Parker v. City of Hutchinson, 44287

• Decision Date: 22 January 1966
• Docket Number: No. 44287,44287
• Citation: 196 Kan. 148,410 P.2d 347
• Parties: Charlie L. PARKER, Appellant, v. The CITY OF HUTCHINSON, Appellee.
• Court: Kansas Supreme Court

Page 347

410 P.2d 347

196 Kan. 148

Charlie L. PARKER, Appellant, v. The CITY OF HUTCHINSON, Appellee.

No. 44287.

Supreme Court of Kansas.

Jan. 22, 1966.

Rehearing Denied Feb. 23, 1966.

Syllabus of the Court

1. Absent a statute expressly imposing liability, a municipality is not liable for the negligence or misconduct of its officers or employees when acting in the performance of its governmental functions.

2. In an action against a municipality for the recovery of damages for personal injuries allegedly received by the plaintiff while confined in the city jail where he was assaulted by another prisoner, and medical attention was not provided, the record is examined, and, as more fully set forth in the opinion, it is held, that the trial court did not err in sustaining the city's motion to dismiss plaintiff's amended petition.

Don Wyman, Hutchinson, argued the cause, and was on the brief, for appellant.

Robert J. Gilliland, Hutchinson, argued the cause, and was on the brief, for appellee.

O'CONNOR, Justice.

The question presented by this appeal is whether or not a municipality is immune from liability for the alleged tortious acts of its agents in the operation of the city jail.

The case is before this court as a result of the trial court's sustaining a motion to dismiss filed by the defendant, City of Hutchinson (appellee), to the amended petition of the plaintiff, Charlie L. Parker (appellant), for the reason the same does not state a claim upon which relief can be granted (K.S.A. 60-212(b)). As applied in this case, the motion to dismiss may be treated as the modern equivalent of a demurrer. (United Transport Service Employees of America CIO ex rel. Washington v. National Mediation Board, 85 U.S.App.D.C. 352, 179 F.2d 446.) The question presented must therefore be decided from the well-pleaded facts of plaintiff's petition.

Highly summarized, the facts disclosed by the amended petition are that plaintiff was confined in the Hutchinson city jail on July 31, 1964, where he was assaulted and injured by another prisoner, Mike Smith. Plaintiff alleges the agents of the defendant city who were in charge of the jail were 'grossly and wantonly' negligent in confining him with Smith because they knew of Smith's violent nature and mental instability, and further, the defendant's agents failed to seek medical attention for the plaintiff for a period of one day after he was injured.

The trial court, in sustaining the defendant's motion to dismiss, filed a memorandum opinion in which it held that the city was immune from tort liability under the facts as pleaded in the amended petition. It appears from the memorandum that the court also called attention to other deficiencies in the plaintiff's amended petition, as well as procedural matters, which are extraneous to the main issue presented for our consideration on this appeal, and, therefore, will be disregarded.

Both parties concede the city was engaged in a governmental function in operating its jail, and under the present decisions of this court, the city is immune from any liability under the facts alleged in the amended petition.

The early case of La Clef v. City of Concordia, 41 Kan. 323, 21 P. 272, involved the claim of a prisoner in the city jail who alleged personal injury as a result of subzero temperatures in the jail. In upholding the trial court's sustaining the city's demurrer to the plaintiff's petition, this court said:

'This seems to be the current of authority everywhere: that a city, while acting as a political part of the state in suppressing crime and immorality, and in the preservation of peace and good order, is not liable for its acts, although negligently committed by the city or its agents * * *.' (p. 325, 21 P. p. 273.)

Similarly, in Pfefferle v. Comm'rs of Lyon Co., 39 Kan. 432, 18 P. 506, an action brought by an inmate who became ill while in jail alleging that the county permitted the jail to become and remain in an unwholesome condition, the court held the county was acting in a governmental function, and thus was not liable, absent a statute.

The La Clef case has been cited in numerous, subsequent cases and has never been overruled. Parker makes no suggestion that the decision does not control the present state of our law as applied to the facts in his petition.

