JoeAnn Williams, Eric Williams, Hazel S. Noble, W.J.W., and L.L.W., Appellants,
C-U-Out Bail Bonds, LLC, Defendant, and City of Overland Park, Kansas, ex rel. Overland Park Police Dept., Appellee.
Whether a district court erred by granting a motion to
dismiss for failure to state a claim is a question of law
subject to unlimited review.
appellate court reviewing a district court's decision to
grant a motion to dismiss will assume as true the
well-pleaded facts and any inferences reasonably drawn from
them. If those facts and inferences state any claim
upon which relief can be granted, dismissal is improper.
pleading's bare legal conclusions need not be credited
absolutely in the same way that the plaintiffs' factual
allegations must be when a judge rules on a motion to
dismiss. But, in this case, the amended petition's
allegations that bail bondsmen intended to enter the
plaintiffs' home without legal authority and that police
officers left the scene with full knowledge of the
bondsmen's illegal conduct were not bare legal
Whether a duty exists is a question of law.
mere fact that a governmental entity owes a legal duty to the
public at large does not establish that the governmental
entity owes a duty to an individual member of the public.
However, in this case, the amended petition alleged
sufficient facts to support a police undertaking of a duty
owed to the individual plaintiffs under Restatement (Second)
of Torts § 323 to completely investigate bail
bondsmen's forced entry into the plaintiffs' home.
Whether a governmental entity is immune from liability under
an exception in the Kansas Tort Claims Act is a matter of
law. Accordingly, appellate review is de novo.
Liability is the rule, and immunity is the exception for
governmental entities sued under the Kansas Tort Claims Act.
In this case, once police had undertaken a duty owed to the
plaintiffs their decision to discontinue an investigation of
bail bondsmen's potentially illegal conduct was not
protected by discretionary function immunity.
of the judgment of the Court of Appeals in 54. Kan.App.2d
600, 402 P.3d 558 (2017).
from Johnson District Court; James F. Vano, judge.
N. Holmes, of Holmes Law Office, LLC, of Olathe, was on the
brief for appellants.
Michael K. Seck, of Fisher, Patterson, Sayler & Smith,
LLP, of Overland Park, was on the brief for appellee.
appeal concerns whether a police duty to investigate bail
bondsmen's entry into a private home arose and, if so,
whether the City of Overland Park is immune from any
liability for police officers' breach of the duty.
present in the home at the time the bail bondsmen forced
their way inside sued the bondsmen's company, C-U-Out
Bail Bonds, LLC, and the City on a variety of claims. A
district court judge dismissed the City as a defendant,
ruling the plaintiffs failed to state a valid cause of
action. A Court of Appeals panel affirmed, and this court
granted the plaintiffs' petition for review.
conclude today that the plaintiffs' amended petition
alleged sufficient facts to support (a) potential intentional
illegal conduct on the part of the bail bondsmen, (b) a
police undertaking of a duty to investigate owed to the
plaintiffs individually, and (c) no discretionary function
immunity for the City under the Kansas Tort Claims Act
and Procedural Background
of C-U-Out came to the home of JoeAnn and Eric Williams at
about 11 p.m. in search of Rickesha Wright, the
Williamses' daughter-in-law. JoeAnn; Eric; Hazel Noble,
JoeAnn's 90-year-old mother; and two of JoeAnn's
grandchildren were in the home at the time.
agents' entry into the home became the subject of this
lawsuit brought by the home's occupants. The
plaintiffs' amended petition alleged:
"The instant causes of action arise from the conduct
of agents and/or employees of the above-named Defendants
while acting within the course and scope of their employment.
"At approximately 11:00 o'clock p.m., on the evening
of Wednesday, August 6th, 2014, several armed representatives
of Defendant, C-U-Out, arrived at a single family residence
occupied at the time by all of the above-named Plaintiffs.
