Gardner, J:
This case illustrates the proverb that "no good deed goes unpunished." When David Henderson gave hitchhiker Alejandro Garcia a ride in his pickup truck, he thought Garcia was just having car trouble. But Garcia was a fugitive who had fled to Kansas after having been involved earlier that day in shooting an Oklahoma police officer. Garcia's two codefendants were captured in Oklahoma, but Garcia made it to Kansas where Henderson innocently picked him up.
Montgomery County Sheriff's Deputy Michael Grimes learned of the situation and followed Henderson in his patrol car.
When Henderson eventually stopped his pickup truck to let Garcia out in a rural driveway, Grimes tried to apprehend Garcia. But Garcia got out of Henderson's pickup truck and shot at Grimes. Grimes retreated, fell backwards, and returned fire. One of his bullets hit Henderson in the neck. Garcia escaped.
Henderson then sued the Montgomery County, Kansas Commissioners and Grimes (Appellees) for negligence. In due course, the district court granted summary judgment in favor of the Appellees. It found them not liable under the public duty doctrine, since no special relationship was shown, and found them immune from liability under the discretionary function exception, K.S.A. 75-6104(e). Henderson appeals. Finding the district court properly applied K.S.A. 75-6104(e), we affirm the grant of summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND Both parties generally agree with the district court's recitation of the facts, so we adopt that recitation here.
"FACTS
"Grimes, in addition to being a deputy, was a member of the Montgomery County Special Emergency Response Team (SERT). On May 28, 2015, Grimes reported for duty to search for and try to apprehend Garcia. Garcia had fled from Oklahoma after shooting an Oklahoma officer. Garcia's two co-defendants were apprehended in Oklahoma.
"Before Grimes got into his patrol vehicle, dispatch announced that Garcia was last seen in a red pickup truck. Grimes was wearing his tactical vest and had his service rifle across his vest.
"The Plaintiff was driving his red pickup truck when he gave Garcia a ride. The Plaintiff's red pickup passed Grimes' patrol vehicle, and Grimes saw Garcia in the passenger seat. Due to the heavy dispatch traffic Grimes called dispatch on his personal cell phone requesting backup. Grimes remained on his phone and closely followed the Plaintiff's truck. Grimes never turned on his emergency lights or siren. He did not try to pull over the Plaintiff, and the Plaintiff did not feel that Grimes tried to pull him over. The Plaintiff pulled over in a rural Montgomery County driveway to let Garcia out. Grimes planned to wait for backup, parking about 75 feet from the Plaintiff's truck.
"Garcia exited the Plaintiff's vehicle and was walking toward the front passenger's side. The Plaintiff's truck was parked between Garcia and Grimes. Grimes exited his vehicle and walked toward the Plaintiff's truck. Grimes commanded, ‘Sheriff's Office—Let me see your hands!’ Garcia only raised his left hand. The Plaintiff put his hands out the driver's window. Then Garcia dropped his left hand and walked to the back of the Plaintiff's truck. Grimes repeated the command.
"Garcia pointed a semi-automatic handgun at Grimes and fired. Grimes back-pedaled, tripped, and fell on his back. Grimes heard bullets ricochet off the road near him. Grimes thought he was going to be shot. He laid suppressive fire. If he had not used suppressive fire, Grimes believed that he would have been killed.
"The Plaintiff was shot in the neck during the exchange of gunfire between Garcia and Grimes. The Plaintiff filed suit against Grimes and the Montgomery County Board of Commissioners for negligence, claiming either Grimes provoked the incident or negligently discharged his firearm."
Appellees moved for summary judgment, arguing:
• The public duty doctrine shielded them from liability because police owe the duty of preserving the peace to the general public, not to any one individual;
• Henderson failed to establish the duty element of his negligence claim because he could not show a special relationship between himself and Grimes; and
• Appellees were entitled to immunity under K.S.A. 75-6104(e) of the Kansas Tort Claims Act (KTCA), because Grimes was performing a discretionary function when he injured Henderson.
Henderson responded that Appellees had failed to claim an affirmative defense under K.S.A. 75-6104(d) so they had waived that argument. Henderson also argued that the public duty doctrine under K.S.A. 75-6104(d), even if not waived, still did not apply because Grimes had a special relationship with Henderson, and because the statute impermissibly circumvented our Supreme Court's decision in Fudge v. City of Kansas City , 239 Kan. 369, 720 P.2d 1093 (1986), superseded by statute as stated in Woodruff v. City of Ottawa , 263 Kan. 557, Syl. ¶ 8, 951 P.2d 953 (1997). Henderson asserted that Fudge was controlling caselaw.
