Unruh v. City of Wichita ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,254
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JASON UNRUH,
Appellant,
v.
CITY OF WICHITA, et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 1, 2022.
Affirmed.
Michael Jilka, of Graves & Jilka, P.C., of Lawrence, for appellant.
David R. Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, Jennifer L. Magana, city
attorney, and Sharon L. Dickgrafe, chief deputy city attorney, for appellee.
Before POWELL, P.J., GREEN, J., and RICHARD B. WALKER, S.J.
PER CURIAM: Jason Unruh appeals the district court's granting of summary
judgment against him on a variety of negligence claims Unruh brought against the City of
Wichita, Gordon Ramsay, the Chief of Police for the Wichita Police Department, Officer
Daniel Weidner, and Officer Brett Pearce (collectively Defendants) arising out of the
officers' use of force against him. After a careful review of the record, we find that the
district court did not err in granting summary judgment, and therefore affirm its decision
dismissing Unruh’s claims.
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FACTS
On the night of August 5, 2017, Unruh led Wichita police officers on a chase.
During the chase, Unruh was observed throwing handfuls of methamphetamines out his
driver's side window. Eventually, Unruh's car spun out of control and hit a curb where it
came to rest. Unruh climbed out of the driver's side window of his vehicle. Officer
Weidner reported he could see something in Unruh's hands. According to Defendants,
Officer Weidner then ordered Unruh to stop, but then Unruh began reaching under his
car. Officer Weidner thought Unruh might be trying to retrieve a gun. Unruh disputed
reaching under the car and stated that he was attempting to collect methamphetamine
next to the car, not under it. As Officer Weidner ran up to Unruh, he saw that what he had
noticed in Unruh's hands was a large bag of methamphetamine.
The parties agree that Officer Weidner deployed Cassius, a police dog, to
apprehend Unruh. Officer Weidner said he did this when Unruh reached under his car,
but Unruh alleged that Officer Weidner sent Cassius to attack Unruh before Unruh even
left his vehicle. The parties also agree that Officer Weidner kicked Unruh once in the
shoulder and once in the head, though their accounts of the reasons the force was applied
differed. Officer Weidner said he applied the force as a means to gain compliance from
Unruh, whereas Unruh complained that he was not resisting arrest nor posing any threat
to the officers. Finally, the parties agreed that Officer Pearce struck Unruh in the face
while he was arresting Unruh. Defendants asserted that Officer Pearce struck Unruh "as a
distraction technique to get him to roll over onto his stomach so Pearce could effect the
arrest."
Further details of the events of that evening will be discussed in connection with
the evidence gathered in the course of Unruh’s civil lawsuit.
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On July 2, 2019. Just under two years after the incident, Unruh filed a lawsuit
against Defendants. Unruh alleged that he led the police in a car chase that ended with
Unruh wrecking his car and being surrounded by police. Unruh’s petition alleged that
even though he made no attempt to escape and did not have a weapon, Officer Weidner's
police dog Cassius attacked him and caused significant damage. He further alleged that
Officer Weidner’s actions of kicking and stomping on his head caused a brain bleed.
Unruh further alleged that Officer Pearce punched him in the head as he was being
handcuffed.
Notably, Unruh's sole claim in his petition was for negligence of the Defendants,
though he asserted numerous claims under this umbrella. Unruh asserted that the City
was negligent for several reasons: (1) retaining Ramsay as Chief of Police when Chief
Ramsay knew or should have known that Officers Weidner and Pearce had a history of
excessive and unreasonable use of force and took no remedial action to prevent similar
future incidents; (2) failing to properly train its officers in the reasonable use of police
dogs in apprehending and arresting suspects; and (3) failing to train officers on proper
apprehension of a suspect. Unruh said that Chief Ramsay was negligent for retaining
Officers Weidner and Pearce and failing to properly educate, train, discipline, and
supervise the officers regarding use of force and anger management. Unruh also asserted
that both the City and Chief Ramsay were vicariously liable under the doctrine of
respondeat superior for the negligence of Officers Weidner and Pearce.
Additionally, Unruh made several complaints regarding Officer Weidner, asserting
he acted negligently by: (1) using deadly force when he stomped on Unruh's head
without having a reasonable objective basis to believe Unruh posed a threat to anyone's
safety; (2) violating Wichita Police Department policies on use of force; and (3) allowing
Cassius to attack Unruh. Next, Unruh asserted that Officer Pearce acted negligently when
he punched Unruh in the head, asserting that the punch violated Wichita Police
Department policy. Finally, Unruh asserted that both officers acted negligently when they
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gave multiple, differing commands of compliance to him when he was unable to comply
with the commands because he was being kicked in the head and mauled by Cassius.
Unruh filed an amended petition in May 2020.
