Lantz v. City of Lawrence

• Decision Date: 14 January 1983
• Docket Number: No. 54113,54113
• Citation: 657 P.2d 539,232 Kan. 492
• Parties: Ronald Paul LANTZ and Margaret Mary Lantz, Appellants, v. CITY OF LAWRENCE, Kansas, a municipal corporation, George Osborne, Richard Demby, Homer Gist and Dan McAlister, Appellees.
• Court: Kansas Supreme Court

Page 539

657 P.2d 539

232 Kan. 492

Ronald Paul LANTZ and Margaret Mary Lantz, Appellants, v. CITY OF LAWRENCE, Kansas, a municipal corporation, George Osborne, Richard Demby, Homer Gist and Dan McAlister, Appellees.

No. 54113.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

1. In considering a motion for summary judgment, the party against whom the motion is directed is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Where genuine issues of material fact remain undetermined, the granting of summary judgment is improper.

2. The exception in the Kansas Tort Claims Act contained in K.S.A.1981 Supp. 75-6104(c ), exempting governmental entities from liability where damage results from the enforcement of a law, is inapplicable where it is determined by a trier of fact that the actions of city employees giving rise to the lawsuit were outside the purview of the municipal ordinance which allegedly granted authority for such actions.

3. The exceptions from liability under the Kansas Tort Claims Act contained in K.S.A.1981 Supp. 75-6104 provide immunity from all damages, both actual and punitive, regardless of the existence of malice.

4. Damages may be recovered for mental suffering and pain in the absence of physical injury under the Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6101 et seq., if (1) the plaintiff's claim is not barred by any applicable exception to the Act, and (2) the plaintiff proves the defendants acted willfully, wantonly and with an intent to injure.

Pantaleon Florez, Jr., of Hawver & Irigonegaray, P.A., Topeka, argued the cause, and Ira Dennis Hawver, Topeka, was on the brief for appellants.

Patrick E. Peery, of Allen, Cooley & Allen, Lawrence, argued the cause, and Gerald L. Cooley, Lawrence, was with him on the brief for appellees.

SCHROEDER, Chief Justice:

This is an appeal by Ronald and Margaret Lantz (plaintiffs-appellants) from a summary judgment entered against them dismissing their action against the City of Lawrence and named city employees (defendants-appellees) for negligence and conversion in cutting trees and mowing vegetation on the appellants' property. The district court found the city and named employees immune from liability under the provisions of the Kansas Tort Claims Act (KTCA). K.S.A.1981 Supp. 75-6101 et seq.

The case arises out of the enforcement of the City of Lawrence Ordinance No. 4110, a weed abatement ordinance codified at Section 18-501 et seq., of the City Code. The ordinance provides that where weeds on any premises are declared by the city governing body to be a public nuisance and are not destroyed or removed without delay by the property owners, the city will have the weeds removed.

On May 15, 1979, the City Commission adopted a resolution declaring weeds to be a public nuisance and called for the immediate abatement of the nuisance. The resolution was published in the Lawrence Journal-World on May 21, 1979, and May 28, 1979. As required by the ordinance a hearing was held before the Superintendent of Parks and Forestry, defendant George Osborne, on May 30, 1979. The appellants did not attend this hearing.

Sometime before June 5, 1979, defendant Osborne decided the vegetation growing on the appellants' property constituted "weeds" growing in violation of the ordinance and resolution. On June 5, 1979, a written notice was mailed to the appellants informing them that if their property was not mowed within five days a city crew would be dispatched to mow it as provided in the ordinance. When inspected again after five days, the condition of the appellants' property was unchanged.

On June 15, 1979, a mowing crew from a private contractor employed by the city was dispatched to the appellants' property where they began to mow the parking area. Mr. Lantz chased the crew off his property with a pellet rifle, which later resulted in a criminal conviction.

