Montgomery v. Saleh

         SYLLABUS BY THE COURT

         1. In an appeal from the district court's ruling on a summary judgment motion, the appellate court considers the motion de novo and applies the same standards which the district court applied.

         2. Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. K.S.A. 2016 Supp. 60-256(c)(2).

         3. Any court considering a summary judgment motion must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the summary judgment motion is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. The court must deny a motion for summary judgment if reasonable minds could differ as to the conclusions drawn from the evidence.

         4. In actions based on negligence, summary judgment should be granted with caution.

         5. Summary judgment for a defendant is proper when a plaintiff fails to establish a prima facie case. 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.

         6. A plaintiff must establish the existence of a legal duty as part of a prima facie case of negligence. A legal duty must be specific as to a particular individual and not simply a duty to the public at large.

         7. The public duty doctrine expresses the general rule that absent a special duty, law enforcement duties are owed to the public at large and not to any specific person.

         8. K.S.A. 8-1506 excuses drivers of authorized emergency vehicles from following traffic laws under certain conditions. But K.S.A. 8-1506(d) provides: "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." This provision applies to a law enforcement officer's pursuit of a fleeing suspect. The plain language of K.S.A. 8-1506 creates a duty under which law enforcement can be held liable for injuries sustained by third parties in the course of a police chase. The officer's duty to "drive with due regard for the safety of all others" includes the officer's manner of operating the officer's vehicle, the decision to initiate the pursuit, and the decision to continue to pursue the suspect. K.S.A. 8-1506. If an officer is reckless in any of these aspects, then the officer may be held liable for injuries caused or contributed to by the officer's reckless conduct.

         9. Whether there is a causal connection between the breach of a duty and the injuries sustained is a question of fact.

         10. Proximate cause includes two concepts: causation-in-fact and legal causation. To prove causation-in-fact, a plaintiff must prove a cause-and-effect relationship between a defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred. Legal causation considers whether it is foreseeable that the defendant's conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes were foreseeable. Proximate cause is a question of fact unless all of the evidence on which a party relies is undisputed and susceptible of only one inference.

         11. Causation, like any other fact question, may be shown by circumstantial evidence. At the summary judgment stage, courts view the available circumstantial evidence in the light favoring the nonmoving party. In order for circumstantial evidence to be sufficient to sustain a factual finding in a civil case, the evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. Rather, the evidence is sufficient if it affords a basis for a reasonable inference by the fact-finder, even if some other equally reasonable inference might be drawn from the evidence.

         12. The Kansas Tort Claims Act provides that "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." K.S.A. 2016 Supp. 75-6103(a). Under the KTCA, governmental liability is the rule and immunity is the exception. The KTCA provides numerous exceptions to liability which are set forth in K.S.A. 2016 Supp. 75-6104. The burden is on the governmental entity to establish immunity under one of these statutory exceptions. Any doubt is resolved against the exception.

         13. A law enforcement officer's decision to pursue a fleeing suspect does not fall within the discretionary function exception found in K.S.A. 2016 Supp. 75-6104(e). A discretionary function must involve some element of policy formulation.

         14. A law enforcement officer's pursuit of a fleeing suspect does not fall within the "method of providing police protection" exception found in K.S.A. 2016 Supp. 75-6104(n). This exception does not apply to questions of negligence on the part of individual officers in carrying out their duty to protect individual members of the public.

         15. A statute imposing a legal duty, such as found in K.S.A. 8-1506(d), which requires the driver of an authorized emergency vehicle when pursuing a suspect to "drive with due regard for the safety of all persons, " precludes the government and its officials from claiming immunity under the Kansas Tort Claims Act.

          Appeal from Shawnee District Court; Franklin R. Theis, judge.

          Richard L. Budden and Lynn R. Johnson, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, for appellants/cross-appellees.

          Rachael D. Longhofer, assistant attorney general, and Derek Schmidt, attorney general, for appellees/cross-appellants.

          Before McAnany, P.J., Gardner, J., and Timothy L. Dupree, District Judge, assigned.

          McAnany, J.