It appears the majority of the jurisdictions follow the rule that a municipality is not liable for injury inflicted upon one prisoner by another even though the person in charge negligently confined the assaulted prisoner in a cell with a prisoner whom he knew to be of violent temperament. The rationale of nearly all of the cases is that a municipality is engaged in the exercise of purely a governmental function. A collection of cases may be found in the annotations in 49 A.L.R. 94, 50 A.L.R. 268, and 61 A.L.R. 569. (Also, see 18 McQuillin, Municipal Corporations, 3rd Ed.Rev., § 53.80e et seq.)

Plaintiff contends that the time has come for this court to follow the lead taken by other jurisdictions and abrogate the doctrine of immunity as it applies to the liability of a municipality for acts of its agents in the discharge of its governmental functions just as we abandoned it as it applies to charitable institutions (Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934) and church corporations (McAtee v. St. Paul's Mission, 190 Kan. 518, 376 P.2d 823).

Although in a majority of the Kansas cases the all-important issue for determination was the question of whether or not a municipality at the time of the alleged tort was acting in its 'governmental' or 'proprietary' function, resort to those cases is helpful in reaching statements of law on the general subject of immunity of municipalities when acting in a governmental capacity. The rule is firmly established in this state that absent a statute expressly imposing liability, a municipality is ordinarily not liable for the negligence or misconduct of its officers or employees when acting in the performance of its governmental functions. (See Weast v. Budd, 186 Kan. 249, 349 P.2d 912; Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265; Perry v. City of Wichita, 174 Kan. 264, 255 P.2d 667; 7 A West Kansas Digest, Municipal Corporations, § 745 1/2; and Hatcher's Kansas Digest, Municipal Corporations, § 187.) The rule is premised on the doctrine that the state is not liable except as made so by statute and that municipalities as agents of the sovereign, when acting in a governmental capacity, are arms of the state and are likewise not liable. However, certain exceptions to the rule, which involve creation and maintenance of nuisances by a city (Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P.2d 621, 56 A.L.R.2d 1409; Jeakins v. City of El Dorado, 143 Kan. 206, 53 P.2d 798) and defects in public streets (Freeburne v. City of Emporia, 176 Kan. 503, 271 P.2d 298; Smith v. Kansas City, 158 Kan. 213, 146 P.2d 660), have been recognized.

In Wendler v. City of Great Bend, supra, the origin and development of the doctrine of governmental immunity was carefully reviewed, and the court, after making the observation that because of the origin of the rule, the trend of judicial decisions is generally to restrict rather than expand the doctrine (citing Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 227, 5 A.L.R.2d 47), proceeded to hold that the municipality was operating an airport in its proprietary capacity and thus could not set up the defense of governmental immunity.

Within the past year this court was requested to strike down the cloak of immunity as it applies to counties in Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P.2d 561. After citing numerous cases which uniformly hold that counties are not liable in damages for negligence in the absence of a statute imposing liability, this court reasserted its position taken in its prior decisions and concluded:

'* * * Should the legislature see fit to abolish such immunity, it is of course within its power to do so.' (p. 423, 399 P.2d p. 564.

Parker, in urging this court to join other jurisdictions which have abrogated the doctrine of immunity as it applies to municipalities, castigates the doctrine as being 'outmoded,' 'unjust' and 'anachronistic.' He relies particularly on Hargrove v. Town of Cocoa Beach (Fla.), 96 So.2d 130, 60 A.L.R.2d 1193, which apparently represents the result of an appellate court's dissatisfaction with the rule of immunity as it had existed in the state of Florida. The case is frequently referred to as constituting the first successful breakthrough in the repudiation of the municipal immunity rule. (See Prosser on Torts, [3rd Ed.] § 125 et. seq.) There a claim for wrongful death was made by Hargrove's widow against the city. She alleged Hargrove died from smoke suffocation after being left unattended by the jailer in the city jail. In holding that a city may be liable for the torts of police officers under the doctrine of respondeat superior, the court said the rule that a municipality is immune from liability for wrongful acts committed in the exercise of its governmental functions was a rule originated by the courts; therefore, is subject to abolition by the courts, and for such purpose, legislation is unnecessary.

A few of the cases from other states cited by the plaintiff which he contends display the trend toward abolition of the doctrine are Molitor v. Kaneland Com. Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, cert. den. 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900, 86 A.L.R.2d 469; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107; and Haney v. City of Lexington (Ky.), 386 S.W.2d 738.

It is significant to note that in several of the states where the courts have taken upon themselves the task of abrogating the doctrine, ...