Hopkins v. State
| Decision Date | 02 July 1985 |
| Docket Number | No. 57437,57437 |
| Citation | 702 P.2d 311,237 Kan. 601 |
| Parties | Terry HOPKINS, Chris Hopkins, Richie Hopkins, By and Through his Guardian and Next of Friend, Terry Hopkins, and Jason Hopkins, By and Through his Guardian and Next of Friend, Terry Hopkins, Appellants, v. STATE of Kansas, Kansas Highway Patrol, Salina Police Department, City of Salina, John Woody, Saline County Sheriff's Department and Saline County, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Service of process is for the purpose of notifying a defendant of the claim or charge against him so that he may properly prepare himself to answer it. It is this notice which gives the court jurisdiction to proceed.
2. K.S.A. 60-304(d)(3) requires that service upon a city shall be made by delivering a copy of the summons and of the petition to the clerk or the mayor.
3. K.S.A. 74-2105 et seq. establishes the functions, duties and powers of the Kansas Highway Patrol. None of the statutes grant the Patrol the capacity to sue or be sued.
4. For a governmental entity to 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. K.S.A. 75-6103.
5. The exceptions from liability of a governmental entity or employee set out in K.S.A. 75-6104 are not without limitations. Only negligent or wrongful acts or omissions of employees are excepted from liability by 75-6104 while acts or omissions involving more than the lack of ordinary care and diligence are not.
6. 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. Absent guidelines, police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public.
7. Neither the courts nor our legislature, in passing the tort claims act, extended the mantle of immunity beyond the boundaries of protection previously recognized under the common law. Under the common law, personal liability was imposed on officers who maliciously or wantonly injured a person or his property even though the officers were engaged in a governmental function.
8. In an action against a law enforcement officer, expert testimony is ordinarily required to establish that the officer maliciously or wantonly injured a person or his property while the officer was engaged in his duties.
9. There is a common knowledge exception to the rule requiring expert testimony in an action against a law enforcement officer. The common knowledge exception applies if what is alleged to have occurred in the officer's conduct is so obviously lacking in reasonable care and conduct and the conduct is so bad that the malicious or wanton conduct causing the injury would be apparent to and within the common knowledge and experience of mankind generally.
Steven M. Dickson, Topeka, argued the cause and Judy A. Pope, of McCullough, Wareheim & LaBunker, Topeka, was on brief, for appellants.
George F. Farrell, Jr. of Benfer and Farrell, Topeka, argued the cause and J. Stan Sexton, Salina, was with him on brief, for appellees Saline County and the Saline County Sheriff's Dept.
James P. Mize, Salina, argued the cause for appellee City of Salina.
Wm. Scott Hesse, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and Dan Biles, Asst. Atty. Gen., were on brief, for appellee Kansas Highway Patrol.
Plaintiffs filed a civil action alleging negligence on the part of the defendant law enforcement officers and various governmental entities for damages resulting from the apprehension of an intruder who had occupied the plaintiffs' mobile home. After dismissing several defendants from the lawsuit, the district court granted the remaining defendants' motion for summary judgment.
On July 29, 1981, an individual named Randall O'Brien illegally entered a mobile home owned by the plaintiffs. At the time of his entry, there was no one present in the mobile home. During the late afternoon, plaintiff Terry Hopkins arrived at the home which is located in a rural area northwest of Salina. He did not enter the mobile home but went to a nearby corral to talk with a friend.
Approximately an hour later, Hopkins' two sons, Richie and Jason, arrived home, entered the mobile home, found the kitchen in disarray and the intruder sitting on a bed. They exited the home and told their father of the intruder's presence. He called the Saline County Sheriff's Office.
Shortly thereafter, Deputy Sheriffs Debbie Redmond and Patricia Endsley arrived at the scene. One went to the front door and one to the back door. Deputy Redmond entered the mobile home and saw O'Brien sitting on a couch eating a sandwich with a rifle standing between his legs. After O'Brien asked for a cigarette and then refused to leave, Redmond exited and summoned additional law enforcement personnel.
