Montgomery v. Patrick R. Saleh & State

Decision Date26 June 2020
Docket NumberNos. 117,518,117,519,s. 117
Parties Shelby MONTGOMERY and Scott E. Bennett, Appellants/Cross-appellees, v. Patrick R. SALEH and State of Kansas, Appellees/Cross-appellants.
CourtKansas Supreme Court

Richard L. Budden, of Shamberg, Johnson & Bergman, Chtd. of Kansas City, Missouri, argued the cause, and Lynn R. Johnson, of the same firm, was with him on the briefs for appellants/cross-appellees.

Dwight R. Carswell, assistant solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Bryan C. Clark, assistant solicitor general, Rachael D. Longhofer, assistant attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellees/cross-appellants.

Per Curiam:

This is a civil negligence suit brought by Shelby Montgomery and Scott Bennett. Montgomery and Bennett both sustained injuries when a Toyota driven by Robert Horton ran a red light and collided with Bennett's truck. At the time, Horton was being pursued by Kansas Highway Patrol Trooper Patrick Saleh. Montgomery and Bennett sued Trooper Saleh, claiming he was negligent in failing to cease his pursuit of Horton prior to when he did. They also sued the State of Kansas under a theory of vicarious liability. The district court eventually granted summary judgment for Saleh and the State. The Court of Appeals affirmed in part, reversed in part, and remanded for trial. We granted Saleh and the State's petition for review.


On the night of August 23, 2010, Kansas Highway Patrol Sergeant Tim Tillman was stopped at a red light at the intersection of Topeka Boulevard and 32nd Terrace. A red Toyota was stopped beside him in the northbound lane. Sgt. Tillman saw the Toyota's passenger holding a knife and speaking to the driver, though he could not hear what the passenger was saying. When the light turned green and the Toyota started to drive away, Tillman saw the Toyota's passenger swing the knife toward the driver. Tillman reported the Toyota's license plate number to dispatch, and dispatch informed him the license plate belonged to a different car.

Because Tillman was in plain clothes and driving an unmarked vehicle, he requested back-up. Saleh and Trooper Terry Fields, who were in the area, responded to the request. Because Saleh's car had a spotlight, Fields recommended that Saleh take over the stop. At this time, Saleh knew only that the Toyota's license plate was registered to a different car and that the passenger reportedly had a knife and was "swinging out the knife pretty strangely."

Trooper Saleh was traveling south on Topeka Boulevard and drove past the Toyota. He made a U-turn directly behind the Toyota and activated his red lights, siren, and dashboard video camera. The driver of the Toyota (later identified as Horton) then turned right onto 20th Street, heading east and rapidly accelerated. Horton ran a stop sign as he turned right onto Kansas Avenue and proceeded south.

Horton continued to accelerate, running a red light at the intersection of 21st Street and Kansas Avenue. Saleh stayed in pursuit, though he fell further behind the Toyota. Saleh accelerated to 80 to 90 miles per hour, and he estimated the Toyota's speed was over 100 miles per hour. Saleh decided to end the pursuit "[s]omewhere around the Wonder Bread outlet store," which was located just beyond 27th Street when traveling south on Kansas Avenue.

Before Saleh deactivated his emergency equipment, the Toyota ran through a red light at the intersection of Kansas Avenue and 29th Street. It collided with a pickup truck occupied by Bennett and Montgomery, who both suffered injuries in the crash. At the time of the collision, Saleh was about two-and-a-half blocks behind the Toyota. The entire pursuit had lasted about a minute and a half.

The Toyota's driver was later confirmed to be Horton. The passenger was a minor female who had been reported as a runaway. No knife was found in the Toyota or at the accident scene.

Bennett and Montgomery later filed separate petitions alleging negligence on the part of Trooper Saleh and the State of Kansas. Saleh and the State moved for summary judgment, arguing in part that (1) Bennett and Montgomery had failed to make a prima facie case of negligence; (2) Saleh did not owe a duty to Bennett and Montgomery under the public duty doctrine; and (3) the State had absolute immunity and Saleh had qualified immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.

