Schmidt v. HTG, Inc.

Citation961 P.2d 677,265 Kan. 372
Decision Date05 June 1998
Docket NumberNos. 79039,79040,s. 79039
PartiesSCHMIDT, et al., Appellees/Cross-appellants, v. HTG, INC., et al., Appellants/Cross-appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. When a 42 U.S.C. § 1983 (1994) claim is asserted, a State actor may not generally be held liable under the Due Process Clause of the United States Constitution for private misdeeds. The elements necessary to prove one of the recognized exceptions to this rule, the danger creation theory, are: (1) The plaintiff/victim must be a member of a limited and specifically definable group; (2) the defendant's conduct specifically put members of that group at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and, (5) the conduct, when viewed in the totality of the circumstances, is shocking to the conscience.

2. Under the facts of this case, the trial court properly determined that the State actor's conduct was not reckless and did not shock the court's conscience, as there was no proof that the State actor was aware of a risk so great that it was highly probable that the injuries would follow or that the State actor proceeded in conscious disregard of a known danger.

3. Negligence only exists where there is a duty owed by one person to another and a breach of that duty occurs. In order to recover, one must show a causal connection between a duty breached and an injury received.

4. Generally, in the absence of a "special relationship," one has no duty to control the conduct of a third party to prevent harm to others. A special relationship may exist, however, with persons in charge of one with dangerous propensities or persons with custody of another.

5. One who takes charge of a third person whom he or she knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him or her from doing such harm.

6. A parole officer does not take charge or exercise control over a parolee so as to create a special relationship between the officer and the parolee, thereby imposing a duty upon the State to control the conduct of the parolee to prevent harm to other persons or property. The State is not the virtual guarantor of the safety of each and every one of its citizens from illegal and unlawful actions of every parolee or person released from custody under any type or kind of supervision.

7. In the absence of a specific threat of harm, the State has no common-law duty to warn third parties of the dangerous propensities of parolees.

8. Liability cannot be established by the failure to follow a written personnel policy unless an independent duty of care is owed to the injured party.

9. Although an employer may be liable for injuries to a third person which are the result of the incompetence or unfitness of an employee where the employer was negligent in employing or retaining the employee when the employer knew or should have known of such incompetence or unfitness of the employee, liability normally only attaches to acts occurring at the employer's business location or committed during the conduct of the employer's business.

10. In order to find an employer liable for negligently hiring or retaining an employee, there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of the employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of continued employment of that employee; and the harm which results must be within the risk created by the known propensity.

11. Employers are not required to ascertain the detailed history of every employee, nor must they terminate the employment of an individual who is performing acceptable services and is clearly not unfit or incompetent, but who does pose some degree of risk due to previous actions.

Donald Patterson, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and Michael K. Seck, of the same firm, Overland Park, was on the briefs, for appellants/cross-appellees HTG, Inc. d/b/a Hamilton's and Thomas E. Hamilton.

Lisa A. Mendoza, Special Assistant Attorney General, argued the cause, and Edward F. Britton, Jr., of Kansas Department of Corrections, was on the briefs, for appellants/cross-appellees Kansas Department of Corrections and Robert Schirk.

Timothy A. Short, of Spigarelli, McLane & Short, Pittsburg, and James F. Adler, of Adler & Manson, L.C., Kansas City, MO, argued the cause, and Carlton Kennard, Esq., Pittsburg, was with them on the briefs, for appellees/cross-appellants.

LARSON, Justice:

Gene and Peggy Schmidt, individually and as heirs of their daughter Stephanie Schmidt, and Gene as administrator of her estate, brought these personal injury and wrongful death actions against Stephanie's former employer, HTG, Inc. d/b/a Hamilton's, Thomas E. Hamilton, the Kansas Department of Corrections (KDOC), and Robert Schirk, a state parole officer. On June 30, 1993, Stephanie was raped and killed by Donald Ray Gideon, who had been conditionally released from prison by mandatory operation of law and was under the supervision of Schirk. The Schmidts contend that Stephanie's death was a result of the KDOC's and Schirk's failure to notify Hamilton, Gideon's employer, of defendant's prior convictions for rape and aggravated sodomy and that Hamilton negligently hired and retained Gideon as an employee. A 42 U.S.C. § 1983 (1995) claim was also made against the KDOC and Schirk.

The defendants moved for summary judgment, essentially alleging there was no duty owed to Stephanie, causation was lacking, and the KDOC and Schirk were entitled to immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The trial court granted Schirk and the KDOC summary judgment regarding the Schmidts' § 1983 claims, but denied the remaining summary judgment motions. The trial court granted permission for the defendants to file an interlocutory appeal and for the Schmidts to file their cross-appeal. The cases were consolidated and transferred to us pursuant to K.S.A. 20-3018(c).