On July 24, 1979, defendant Osborne instructed the City Parks Department Supervisor, defendant Richard Demby, to take a crew to appellants' property the following day to mow and clean up the property. Osborne also called the Lawrence Police Department and asked that some police officers be dispatched to accompany the mowing crew onto appellants' land. The next day two officers, defendants Homer Gist and Dan McAlister, met the city crew at the appellants' home and informed the appellants they were there to insure that no guns were used. Mr. Lantz indicated he did not believe the city had authority to cut and clear his property but he would not interfere with the cutting. Mr. Lantz then left to seek legal assistance.

The city crew proceeded to mow and clear the Lantz property using weed trimmers and chain saws. The appellants claim that in the process various plants, flowers and approximately 63 trees (30 hackberry trees, 17 elm trees, 11 walnut trees, 4 ash trees and 1 oak tree) were cut down. According to appellants, the city destroyed all but the largest trees on their property.

Appellants brought this action for actual and punitive damages suffered, alleging the defendants wrongfully cut the trees and other plants. After extensive discovery the defendant city filed a motion for summary judgment. Highly summarized, the district court determined the controlling facts to be that the named city employees were acting within the scope of their employment and within the authority granted by the City Code when they went onto the appellants' property, and that the police officers were only present to preserve the peace and to ensure that no weapons were used. The court specifically found that while enforcing the code provisions the city employees "wrongfully cut 63 of plaintiffs' trees." The court ruled the city was exempt from liability under the KTCA as the city employees' conduct fell under the "enforcement of a law" exception contained in K.S.A.1981 Supp. 75-6104(c). The court also concluded that punitive damages were barred because there was no evidence of malice on the part of any defendant.

The Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6101 et seq., creates broad liability for governmental entities, subject to enumerated exceptions. K.S.A.1981 Supp. 75-6103(a) 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."

The only exception asserted by the appellees which would nullify the application of this statute is contained in K.S.A.1981 Supp. 75-6104, which states:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

....

"(c) enforcement of or failure to enforce a law, whether valid of invalid, including, but not limited to, any statute, regulation, ordinance or resolution."

The appellees maintain that the actions of the city employees giving rise to this lawsuit were taken to enforce the city's weed abatement ordinance and therefore they are exempt from liability by the language of 75-6104(c). The trial court noted:

"The exception from liability for damages resulting from enforcement of law is clear and unambiguous. The intent of the legislature is clearly stated that immunity is granted a governmental entity and its employees while enforcing its law and no other contruction is needed or proper."

The appellants maintain it was not the legislature's intent to provide a shield of immunity for wrongful acts in enforcing any law or ordinance in any manner whatsoever, and insist a standard of due care, similar to that contained in the federal statutory counterpart, 28 U.S.C. § 2680(a), should be judicially read into 75-6104(c) and imposed upon governmental entities in the enforcement of laws and ordinances.

At the outset it is important for this court to distinguish between the liability of defendants Gist and McAlister and the liability of the city and defendants Osborne and Demby for damages resulting from the alleged enforcement of the city's weed abatement ordinance, although such a distinction was not made by the trial court. It is clear from the record that the police officers were present, while the appellants' property was being cleared, to protect the safety of the mowing crew and to ensure that no weapons were used. The trial court specifically found this to be an uncontroverted fact in its decision on the motion for summary judgment. The officers' presence was warranted in light of the incident on June 15, 1979, when another mowing crew was threatened by Mr. Lantz with a pellet rifle. Further, the record does not indicate that the police officers participated in any way in the actual mowing and clearing process.

The presence of these officers was necessary under the circumstances to preserve the peace and protect the safety of the mowing crew. They were clearly acting within the scope of their employment in the enforcement of a law under the provisions of K.S.A.1981 Supp. 75-6104(c). The trial court correctly held that defendants Gist and McAlister were exempt from liability for damages resulting from the incident.

In determining the liability of the city and defendants Demby and Osborne, our focus in this case is not centered upon the standard of care imposed by the KTCA upon a governmental entity and its employees while enforcing its laws and ordinances, but rather upon whether the actions of defendants Osborne and Demby were within the purview of the weed abatement ordinance under which they allegedly were acting when they directed the city's mowing crew to enter and clear the appellants' property. "Weeds" are defined in the ordinance as:

"1. Weeds and indigenous grasses which may attain such large growth as to...