In Defendants' answer, they contended that the officers acted appropriately under
the circumstances because Unruh ignored their commands to display his hands and
appeared to reach for a weapon. Defendants argued that Unruh's claims were not actually
negligence claims, but battery claims, and the one-year statute of limitations barred
Unruh from bringing battery claims.
Defendants filed a motion to dismiss Unruh's petition based on the statute of
limitations issue in June 2020. The district court heard arguments on the motion the
following month. Counsel for Defendants framed the question as whether the petition
alleged intentional or unintentional conduct. If the petition alleged intentional conduct,
Defendants argued, then it should be construed as a battery claim. If the petition alleged
unintentional conduct, then it should be construed as a negligence claim. The district
court held that Unruh's pleading stated a valid claim for negligence and denied the
motion to dismiss.
Defendants then moved for summary judgment in December 2020 after
conducting discovery. Numerous exhibits were included with the motion and Unruh's
response. Several videos of the incident were also provided to the court.
The district court granted Defendants' motion for summary judgment and
dismissed Unruh's petition against each of them. The court recognized at the outset that
Unruh's claim was brought outside the one-year statute of limitations for battery but
within the two-year statute of limitations for negligence. The court construed Unruh's
claims against the officers for negligent use of force as battery claims because the officers
used force intentionally, and "[o]ne cannot negligently commit an intentional act."
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The court next rejected Unruh's independent claims against Chief Ramsay and the
City on the basis that the public duty doctrine barred the claims. The court also had two
other reasons for rejecting Unruh's claims against Chief Ramsay and the City. First, the
court found that Unruh failed to identify any evidence to support his negligent
supervision and training claims. Second, the court found that Chief Ramsay and the City
were entitled to immunity under two sections of the Kansas Tort Claims Act, K.S.A. 75-
6104(e) and (n). Finally, the court granted summary judgment to Defendants on Unruh's
claims related to improper deployment or training of Cassius. The court held that while
there was "no dispute that Cassius bit [Unruh] and caused injury," there was "no evidence
that Cassius' behavior was the result of improper use or training."
Unruh has timely appealed the district court's order granting summary judgment to
the Defendants.
ANALYSIS
All issues now on appeal were disposed of by the district court on motion for
summary judgment. The standard of review applicable to summary judgment decisions is
well-established:
"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions on file, and supporting affidavits show that no genuine issue
exists as to any material fact and the moving party is entitled to judgment as a matter of
law. The district court must resolve all facts and reasonable inferences drawn from the
evidence in favor of the party against whom the ruling [is] sought. When opposing
summary judgment, a party must produce 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 issue in the case. Appellate courts apply the same rules and,
where they find reasonable minds could differ as to the conclusions drawn from the
evidence, summary judgment is inappropriate. Appellate review of the legal effect of
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undisputed facts is de novo." GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82,
453 P.3d 304 (2019).
The district court did not err by granting summary judgment to Officers Weidner and
Pearce on the basis that Unruh's claim was for battery, not negligence.
On appeal, Unruh first argues that "[t]his appeal presents the issue of whether a
claim of negligent use of force by a police officer exists under Kansas law." He asserts
that the district court erred in ruling that Kansas law does not recognize a claim of
negligent use of force by a police officer. This somewhat mischaracterizes the district
court's ruling. The district court noted that in Estate of Randolph v. City of Wichita, 57
Kan. App. 2d 686, 714, 459 P.3d 802 (2020), a panel of our court recognized that "in
some circumstances a person might be able to bring a negligence claim under Kansas law
arising out of an incident involving a law enforcement officer's physical contact with that
person, resulting in an injury."
In fact, the district court did not dispute this idea. The district court's first ruling
denied Defendants' motion to dismiss on the basis that Unruh's pleading properly stated a
claim for negligence. But after reviewing the evidence on summary judgment, the district
court changed course and held that Unruh's claims were for battery, not negligent use of
force. Because of the district court's ruling, on appeal we must carefully examine whether
Unruh's claims were, in reality, for intentional battery or unintentional negligence. See
Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617 (2007) (finding that a court is not bound
by the characterization of the claims in a plaintiff's petition because substance prevails
over form).
In order to fully understand and rule on the issues raised by Unruh's negligence
claims, it is necessary for us to take a deep dive into the confusing and frequently
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contradictory string of published cases which have dealt with similar claims. But we
begin by defining some basic terms.
In the civil context, "[b]attery is 'the unprivileged touching or striking of one
person by another, done with the intent of bringing about either a contact or an
apprehension of contact[] that is harmful or offensive.' PIK Civ. 4th 127.02." McElhaney
v. Thomas, 307 Kan. 45, 53, 405 P.3d 1214 (2017). An intent to injure is a necessary
element of battery. 307 Kan. at 54. A wrongdoer may be held accountable for battery if
he or she has an intent either to cause a physical injury or an offensive bodily contact.
