After a one-week trial, the jury found the decedent 7% at fault, Henley 75% at fault, and the City of Kansas City and the police officers 18% at fault and awarded damages in the amount of $1,095,103.66. The City of Kansas City and the police officers perfected this appeal. Henley was not active in the trial and is not a party to this appeal.

The first issue we will consider on appeal is whether the City of Kansas City was immune from liability for the actions of its law enforcement officers in this case. Determination of this primary issue requires an examination of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. We recently reviewed the concept of governmental immunity and its common-law and statutory history in this state and need not repeat that background discussion here. See Hopkins v. State, 237 Kan. 601, 608-09, 702 P.2d 311 (1985).

Basically, the Kansas Tort Claims Act makes governmental liability for tort claims the rule (K.S.A. 75-6103[a], subject to numerous exceptions (K.S.A. 75-6104). Appellants argue this case fits within three exceptions to the general rule: K.S.A. 75-6104(c), (d) and (m). Prior to considering the application of these exceptions to the present case, we must first consider a preliminary issue.

Before a governmental entity can be liable for damages there must be (1) a negligent or wrongful act or omission by one of its employees; and (2) the employee (a) must be acting within the scope of his employment, and (b) under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. Hopkins v. State, 237 Kan. at 609, 702 P.2d 311; K.S.A. 75-6103.

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).

Appellants find support for their argument in Hopkins v. State, 237 Kan. at 611, 702 P.2d 311, where we stated:

"Defendants correctly state that, as a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Robertson v. City of Topeka, 231 Kan. at 363 [644 P.2d 458 (1982) ]. Absent guidelines, police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public." (Emphasis added.)

While Hopkins did not turn on this issue and is thus distinguishable from this case, the foregoing statement of law is the key to the police duty in this case. Where the police are subject to guidelines or owe a specific duty to an individual, the general rule does not apply and the police owe a special duty accordingly. Here, the Kansas City Police Department had a standard operating procedure manual which detailed mandatory procedures for handling a variety of police situations. This manual was not made a part of the record. However, the police were also subject to a General Order which set out the procedures to be followed by the police in handling individuals incapacitated by alcohol or drugs. That order (General Order 79-44) was made a part of the record and provides in pertinent part:

"An individual, male or female, who is incapacitated by alcohol or drugs, and because of such condition, is likely to do physical injury to himself or herself or others if allowed to remain at liberty will be taken into protective custody and processed in the following manner...."

Thus, the police officers had a duty to take the intoxicated Delmar Henley into protective custody. Appellants argue the officers' testimony that they did not see Henley and were unaware of his intoxicated condition relieves the City of any liability. However, there was also testimony that the police saw Henley from a close proximity and that because of his staggering and belligerent demeanor, the police could not have avoided noticing his intoxicated condition. This conflicting testimony gave rise to a question of fact which was resolved...