Appeal from Sedgwick district court; PAUL W. CLARK, judge.
1. To establish a claim for wrongful death based on negligence, a plaintiff must prove the existence of a duty, breach of the duty, injury, and a causal connection between the breach of the duty and the injury suffered.
2. Whether there is a duty is a question of law, but whether the duty has been breached is a question of fact. Appellate courts review the question of whether a duty exists using a de novo standard.
3. The language of K.S.A. 8-1506 requires the drivers of emergency vehicles to "drive with due regard for the safety of all persons." The act of driving involves both mental and physical components including the decision to pursue or continue a pursuit of a fleeing law violator. Thus, any prior case law exempting the decision by the drivers of emergency vehicles to pursue or continue the pursuit of a fleeing law violator from the duty found in K.S.A. 8-1506 is overruled.
4. The language of K.S.A. 8-1506 requires a standard of care higher than mere negligence, obligating plaintiffs to establish more consequential, material, and wanton acts to support a breach of the standard of care.
5. K.S.A. 8-1506(d) states that the privileges provided by the statute do not "protect the driver from the consequences of reckless disregard for the safety of others." This language establishes "reckless disregard" as the standard of care for evaluating whether the driver of an emergency vehicle breached the duty to drive with due regard for the safety of all others.
6. The proper definition for reckless disregard as applied in K.S.A. 8-1506 is driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger.
7. When the plaintiff fails to establish a prima facie case of breach, a court may properly grant summary judgment.
8. Evidence sufficient for a prima facie case is that evidence which, if left unexplained or uncontradicted, would be sufficient to carry the case to the jury and sustain a verdict in favor of the plaintiff on the issue it supports.
The opinion of the court was delivered by: Rosen, J.
This is a wrongful death action brought against the City of Wichita, its chief of police, and several police officers for the death of Amy Robbins, who died as a result of a collision between the vehicle she was driving and a vehicle being pursued by Wichita police officers. Amy's husband, Gabriel Robbins, filed the lawsuit and now appeals the district court's decision to grant the defendants' motion for summary judgment on all of his claims.
The tragic events that led up to Amy Robbins' death began at approximately 11p.m. on October 5, 2004, when the Wichita Police Department received a 911 call from Sierra Roach. Sierra reported that her step-father, Jeffrey Drechsler, was causing a disturbance and had "messed up [the] house really badly." Drechsler had been drinking all evening and had locked Sierra out of the house. When Sierra returned to the house, she had a verbal altercation with Drechsler. Sierra's mother, Sharolyn Roach, stepped in between Sierra and Drechsler, and Drechsler started pushing both Sierra and Sharolyn. When Sierra called 911, Drechsler went into the attached garage of the residence. Sierra and Sharolyn then locked Drechsler in the garage. While Sierra was talking to the 911 operator, Drechsler began breaking in the door from the garage to the house with an ax.
The 911 operator relayed Sierra's address near Bayley and Waverly Streets in Wichita to the police dispatcher, who assigned Officer Brent Woodard to respond to the domestic violence call. While Officer Woodard was en route to Sierra's house, Drechsler broke through the door with the ax. Sierra escaped out the front door with the phone and continued to talk to the 911 operator. Sharolyn, however, did not get out of the house, and Drechsler began chasing her with the ax. Drechsler pinned Sharolyn on a bed with his hand on her throat and the ax over her head. Drechsler then let Sharolyn off the bed and returned to the garage. Sharolyn ran out the door and hid outside the house. From their hiding places, Sharolyn and Sierra observed Drechsler break the windows in Sharolyn's car.
Before Officer Woodard reached Sierra's house, the dispatcher gave him a description of Drechsler and Drechsler's truck. The dispatcher further advised Officer Woodard that Drechsler had an ax. Officer Woodard asked the dispatcher for more information about what Drechsler was doing with the ax. The dispatcher replied that Drechsler was breaking in the door and further advised Officer Woodard that Sharolyn was in the house with Drechsler.
When Officer Woodard arrived at Sierra's house at 11:04 p.m., he parked two or three houses away on Waverly Street and approached the house on foot for safety reasons. While he was walking up to the house, he observed Drechsler get in the truck and leave. Officer Woodard could not see if Drechsler still had the ax. Officer Woodard returned to his vehicle and drove up behind Drechsler as Drechsler reached the intersection of Waverly and Lincoln. Officer Woodard activated his overhead lights to signal Drechsler to stop. Drechsler did not stop and proceeded to turn right onto eastbound Lincoln, driving with his headlights off. Officer Woodard activated his siren and began to pursue Drechsler.
Officer Pryor and her partner Officer Cornish were about a half block away when Drechsler drove away from the house. A few moments later, they observed Officer Woodard pursuing Drechsler with his lights and siren operating. Officer Pryor activated her lights and siren and began pursuing Drechsler behind Officer Woodard. Officer Pryer was approximately 3 to 4 car-lengths behind Officer Woodard.
Traffic was light on Lincoln. Although Drechsler did not accelerate rapidly, he drove through a green light at the intersection of Lincoln and Woodlawn going approximately 50 miles per hour. Drechsler then accelerated to approximately 70 miles per hour on Lincoln, with Officer Woodard about 75 to 100 yards behind him.
When Drechsler reached the intersection of Lincoln and Rock Road, the traffic light was red. Drechsler ignored the light and proceeded into the intersection, decelerating slightly so he could turn right and go southbound on Rock Road toward Harry Street. As Drechsler made the turn, he traveled across the two southbound lanes, through the left turn lane, and into the northbound lanes of Rock Road. After driving southbound in the northbound lanes of Rock Road for approximately one-half block to one block, Drechsler returned to the southbound lanes and began accelerating to 65 or 70 miles per hour. Officers Woodard and Pryor slowed down at the intersection of Lincoln and Rock Road to clear the intersection safely. Although there was no other traffic at the intersection, traffic on Rock Road was a little heavier than that on Lincoln. Officers Woodard and Pryor accelerated after the intersection to speeds of 65 to 70 miles per hour. Officer Woodard continued to pursue Drechsler down Rock Road, remaining about 75 to 100 yards behind Drechsler.
Officer Jackson heard Officer Woodard reporting the pursuit on the radio while he was driving on Harry near Rock Road. Planning to put spikes in the road to stop Drechsler's truck, Officer Jackson parked near the intersection of Harry and Rock Road and activated his overhead lights. However, Officer Jackson was unable to deploy the spikes because he could not locate any spikes in his vehicle. As Officer Jackson returned to his patrol car, he observed Drechsler ...