307 Kan. at 55-56.
On the other hand, a negligence claim generally "requires a plaintiff to prove four
essential elements: (1) defendant owed a duty to the plaintiff; (2) defendant breached that
duty; (3) plaintiff's injuries were caused by the defendant's breach; and (4) plaintiff
suffered damages." Reardon for Estate of Parsons v. King, 310 Kan. 897, 903, 452 P.3d
849 (2019). "'Negligence is an unintentional breach of a legal duty causing damage
reasonably foreseeable without which breach the damage would not have occurred.'
[Citation omitted.]" Murray v. Modoc State Bank, 181 Kan. 642, 646, 313 P.2d 304(1957). "[T]he fundamental distinction between . . . battery, on the one hand, and
negligence, on the other, is that the former is intentional and the latter is unintentional."
Murray, 181 Kan. at 646. Several cases have explored this point.
In Baska, Celesta Baska brought an action for negligence against Harry Scherzer
and Calvin Madrigal after Baska was injured trying to break up a fight between the
defendants. 283 Kan. at 751-52. As is true in our case, Baska brought her claims outside
of the one-year statute of limitations for assault and battery but within the two-year
statute of limitations for negligence. 283 Kan. at 751. The district court dismissed Baska's
action after construing it as one for battery. Baska appealed the dismissal. On appeal a
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panel of our court reversed, primarily because the defendants struck Baska
unintentionally. 283 Kan. at 751.
After granting a petition for review, the Kansas Supreme Court reversed the Court
of Appeals and affirmed the district court. The court began by noting that "[t]he
determinative question is whether the substance of plaintiff's claims against the
defendants sounds in assault and battery or negligence." 283 Kan. at 755. The court
acknowledged that the facts showed that the defendants intended to strike one another
and that the harm they caused Baska was unintentional. It found under the doctrine of
transferred intent that Baska only had claims for assault and battery against the
defendants, not negligence. The court explained:
"The defendants' acts of throwing punches in this case were intentional actions. Each
defendant intended to strike at the other in order to cause harm. The defendants intended
to punch, and they did punch. The fact that the punches in question hit the plaintiff rather
than the defendants is immaterial to the analysis. Because the defendants' actions were
intentional, the 'substance' of Baska's action is one for assault and battery. Failure to
initiate her action within 1 year of the fight bars her action by reason of the 1–year statute
of limitations in K.S.A. 60–514(b)." 283 Kan. at 764.
The focus in Baska was on whether the defendants intended the action that caused the
injury, not whether the defendants intended the specific injury to occur.
McElhaney v. Thomas, 307 Kan. 45, is also instructive in distinguishing between
battery and negligence. There, high school student Charles Thomas was driving his truck
and attempted to bump fellow student Emma McElhaney, who was walking through the
high school parking lot. Thomas ended up driving over McElhaney's feet and injuring
her. McElhaney brought suit against Thomas under both negligence and tort theories. 307
Kan. at 47-48. The district court dismissed McElhaney's intentional tort claim because
Thomas did not intend to injure McElhaney. 307 Kan. at 50. Thomas ultimately admitted
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liability for negligence and the jury heard evidence on McElhaney's actual damages. 307
Kan. at 50. McElhaney appealed, and one of the issues on appeal was whether the district
court properly dismissed her intentional tort claim against Thomas. 307 Kan. at 46.
The Kansas Supreme Court held that the district court erred when it dismissed the
intentional tort claim. It first stated that McElhaney was not required to "plead and
produce evidence that Thomas intended to cause physical injury or bodily harm in order
to present her battery . . . claim[] to a jury[.]" 307 Kan. at 52. The evidence that Thomas
intended to bump McElhaney was sufficient to establish the intent element of
McElhaney's battery claim. The court enumerated two ways that the "intent to injure"
element of a civil battery claim can be satisfied: "(1) an intent to cause a harmful bodily
contact, that is, to cause the other physical injury; or by (2) an intent to cause an offensive
bodily contact, that is, to invade the other's reasonable sense of personal dignity." 307
Kan. at 55-56. Thus, an actor is liable for bodily harm resulting from an intentional
offensive contact even if the actor did not intend to cause a physical injury or bring about
the resulting bodily harm. 307 Kan. at 55 (citing Restatement [Second] of Torts § 16,
comment a [1965]).
