Thornton v. Shore

• Decision Date: 07 July 1983
• Docket Number: 54930,Nos. 54477,s. 54477
• Citation: 666 P.2d 655,233 Kan. 737
• Parties: Charles R. THORNTON, Appellant, v. Victor L. SHORE, Donald L. Bender, and Virginia McCue, Administrator of the Estate of Kenneth E. McCue, III, Deceased, Appellees. Kenneth E. McCUE and Virginia McCue, Appellants, v. Victor L. SHORE; Donald L. Bender; State of Kansas; and the City of Lawrence, Kansas, a municipal corporation, Appellees.
• Court: Kansas Supreme Court

Page 655

666 P.2d 655

233 Kan. 737

Charles R. THORNTON, Appellant, v. Victor L. SHORE, Donald L. Bender, and Virginia McCue,

Administrator of the Estate of Kenneth E. McCue,

III, Deceased, Appellees.

Kenneth E. McCUE and Virginia McCue, Appellants, v. Victor L. SHORE; Donald L. Bender; State of Kansas; and the City of Lawrence, Kansas, a municipal

corporation, Appellees.

Nos. 54477, 54930.

Supreme Court of Kansas.

July 7, 1983.

Syllabus by the Court

1. The law relative to authorized emergency vehicles is stated and applied.

2. K.S.A. 8-1506 grants privileges and immunities to the driver of an emergency vehicle while making an emergency run when such driver is operating his vehicle in compliance with the statute.

3. The duty of a driver upon the immediate approach of an authorized emergency vehicle with activated visual and audible signal devices is to yield the right-of-way by pulling parallel and as close as possible to the right edge or side of the road, clear of any intersection, and remain there until the emergency vehicle has passed.

4. The required activation of audible and visual signal devices by an authorized emergency vehicle serves a twofold purpose. Such signals: (1) give a safety warning to other users of the roadway; and (2) assist in clearing a path for the emergency vehicle to travel. In the case of a police vehicle attempting to stop a law violator, such signals serve a third purpose--to advise the violator to stop his vehicle.

5. The driver of an emergency vehicle has a right to assume other drivers will obey the law. He is entitled to rely on this assumption until he has knowledge to the contrary.

6. The privileges granted by K.S.A. 8-1506 do not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons and does not protect the driver from the consequences of reckless disregard for the safety of others (K.S.A. 8-1506[d ].

7. The test of due regard (due care), as applied to the driver of an emergency vehicle, is whether with the privileges and immunities provided by K.S.A. 8-1506 he acted as a reasonably careful driver.

8. The duties placed upon the driver of an emergency vehicle by K.S.A. 8-1506(d ) relative to driving with due regard for the safety of others applies exclusively to the operation of the emergency vehicle itself.

9. A police officer has a duty to apprehend and arrest law violators.

10. A police officer operating his emergency vehicle in compliance with K.S.A. 8-1506(d ) while pursuing a law violator is granted privileges and immunities by the statute and is not liable, as a matter of law, for reckless and negligent acts committed by the fleeing law violator. The police officer is not the insurer of the law violator he is pursuing.

11. In consolidated wrongful death actions where decedents were killed in a collision between their vehicle and that of a fleeing law violator, the record is examined and it is held: the district court did not err in entering summary judgment in favor of defendant police officer who was pursuing the law violator in a high speed chase at the time of the collision although the district court mistakenly relied in part on the discretionary function exemption set forth in K.S.A.1982 Supp. 75-6104(d ) of the Kansas Tort Claims Act (K.S.A.1982 Supp. 75-6101 et seq.) in reaching its decision.

James E. Rumsey of Rumsey & Hooge, Lawrence, argued the cause and was on the brief for the appellant in No. 54477.

Leslie A. Kulick, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief for appellees in both cases.

Michael E. Riling of Riling, Norwood, Burkhead & Fairchild, Chartered, Lawrence, argued the cause, and Wesley M. Norwood, Lawrence, was with him on the brief for appellants in No. 54930.