         Scott E. Bennett and Shelby Montgomery brought these consolidated negligence actions against Kansas Highway Patrol Trooper Patrick R. Saleh and the State of Kansas for the injuries and damages they sustained as a result of a collision with a vehicle being driven by fleeing suspect Robert Horton who was being pursued by Trooper Saleh. The district court's entry of summary judgment in favor of Trooper Saleh and the State of Kansas brings the matter to us for our de novo review. The defendants cross-appeal on a number of issues raised in the district court. Because we consider the defendants' summary judgment motion de novo, we need not concern ourselves with the holding of the district court and will address the issues in the cross-appeal in ruling de novo on the defendants' summary judgment motion.

         Based upon our review of the record and being ever mindful of our fundamental policy of preserving for resolution by the jury disputed issues of fact, we conclude that there remain genuine issues of material fact regarding the claims of fault against Trooper Saleh, and vicariously against the State, which must await trial. Summary judgment is not appropriate on these claims. But with respect to the separate claims of direct negligence against the State, it is apparent that there is no genuine issue of material fact and the plaintiffs have abandoned them. Accordingly, the State is entitled to judgment as a matter of law on those claims.

         The Plaintiffs' Claims

         The plaintiffs commenced separate actions against Trooper Saleh and the State of Kansas. They claim that Trooper Saleh initiated and continued a high-speed chase in reckless disregard for the safety of others, without a valid and legal reason for initiating and continuing pursuit, and in violation of the Kansas Highway Patrol's pursuit policy and procedure.

         In their separate action against the State of Kansas, the plaintiffs claim the State is vicariously liable for Trooper Saleh's actions and that the Kansas Highway Patrol and Troop K of the Kansas Highway Patrol/Capitol Police negligently failed to establish and enforce appropriate pursuit policies and procedures. In addition, they assert that the Kansas Highway Patrol was negligent in its hiring, retention, supervision, education, training, and instruction of Trooper Saleh. These separate suits were consolidated for discovery purposes.

         Summary Judgment

         After discovery was complete, the defendants moved for summary judgment. They claim (1) the plaintiffs fail to establish a prima facie case; (2) the defendants are entitled to immunity under the Kansas Tort Claims Act (KTCA); (3) the defendants fail to state a claim that the State negligently failed to establish and enforce appropriate pursuit policies and procedures; and (4) as a matter of law the State was not negligent in its hiring, retention, supervision, education, training, and instruction of Trooper Saleh.

         Uncontroverted Facts

         The uncontroverted facts disclose that on the evening of August 23, 2010, Kansas Highway Patrol Sergeant Tim Tillman was stopped at a red light at the intersection of Topeka Boulevard and 32nd Terrace in Topeka. He stopped next to a red Toyota also travelling northbound on Topeka Boulevard. He observed the front passenger holding a knife and speaking to the Toyota's driver. He could not hear their conversation. When the light turned green and the Toyota began to drive away, Sergeant Tillman saw the Toyota passenger swing the knife toward the driver, but he did not know whether the Toyota passenger was being physically aggressive or merely fooling around. (After the crash, no knife was found in the vehicle.) Sergeant Tillman reported the Toyota's license plate to dispatch and was informed that the plate number belonged to a 1992 Oldsmobile.

         Because he was in plain clothes and driving an unmarked vehicle, Sergeant Tillman requested that Trooper Terry Fields and Trooper Saleh, who were in the area of 10th Avenue and Topeka Boulevard, stop the Toyota. Troopers Saleh and Fields spotted the Toyota near the intersection of Topeka Boulevard and 21st Street. Trooper Saleh took the lead. He activated his red lights, siren, and dashboard video camera which recorded the pursuit. The pursuit lasted approximately 1 minute and 32 seconds.

         After Trooper Saleh activated his emergency equipment, the driver of the Toyota turned right onto 20th Street, rapidly accelerated as he headed east, and ran a stop sign as he was turning right onto Kansas Avenue, where he proceeded south. Trooper Saleh continued pursuing the vehicle as it crossed the yellow line on Kansas Avenue and weaved across the southbound lanes.

         Trooper Saleh accelerated to 80 to 90 miles per hour, but he estimated that the Toyota was travelling in excess of 100 miles per hour. He decided to terminate pursuit "'[s]omewhere around the Wonder Bread outlet store'" which was located between 27th Street and 29th Street on Kansas Avenue. But he did not actually terminate his pursuit at any point before the Toyota sped through a red traffic light at the intersection of Kansas Avenue and 29th Street and collided with the Chevy pickup truck occupied by plaintiffs Bennett and Montgomery. At the time of the collision, Trooper Saleh was about two and a half blocks behind the Toyota. The impact caused the Chevy pickup truck to spin into several other vehicles. The driver of the Toyota was later confirmed to be Horton, and his passenger was a minor female who had been reported as a runaway by her foster mother.