Given the definitions of battery and negligence and the caselaw distinguishing
them, a negligent use of force claim seems contradictory. See Estate of Randolph, 57
Kan. App. 2d at 711 ("Upon a cursory look, negligent use of force seems to be a strange
tort, since the application of force typically entails an intentional act and, thus, seems at
odds with a claim grounded in careless or inadvertent conduct."). A claim of negligent
use of force has never officially been recognized by Kansas courts, although the Estate of
Randolph court recognized that "in some circumstances a person might be able to bring a
negligence claim under Kansas law arising out of an incident involving a law
enforcement officer's physical contact with that person, resulting in an injury." 57 Kan.
App. 2d at 714.
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This reference to the existence of "some" circumstances where a negligence claim
might lie for injurious conduct by a law enforcement officer leads us down a winding
path of federal and state caselaw. The origins of a negligent use of force claim in Kansas
can be traced to Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983). In
Dauffenbach, a police officer used a jujitsu throw on Robert Dauffenbach while
attempting to arrest Dauffenbach for a misdemeanor offense. Dauffenbach was severely
injured and paralyzed as a result. He brought an action for assault and battery, but later
amended his petition to make a claim for negligence. When the district court entered
judgment for the defendants, Dauffenbach appealed and the defendants cross-appealed.
The defendants claimed that the district court erred by allowing Dauffenbach to amend
his petition to negligence because the cause of action was different from that of the
original petition. 233 Kan. at 1029. The Kansas Supreme Court rejected this argument. It
noted that Dauffenbach's original petition stated a cause of action for negligence because
Dauffenbach alleged that "the defendants did 'negligently assault, beat and injure' him
and that any 'negligence' on the part of the officers 'is likewise the negligence' of the
city." 233 Kan. at 1032.
As we have noted, a panel of this court examined the tort of negligent use of force
more recently in Estate of Randolph, 57 Kan. App. 2d 686. In that case, Icarus
Randolph's family members called police for help transporting Randolph to a mental
health facility. Officers spoke with Randolph's family members for several minutes.
Suddenly, Randolph exited the house and walked into the front yard. Officer Ryan
Snyder described Randolph as walking aggressively, but his family members said "he
was strolling almost aimlessly." 57 Kan. App. 2d at 692. As Randolph approached
Officer Snyder, Officer Snyder fired his Taser at Randolph. After getting hit by the Taser,
Randolph's arms and hands lifted and Officer Snyder saw that Randolph had a knife with
a four-inch blade in his hand. Randolph continued moving forward. Officer Snyder then
shot Randolph four times with his firearm, killing Randolph. Officer Snyder said in a
deposition that he shot Randolph because he thought Randolph was getting ready to stab
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him, though he also said Randolph may have involuntarily lifted his arms in response to
the Taser charge. Randolph's estate brought a claim for, among other things, negligent
use of force by Snyder for deploying his Taser and firing his pistol at Randolph.
The court summarized the caselaw pertaining to whether Kansas recognizes a tort
for negligent use of force as follows:
"Several federal district court judges have indicated Kansas would recognize a
claim for negligent use of force and have declined to dismiss those claims as legally
unfounded. See, e.g., Richard v. City of Wichita, No. 15-1279-EFM-KGG, 2016 WL
5341756, at *8 (D. Kan. 2016) (unpublished opinion); Patterson v. City of Wichita, No.
12-CV-1308-JAR, 2014 WL 2533180, at *7-8 (D. Kan. 2014) (unpublished opinion);
Price v. City of Wichita, No. 12-1432-CM, 2013 WL 6081103, at *4 (D. Kan. 2013)
(unpublished opinion). But the Kansas appellate courts have never directly addressed the
point. See Tichenor v. City of Topeka, No. 106,384, 2012 WL 3136219, at *5-6 (Kan.
App. 2012) (unpublished opinion) (court affirms jury verdict for City on negligent use of
force claim without considering whether Kansas actually recognizes such a tort);
Grauerholz v. Adcock, 51 Fed. Appx. 298, 301 n.3 (10th Cir. 2002) (unpublished
opinion) (court declines to determine whether Kansas has recognized or would recognize
claim for negligent use of force); Richard, 2016 WL 5341756, at *8 (noting 'the law is
somewhat unclear'). Although Dauffenbach . . . was decided under pre-KTCA law, the
case lends support for the claim. Without any real discussion, the court allowed the
plaintiff to proceed on a negligence theory when a police officer used a martial arts throw
to arrest him for a misdemeanor—resulting in catastrophic, if unanticipated, injuries. The
KTCA would not undercut the claim as a matter of law. But if the claim were otherwise
recognized, the factual circumstances of a given case could trigger one or more
immunities in K.S.A. 75-6104." 57 Kan. App. 2d at 712-13.
The Estate of Randolph court also explored the distinction between intentional
torts and negligence actions based on use of force, citing cases from other jurisdictions,
and, importantly for our purposes, held that intentional actions cannot be the sole basis
for a negligent use of force claim. 57 Kan. App. 2d at 713 (citing Ryan v. Napier, 245
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Ariz. 54, 59-62, 425 P.3d 230 [2018]; District of Columbia v. Chinn, 839 A.2d 701, 710-
12 [D.C. 2003]).
