Robertson v. City of Topeka

• Decision Date: 08 May 1982
• Docket Number: No. 53613,53613
• Citation: 231 Kan. 358,644 P.2d 458
• Parties: William F. ROBERTSON, Appellant, v. CITY OF TOPEKA, Randy Mills, James Weckwerth, and Craig Fox, Appellees.
• Court: Kansas Supreme Court

Page 458

644 P.2d 458

231 Kan. 358

William F. ROBERTSON, Appellant, v. CITY OF TOPEKA, Randy Mills, James Weckwerth, and Craig Fox Appellees.

No. 53613.

Supreme Court of Kansas.

May 8, 1982.

Syllabus by the Court

1. In determining whether an action falls within the discretionary function exception of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6104(d ), the concern of the court should be the nature and quality of the discretion exercised rather than the status of the employee exercising that discretion.

2. In tort law, it is generally held that the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large, not to a particular individual. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.

Fred W. Phelps, Jr., of Phelps-Chartered, Topeka, was on the brief for appellant.

Leonard M. Robinson, Deputy City Atty., was on the brief for appellees.

SCHROEDER, Chief Justice:

Plaintiff William F. Robertson appeals from a judgment dismissing a negligence action for failure to state a claim upon which relief can be granted. K.S.A. 60-212(b )(6). Robertson sued the City of Topeka and three officers of the Topeka Police Department for damages sustained to real property he owns in the City of Topeka. He alleges the officers negligently failed to evict a trespasser from the property. The discretionary function exception in the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., is implicated.

Whether dismissal pursuant to K.S.A. 60-212(b )(6) was appropriate must be decided from the well-pleaded facts of plaintiff's petition. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413, 479 P.2d 875 (1971); Robertson v. McCune, 205 Kan. 696, 700, 472 P.2d 215 (1970); Knight v. Neodesha Police Dept., 5 Kan.App.2d 472, 475, 620 P.2d 837 (1980). For purposes of review, this court assumes the facts pleaded to be true.

Briefly, the petition reveals the following. On March 17, 1980, Leroy Danner was on property owned by the plaintiff at 1628 East Third Street in Topeka. Plaintiff called the police to assist in removing Danner from the property. Officers Mills, Weckwerth, and Fox, defendants in this action, responded to the call. Plaintiff advised the officers that Danner had no right to be on the property, that he was intoxicated, and that he would most likely burn the house down if he remained. The officers refused to remove Mr. Danner from the premises and directed plaintiff to leave the premises. Approximately fifteen minutes later, the house burned.

After the Board of Commissioners of the City of Topeka denied a claim for reimbursement for fire damage, plaintiff filed this negligence action on November 24, 1980, alleging defendants failed to carry out a duty to protect plaintiff's property. On January 15, 1981, the defendants moved to dismiss for failure to state a claim upon which relief could be granted. In its memorandum decision and order of August 6, 1981, the trial court found the actions of the police officers discretionary and as such exempt from liability under K.S.A.1981 Supp. 75-6104(d ) of the Kansas Tort Claims Act. K.S.A.1981 Supp. 75-6101 et seq. Accordingly, the court sustained the defendants' motion to dismiss. Plaintiff appeals from that order, contending the trial court erred in dismissing the action.

The scope of our review on a motion to dismiss has been stated in the following manner:

"The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim."

Weil & Associates v. Urban Renewal Agency, 206 Kan. at 413, 479 P.2d 875. Followed in: Knight v. Neodesha Police Dept., 5 Kan.App.2d at 475, 620 P.2d 837.

Even with the advent of notice pleading, it is incumbent upon a person asserting a claim against a public officer to make at least some allegation which, if true, would tend to establish that immunity was not a bar to the claim. Hendrix v. City of Topeka, 231 Kan. 113, Syl. P 5, 643 P.2d 129 (1982).

Determination of the issue in this case requires examination of the Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6101, et seq. We will make no attempt to survey the history of governmental immunity in Kansas. Instead, we refer the reader to our past decisions which have been reviewed extensively. See, e.g., Report on Kansas Legislative Interim Studies to the 1979 Legislature, filed with the Legislative Coordinating Council December 1978, pp. 269-73; Note, Governmental Liability: The Kansas Tort Claims Act (or the King Can Do Wrong ), 19 Washburn L.J. 260 (1980); Harley and Wasinger, Governmental Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12 (1976); Comment, Governmental Immunity in Kansas: Prospects for Enlightened Change, 19 Kan.L.Rev. 211 (1971).

The Kansas Tort Claims Act charts a new course, establishing governmental liability for tort claims as the general rule subject to enumerated exceptions. We would note at the outset, however, that the number of exceptions enumerated in K.S.A.1981 Supp. 75-6104 indicates there has been no wholesale rejection of immunity by the Kansas Legislature.

K.S.A.1981 Supp. 75-6103(a ) states the general rule:

"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." (Emphasis added.)

The specific exception to liability relied on by the trial court in dismissing this action is included among exceptions enumerated in K.S.A.1981 Supp. 75-6104:

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

....

"(d ) Any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused."

The Federal Tort Claims Act, codified at 28 U.S.C. § 2671 et seq., contains a similar provision at § 2680(a ):

"The provisions of this chapter and section 1346(b) of this title shall not apply to-

"(a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

Federal cases interpreting that "discretionary function" exception employ a variety of rationales. One federal court surveyed the cases and stated: "Rather than a seamless web ... we found the law in this area to be a patchwork quilt." Blessing v. United States, 447 F.Supp. 1160, 1167 (E.D.Pa.1978). Extensive footnotes in the Blessing opinion detail approaches federal courts have taken in applying the discretionary function exception generally. See also 2 L. Jayson, Personal Injury, Handling Federal Tort Claims, § 249.07 (1978). The more narrow area of claims based on law enforcement evokes equally varied approaches. See generally Annot., 36 ALR Fed. 240 (1978).

Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the seminal decision interpreting the discretionary function exception of the Federal Tort Claims Act, relied on a planning level-operational level test to determine events leading to an explosion of ammonium nitrate fertilizer fell within the discretionary function. "The decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government's fertilizer program." 346 U.S. at 42, 73 S.Ct. at 956. Dalehite was distinguished in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), a suit to recover damages resulting from the government's alleged negligent operation of a lighthouse. The court held the government exercised discretion in establishing the lighthouse but, once established, there was a duty to maintain it. With the Indian Towing opinion the debate was on as to the parameters of the discretionary function exception and the validity of a so-called planning level-operational level test. See 2 L. Jayson, Personal Injury, Handling Federal Tort Claims, § 249.07 (1978).

Another test developed within the federal circuits: "(W)hether the judgments of a Government employee are of 'the nature and quality' which Congress intended to put beyond judicial review." Downs v. United States, 522 F.2d 990, 997 (6th Cir. 1975). In Downs, the survivors of victims who died in an airplane hijacking alleged an FBI agent's negligence in handling the situation caused the deaths. The government argued the actions of the agent fell within the discretionary function exception. The court noted that "(j)udgment is exercised in almost every human endeavor," 522 F.2d at 995, so that factor alone cannot be determinative of immunity. The court determined the intent of the federal act to be protection at the policy formulation level. 552 F.2d at 996. Since handbook procedures had been developed for use in responding to a hijacking, the agent's actions were not within the discretionary function exception. Other courts have rejected the planning level-operational level test with its primary focus on the employee's status. See, e.g. Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); Luizzo v. United States, 508 F.Supp. 923 (E.D.Michigan 1981); DePass v. United States, 479 F.Supp. 373 (D.Maryland 1979).

We turn now to interpretation of the discretionary function...