Jackson v. City of Kansas City

• Citation: 680 P.2d 877,235 Kan. 278
• Decision Date: 06 April 1984
• Docket Number: No. 55722,55722
• Parties: David E. JACKSON, et al., Appellees, v. CITY OF KANSAS CITY, Kansas, et al., Appellants.
• Court: United States State Supreme Court of Kansas

Page 877

680 P.2d 877

235 Kan. 278

David E. JACKSON, et al., Appellees, v. CITY OF KANSAS CITY, Kansas, et al., Appellants.

No. 55722.

Supreme Court of Kansas.

April 6, 1984.

Syllabus by the Court

1. The 1981 amendment to K.S.A.1979 Supp. 75-6104(f ) extending immunity to claims from members of a Firemen's Relief Association is discussed and held to be prospective in operation and consequently not applicable to a cause of action arising in 1979.

2. For negligent or tortious conduct, liability is the rule, immunity the exception.

3. Ordinarily a strict or narrow interpretation must be applied to statutory exceptions.

4. The burden is upon a defendant governmental entity or employee to establish entitlement to any of the exceptions to liability set forth in K.S.A.1983 Supp. 75-6104.

5. Exceptions to liability contained in K.S.A.1983 Supp. 75-6104(a )(c )(d ) and (m ) are discussed and held inapplicable to the claims herein.

6. Within its very restricted periphery of application, the common law defense of assumption of risk has not been altered by the adoption of comparative fault, K.S.A. 60-258a, and continues to constitute an absolute bar to recovery.

7. The assertion of a claim against the governmental entity by an employee who is also a defendant in the action does not alone constitute a failure "to cooperate in good faith" within the purview of K.S.A.1973 Supp. 75-6109, the indemnification statute of the Kansas Tort Claims Act.

8. Where the governmental entity and one of its employees are defendants in an action and such employee asserts a claim against the governmental entity or a coemployee in the same litigation, a conflict of interest exists requiring the employee to retain a defense attorney. Under such circumstance the governmental entity is required to pay the reasonable cost of the employee's defense absent a finding by the trier of facts the "employee acted or failed to act because of actual fraud or actual malice," pursuant to K.S.A.1983 Supp. 75-6108(c )(2).

9. Rules of statutory construction are stated.

10. The 1980 amendment to K.S.A.1979 Supp. 75-6105(a ) deleting the phrase "of a governmental entity" is discussed and held to constitute a clarification of existing law.

11. K.S.A.1979 Supp. 75-6105(a) is construed and held to establish a $500,000.00 limit on liability for all claims against a governmental entity or its employees arising out of a single occurrence or accident unless insurance providing greater coverage has been purchased pursuant to K.S.A.1983 Supp. 75-6111.

Daniel B. Denk, Kansas City, and Annette Eslick, Asst. City Atty., argued the cause, and Robert J. Watson, City Atty., was with them on the briefs for appellant City of Kansas City, Kansas.

Dennis L. Horner, of Horner, Duckers & Cornwell, Kansas City, argued the cause and was on the brief for appellee/cross-appellant Dan S. Freeman.

Donald W. Vasos, of Vasos, Kugler & Dickerson, Kansas City, argued the cause, and Charles D. Kugler and Stephen G. Dickerson, Kansas City, of the same firm, were with him on the brief for appellee/cross-appellant Kermit Kitchen.

David R. Hills, of Harris, Hills & Hutton, Kansas City, argued the cause, and William W. Hutton, Kansas City, of the same firm, was with him on the brief for appellee/cross-appellant David E. Jackson.

Jay Thomas, of Barnett & Ross, Chartered, Kansas City, argued the cause and was on the brief for appellees Edgar M. Glover and Nellie Glover.

Kevin E. Koch, of Jenkins, Way, Turner & Vader, Chartered, Kansas City, argued the cause, and Rodney L. Turner, Kansas City, of the same firm, was with him on the brief for counter-claimant/appellee Thomas DeKeyser.

McFARLAND, Justice:

Defendant City of Kansas City, Kansas, brings this appeal from the verdict entered in a liability jury trial and the judgment entered in a bench damage trial. Six separate civil actions arising from a single occurrence were consolidated into the two trials. The incident which spawned the litigation was the September 10, 1979, collision between two City of Kansas City owned fire trucks which were on emergency runs to the same fire. They had been dispatched from different fire stations. The collision occurred at the intersection of Fifth Street and Quindaro Boulevard in Kansas City, Kansas.

