Hendrix v. City of Topeka

• Decision Date: 03 April 1982
• Docket Number: No. 53186,53186
• Citation: 643 P.2d 129,231 Kan. 113
• Parties: Henrietta HENDRIX, For Herself and For and on Behalf of All Heirs at Law of Harold Jermine Smith, and Thomas J. Leising, Administrator of the Estate of Harold Jermine Smith, Appellants, v. CITY OF TOPEKA, Kansas; R. Martin, # 906; Topeka Police Department; Robert Harder; Topeka State Hospital; the State of Kansas; and Dr. A., Appellees.
• Court: Kansas Supreme Court

Page 129

643 P.2d 129

231 Kan. 113

Henrietta HENDRIX, For Herself and For and on Behalf of All

Heirs at Law of Harold Jermine Smith, and Thomas

J. Leising, Administrator of the Estate

of Harold Jermine Smith, Appellants, v. CITY OF TOPEKA, Kansas; R. Martin, # 906; Topeka Police

Department; Robert Harder; Topeka State Hospital;

the State of Kansas; and Dr. A., Appellees.

No. 53186.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. The Kansas Tort Claims Act (K.S.A. 1981 Supp. 75-6101 et seq.) by its express language is applicable only to claims arising from acts or omissions occurring on or after July 1, 1979.

2. The designation of the time in which a statute shall take effect is an inherent legislative power.

3. Prospective application of the Kansas Tort Claims Act (K.S.A. 1981 Supp. 75-6101 et seq.) is discussed and held not to create a constitutionally impermissible discriminatory classification. Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979) is discussed and distinguished.

4. Public officers, when performing the duties imposed upon them by statute and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. If public officers act outside the scope of their authority they may be held liable for damages resulting from their acts. Put another way, a public officer exercising discretion in the performance of his official duties is not liable for resulting injuries in the absence of malice, oppression, wantonness or willful misconduct.

5. Even under "notice" pleading, it is incumbent upon a person asserting a claim against a public officer to make at least some allegation which, if true, would tend to establish that immunity was not a bar to the claim. This requirement, of course, is limited to complained of acts and omissions arising at least under color of the official duties of the public officer as opposed to purely private matters.

6. General rules involving immunity and liability of police officers are discussed.

Charles V. Hamm and Donald A. Frigon, Topeka, State Dept. of Social and Rehabilitation Services, and Reid Stacey, Asst. Atty. Gen., argued the cause, and Hal E. DesJardins, Topeka, State Dept. of Social and Rehabilitation Services, and Robert T. Stephan, Atty. Gen., were on the joint brief for appellees Robert C. Harder, Topeka State Hospital and the State of Kansas.

Leonard M. Robinson, Deputy City Atty., argued the cause and was on the brief for appellees City of Topeka, Officer Martin and Topeka Police Dept.

Patricia E. Riley, of Ralston, Frieden & Weathers, P. A., Topeka, argued the cause and Eugene B. Ralston, Topeka, of the same firm, was with her on the briefs for appellants.

McFARLAND, Justice:

The heirs and administrator of the estate of Harold Jermine Smith appeal the involuntary dismissal of their action which sought recovery for the wrongful death and injuries of the deceased. The basis of the dismissal was failure to state a cause of action upon which relief could be granted (K.S.A. 60-212(b )).

The petition filed herein alleges:

"9. That prior to December 30, 1978, plaintiffs' deceased had been a patient at Topeka State Hospital. That on or about the 30th day of December, 1978, plaintiffs' deceased requested admission to Topeka State Hospital. That plaintiffs' deceased was refused admission to Topeka State Hospital. That subsequently plaintiffs' deceased was removed from the grounds of Topeka State Hospital, at the request of said hospital and its agent Dr. A, by defendant R. Martin, an officer of Topeka Police Department, an agency of the City of Topeka. Subsequent thereto plaintiffs' deceased was found frozen to death in a bus at Gage Park. That deceased suffered pain.

"10. That the actions of the defendants and each of them constitute negligence which negligence was the proximate cause of plaintiffs' damages."

This action was filed November 17, 1980. One group of defendants was dismissed from the action on April 3, 1981, with the balance of the defendants being dismissed on June 19, 1981. The plaintiffs' appeal was timely filed.

The first issue is whether the trial court erred in applying the Kansas Tort Claims Act (K.S.A. 1981 Supp. 75-6101 et seq.) prospectively.

