Woodruff v. City of Ottawa, 77490

• Decision Date: 30 December 1997
• Docket Number: No. 77490,77490
• Citation: 263 Kan. 557,951 P.2d 953
• Parties: Rebecca WOODRUFF, Individually, Max Woodruff, Individually, and Rebecca and Max Woodruff, for and on behalf of Morgan Elizabeth Woodruff, Deceased, Appellants, v. The CITY OF OTTAWA, Kansas, a Kansas municipality, Appellee, and The City of Ottawa Police Department, Jeff Herrman, in his Representative Capacity as Police Chief for the City of Ottawa Police Department, Defendants.
• Court: Kansas Supreme Court

Page 953

951 P.2d 953

263 Kan. 557

Rebecca WOODRUFF, Individually, Max Woodruff, Individually, and Rebecca and Max Woodruff, for and on behalf of Morgan Elizabeth Woodruff, Deceased, Appellants, v. The CITY OF OTTAWA, Kansas, a Kansas municipality, Appellee, and The City of Ottawa Police Department, Jeff Herrman, in his

Representative Capacity as Police Chief for the

City of Ottawa Police Department, Defendants.

No. 77490.

Supreme Court of Kansas.

Dec. 30, 1997.

Syllabus by the Court

1. Rules regarding summary judgment are stated.

2. For an individual to be liable for a negligent or wrongful act, there must be a duty to act. Therefore, the injured party must show: (1) a causal connection between the duty breached and the injury received and (2) damage from negligence. An accident which is not reasonably foreseeable by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action.

3. Under the common law, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.

4. Under the Kansas Constitution, the primary lawmaking body is the legislature. Courts must respect legislative expressions when determining or forming public policy. Given the right to form public policy by the legislature, courts are faced with three different situations: (1) The legislature has clearly declared the public policy of the state; (2) the legislature, though not directly declaring public policy, has enacted statutory provisions from which public policy may reasonably be implied; or (3) the legislature has not made a clear statement of public policy or such a policy cannot be reasonably implied.

5. Subject to the limitations of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., 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.

6. The Kansas Tort Claims Act provides immunity from liability [263 Kan. 558] for "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 is abused." K.S.A. 75-6104(e). The Act places the burden upon the

governmental entity or employee to establish entitlement to any of the exceptions to liability set forth in K.S.A. 75-6104

7. The declaration of public policy of whether an action may be brought pursuant to a statute is a function of the legislative branch of our government.

8. After the decision in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), the legislature made a clear statement that this court had wrongly interpreted K.S.A. 75-6104 (Ensley 1984) by amending the statute in 1987. K.S.A. 75-6104 now provides that governmental employees when exercising discretion are immune from tort liability resulting from adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons' health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence.

9. An oral instruction from a supervising officer to another officer to observe an intoxicated person falls within the discretionary function exception of K.S.A. 75-6104(e) and does not create a special relationship with or a specific duty owed to plaintiffs injured by the intoxicated person.

Ronald P. Pope, of Eugene B. Ralston & Associates, Topeka, argued the cause and was on the brief, for appellant.

Michael K. Seck, of Fisher, Patterson, Sayler & Smith, L.L.P., Overland Park, argued the cause and was on the brief, for appellee.

LOCKETT, Justice.

Plaintiffs Rebecca and Max Woodruff brought an action against the City of Ottawa, Kansas, (City) for wrongful death and personal injury arising when the Woodruffs' car was struck by an automobile driven by Douglas A. Totton, who was operating his vehicle under the influence of alcohol. At the time of the accident, [263 Kan. 559] Rebecca Woodruff was pregnant with a daughter who later died as a result of the accident. The plaintiffs alleged in the petition that they were injured due to the Ottawa police officers' failure to arrest, detain, and prevent the intoxicated Totton from driving his vehicle. The district court granted the City's motion for summary judgment, concluding that because the City did not have a written policy requiring an officer to arrest Totton or take him into custody to prevent him from operating a motor vehicle, the City owed no duty to the plaintiffs.

On March 26, 1994, Officers David Fitzgerald and Matthew Weidl, who were employed by the City police department, responded to a disturbance call at the Walkman's Club in Ottawa. When the officers arrived at the club, an altercation between Totton and Charles Likes had ended. Totton was inside the club and Likes was standing outside.

Officer Fitzgerald entered the club and ordered Totton to exit the club. Fitzgerald noted in his report that Totton appeared to be drunk. Neither Totton nor Likes pressed charges against the other, and no arrests were made. Neither Officer Fitzgerald nor Weidl saw Totton drive away. Fitzgerald stated that if he had observed Totton attempting to drive a vehicle, he would have advised Totton to find another way to leave. The City does not have a written policy which requires an officer to take an intoxicated individual into custody under such circumstances. The officers left to respond to another call before Totton left the premises. Shortly after Totton left the club, the vehicle he was driving collided with plaintiffs' vehicle, causing injury to the plaintiffs and the death of their unborn child.

Plaintiffs filed a wrongful death and personal injury action against the City, the City police department, and the Chief of Police. Plaintiffs alleged that Officers Fitzgerald and Weidl were negligent in failing to arrest, detain, or otherwise prevent Totton from operating a vehicle when they were aware he was under the influence of intoxicating liquor. The petition claimed that the defendant "owed a duty to the users of the roadway to have prevented an obviously intoxicated individual from operating a vehicle upon the roadways." Plaintiffs later dismissed the police department and the police chief from the suit.

[263 Kan. 560] Subsequently, the City filed a motion for summary judgment claiming that (1) the officers owed no duty to plaintiffs; (2) the officers were immune because the decision whether to take Totton into custody was a discretionary act under K.S.A. 75-6104 of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.; and (3) the officers' acts were not the proximate cause of plaintiffs' injuries. In ruling that the officers owed no duty to plaintiffs, the district court stated:

"[T]he damage to the Plaintiff[s] did not come to the Plaintiff[s] because [Totton] left the premises or failed to leave the premises.... [I]t came about because the person ordered to leave thereafter drove an automobile.

....

"I specifically note that uncontroverted fact six indicates the officer left to respond to another call before Totton left the premises....

"[Fact] Thirty-two of the Plaintiffs is [that] no officer was aware of Totton or Mr. Likes leaving after they were told to leave [the club].

"The duty that Plaintiffs appear to be urging that I hold upon the Defendants is that after they ordered Mr. Totton and Mr. Likes to leave, that the police officer assumed the duty to ensure that they did not thereafter violate any laws [as] persons in their condition were likely to do.

....

"I don't believe there's any indication that there's any policy that required them to assume that a person not then violating a law would violate the law in the future."

The district court granted the City's motion for summary judgment.

DISCUSSION

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Moorhouse v. City of Wichita, 259 Kan. 570, 575-76, 913 P.2d 172 (1996); Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).

For an individual to be liable for a negligent or wrongful act, there must be a duty to act. Therefore, the injured party must show: (1) a causal connection between the duty breached and the injury received and (2) damage from negligence. An accident which is not reasonably foreseeable by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). The general rule is that an actor has no duty to control the conduct of third person to prevent that person from causing harm to others unless a "special relationship" exists between the actor and the third party or the actor and the injured party. Restatement (Second) of Torts § 315 (1963). See Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988).

Here, the duty alleged by the plaintiffs was that the police officers were required to control and prevent the intoxicated Totton from causing harm to the plaintiffs. Whether a duty to the plaintiffs exists is a question of law. Determining whether the duty has been breached and whether there is a...