Four of the lawsuits were brought by injured firemen employed by the Kansas City, Kansas, Fire Department who were involved in the accident as either drivers of or passengers in one of the two fire trucks. In case no. 80C-12250, the driver of one of the fire trucks, David E. Jackson, sued the City and Thomas G. DeKeyser, the driver of the other fire vehicle. DeKeyser counterclaimed against Jackson. In case no. 80C-13458 Kermit C. Kitchen, Jr., the acting captain in charge of the vehicle driven by DeKeyser sued the City and both drivers, DeKeyser and Jackson. Another fireman, Dan S. Freeman, who was riding on the vehicle driven by Jackson, sued the City and both DeKeyser and Jackson in case no. 81C-00020. In addition, Freeman filed a separate suit, no. 81C-3354, against another fire department employee, Raymond Cox, a dispatcher for the Kansas City, Kansas, Fire Department. (Although it was understood and agreed following discovery and pretrial that counsel for Freeman would seek dismissal of the lawsuit against Cox, no formal journal entry of dismissal has ever been filed in that action; hence its inclusion in this appeal.)

The two other actions were brought by persons who were not city employees who sustained personal injury and/or property damage in the accident. In case no. 80C-11499, Edgar M. Glover sued the City to recover money damages for himself and his wife for injuries sustained by him while stopped in his pickup truck at the intersection at the time of the collision. In case no. 80C-9498, Mr. and Mrs. Earl McCord sued the City to recover for damage to their building located on the corner of the collision intersection.

The jury assessed fault as follows: Jackson--35 percent; Kitchen--10 percent; DeKeyser--35 percent; and City of Kansas City--20 percent. The trial court ruled the $500,000.00 limit of liability set forth in K.S.A.1979 Supp. 75-6105 of the Kansas Tort Claims Act (K.S.A.1983 Supp. 75-6101 et seq.) was equally applicable to governmental entities and their employees and apportioned damages within that limit as follows: Jackson--$87,750.00; DeKeyser--$1,500.00; Kitchen--$119,750.00; Freeman--$203,750.00; Edgar M. and Nellie Glover--$79,750.00; and Earl and Elizabeth J. McCord--$7,500.00.

In its appeal, the defendant City claims error by the trial court in its rulings relative to denial of immunity under the Kansas Tort Claims Act, K.S.A.1983 Supp. 75-6101 et seq.; certain common law defenses; damages; indemnification; and jury instructions. In their cross-claims, claimants contend the trial court erred in limiting the total damage claim to $500,000.00.

We turn now to the issues.

I. DID THE DISTRICT COURT ERR IN RULING THE CLAIMS OF THE PLAINTIFFS AND COUNTERCLAIMANTS AGAINST THE CITY AND ITS EMPLOYEES WERE NOT BARRED BY THE PROVISIONS OF THE KANSAS TORT CLAIMS ACT (K.S.A.1983 SUPP. 75-6101 et seq.)?

Defendant City contends the district court erred in ruling the City and its employees were not immune from suit under the exceptions set forth in sections (a ), (c ), (d ) and (m ) of K.S.A. 1983 Supp. 75-6104 of the Kansas Tort Claims Act. Additionally, the City contends the trial court erred in refusing to apply a 1981 amendment to K.S.A. 1979 Supp. 75-6104(f ) retrospectively and grant immunity thereunder.

We shall first consider the alleged error predicated upon K.S.A. 1983 Supp. 75-6104(f )(2). This statute, in the form in effect at the time of the collision (K.S.A.1979 Supp. 75-6104[f ], provided a governmental entity or an employee acting within the scope of his or her employment would not be liable for damages resulting from:

"(f ) any claim by an employee of a governmental entity arising from the tortious conduct of another employee of the same governmental entity, if such claim is compensible pursuant to the Kansas workmen's compensation act."

It is undisputed the firemen herein were not entitled to workers' compensation pursuant to the Kansas Workmen's Compensation Act, K.S.A. 44-501 et seq.

At this point some background information must be provided. In 1975 the Kansas Legislature amended K.S.A. 1974 Supp. 44-505 of the Workmen's Compensation Act to permit a Firemen's Relief Association, by a majority vote of its members, to exclude such members from the Act. L.1975, ch. 259, §§ 1, 2. On July 14, 1975, the Firemen's Relief Association of Kansas City, Kansas, by a majority vote of its members, elected to exclude its members from the Workmen's Compensation Act. On January 26, 1979, the Board of City Commissioners of Kansas City, Kansas, permitted the Firemen's Relief Association to exclude its members from the Act by a formal agreement executed pursuant to K.S.A.1975 Supp. 44-505d. Upon the exclusion of the Firemen's Relief Association members from the provisions of the Workmen's Compensation Act, an endorsement was added to the City's workers' compensation insurance policy removing Firemen's Relief Association members from its coverage. On September 10, 1979, the date of the collision, the firemen of the Kansas City, Kansas, Fire Department were not covered by workers' compensation but were subject to the Firemen's Relief Association of Kansas City.

On February 10, 1981, Senator Jack Steineger, of Kansas City, introduced Senate Bill No. 235. The bill was duly enacted into law and made effective as of July 1, 1981. Senate Bill No. 235 amended K.S.A. 1979 Supp. 75-6104(f ) by adding the following emphasized language:

"(f ) any claim by an employee of a governmental entity arising from the tortious conduct of another employee of the same governmental entity, if such claim is (1) compensible pursuant to the Kansas workmen's compensation act or (2) not...