Lamb v. State, 92,231.

• Decision Date: 15 April 2005
• Docket Number: No. 92,231.,92,231.
• Citation: 109 P.3d 1265,33 Kan.App.2d 843
• Parties: ROBERT G. LAMB, Appellant, v. STATE OF KANSAS and DAVID M. ALBERS, Appellees.
• Court: Kansas Court of Appeals

33 Kan.App.2d 843

109 P.3d 1265

ROBERT G. LAMB, Appellant, v. STATE OF KANSAS and DAVID M. ALBERS, Appellees.

No. 92,231.

Court of Appeals of Kansas.

Opinion filed April 15, 2005.

Dan E. Turner and Phillip L. Turner, of Topeka, for appellant.

Harry Kennedy, assistant attorney general, and Phill Kline, attorney general, for appellee.

Before HILL, P.J., MALONE and GREENE, JJ.

HILL, J.:

The District Court dismissed Deputy Sheriff Robert G. Lamb's lawsuit against Kansas Highway Patrol Trooper David M. Albers and the State of Kansas on the grounds that Albers owed no special duty to Lamb and the Kansas Tort Claims Act made the defendants immune from this action. Lamb contends in this appeal the unattended motor vehicle statute, K.S.A. 8-1573, created a duty that Albers was not to leave his patrol car running with the keys in the ignition and the doors unlocked. Because there was no special duty owed by the trooper to the Deputy Sheriff when Albers was attempting to subdue a struggling suspect, we hold the court correctly dismissed the action. Furthermore, since there was no duty, K.S.A. 2001 Supp. 75-6104(i) affords immunity to Albers and the State because the claim is "barred by any other law."

Background

On October 26, 2001, law enforcement agencies in Colorado, Sherman County, Kansas, and the state of Kansas were alerted that a suspect who had stolen unlocked vehicles was driving eastbound on Interstate 70 from Colorado into Kansas. Robert G. Lamb, Sherman County Deputy Sheriff, along with other officers from the Sherman County Sheriff's Department, the Goodland Police Department, and the Kansas Highway Patrol (KHP) were involved in intercepting the suspect's vehicle. The suspect's vehicle became inoperative on the shoulder of I-70 after its tires were punctured. He fled from the car.

The fleeing suspect tried to enter an occupied, parked, and locked civilian vehicle. KHP Trooper David M. Albers drove his patrol car next to where the suspect was standing. Albers was the first officer to exit his vehicle in an attempt to apprehend the suspect. Albers jumped from his car, leaving the driver-side door open and the motor running. Albers and the suspect proceeded to struggle. The suspect ran around and entered Albers' patrol car in an attempt to flee. Albers also jumped into the patrol car.

Lamb and other officers approached the vehicle to assist Albers and stop the suspect. The patrol car somehow was placed into drive, causing it to lurch forward. The open driver-side door struck Lamb; he tumbled forward and was injured. Ultimately, officers were forced by the suspect's resistance to use lethal force.

Two years later, Lamb filed a petition claiming that Albers and the State of Kansas were negligent. Lamb asserted that the State's negligent supervision and training of Albers was the cause of Lamb's injuries. Lamb also set forth facts establishing that Albers was acting in the scope of his employment as a State employee when engaged in the negligent conduct. Finally, Lamb claimed that Albers negligently operated his vehicle by (1) failing to yield the right-of-way to Lamb; (2) failing to stop for Lamb; (3) failing to swerve his vehicle to avoid striking Lamb; (4) "driving too fast for the conditions then and there existing"; (5) failing to secure his vehicle when leaving it standing; (6) failing to close the door; (7) failing to turn the vehicle off and remove the keys; (8) allowing the vehicle to be unsecured and accessible "to being invaded by third parties"; (9) allowing unauthorized third parties access to the vehicle; (10) "failing to keep a proper lookout"; (11) failing to operate the vehicle in a safe manner; and (12) "engaging in a fight with the third party while the vehicle was moving." The defendants filed a joint motion to dismiss based on K.S.A. 60-212(b)(6). The district court dismissed Lamb's petition in March 2004 after finding that Albers did not owe Lamb a duty of care and that the Kansas Tort Claims Act (KTCA) provided the defendants with immunity.