         Throughout the course of these events, Trooper Saleh was acting within the scope and course of his employment with the State of Kansas.

         The defendants' expert, Special Agent Kenneth R. Wallentine, a Utah law enforcement officer, opined that Trooper Saleh's pursuit was reasonable and consistent with generally accepted policies, practices, and training. He concluded:

"Though plaintiffs expert speculates that termination of the pursuit fractions of a moment sooner might conceivably prompted Horton to cease his unlawful flight, experience and reason suggests otherwise. Police officers deal in facts known or reasonably believed. They don't have the luxury of acting on academic guesses of what might happen if an offender acts true to one theory of behavior."

         Defendants' Contentions

         The defendants contend:

• Duty and breach: Plaintiffs cannot establish the duty and breach elements of their claims because Trooper Saleh's duty to "'maintain public order or make arrests for crimes'" superseded his duty to operate his emergency vehicle with due regard for the safety of all persons under K.S.A. 8-1506. Further, the plaintiffs cannot provide sufficient evidence to support their claim that Trooper Saleh acted with a conscious and unjustifiable disregard of the danger the pursuit caused for other motorists.

• Proximate cause: The fleeing suspect was the only proximate cause of plaintiffs' injuries.

• KTCA Immunity: The defendants are entitled to immunity under various provisions of the KTCA.

         Futhermore, the defendants allege that the plaintiffs did not present evidence supporting their claim that the State of Kansas negligently failed to establish and enforce appropriate pursuit policies and procedures and in its hiring, retention, supervision, education, training, and instruction of Trooper Saleh.

         Plaintiffs' Contentions

         In response to the defendants' summary judgment motion, the plaintiffs submitted the affidavit of expert criminologist Geoffrey Alpert, Ph.D., who opined that Trooper Saleh's pursuit became futile once the Toyota ran the stop sign on 20th Street because it was more likely than not that the driver would continue to flee as long as he was being chased. In his opinion, "the pursuit should have been terminated between 20th and 21st street and no later than when [Horton] ran the red light at 21st street in an attempt to elude the police." According to Alpert, "[h]ad the police terminated their active attempt to apprehend [Horton], it is more likely than not that he would not have crashed into the pick-up driven by [Bennett] at 29th." Alpert concluded that Trooper Saleh's continued pursuit of Horton was a proximate cause of the crash.

         The plaintiffs argued that "had Trooper Saleh terminated his pursuit once he became aware that it was unjustified in light of the dangers presented, the Toyota would not have crashed into Plaintiffs' vehicle and caused Plaintiffs' injuries." In support, the plaintiffs note:

• The Toyota had been traveling 100 miles per hour for several blocks during the police chase.

• The Toyota would have slowed down enough to avoid the collision if Trooper Saleh had properly terminated the chase once it became futile.

• It was evident that the chase was futile because rather than stopping, the Toyota ran through a stop sign, weaved across lanes, accelerated through a red stop light, and reached speeds in excess of 100 miles per hour.

         The plaintiffs assert that a reasonable jury could have found that Horton would have slowed through the intersection at 29th Street and Kansas Avenue if Trooper Saleh had terminated pursuit. Likewise, they assert a reasonable jury could find Horton's collision with plaintiffs' vehicle was foreseeable to Trooper Saleh because he had watched a near-miss when Horton sped through the stoplight at 21st Street and Kansas Avenue.

         The plaintiffs noted that K.S.A. 8-1506(a)-(c) grants drivers of an authorized emergency vehicle privileges that excuse them from following traffic laws under certain conditions. But subsection (d) provides: "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." K.S.A. 8-1506(d). They also presented evidence of the Kansas Highway Patrol's policy regarding when to initiate and reevaluate a pursuit. The policy, known as OPS-16, states:

"Officers are expected to make a diligent and reasonable effort to stop all suspected or actual violators. The decision to initiate pursuit must be based on the pursuing officer's conclusion that the immediate danger to the officer and the public created by the pursuit is less than the immediate or potential danger to the public should the suspect remain at large."

OPS-16 identifies the following factors to take into consideration when deciding to ...