Factual Statement

Donald Ray Gideon was conditionally released from prison by mandatory operation of law on November 5, 1992, having served approximately 10 years in prison for convictions of aggravated rape and sodomy of a young college woman. Prior to his mandatory release, Gideon had been denied parole at every prior parole hearing. Gideon completed the Sexual Offender Treatment Program while incarcerated.

Gideon was supervised by Robert Schirk. Schirk had worked for the KDOC for 12 years as a parole officer and had completed its basic and annual training requirements. He had previously supervised other sex offenders.

Schirk completed a Risk and Needs Assessment of Gideon to determine his level of risk and likelihood of reoffending and to establish the level of supervision he required. Gideon was assessed as high risk, although the KDOC policy so classifies all sex offenders.

When released, Gideon signed a conditional release certificate imposing certain conditions on his release. In addition to these requirements, Schirk ordered Gideon to meet with a mental health therapist and to obtain employment. Schirk possessed the inherent authority to impose additional conditions of release if warranted.

In 1992 and 1993, the KDOC had an unwritten policy which required the parole officer to give notice of a parolee's criminal history to any third party who was determined, in the parole officer's discretion, to be at risk through association with a parolee. The present policy regarding third-party notification has been reduced to writing and requires employer notification of a parolee's criminal history.

HTG, Inc. d/b/a Hamilton's opened for business in Pittsburg, Kansas, in December 1992. Hamilton had agreed to manage the restaurant for HTG, Inc. Hamilton hired and fired all employees of the restaurant. He had extensive experience in the food service industry and had hired approximately 1,000 employees. He had never run a records check on any potential employee, nor had he ever fired, or been told to fire, anyone for falsifying an employment application.

Gideon initially was employed at Superior Industries but quit soon thereafter. Gideon then obtained employment at Hamilton's Restaurant in December 1992, without any involvement of Schirk. Gideon did not inform Hamilton of defendant's criminal record or tell him he was on parole. Hamilton did not run a background check on Gideon before hiring him, nor did he check Gideon's references or employment history.

Hamilton also hired Stephanie, a Pittsburg State University student, who started working in December 1992. She remained employed until mid-June 1993, when she left Hamilton's after a dispute and did not return.

In February 1993, Gideon admitted to Hamilton he had been in prison and was on parole. Gideon lied to Hamilton and stated he had been incarcerated as a result of a bar fight where he had severely beaten a man with an axe handle. Hamilton never attempted to verify this story, which eventually became generally known by the other employees at Hamilton's, including Stephanie.

Hamilton learned Gideon had a parole officer and was attending counseling. Gideon informed Schirk that Hamilton knew he was on parole, but Schirk never contacted Hamilton to determine if the information divulged was correct. Hamilton had a chance meeting with Schirk at a convenience store in May or June 1993, in which Hamilton told Schirk that Gideon was doing fine at his job. Hamilton did not inquire about Gideon's conviction, nor did Schirk volunteer any information.

Hamilton never...

To continue reading

Request your trial
70 cases
  • Henderson v. Montgomery Cnty. Bd. of Comm'rs, No. 120,369
    • United States
    • Court of Appeals of Kansas
    • February 7, 2020
    ...deprives the State of immunity under the discretionary function exception." ’ Thomas , 293 Kan. at 236 (quoting Schmidt v. HTG, Inc. , 265 Kan. 372, 392, 961 P.2d 677 [(1998)] )." Hill v. State , 310 Kan. 490, 510-11, 448 P.3d 457 (2019).Henderson then contends that when viewed in the light......
  • Hansen v. Scott
    • United States
    • United States State Supreme Court of North Dakota
    • June 10, 2002
    ...Relying on the Restatement (Second) of Torts §§ 315 and 319 (1965) and the majority view expressed in cases like Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677 (1998), the Texas defendants respond North Dakota law does not recognize a tort duty in this case because parole officials do not......
  • Adams v. Board of Sedgwick County Com'Rs, 99,195.
    • United States
    • United States State Supreme Court of Kansas
    • September 4, 2009
    ...employer's premises and, while off duty, injured other persons). The case most analogous to the facts in this case is Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, cert. denied 525 U.S. 964, 119 S.Ct. 409, 142 L.Ed.2d 332 (1998), which was relied on heavily in Hesler. In that case, the ......
  • Harter v. United States, Case No. 2:17-CV-2398-JAR-GEB
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 26, 2018
    ..., 279 Kan. 726, 112 P.3d 232 (2005) ); Kirk v. City of Shawnee, 27 Kan.App.2d 946, 10 P.3d 27, 31 (2000) (citing Schmidt v. HTG, Inc. , 265 Kan. 372, 961 P.2d 677, 689 (1998), cert. denied 525 U.S. 964, 119 S.Ct. 409, 142 L.Ed.2d 332 (1998) ); McGee By and Through McGee v. Chalfant , 248 Ka......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT