Keiswetter v. State

• Decision Date: 22 April 2016
• Docket Number: No. 110,610.,110,610.
• Parties: Ron KEISWETTER, Administrator of the Estate of Helen Keiswetter, Deceased; and Ron Keiswetter, Individually and on Behalf of the Heirs-at-law of Helen Keiswetter, Deceased, Appellants, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

304 Kan. 362

373 P.3d 803

Ron KEISWETTER, Administrator of the Estate of Helen Keiswetter, Deceased; and Ron Keiswetter, Individually and on Behalf of the Heirs-at-law of Helen Keiswetter, Deceased, Appellants,

v.STATE of Kansas, Appellee.

No. 110,610.

Supreme Court of Kansas.

April 22, 2016.

Dustin L. Van Dyk, of Palmer, Leatherman, White & Girard, LLP, of Topeka, argued the cause, and L.J. Leatherman, of the same firm, was with him on the briefs for appellants.

John Wesley Smith, assistant attorney general, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by NUSS

, C.J.:

This is an action for personal injury and wrongful death brought against the State by Ron Keiswetter, individually and on behalf of the estate and heirs-at-law of his mother Helen Keiswetter. She died from her injuries after a minimum-security inmate escaped from the State's custody, entered her home, and ultimately forced her into a closet.

The Norton County District Court granted summary judgment to the State on a number of grounds, and a panel of the Court of Appeals affirmed. We affirm the summary judgment because the State is immune from liability under the police protection exception of the Kansas Tort Claims Act, K.S.A. 75–6101 et seq.

(KTCA).

Facts and procedural history

Christopher Zorn was part of a Norton Correctional Facility community work crew mowing grass at a Norton church when he escaped from custody. About 25 minutes before the crew supervisor discovered Zorn was missing, an investigator from the prison arrived to question the inmates about a pack of cigarettes that had been stolen from another site where the crew had recently worked. Zorn ran from the church before he could be interviewed. The proper authorities were notified, and a large-scale search ensued.

Zorn later admitted he had hidden in a shed until about 9 that night. He then entered Helen Keiswetter's house to find keys for stealing her car. He said that he injured her when he shoved her into a closet. More specifically, he admitted he had grabbed her by the arms and waist and that he had kicked her, causing her to fall and hit her head.

Helen Keiswetter's daughter and grandson found her barricaded in the closet the next morning. She was transported first to the local hospital and then to Wesley Medical Center in Wichita. She died 8 months later.

Her son, Ron Keiswetter, then sued the State for her personal injuries and wrongful death. He claimed it was negligent by “(a) failing to continue Mr. Zorn's medication to control his bipolar disorder

; (b) putting Mr. Zorn ... on work release out in the community in spite of his dangerous propensities; (c) negligently conducting a criminal investigation of Mr. Zorn while he was on work release in the community instead of while he was in the security of the Norton Correctional Facility; and (d) failing to take reasonable care in preventing Mr. Zorn, who was in [the Kansas Department of Corrections'] custody and control, from escaping and causing harm to Ms. Keiswetter.” He later voluntarily dismissed all but the fourth claim.

The State filed a motion for summary judgment, arguing it owed no duty to Helen Keiswetter to protect her from Zorn's attack, and, even if it did, it was immune from liability under two exceptions of the KTCA. After a hearing the district court granted summary judgment. It found that the public duty doctrine precluded Keiswetter's claim because any duty owed his mother was owed to the public at large and not specifically to her. The court additionally found that no special duty was owed to Keiswetter and that the State was immune from liability under the police protection exception of the KTCA, K.S.A. 2015 Supp. 75–6104(n)

.

A panel of the Court of Appeals affirmed. Like the district court, the panel concluded Keiswetter's claim failed because of the public duty doctrine, the lack of a special duty owed to Keiswetter, and the police protection exception of the KTCA. Additionally, the panel held Keiswetter had presented insufficient evidence of the State's negligence to survive summary judgment. Keiswetter v. State, No. 110,610, 2014 WL 3732021 (Kan.App.2014)

(unpublished opinion).

Keiswetter filed a petition for review with this court under K.S.A. 20–3018

, challenging each of the panel's holdings and particularly asking us to consider whether the public duty doctrine is still viable under Kansas law. We granted the petition, obtaining jurisdiction under K.S.A. 60–2101(b).

Analysis Issue: The State is entitled to summary judgment as a matter of law because it is immune from liability under the KTCA's police protection exception.

The parties' arguments primarily concern whether we should abolish the public duty doctrine. Under that doctrine, a plaintiff suing a governmental entity in negligence cannot establish the duty requirement of its claim when the duty is a public one, i.e., owed to the public at large and not to any particular individual. See Shirley v. Glass, 297 Kan. 888, 894, 308 P.3d 1 (2013)

(negligence claim requires a duty owed to the plaintiff by the defendant, breach of that duty, causation between the breach and the injury, and damages suffered by plaintiff). In short, the 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. See Roe v. Dept. of SRS, 278 Kan. 584, 593, 102 P.3d 396 (2004)

; Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982).

Despite the parties' focus on this doctrine, however, the ultimate issue before us is whether the district court properly granted summary judgment to the State. As discussed below, we conclude such judgment was proper because the State is entitled to immunity under the KTCA's police protection exception. See K.S.A. 2015 Supp. 75–6104(n)

. So we need not also address the other grounds the lower courts found to reject Keiswetter's claim.

Standard of review

Our summary judgment standard is well-known:

“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

[Citations omitted]. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009)

’ ” Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan. 350, 358–59, 352 P.3d 1032 (2015).

When the material facts are uncontroverted, we exercise unlimited review over a district court's grant of summary judgment. See Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278 (2010)

. And whether an exception of the KTCA applies to grant immunity to a governmental entity is a question of law, also subject to unlimited review. See 291 Kan. at 78, 238 P.3d 278.

Discussion

Liability is the rule, and immunity is the exception for governmental entities sued under the KTCA. See 291 Kan. at 78, 238 P.3d 278

. The general rule of liability is established by K.S.A. 2015 Supp. 75–6103(a) which provides:

“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”

K.S.A. 2015 Supp. 75–6104

lists several exceptions to liability, including the police protection exception. Under this exception, “[a] governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from ... failure to provide, or the method of providing, police or fire protection[.]” K.S.A. 2015 Supp. 75–6104(n). Such exceptions to governmental liability, like the general allowance of liability itself, are matters of public policy left to the legislature. See Barrett v. U.S.D. No. 259, 272 Kan. 250, 260, 32 P.3d 1156 (2001).

In interpreting the KTCA, K.S.A. 2003 Supp. 75–6101 et seq.

we have held:

“ ‘[T]he analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity can be found liable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be liable under the same circumstances and (2) no statutory exception to liability applies. ’ ” (Emphasis added.) Soto, 291 Kan. at 78, 238 P.3d 278

(quoting Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 585, 214 P.3d 1173 [2009] ).

As in Soto, for the sake of a straightforward review we will assume, but not decide, that a duty—here, to Keiswetter—existed. See 291 Kan. at 78, 238 P.3d 278

; cf.

Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 623, 938 P.2d 1293 (1997) (decision to grant summary judgment on basis of immunity is not an acknowledgment “any duty existed on the part of defendants to protect [victim] from [escaped juvenile's] criminal actions”). So we need only determine whether the State's claimed statutory exception to liability, i.e., the police protection exception, applies. If the exception applies, it disposes of this case.

Moreover, because an exception to liability, i.e., an immunity, is supposed to free the defendant from the burdens of...