Appellees replied that they were not relying on K.S.A. 75-6104(d) but only on the common-law public duty doctrine as discussed in Keiswetter v. State , 304 Kan. 362, 373 P.3d 803 (2016). That doctrine generally provides that breach of a legal duty owed to the public at large, such as a law enforcement officer's general duty to preserve the peace, is not actionable. Instead, a plaintiff suing the government must show that the governmental entity owed a duty to an individual member of the public. See 304 Kan. at 365, 373 P.3d 803. Appellees also argued that the public duty doctrine is not an affirmative defense and is not waivable.
The district court granted Appellee's motion for summary judgment, rejecting Henderson's arguments that a special relationship existed between Henderson and Grimes. The district court found:
• Henderson was not in the State's custody or care after Grimes commanded him to put his hands up; and
• Grimes' commands or other affirmative acts did not cause Henderson to justifiably rely on Grimes to protect him.
Because the district court found no special relationship, it found Henderson's claim was barred by the public duty doctrine. The district court also held that Henderson failed to provide expert testimony on the issue of duty, as it thought Hopkins v. State , 237 Kan. 601, 702 P.2d 311 (1985), required.
Alternatively, the district court held that Appellees were immune from suit under K.S.A. 75-6104(e). The district court explained why it found Grimes was performing a discretionary function when he injured Henderson:
"Here, the Plaintiff's allegations of negligent provocation and negligent discharge of a firearm directly challenge Grimes' exercise of discretion. Grimes knew that Garcia had already shot an Oklahoma police officer. Grimes knew that Garcia was a fugitive. Getting out of the car to arrest Garcia, rather than waiting for backup was a discretionary decision. Grimes' decision to not wait in the car while an armed felon fled and possibly went into a rural Montgomery County home was a discretionary decision. Grimes believed that if he did not apprehend Garcia, ... Garcia could go up the driveway and cause someone in the home great bodily harm. So, Grimes, in his discretion, reasoned that he should exit his patrol car and approach Garcia.
"Once Garcia started shooting at Grimes, Grimes testified that if he did not lay down suppressive fire, he believed that he would be shot while lying on the road. These are discretionary decisions Grimes made "with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice. Williams [v. C-U-Out Bail Bonds, LLC ,] 54 Kan. App. 2d [600,] 613[, 402 P.3d 558 (2017) ]. The Defendants are also immune from liability pursuant to the discretionary function exemption to the KTCA, K.S.A. 75-6104(e)."
Henderson timely appeals.
DID THE DISTRICT COURT ERR IN FINDING THE PUBLIC DUTY DOCTRINE BARS HENDERSON'S CLAIMS ?We first address Henderson's claim that the district court erred in applying the pubic duty doctrine.
The public duty doctrine
"[T]he first hurdle that a plaintiff suing a governmental entity in negligence generally must overcome is establishing that the entity owed a duty to the plaintiff individually rather than a duty to the public at large." Williams v. C-U-Out Bail Bonds , ––– Kan. ––––, 788, 450 P.3d 330 (2019). This public duty doctrine bars a governmental entity's liability unless the plaintiff can show a special relationship that gives rise to a specific duty owed to him or her. Keiswetter, 304 Kan. at 365, 373 P.3d 803.
"The mere fact that a governmental entity owes a legal duty to the public at large does not establish that the governmental entity owed a duty to an individual member of the public. See Montgomery v. Saleh , 55 Kan. App. 2d 429, 438-39, 419 P.3d 8 (2018) (quoting Kirk v. City of Shawnee , 27 Kan. App. 2d 946, Syl. ¶ 3, 10 P.3d 27 [2000] ). A law enforcement officer's general duty to preserve the peace is one such duty. Accord Mills v. City of Overland Park , 251 Kan. 434, Syl. ¶ 5, 837 P.2d 370 (1992) (‘As a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large.’); see Commercial Union Ins. Co. v. City of Wichita , 217 Kan. 44, 53, 536 P.2d 54 (1975) ; see also South et al. v. State of Maryland, Use of Pottle , 59 U.S. (18 How.) 396, 402-03, 15 L. Ed. 433 (1855) (‘It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where h
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