Shelby Montgomery and Scott E. Bennett, Appellants/Cross-appellees,
v.
Patrick R. Saleh, and State of Kansas, Appellees/Cross-appellants.
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 ...