The District of Columbia Court of Appeals in Chinn began by noting that
excessive force claims brought under both negligence and battery theories "'involve an
inquiry into the reasonableness of the police officer's actions.'" 839 A.2d at 707. For
battery claims, "the inquiry is whether the officer's conduct was reasonably necessary and
thereby privileged; and for negligence the inquiry is whether the officer's conduct
violated the standard of care of a reasonably prudent police officer." 839 A.2d at 707.
These inquiries "are identical when a battery, lawful in its inception, escalates into
alleged excessive force." 839 A.2d at 707. But just because the inquiries are similar does
not mean the causes of action are the same. The court explained:
"While it may be, as the trial court here noted, that the officers may have mistakenly
believed that they needed to exert the amount of force that they did, that does not affect
the intentionality of the initial action or the objective excessiveness of the force. An
unwanted touching may in its inception be intentional, a battery, or accidental, possibly
negligent. But once it is found to be intentional, a battery tortfeasor is liable for the full
range of consequences, intended or not, including harm and transferred liability.
Therefore, where the excessive force is the product of a battery, an unwanted touching
inherent in any arrest, which escalates in an unbroken manner into excessive force, the
cause of action is a battery alone, with the privilege having ended at the point where
excessive force began. To instruct in such circumstances on a separate and distinct tort of
negligence is not only doctrinally unsound but a potential source of jury confusion. It also
raises the risk that even where no excessive force is used, the jury will conclude that
some undefined negligence was present for which relief of some sort is justified. A
battery was committed and the officer is liable unless and only to the extent that the
officer is clothed by the privilege. [Citation omitted.]" 839 A.2d at 707.
The Chinn court explained that for a plaintiff to bring a claim of negligence arising
from use of force, the plaintiff must establish "at least one distinct element, involving an
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independent breach of a standard of care beyond that of not using excessive force in
making an arrest, which may properly be analyzed and considered . . . apart from the
intentional tort of battery and the defense of privilege." 839 A.2d at 707. In other words,
a plaintiff must articulate elements of a distinct "negligent action and may not bootstrap
from the battery proof alone, as one may not commit a negligent assault." 839 A.2d at
710.
The Chinn court examined a line of cases in which it found that an actionable
negligence claim arose out of police use of force cases, specifically shooting cases. For
example, in one case a police officer shot and killed someone and his estate brought a
claim for negligent use of excessive force. 839 A.2d at 708. The court permitted the claim
because there was "evidence of a police regulation on an officer's safe use of firearms,
which established that a duty was owed to the decedent, a breach of which would
constitute evidence of negligence." 839 A.2d at 709. These cases, the court noted,
"involve[d] a negligent act that precede[d] the application of the relevant force of resort
to firearms, i.e., prior to the pulling of the trigger." 839 A.2d at 711.
Chinn concluded by finding that the plaintiff "failed to make a separate and
distinct claim for negligence apart from the battery allegations." 839 A.2d at 711. The
plaintiff's allegations in Chinn were very similar to Unruh's: that "officers deliberately
inflicted excessive force upon him, and the evidence he presented at trial was that officers
continuously assaulted him without provocation." 839 A.2d at 711. But the court
concluded that a battery cannot "transmogrify into negligence by the fact that the officers
may have in the process mistakenly crossed the line of permissible force. Any
'negligence' was inherent in the battery itself, which remained a battery but now
unprivileged." 839 A.2d at 711.
The Estate of Randolph court also cited Ryan, 245 Ariz. 54, an Arizona Supreme
Court case which also held that excessive use of force by a police officer cannot be the
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sole basis for a negligence claim. There, police pursued Brian McDonald after he
swerved into the opposite lane of traffic. When McDonald's car was stopped, McDonald
staggered out of the car and was nonresponsive to police commands. An officer released
his police dog, Barry, who attacked McDonald's leg for approximately 30 seconds
causing McDonald serious injuries. Later, authorities determined that McDonald had
been experiencing a severe hypoglycemic event caused by his diabetes and lacked the
cognitive functioning to understand what he was doing or respond to police commands.
McDonald sued, in part, on a theory that the officer negligently used excessive force by
deploying Barry. 245 Ariz. at 58. The Arizona Supreme Court rejected the claim.
The court held "that negligence and intent are mutually exclusive grounds for
liability." 245 Ariz. at 60. Accordingly, negligent use of intentionally inflicted force was
not a cognizable claim. 245 Ariz. at 60. Because the officer intentionally released Barry,
the plaintiff could not raise a claim for negligence. The court did not foreclose the
possibility of a negligence claim arising out of a situation in which an officer uses force.