Upon information and belief, Plaintiffs allege that the
representatives of C-U-Out were attempting to locate an
individual by the name of Rickesha Wright (hereinafter
'Ms. Wright'), the daughter-in-law of the first and
second named Plaintiffs herein. According to the
representatives of C-U-Out, Ms. Wright was a criminal
defendant who had been released on bond and had absconded
from the law, and as a result of which her surety bond[, ]
which had been paid by C-U-Out[, ] was in jeopardy of being
"The representatives of C-U-Out knocked at the door and
were met by Plaintiff, JoeAnn Williams (hereinafter 'Ms.
Williams'), who answered the door. The representatives
inquired as to whether Ms. Wright was present, at which point
Ms. Williams informed them that Ms. Wright was not at the
"The representatives of C-U-Out then asked to enter the
residence to verify that Ms. Wright was not present, at which
point Ms. Williams reiterated that Ms. Wright was not at the
home and told them that they could not enter. She also
informed them that she was caring for her elderly mother who
was inside the home suffering from the effects of
"Ms. Williams closed the door and returned to care for
her mother at which time the representatives of C-U-Out began
an attempt to force the door open with a steel battering ram.
"Ms. Williams then returned to the front door and told
the representatives of C-U-Out again that Ms. Wright was not
present, that they were frightening everyone inside the home,
and that she intended to call the police. Whereupon one of
the representatives of C-U-Out put his foot in the door,
informed Ms. Williams that she would be charged with aiding
and abetting a felon if she continued to refuse to let them
in, and when Ms. Williams' dog started barking at the
representative, he put his hand on his gun as if preparing to
shoot the dog.
"While holding the door against the representative's
foot, Ms. Williams called the Overland Park Police Department
and uniformed officers of the Overland Park Police Department
arrived a few minutes later.
"While two (2) of the representatives of C-U-Out
remained at the front porch attempting to force the front
door of the residence open, another of the representatives
momentarily left to speak with the police officers who were
just beyond the curtilage of the home. At that moment,
representatives of C-U-Out who had been standing on the front
porch forcibly entered the residence, pushing Ms. Williams
backwards. Throughout this incident, the police officers
remained outside their patrol unit and observed the forcible
entry without taking any action. After the representatives of
C-U-Out had forced their way into the home, Ms. Williams
called out to the police officers for assistance.
"In response, the officers told Ms. Williams that this
was outside of their jurisdiction and that they could do
nothing about it and proceeded to withdraw from the scene,
leaving Plaintiffs alone and at the mercy of the armed
representatives of C-U-Out.
"Shortly after the police officers had left the scene,
the representatives of C-U-Out proceeded to search the
residence going so far as to enter the private bedroom of Ms.
William[s'] ninety (90) year-old mother, Plaintiff, Hazel
S. Noble, who was in bed, and the private bedrooms of Ms.
Williams' grandchildren, Plaintiffs W.J.W. and L.L.W. who
were also present.
"After failing to locate Ms. Wright, the representatives
of C-U-Out then left the home threatening Plaintiffs that
they would return and do another search until they found her.
"The representatives had no personal knowledge that Ms.
Wright was or even had been at the home, and, in fact, Ms.
Wright was never at the home at the time of the
above-described incident, nor was there any available
evidence at the time to suggest that she was."
The plaintiffs' only claim against the City was labeled
"negligent failure to protect." It formed Count III
of the amended petition and stated:
"Plaintiffs allege that at all times material hereto,
the officers of the Overland Park Police Department and by
extension, the City of Overland Park, under the doctrine of
Respondeat Superior had an affirmative obligation
and duty to protect persons within the jurisdictional limits
of the City of Overland Park.
"Plaintiffs further allege that the incident described
above took place within the jurisdictional limits of the City
of Overland Park.
"Plaintiffs further allege that the police officers who
were present at the home of Plaintiffs at the time of the
incident described above were personally aware of the facts
and circumstances which led to the incident, and had ...