The district court granted the motion. The court rejected the defendants' claims that the public duty doctrine applied or that the defendants had immunity under the KTCA. It also held a factual dispute existed as to whether Saleh had breached his duty of care. But it found that the plaintiffs' proffered evidence was insufficient to support a favorable jury verdict on causation in fact. As a result, the court entered summary judgment in favor of the defendants.

Bennett and Montgomery appealed. Saleh and the State cross-appealed. On Montgomery's motion, the Court of Appeals consolidated Bennett's and Montgomery's appeals. A majority of the Court of Appeals' panel affirmed the district court's findings on the public duty doctrine, immunity under the KTCA, and proof of breach of duty, but reversed the district court's finding on proof of causation and remanded for further proceedings. Montgomery v. Saleh , 55 Kan. App. 2d 429, 419 P.3d 8 (2018). A dissenting judge would have affirmed on the issue of proof of causation and declined to reach the issues on cross-appeal. 55 Kan. App. 2d at 452, 419 P.3d 8. We granted the defendants' petition for review with respect to all the issues Saleh and the State presented.

We, briefly, note the Court of Appeals also held that the claims asserted by the plaintiffs directly against the State for negligently failing to enforce appropriate pursuit policies or for negligence in hiring, retaining, supervising, or training Saleh were unsupported by any evidence and were abandoned on appeal. 55 Kan. App. 2d at 452, 419 P.3d 8. The plaintiffs did not independently seek review of the judgment against these claims. Those claims are, therefore, no longer at issue. See, e.g., State v. Brosseit , 308 Kan. 743, 746-47, 423 P.3d 1036 (2018) (failure to petition or cross-petition for review precludes review).


On review, the defendants argue the district court properly entered summary judgment in their favor and the Court of Appeals erred in reversing the district court. The rules relating to summary judgment are well established:

" "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 when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." [Citation omitted.]" Patterson v. Cowley County, Kansas , 307 Kan. 616, 621, 413 P.3d 432 (2018).

Here, the plaintiffs alleged negligence on the part of the defendants. To succeed on a negligence claim, the plaintiff must establish the existence of a duty, a breach of that duty, an injury, and proximate cause. Hale v. Brown , 287 Kan. 320, 322-23, 197 P.3d 438 (2008). While summary judgment is rarely appropriate in negligence cases, it is proper if a plaintiff fails to establish a prima facie case demonstrating the existence of these four elements. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 221, 262 P.3d 336 (2011). A plaintiff establishes a prima facie case by presenting " ‘evidence which, if left unexplained or uncontradicted, would be sufficient to carry the case to the jury and sustain a verdict in favor of the plaintiff on the issue it supports.’ " Robbins v. City of Wichita , 285 Kan. 455, 470, 172 P.3d 1187 (2007).


As part of their negligence claim, the plaintiffs had to establish that Saleh owed them a duty of care. And, because they are suing a governmental entity and its employee, the plaintiffs here must establish that Saleh owed a duty to them individually rather than a duty owed to the public at large. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 778, 450 P.3d 330 (2019). Whether a duty exists is a question of law over which we have unlimited review. Robbins , 285 Kan. at 460, 172 P.3d 1187.

The defendants argue that the public duty doctrine prevents the plaintiffs from establishing the existence of a duty owed to them.

"The public duty doctrine expresses a general rule that law enforcement duties are owed to the public at large and not to any specific person. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Under the public duty doctrine, an officer is immune from claims arising out of the performance or nonperformance of the officer's general duties. Liability arises only when an officer breaches a specific affirmative duty owed to a particular person. [Citations omitted.]" Conner v. Janes, 267 Kan. 427, 429, 981 P.2d 1169 (1999).

The defendants further argue that law enforcement pursuits fall within the purview of the public duty doctrine thus exempting them from any liability for the plaintiffs' injuries.

Although the public duty doctrine has several exceptions, the plaintiffs do not argue that those exceptions are present here. See Williams , 310 Kan....

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