This could occur if there were "discrete acts of negligent conduct preceding the use of
force." 245 Ariz. at 62. A plaintiff could also "plead negligence and battery as alternate
theories if the evidence supports each theory." 245 Ariz. at 62. If, for example, there was
evidence showing that the officer had unintentionally dropped Barry's leash and that
resulted in McDonald's injuries, then a negligence claim may have been appropriate. 245
Ariz. at 62.
The Estate of Randolph court found Chinn and Ryan "instructive in the absence of
more focused authority from the Kansas appellate courts." 57 Kan. App. 2d at 714; see
also Beltran-Serrano v. City of Tacoma, 193 Wash. 2d 537, 442 P.3d 608 (2019);
(delineating between negligent acts leading up to the ultimate use of force and the use of
force itself); also City of Miami v. Sanders, 672 So. 2d 46 (Fla. Dist. Ct. App. 1996)
(recognizing that "a separate negligence claim based upon a distinct act of negligence
may be brought against a police officer in conjunction with a claim for excessive use of
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force [where] the negligence component . . . pertain[s] to something other than the actual
application of force during the course of the arrest. [Citation omitted.]").
It was on this basis that the Estate of Randolph court presumed that there were
some circumstances arising out of a law enforcement officer's physical contact with a
person that may give rise to a negligence claim under Kansas law. But the court did not
hold that Kansas recognizes a claim for negligent use of excessive force. 57 Kan. App. 2d
at 714. Instead, and importantly for our case, consistent with the holdings in Chinn and
Ryan it found that intentional use of force alone could not provide a basis for a
negligence claim. 57 Kan. App. 2d at 714.
Applying its holding to the facts of the case, the court noted that Officer Snyder's
use of force in shooting Randolph was intentional and that it "virtually defines a civil
battery if not otherwise privileged." 57 Kan. App. 2d at 714. Thus, the court ruled that "a
claim for negligent use of force does not lie based on any version of the immediate
encounter as Randolph emerged from his house and began to move across the front yard."
57 Kan. App. 2d at 714-15. It affirmed the district court's grant of summary judgment
against the estate's claim for negligent use of force. 57 Kan. App. 2d at 721.
We concur that Kansas courts should not recognize a tort of negligent use of
excessive force. But they should, as stated in Estate of Randolph, recognize that there
may still be circumstances in which "a person might be able to bring a negligence claim
under Kansas law arising out of an incident involving a law enforcement officer's
physical contact with that person, resulting in an injury." 57 Kan. App. 2d at 714; see also
Ermini v. Scott, 937 F.3d 1329, 1338 (11th Cir. 2019) ("[A]lthough Florida doesn't
recognize claims for negligent use of force, it does recognize the commonsense
proposition that 'distinct act[s] of negligence' can occur in conjunction with alleged
excessive-force incidents.").
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As seen in the caselaw, these situations could include where a separate duty, other
than not to use excessive force, is established by a regulation or policy. See Mills v. City
of Overland Park, 251 Kan. 434, 446-47, 837 P.2d 370 (1992) (noting that a mandatory
department policy that uses unconditional language such as "will" rather than "may"
could establish a special duty, breach of which could be actionable in negligence should
injury occur). Or it could include cases where an officer acts unintentionally and the
unintentional act injures the plaintiff. See Clark v. Thomas, 505 F. Supp. 2d 884 (D. Kan.
2007) (permitting claim that officer negligently used excessive force against plaintiff
when officer unintentionally struck plaintiff with his vehicle while he was trying to drive
next to plaintiff). However, we conclude that recognizing a negligent use of force claim
based on only intentional acts is contrary to the principle that negligence is unintentional.
In this appeal, Unruh argues only that we should recognize a tort for negligent use
of excessive force. He acknowledges that the force was applied intentionally but asserts
that the degree of force used was negligent under the circumstances because he did not
pose a threat to the officers. While Unruh's appellate brief creatively tries to make a
distinction and argue that there was a separate negligent act, as we read the facts here it
appears to us that in reality the officers' decision to continue the encounter in a violent
way was merely a decision to use intentional force. Thus, we do not discern any negligent
act which was separate from and preceding the application of force, and Unruh does not
assert that the officers breached a standard of care beyond that of not using excessive
force. For these reasons, this case is like Estate of Randolph, and the district court
properly construed Unruh's claim as a claim for battery. Because the statute of limitations
for battery had run by the time Unruh filed his petition, the district court properly granted
summary judgment to Defendants on Unruh's negligent use of excessive force claims
against the officers.
