Kirk v. City of Shawnee, No. 84,489.

• Decision Date: 11 August 2000
• Docket Number: No. 84,489.
• Citation: 10 P.3d 27,27 Kan. App.2d 946
• Parties: JAMES S. KIRK and DARLENE MULLIN, Executrix of the Estate of Kathryn Stewart Morse, Deceased, Appellants, v. CITY OF SHAWNEE, KANSAS, Appellee.
• Court: Kansas Court of Appeals

27 Kan. App.2d 946

10 P.3d 27

JAMES S. KIRK and DARLENE MULLIN, Executrix of the Estate of Kathryn Stewart Morse, Deceased, Appellants, v. CITY OF SHAWNEE, KANSAS, Appellee.

No. 84,489.

Court of Appeals of Kansas.

Opinion filed August 11, 2000.

Donald W. Vasos and David A. Hoffman, of Vasos Law Offices, of Fairway, for the appellants.

Steven G. Piland, of Law Offices of Piland & Magruder, of Kansas City, Missouri, for the appellee.

Before LEWIS, P.J., PIERRON, J., and DAVID W. KENNEDY, District Judge, assigned.

KENNEDY, J.:

Appellants James S. Kirk, as heir at law, and Darlene Mullin, as executrix of the estate of Kathryn Stewart Morse, deceased, sued the City of Shawnee (City) for the police department's failure to protect Morse from her estranged husband. Appellants appeal from the entry of summary judgment in favor of the City. Kathryn Stewart Morse and Roland James Morse were married. In September 1997, Kathryn filed for divorce in Johnson County District Court. On September 15, 1997, she filed a petition for protection from abuse (PFA). At this time, the court issued a temporary PFA order, prohibiting Roland from contacting Kathryn or entering their house in Shawnee. Roland also was ordered to turn over a handgun to the sheriff.

On September 16, 1997, Kathryn completed a "house watch" form and delivered it to the Shawnee Police Department. The form indicated that she had a PFA order against Roland, that he had threatened her life, and that he possessed a gun.

On September 17, 1997, Kathryn called the Shawnee Police Department to report that Roland had violated the PFA order. The police dispatcher confirmed a PFA order had been entered and dispatched an officer to Kathryn's residence to take a report. However, Kathryn was not at home when she made the call, but was in the police station. By the time the dispatcher determined the source of the call, Kathryn had left. On the same day, Shawnee police were notified that Roland had removed a gun from the house prior to being served with court papers and that Roland was extremely upset.

On September 18, 1997, Kathryn obtained a long-term PFA order—valid for 5 months—which prohibited Roland from entering or approaching their residence. The order contained the statutory language stating: "Law enforcement officers are directed to grant any assistance necessary to protect the plaintiff ... from abuse by the defendant, and to provide any other assistance necessary to enforce these orders."

In addition, the PFA order allowed Roland access to the residence the evening of September 18 and all day September 19 to remove personal belongings and business records. During the hearing, Kathryn's attorney commented they wanted a third person in the house while Roland was there, and the court agreed it was a good idea. During this hearing, Roland advised the court he had taken the revolver he was ordered to deliver to the sheriff and had delivered it to his son for safekeeping. Kathryn talked to a police dispatcher in the mid-afternoon of September 18. This conversation was recorded. During the conversation with the dispatcher, Kathryn advised the dispatcher that Roland had changed his arrival time and they were "shooting for" 7:30 p.m. Kathryn told the dispatcher "I will let you know as soon as I know."

Minutes later, Kathryn talked with Sergeant Rob Moser. Kathryn advised Moser her husband had threatened her in the past and had a gun. When she asked for police presence at the home while Roland was there, Sergeant Moser advised Kathryn they could not keep an officer at her home for extended periods of time. He suggested she call a private security company or talk to another officer about police officers who might be willing to provide security while off-duty.

Sergeant Moser offered to send two officers to her home, if they were available, for a short period of time when Roland arrived. Sergeant Moser specifically advised Kathryn to call back shortly before or when Roland arrived and they would send officers over to the home for a few minutes. Sergeant Moser also advised Kathryn to stay near the phone and to call 911 if matters deteriorated.

That same day, Kathryn's aunt, Geraldine (Gerry) Stewart, called and requested an officer to come out and protect Kathryn. Stewart wanted an officer to come out to stay with them while Roland was in the house. There was no indication Roland was at the house or what time this call took place. Again, the dispatcher advised they could not send out a police officer simply to sit there while Roland was there for an extended period of time.