The death of the decedent occurred on or about December 30, 1978. At this point in time both the state and municipality had immunity from any tort liability therefor, pursuant to K.S.A. 46-901 et seq. (repealed L.1979, ch. 186 § 33, July 1).

Contemporaneous with the repeal of the governmental immunity statute was the passage of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq. The act provides:

"(b ) The Kansas tort claims act shall be applicable to claims arising from acts or omissions occurring on and after the effective date of this act."

The effective date of the act was July 1, 1979.

By its own statutory language, the act was to operate only prospectively.

The plaintiffs argue that prospective application of the Tort Claims Act, so as to exclude claims arising before July 1, 1979, creates a classification of claims arising before the date for which no remedy is available. They maintain that this classification is discriminatory and unsupportable under the holding in Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979).

In Flax, the court held K.S.A. 46-901 unconstitutional when applied to the Kansas Turnpike Authority for highway defects as creating a class of motorists who are subjected to invidious discrimination in violation of the equal protection clauses of the federal and state constitutions.

In reaching this conclusion, the rationale of the court can be seen in the following:

"In the present case, the inconsistency in the application of the doctrine, as now established by legislative action rather than judicial fiat, reaches the ultimate in its discrimination against one small segment of the motoring public. Let us assume Jeanette Flax had entered Kansas coming from Denver, Colorado, on Interstate 70 with a destination of Kansas City. She, and her family, would have been protected from highway defects for over three-fourths of her journey in Kansas. Suddenly, by passing through Topeka and the turnpike tollgate, she loses her protection for the remaining few miles of her journey without ever leaving the same highway. Damage caused by a highway defect five miles west of Topeka would be compensable while the same damage on the same highway from a similar defect five miles east of Topeka would not." 226 Kan. at pp. 7-8, 596 P.2d 446.

In addition, the court looked to the statutory remedy provided in highway defect cases:

"In K.S.A. 1978 Supp. 68-419, allowing recovery from the state for highway defects, the legislature has set forth a detailed procedure to be followed in presenting a claim against the state through the department of transportation. Unfortunately, no such procedure has been established for claims against the KTA and it is not the function of this court to establish such a procedure. Having determined that K.S.A. 46-901 is unconstitutional when applied to the KTA in a turnpike defect case, plaintiff is free to pursue her action as in any other civil case." 226 Kan. at pp. 11-12, 596 P.2d 446.

K.S.A. 46-901 was held to be unconstitutional only when applied to turnpike defect cases.

The plaintiffs try to fit the present situation into Flax by pointing out that under the Tort Claims Act, the state may be liable for damages or injuries suffered by a person on July 1, 1979, but not for injuries suffered by the same person on June 30 1979, or, as herein, for injuries suffered on December 30, 1978.

Flax, however, is readily distinguishable from the situation herein. In the Flax case the constitutional problem arose because motorists using the regular state highway could recover for injuries caused by highway defects while motorists using one particular highway, the Kansas Turnpike, were denied recovery. At the same point in time some motorists had rights denied other motorists. In the case before us, there is no discriminatory classification because all persons in like circumstances are, at any given point in time, treated the same.

In essence, the plaintiffs are contending that the Legislature does not have the authority to determine when a particular act will take effect. The Tort Claims Act, by its express language, is to apply to claims arising from acts or omissions occurring on or after July 1, 1979. The legislative intent is clear-the act is to be applied prospectively.

Even in the absence of such a definite statement of legislative intent, the court has consistently held that a statute does not operate retroactively, but only prospectively, unless the intention of the legislature is clearly expressed by the statute that its provisions are to be applied retrospectively. Thome v. City of Newton, 229 Kan. 375, Syl. P 6, 624 P.2d 454 (1981); American State Bank v. White, 217 Kan. 78, Syl. P 5, 535 P.2d 424 (1975).

In the case of State v. Dumler, 221 Kan. 386, 391, 559 P.2d 798 (1977), the court acknowledged the legislature's power to determine the effective date of a statutory enactment. The designation of the time in which a statute will take effect is an inherent legislative power.

In exercising its vested authority to determine the effective date of the Tort Claims Act, the Legislature did no more than what was done by this court in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). There, the court abolished judicially imposed governmental immunity and made the decision prospective in effect. The court stated at pp. 851-852, 457 P.2d 21:

"There remains the consideration of the time when the abrogation of the immunity as herein stated shall take effect. We are of the opinion that reasonable time should be given the various public bodies to meet the...