Unruh does make one additional argument that an officer's intentional use of
unreasonable force is actionable in a negligence claim. In support of this argument, he
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relies primarily on the federal district court case of Price v. City of Wichita, No. 12-1432-
CM, 2013 WL 6081103 (D. Kan. 2013) (unpublished opinion). There, Lennon Price
contended that a police officer negligently used excessive or unreasonable force while
arresting him. The factual basis for Price's claim was that the officer stomped on his leg,
breaking two bones, even though Price was not resisting arrest. The defendants filed a
motion to dismiss asking the court to dismiss Price's negligence claims because,
substantively, they were battery claims barred by the statute of limitations. 2013 WL
6081103, at *2. The court rejected this argument. 2013 WL 6081103, at *5.
The Price court began its analysis with Dauffenbach v. City of Wichita. In
Dauffenbach, the court discussed when the breach of an officer's duty could lead to
liability. The court stated:
"Police officers have immunity from liability on claims arising from performance
or nonperformance of an officer's general duties to prevent crime and enforce the laws.
Liability arises only where an officer breaches a specific or special duty owed an
individual. Such a special duty arises in two circumstances: (1) where there is an
affirmative act by the officer causing injury; and (2) when a specific promise or
representation by the officer is made under circumstances creating justifiable reliance.
McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (1977); Doe v. Hendricks, 92
N.M. 499, 590 P.2d 647 (1979). Examples of situations within the first category are
placing an individual under arrest or committing an assault. A line of Kansas cases which
recognize that an officer is liable for false arrest or the unnecessary use of force lends
support to the existence of a special duty arising from such affirmative acts. Bradford v.
Mahan, 219 Kan. 450, 548 P.2d 1223 (1976); Gardner v. McDowell, 202 Kan. 705, 451
P.2d 501 (1969); Bukaty v. Berglund, 179 Kan. 259, 294 P.2d 228 (1956)." Dauffenbach,
233 Kan. at 1033.
The Price court focused on the special duty that exists where there is an affirmative act
by the officer causing injury. 2013 WL 6081103, at *3. It reasoned that because Price
alleged he was injured by the officer's "affirmative act of stomping on Price's leg," then
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"Dauffenbach and its progeny suggest this could be the breach of a special duty if the
fact-finder concludes the use of force was unreasonable under the circumstances." 2013
WL 6081103, at *4.
The reasoning of the Price court is not persuasive to us on the issues in Unruh's
case. The Price court did not investigate the meaning of the term "affirmative act" as
used in Dauffenbach. The Dauffenbach court cited two out of state cases—McGeorge v.
City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (1977) and Doe v. Hendricks, 92 N.M. 499,
590 P.2d 647 (1979)—for the proposition that a special duty may arise when there is an
affirmative act by the officer causing injury. Neither of these cases provide that the
affirmative act giving rise to the duty can be the same act that breaches the duty. They
each provide the same three examples of an affirmative act that might give rise to a
special duty, summarized as follows:
"In the narrow field of police protection, however, we can discern certain general
situations where duty toward specific individuals can be found. . . . Another general
situation is where a police officer affirmatively causes damage to an individual. An
example of this is Gardner v. Village of Chicago Ridge, 128 Ill.App.2d 157, 262 N.E.2d
829 (1970) where the victim of an assault was brought by police to a place where he
could identify his three assailants. Because of carelessness on the part of the police, one
of the assailants broke loose and attacked the victim. Again, to the same effect, although
involving a city sewer inspector, is Smullen v. City of New York, 28 N.Y.2d 66, 320
N.Y.S.2d 19, 268 N.E.2d 763 (1971). In that case the inspector observed an open trench
and directed an individual to climb into it, whereupon he was killed when it collapsed
upon him. The court said the inspector narrowed the duty to the individual by his
'positive action assuming direction and control.' Another instance is where a city fire
department ordered a salvage operator to fill the cargo compartments of a damaged ship
with carbon dioxide to reduce the possibility of an explosion. Instead, the chemical
produced an explosion causing a loss of the ship. The court found that a duty existed in
this situation when the fire department elected to act. In re M/T Alva Cape, 405 F.2d 962(2d Cir. 1969)." McGeorge, 117 Ariz. at 277; accord Doe, 92 N.M. at 503.
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These examples all involve an affirmative act that established a duty independent
of the act that harmed the plaintiff. These examples of affirmative acts giving rise to a
special duty do not support the argument that an officer's intentional injury of a person
gives rise to a special duty, actionable in negligence, not to use excessive force in
intentionally injuring that person. This is consistent with the conclusion drawn in Estate
of Randolph, where the court held that a negligence claim was inappropriate where
injuries were caused by an intentional application of force. It is also consistent with the
suggestions in Chinn and Ryan that a negligent act must precede the use of force. Chinn,
839 A.2d at 711; Ryan, 245 Ariz. at 62. For these reasons, we will adhere to the reasoning
in Estate of Randolph rather than the Price court's contrary conclusion.