The next day, Roland shot and killed Kathryn at their home and then killed himself. At the time, Tommy Smith (a friend of a friend) was at Kathryn's house to provide her some protection. According to Smith, Roland arrived that morning, went down to the basement, and began taking boxes out to his truck. Smith, Kathryn, and Stewart were eating in the kitchen when Roland reentered the home with a shotgun. Roland used the gun to force Smith out the door of the house. The shootings then occurred.

Under policies of the Shawnee Police Department at the time, certain standards were established for enforcing PFA orders, including completing reports on all violations of a PFA order. The standards provided that the department's policy was the "vigorous enforcement of laws relating to domestic violence." Dispatchers were required to give domestic violence calls the same priority as any other life-threatening call. The department also had a policy for assisting in civil matters (a "civil standby") in order to preserve the peace in situations involving evictions, transfer of custody of children, and other civil matters.

In 1998, appellants James S. Kirk, Kathryn's son, and Darlene Mullin, the executrix of Kathryn's estate, filed a wrongful death and survivor action against the City and Roland's estate. The appellants claimed the City had breached a specific duty owed to Kathryn and had been negligent in failing to protect her from Roland. In answering the petition, the City asserted it was immune under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.

After discovery was conducted, the City filed a motion for summary judgment. The City argued it was entitled to summary judgment because it had immunity under the KTCA—specifically, under the exceptions to liability—the failure to provide police protection. In controverting the City's motion, plaintiffs disputed some of the City's facts by inferring the department's actions discouraged Kathryn from calling the police and/or gave her no reasonable expectation that the City would protect her. The plaintiffs argued the City owed a duty to Kathryn based on the PFA order and the City's mandatory policies for handling domestic abuse cases.

In a memorandum decision, the trial court set forth its findings of fact which mirrored the factual statements from both parties' briefs. The trial court held that the City, through its police department, owed no individualized duty to Kathryn and that, as a result, the City was immune from liability under the discretionary function exception of the KTCA. Thereafter, two journal entries dismissing the claims against the City were filed on the same day. The next day, the plaintiffs filed their notice of appeal.

SPECIFIC INDIVIDUALIZED DUTY TO KATHRYN MORSE

On appeal, appellants challenge the trial court's ruling that the City, through its police department, did not owe an individualized duty to protect Kathryn from Roland. Plaintiffs allege that a duty existed based on the mandatory policies of the police department and the language of the PFA order.

In order to establish liability for negligence against any defendant, including a governmental entity, the plaintiff must establish: (1) the defendant owed a duty to the plaintiff; (2) that duty was breached; (3) the breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff sustained damages. Burney v. Kansas Dept. of SRS, 23 Kan. App.2d 394, 397, 931 P.2d 26 (1997). If there is no duty, there can be no claim of negligence. Whether a duty exists is a question of law, and our review is unlimited. Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993).

The Public Duty Doctrine

When a negligence claim is asserted against a governmental agency, the court must consider the so-called "public duty doctrine." That doctrine establishes the general principle that a governmental agency owes duties to the public at large rather than to individuals. Fudge v. City of Kansas City, 239 Kan. 369, 372, 720 P.2d 1093 (1986). Under this doctrine, the fact the governmental entity owes a legal duty to the public at large does not establish a basis for an individual to claim the agency owed a legal duty to him or her personally. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 631, 938 P.2d 1293 (1997). No duty exists unless the plaintiff establishes that the agency owed a special duty to the injured party. Fudge, 239 Kan. at 372.

Situations where a "special duty" have been found vary greatly. However, the cases generally fall into two categories. One is where a special relationship existed between the governmental agency and the wrongdoers (i.e., the State has custody of the wrongdoer). See, e.g., Cansler v. State, 234 Kan. 554, 564-65, 675 P.2d 57 (1984)

(State correctional officials owe a special duty to nearby residents to exercise reasonable care in maintaining prison security and issuing warnings when dangerous inmates escape); Washington v. State, 17 Kan. App.2d 518, 523, 839 P.2d 555,

rev. denied 252 Kan. 1095 (1992) (prison officials owe duty of reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners). The second category involves cases where a special relationship existed between the agency and the injured person. See e.g., C.J.W. v. State, 253 Kan. 1, 12, 853 P.2d 4 (1993) (State...