Washington v. State
| Decision Date | 16 October 1992 |
| Docket Number | No. 67194,67194 |
| Citation | 17 Kan.App.2d 518,839 P.2d 555 |
| Parties | Lee WASHINGTON II, Appellant/Cross-Appellee, v. STATE of Kansas, Appellee/Cross-Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. In the absence of a "special relationship," there is no duty on an actor to control the conduct of a third person to prevent harm to others. A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another.
2. Prison officials owe a duty of ordinary or reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners. This duty to provide reasonable care to protect an inmate from violence is not violated in the absence of a determination that the danger was known or, in the exercise of ordinary care, should have been known by a prison official.
3. The burden is on the governmental entity to establish immunity under one of the exceptions in K.S.A.1991 Supp. 75-6104. The discretionary function exception is not applicable in situations where a legal duty exists, either by case law or by statute.
4. Where a government employee (1) possesses the power of a law enforcement officer and (2) breaches a specific duty owed to an individual rather than the public at large, the K.S.A.1991 Supp. 75-6104(n) police protection exemption will not protect the State from liability.
Dennis E. Mitchell, Kansas City, for appellant/cross appellee.
Lou Allen, Sp. Asst. Atty. Gen., Topeka, for appellee/cross-appellant.
Before BRISCOE, C.J., BRAZIL, J., and KAREN M. HUMPHREYS, District Judge, assigned.
Lee Washington II appeals and the State cross-appeals from the district court's order granting summary judgment in favor of the State in a negligence action filed pursuant to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. Washington is an inmate in Lansing Correctional Facility (formerly Kansas State Penitentiary). In this action, Washington seeks damages for personal injuries he sustained as a result of an attack upon him by another inmate, Timothy Vaughn. The district court concluded the discretionary function exception, K.S.A.1991 Supp. 75-6104(e), applied to this case and granted the State's motion for summary judgment.
Washington was in custody at Lansing when he observed Vaughn forcefully trying to sodomize another inmate. Washington attempted to intervene on the victim's behalf. As a result, he was attacked by Vaughn and a fight ensued. Correctional officers were summoned and both Washington and Vaughn were placed in the Adjustment and Treatment Unit (A & T) of the prison.
Approximately three weeks before Washington's release from A & T, Vaughn told Washington, "I'm going to get you." This threat was made while Vaughn was being escorted past Washington's cell. The next day, Vaughn made another statement to Washington to the effect that "it was just a matter of time." Vaughn also glared at Washington when he was escorted past Washington's cell. The officers escorting Vaughn allegedly witnessed all of this conduct. Washington verbally complained to an officer in A & T about these alleged statements and stated he feared another altercation would occur while he and Vaughn were in A & T.
A disciplinary hearing for each inmate was held on the same day before different hearing panels. Washington was found not guilty and was released from A & T the same morning as his hearing and returned to the general prison population. He was assigned to Upper B Cellhouse, Cell # 534. Vaughn was found guilty and sentenced to 45 days in disciplinary segregation, but was given credit for the time he had already served in A & T and released from A & T to the general prison population. He was assigned to Upper B Cellhouse, Cell # 542. Vaughn's cell was four cells away from Washington's.
Washington did not request protective custody upon being released from A & T because he did not anticipate being placed in the same cellhouse as Vaughn. It was Washington's understanding that inmates were separated after a fight and not housed in "close proximity." In this instance, prison officials had space available to assign the two inmates to different cellhouses.
On the same day as their release from A & T, while on their way to dinner, Vaughn stabbed Washington in the left eye with an ice pick. Although Washington underwent surgery for his injury at the Kansas University Medical Center, he suffered extensive, irreparable damage to his eye.
In this action, Washington alleged the prison officials knew of the likelihood of Vaughn's retaliation against Washington and acted negligently in assigning Washington and Vaughn to the same cellhouse without warning Washington or making some provision to protect Washington from Vaughn. The State filed a motion for summary judgment, arguing: (1) The prison officials did not breach any duty owed to Washington; (2) Washington's injuries were not proximately caused by the prison officials' acts or omissions; (3) the police function exception (K.S.A.1991 Supp. 75-6104[n] of the Kansas Tort Claims Act precluded Washington's recovery; and (4) the discretionary function exception (K.S.A.1991 Supp. 75-6104[e] of the Act also precluded Washington's recovery. The district court concluded the State did owe a duty to Washington to protect him from Vaughn, but held the State was not liable to Washington by virtue of the discretionary function exception.
The State cross-appeals from the court's finding regarding the duty of care owed by the State to Washington. The State contends the duty set forth in K.S.A.1991 Supp. 75-5210(a) requiring the State to treat inmates humanely was improperly expanded by the court by applying Restatement (Second) of Torts § 320 (1977) to create a special relationship between the State and Washington and a duty flowing from that relationship to exercise reasonable care to control Vaughn's conduct to prevent him from harming Washington.
Subject to the limitations of the Act, the State, a governmental entity as defined by K.S.A.1991 Supp. 75-6102(c), is liable for damages resulting from the negligent acts or omissions of its employees while acting within the scope of their employment under circumstances where a private person would also be liable under Kansas law. K.S.A. 75-6103(a). To recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Dietz v. Atchison, Topeka & Santa Fe Rwy. Co., 16 Kan.App.2d 342, 345, 823 P.2d 810 (1991). "Whether a duty exists is a question of law." Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). This court's review of the district court's conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
What duty did the State owe Washington? Did the State have a duty under Restatement (Second) of Torts §§ 315-320 (1977) to exercise reasonable care to control Vaughn and prevent him from harming Washington because of its special relationship with Washington or merely a duty to treat Washington humanely as required by K.S.A. 75-5210(a)? The question presented is one of first impression in this state.
As a general rule, in the absence of a "special relationship" there is no duty on an actor to control the conduct of a third person to prevent harm to others. McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991); Restatement (Second) of Torts § 315 (1977). A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Restatement (Second) of Torts §§ 316-320.
Washington relies upon Restatement (Second) of Torts to argue the State had a special relationship with both Washington and Vaughn which created a duty on behalf of the State to control Vaughn and protect Washington. Restatement (Second) of Torts § 315 states:
§ 319 states:
"One who takes charge of a third person whom he 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 from doing such harm."
§ 320 states:
Washington also relies upon Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), where the rule set forth in Restatement (Second) of Torts § 319 (1977) was adopted as the law of this state governing the duty owed to area residents and area law enforcement personnel by those in charge of persons with dangerous propensities. In that case, one of seven armed inmates who escaped from the penitentiary shot and severely wounded a police officer. The officer filed a personal injury action against the State. In...
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