The district court's decision to grant summary judgment on Unruh's negligent use
of excessive force claim against the officers, as well as his derivative claims against
Chief Ramsay and the City based on the officers' conduct, are affirmed. Though labeled
as negligent use of force claims, Unruh's claim was truly for battery because it was based
on intentional acts.
The district court did not err by granting summary judgment to the City of Wichita and
Chief Gordon Ramsay on Unruh’s claims of negligence.
In addition to bringing claims against Chief Ramsay and the City that were
derivative of his claims against the officers, Unruh also brought other claims against the
City and Chief Ramsay. He claimed the City was negligent for retaining Chief Ramsay
and failing to train its officers. And he claimed Chief Ramsay was negligent for retaining
Officers Weidner and Pearce and failing to properly educate, train, discipline, and
supervise the officers regarding use of force and anger management.
The district court held that Unruh's claims against Chief Ramsay and the City were
barred by both the public duty doctrine and the statutory immunities set forth in the
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Kansas Tort Claims Act under K.S.A. 75-6104(e) and (n). The district court further ruled
that Unruh's negligent supervision and training claims failed for lack of evidence.
Unruh argues that the district court erred when it held that the public duty doctrine
barred his claims against Chief Ramsay and the City. However, he makes no argument as
to the district court's other bases for granting summary judgment to the City and Chief
Ramsay, including the immunities they claim under the Kansas Tort Claims Act.
"When a district court provides alternative bases to support its ultimate ruling on
an issue and an appellant fails to challenge the validity of each alternative basis on
appeal, an appellate court may decline to address the appellant's challenge to the district
court's ultimate ruling." State v. Novotny, 297 Kan. 1174, Syl. ¶ 1, 307 P.3d 1278 (2013).
On that basis alone, we could decline to reach the merits of Unruh’s claims that the
district court erred by granting summary judgment to the City and Ramsay. However, we
will briefly address Unruh’s complaints about the district court’s interpretation of the
public duty doctrine as it applies in this case.
Unruh's argument on the public duty doctrine also fails on the merits. Under the
public duty doctrine, "a plaintiff suing a governmental entity in negligence cannot
establish the duty requirement of its claim when the duty is a public one, i.e., owed to the
public at large and not to any particular individual." Keiswetter v. State, 304 Kan. 362,
365, 373 P.3d 803 (2016). To prevail, a plaintiff must "show a special relationship that
gives rise to a specific duty owed to him or her." 304 Kan. at 365. Relying again on
Dauffenbach, Unruh argues that a special duty existed because the officers acted
affirmatively in using excessive force on him. By this argument, he is implicitly calling
on us once again to embrace the holdings of the Price court, which we previously have
rejected. We need not repeat our reasoning here, other than to note we have considered
his argument and believe the district court properly interpreted the public duty doctrine as
applying to the public at large, and not to Unruh individually.
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The district court did not err by granting summary judgment on Unruh’s claim that
defendants improperly trained Cassius, a police dog.
In his final claim on appeal, Unruh argues that the district court erred in granting
summary judgment on his various claims that Defendants improperly trained and
deployed Cassius. The district court found "no evidence that more or different training, or
different handling by Officer Weidner, would have produced a different result. There
[was] no evidence that Cassius' behavior was the result of improper use or training."
The record supports the district court's ruling. It is correct that a failure to train
theory is a recognized type of negligence claim in Kansas. Reardon for Estate of Parsons,
310 Kan. at 904-05. And as we have noted, a negligence claim requires a plaintiff to
prove four elements – duty, breach, causation, and damages. 310 Kan. at 903. Evidence
of a failure to train goes to the second element, i.e., whether there has been a breach of a
legal duty. 310 Kan. at 904-05. To succeed on a claim based on negligent training, a
plaintiff must "establish[] facts showing that more or better training would have
prevented the harm." Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 283, 261
P.3d 943 (2011).
On this point, Unruh argues simply: "The facts surrounding the incident itself
create the inference that Cassius was improperly trained. Police canines are not supposed
to attack arrestees absent a command from their handlers." In the motion and response to
the motion for summary judgment, the parties did not controvert the fact that "[Officer]
Weidner gave the command for Cassius to engage Unruh as, or just after, Cassius
engaged Unruh." Unruh asserts that "[t]he logical inference is that something in the dog's
training was deficient."
Evidence that Cassius attacked absent command does not amount to evidence that
more or better training of Cassius or the officers involved would have prevented the harm
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that resulted to Unruh. Unruh fails to identify any additional evidence that supports his
claims, and a review of the record discloses none. Accordingly, Unruh failed to carry his
burden of proof on the failure to train claims.
Affirmed.
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