McFARLAND, Justice:

Charles R. Thornton, Kenneth E. McCue and Virginia McCue, plaintiffs in these consolidated wrongful death actions, appeal from the district court's entry of summary judgment in favor of defendant police officer, Victor L. Shore. Plaintiffs' decedents were killed when their automobile was struck by a vehicle driven by defendant Donald Bender. At the time of the collision, the Bender vehicle was being pursued by Officer Shore who was attempting to arrest Bender for multiple traffic violations. The district court found Officer Shore operated his vehicle in compliance with K.S.A. 8-1506 and, accordingly, was immune from liability pursuant to K.S.A.1982 Supp. 75-6104(d ) of the Kansas Tort Claims Act (K.S.A.1982 Supp. 75-6101 et seq.). On appeal plaintiffs challenge the propriety of this determination.

The uncontroverted facts must be set forth in detail. On November 18, 1979, defendant Victor L. Shore, a Kansas University Police Officer, was in a marked patrol car which was parked on Jayhawk Boulevard across from Hoch Auditorium on the university campus. The officer was performing radar speed checks on passing vehicles. At about 1:30 a.m. a blue 1978 Jeep, later found to be registered to and driven by defendant Donald L. Bender, went by Officer Shore at 15 miles per hour (m.p.h.) above the posted 20 m.p.h. speed limit. Officer Shore activated his overhead emergency warning lights and pulled up behind the Jeep. Instead of stopping, the Jeep speeded up. The officer then turned on his siren. In response thereto, the Jeep slowed down briefly but then accelerated. In short order, with Officer Shore in pursuit, Bender committed numerous other traffic violations including attempting to elude the officer, speeding, running stop signs and reckless driving.

The route of the chase was Jayhawk Boulevard to West Campus Road to Eleventh Street, briefly onto Mississippi Street, then back to Eleventh Street. At the intersection of Eleventh and Connecticut streets, slightly east of the Lawrence downtown area, Bender ran a stop sign and collided with the McCue vehicle, killing Kenneth E. McCue, III, and Margie Thornton. Bender, who had consumed beer and smoked marijuana during the evening, was subsequently convicted of involuntary manslaughter.

Throughout the chase, Officer Shore had his emergency lights and siren activated and informed his dispatcher of the pursuit. The officer was about a half block behind the Jeep at the time of the collision.

Plaintiff Charles R. Thornton, father of decedent Margie Thornton, brought a wrongful death action against Victor L. Shore, Donald Bender and Virginia McCue, as administrator of the estate of Kenneth E. McCue, III. Summary judgment was entered in favor of defendant Shore. On appeal, the judgment was affirmed by an equally divided court. Thornton v. Shore, 232 Kan. 394, 654 P.2d 475 (1982). Subsequently, plaintiff's motion for rehearing was granted and the appeal was consolidated with that of McCue v. Shore hereinafter discussed.

Kenneth E. McCue and Virginia McCue, parents of decedent Kenneth E. McCue, III, brought a wrongful death action against Victor L. Shore, Donald Bender, State of Kansas, and the City of Lawrence. Summary judgment was entered in favor of Officer Shore and plaintiffs appeal therefrom.

As previously noted, this consolidated appeal is concerned solely with the propriety of the summary judgment entered in each case in favor of Officer Shore. The district court found, as a matter of law, Officer Shore had operated his vehicle in compliance with the emergency vehicle statute, K.S.A. 8-1506 and, based thereon, was immune from liability pursuant to K.S.A.1982 Supp. 75-6104(d ) of the Kansas Tort Claims Act (K.S.A.1982 Supp. 75-6101 et seq.). We agree with the district court's ultimate determination that Officer Shore had no liability and hence was entitled to summary judgment herein. However, we reach that conclusion on a different rationale.

K.S.A. 8-1506 provides:

"(a ) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

"(b ) The driver of an authorized emergency vehicle may:

"(1) Park or stand, irrespective of the provisions of this article;

"(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

"(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;

"(4) Disregard regulations governing direction of movement or turning in specified directions; and

"(5) Proceed through toll booths on roads or bridges without stopping for payment of tolls, but only after slowing down as may be necessary for safe operation and the picking up or returning of toll cards.

"(c ) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.

"(d ) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others." (Emphasis supplied.)

It is undisputed Officer Shore, at all times in question, was the "driver of an authorized emergency vehicle ... in the pursuit of [a] ... violator of the law." It is also uncontroverted Officer Shore's vehicle did not collide with decedent's vehicle and was not physically involved in the tragic collision which took the lives of Margie Thornton and Kenneth E. McCue, III. It is further undisputed the visual and audible signal devices specified in K.S.A. 8-1506(c ) were...