This court reviews a district court's order granting a motion to dismiss for failure to state a claim by deciding whether the petition states any claim for relief on the theory that was alleged by the plaintiff or any other possible theory. We accept as true the plaintiff's description of the events, along with any inferences that can be reasonably drawn from that description. The facts are viewed in the light most favorable to the plaintiff, and every doubt is resolved in the plaintiff's favor. But, this does not mean conclusory allegations on the legal effects of the events set out by the plaintiff must be accepted by the court if these allegations do not reasonably follow from the description of the events or if the described events contradict these allegations. Dismissal is proper only when the allegations in the petition clearly show the plaintiff does not have a claim. 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 881-82, 47 P.3d 383 (2002).

Duty

A negligence claim requires the existence of a duty from a defendant to a plaintiff, a breach of that duty, and that the breach of that duty was the proximate cause of damages suffered by the plaintiff. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). Usually, a determination of the presence or absence of negligence should be left to the trier of fact. Stetler v. Fosha, 9 Kan. App. 2d 519, 522, 682 P.2d 682, rev. denied 236 Kan. 877 (1984); see also Schmeck v. City of Shawnee, 232 Kan. 11, 27, 651 P.2d 585 (1982) (negligence, contributory negligence, and proximate cause are all issues for the jury's determination).

A fundamental rule of tort analysis is that actionable negligence must be based on a breach of duty. Calwell v. Hassan, 260 Kan. 769, 777, 925 P.2d 422 (1996). The plaintiff is required to prove the existence of a duty owed to him or her by the defendant. P.W., 255 Kan. at 831. The existence of a legal duty is a question of law to be determined by the court. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991).

"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. 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. No duty exists unless it is established that the agency owed a special duty to the injured party." Kirk v. City of Shawnee, 27 Kan. App. 2d 946, Syl. ¶ 3, 10 P.3d 27, rev. denied 270 Kan. 898 (2000).

Generally, the public duty doctrine provides that law enforcement duties are owed to the public at large and not to any specific person. Conner v. Janes, 267 Kan. 427, 429, 981 P.2d 1169 (1999) (an officer is immune from claims arising out of the performance or nonperformance of the officer's general duties under the public duty doctrine). In his petition, Lamb avers that Patrolman Albers was, "at all times relevant hereto," acting within the scope and course of his employment as a highway patrol officer for the State.

The public duty doctrine has been applied to "policing functions." See, e.g., Kirk, 27 Kan. App. 2d at 950-52

. In Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982), the Supreme Court noted that the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Based on the petition, Albers left his vehicle in pursuit of a fleeing felon who had attempted to enter a locked civilian vehicle. Albers' conduct was undertaken in the interest of protecting the public welfare. See Mills v. City of Overland Park, 251 Kan. 434, 446, 837 P.2d 370 (1992) (it is well known that law enforcement's duty to protect the public welfare is a public duty).

Lamb asserts that the defendants owed him a statutory duty, according to K.S.A. 8-1573, not to leave the patrol vehicle running with the keys in the ignition. K.S.A. 8-1573 reads:

"No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the ignition, effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway."

Lamb points to George v. Breising, 206 Kan. 221, 477 P.2d 983 (1970), in support of his contention that Albers owed him a statutory duty under K.S.A. 8-1573 because he was a foreseeable plaintiff under the attendant circumstances. In George, a pedestrian who was struck and injured by a stolen automobile sued the owner/ operator of a private automobile garage repair business. The plaintiff charged the business owner with negligence for leaving the keys in the automobile while it was parked on the private grounds of the defendant's place of business. The court considered whether the "independent intervening act" of the car thief was reasonably foreseeable. 206 Kan. at 227. Ultimately, the court rejected the plaintiff's argument that the garage owner should be held liable under the circumstances, relying upon the legal principal that "failure to anticipate a criminal act is not negligence. [Citation omitted.]" 206 Kan. at 228.

Lamb argues that the George court mentions that no statute was applicable to that case because the previous version of K.S.A. 8-1573 had not been adopted at the time of the accident, the issue had not been raised by the appellant, and the statute related only to unattended vehicles parked on a public thoroughfare. Lamb contends that these statements by the George court "impl[y] that the Court believed this statute imposed a duty upon the defendant to the plaintiff, if raised and if the negligent act had occurred after this statute became effective."

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