Law enforcement officers from the Saline County Sheriff's Department, Salina Police Department (SPD) and Kansas Highway Patrol arrived soon after. All non-law enforcement personnel except Terry Hopkins were eventually removed from the premises. Terry Hopkins informed some officers that he had a 30/30 high-powered rifle, a .22-caliber rifle and a 12 gauge shotgun in the home. He also advised the officers that he believed there were two rounds of ammunition for the 30/30 rifle and one shell for the 12 gauge shotgun in the house. That information was not circulated to all officers. It was unknown whether the intruder had any additional weapons.
For several hours police officers attempted to persuade O'Brien to leave the home. O'Brien was informed if he put down his gun and came out of the home, he would not be in serious trouble. The intruder responded several times that he had "killed a policeman and a woman in Texas" and feared that the officers would kill him. As time passed, the officers became impatient and ordered the intruder to exit the mobile home and surrender. When the intruder failed to surrender, the officers decided to use tear gas in an effort to force the intruder from the home. Sometime during the period officers were shooting tear gas into the home, the intruder fired two shots at the officers. After numerous discharges of tear gas failed to cause O'Brien to come out, officers began rapid firing into the home in an attempt to flush the intruder out. After a hail of bullets, a wounded O'Brien emerged from the mobile home and was captured by the law enforcement officers.
After O'Brien's apprehension it came to light that O'Brien had earlier that day been detained for investigation by the SPD. Determining that O'Brien had neither committed a violation nor that any warrant for his arrest had been issued by other law enforcement authorities, he was transported to the city limits and released near the Hopkins' mobile home by officers of the SPD, following a somewhat archaic police procedure called "floating."
As a result of the exchange of gunfire between the intruder and law enforcement personnel and the officers' attempt to flush the intruder by firing into the home, the plaintiffs' mobile home was extensively damaged. None of the plaintiffs, however, suffered any direct bodily injury as a result of the incident. Mr. Hopkins was the only plaintiff who saw the officers firing into the home and witnessed the damage to the home as it occurred.
On July 28, 1983, the plaintiffs filed this action in Saline County District Court. The City of Salina (City), the SPD, and the Kansas Highway Patrol (KHP) were all dismissed from the case after the district court ruled that the plaintiffs had no jurisdiction over any of those defendants because of improper service. The Saline County Sheriff's Department (SCSD) and Saline County (County) filed a motion for summary judgment on July 20, 1984. On September 14, 1984, the district court sustained defendants' motion for summary judgment. Plaintiffs appeal.
Plaintiffs claim the City waived all defenses of lack of personal jurisdiction based upon insufficiency of process or insufficiency of service of process. The petition in this action was filed on July 28, 1983. Service of process was made on the City on July 29 by serving Larry Bengston, the city attorney. On August 26, 1983, the City, the SPD and John Woody, chief of the SPD, filed an answer in which they alleged that "the Court has no jurisdiction of the person of the City in this action." On April 27, 1984, the district court entered an order to dismiss the action against the City and the SPD for lack of jurisdiction.
K.S.A. 60-304(d)(3) requires that service upon a city shall be made by delivering a copy of the summons and of the petition to the clerk or the mayor. The Hopkins contend that while service was improperly made upon the city attorney, the defendants waived that defense, because in the City's answer it alleged lack of personal jurisdiction only, and not specifically insufficiency of service of process.
K.S.A. 60-212(b) requires that every defense, in law or fact, to a claim for relief in any pleading be asserted in the responsive pleading if required. The defenses include lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process. The defenses are waived if not raised by motion or included in a responsive pleading or an amendment of a responsive pleading. K.S.A. 60-212(h).
The issue of improper service upon a city was considered in Dunn v. City of Emporia, 7 Kan.App.2d 445, 643 P.2d 1137, rev. denied 231 Kan. 799 (1982). There, as here, service was made on the city attorney rather than the clerk or mayor. The court in Dunn found that the service...
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