Keiswetter v. State

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 110,610
RON KEISWETTER, Administrator of the Estate of Helen Keiswetter, Deceased;
and RON KEISWETTER, Individually and on Behalf of the Heirs-at-law of
Helen Keiswetter, Deceased,
Appellants,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
1.
Summary judgment is appropriate 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. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling 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.
2.
The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that a governmental
entity can be found liable for the negligent or wrongful act or omission of any of its
employees while acting within the scope of their employment only if (1) a private person
could be liable under the same circumstances and (2) no statutory exception to liability
applies.
3.
The governmental entity bears the burden to establish immunity under the
exceptions of the Kansas Tort Claims Act.
4.
Under the facts of this case, the State is immune from liability under the police
protection exception of the Kansas Tort Claims Act, K.S.A. 2015 Supp. 75-6104(n).
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 25, 2014.
Appeal from Norton District Court; GLENN D. SCHIFFNER, judge. Opinion filed April 22, 2016. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Dustin L. Van Dyk, of Palmer, Leatherman, White & Girard, LLP, of Topeka, argued the cause,
and L.J. Leatherman, of the same firm, was with him on the briefs for appellants.
John Wesley Smith, assistant attorney general, argued the cause and was on the briefs for
appellee.
The opinion of the court was delivered by
NUSS, C.J.: This is an action for personal injury and wrongful death brought
against the State by Ron Keiswetter, individually and on behalf of the estate and heirs-at-
law of his mother Helen Keiswetter. She died from her injuries after a minimum-security
inmate escaped from the State's custody, entered her home, and ultimately forced her into
a closet.
The Norton County District Court granted summary judgment to the State on a
number of grounds, and a panel of the Court of Appeals affirmed. We affirm the
summary judgment because the State is immune from liability under the police protection
exception of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA).
2
FACTS AND PROCEDURAL HISTORY
Christopher Zorn was part of a Norton Correctional Facility community work
crew mowing grass at a Norton church when he escaped from custody. About 25 minutes
before the crew supervisor discovered Zorn was missing, an investigator from the prison
arrived to question the inmates about a pack of cigarettes that had been stolen from
another site where the crew had recently worked. Zorn ran from the church before he
could be interviewed. The proper authorities were notified, and a large-scale search
ensued.
Zorn later admitted he had hidden in a shed until about 9 that night. He then
entered Helen Keiswetter's house to find keys for stealing her car. He said that he injured
her when he shoved her into a closet. More specifically, he admitted he had grabbed her
by the arms and waist and that he had kicked her, causing her to fall and hit her head.
Helen Keiswetter's daughter and grandson found her barricaded in the closet the
next morning. She was transported first to the local hospital and then to Wesley Medical
Center in Wichita. She died 8 months later.
Her son, Ron Keiswetter, then sued the State for her personal injuries and
wrongful death. He claimed it was negligent by "(a) failing to continue Mr. Zorn's
medication to control his bipolar disorder; (b) putting Mr. Zorn . . . on work release out in
the community in spite of his dangerous propensities; (c) negligently conducting a
criminal investigation of Mr. Zorn while he was on work release in the community
instead of while he was in the security of the Norton Correctional Facility; and (d) failing
to take reasonable care in preventing Mr. Zorn, who was in [the Kansas Department of
Corrections'] custody and control, from escaping and causing harm to Ms. Keiswetter."
He later voluntarily dismissed all but the fourth claim.
3
The State filed a motion for summary judgment, arguing it owed no duty to Helen
Keiswetter to protect her from Zorn's attack, and, even if it did, it was immune from
liability under two exceptions of the KTCA. After a hearing the district court granted
summary judgment. It found that the public duty doctrine precluded Keiswetter's claim
because any duty owed his mother was owed to the public at large and not specifically to
her. The court additionally found that no special duty was owed to Keiswetter and that
the State was immune from liability under the police protection exception of the KTCA,
K.S.A. 2015 Supp. 75-6104(n).
A panel of the Court of Appeals affirmed. Like the district court, the panel
concluded Keiswetter's claim failed because of the public duty doctrine, the lack of a
special duty owed to Keiswetter, and the police protection exception of the KTCA.
Additionally, the panel held Keiswetter had presented insufficient evidence of the State's
negligence to survive summary judgment. Keiswetter v. State, No. 110,610, 2014 WL
3732021 (Kan. App. 2014) (unpublished opinion).
Keiswetter filed a petition for review with this court under K.S.A. 20-3018,
challenging each of the panel's holdings and particularly asking us to consider whether
the public duty doctrine is still viable under Kansas law. We granted the petition,
obtaining jurisdiction under K.S.A. 60-2101(b).
ANALYSIS
Issue: The State is entitled to summary judgment as a matter of law because it is immune
from liability under the KTCA's police protection exception.
The parties' arguments primarily concern whether we should abolish the public
duty doctrine. Under that 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. See Shirley v. Glass, 297
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Kan. 888, 894, 308 P.3d 1 (2013) (negligence claim requires a duty owed to the plaintiff
by the defendant, breach of that duty, causation between the breach and the injury, and
damages suffered by plaintiff). In short, the doctrine bars a governmental entity's liability
unless the plaintiff can show a special relationship that gives rise to a specific duty owed
to him or her. See Roe v. Dept. of SRS, 278 Kan. 584, 593, 102 P.3d 396 (2004);
Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982).
Despite the parties' focus on this doctrine, however, the ultimate issue before us is
whether the district court properly granted summary judgment to the State. As discussed
below, we conclude such judgment was proper because the State is entitled to immunity
under the KTCA's police protection exception. See K.S.A. 2015 Supp. 75-6104(n). So we
need not also address the other grounds the lower courts found to reject Keiswetter's
claim.
Standard of review
Our summary judgment standard is well-known:
"'Summary judgment is appropriate 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. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling 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. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied. [Citations omitted]. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289
Kan. 891, 900, 220 P.3d 333 (2009)'" Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan.
350, 358-59, 352 P.3d 1032 (2015).
5
When the material facts are uncontroverted, we exercise unlimited review over a
district court's grant of summary judgment. See Soto v. City of Bonner Springs, 291 Kan.
73, 78, 238 P.3d 278 (2010). And whether an exception of the KTCA applies to grant
immunity to a governmental entity is a question of law, also subject to unlimited review.
See 291 Kan. at 78.
Discussion
Liability is the rule, and immunity is the exception for governmental entities sued
under the KTCA. See 291 Kan. at 78. The general rule of liability is established by
K.S.A. 2015 Supp. 75-6103(a) which provides:
"Subject to the limitations of this act, 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 under circumstances where the
governmental entity, if a private person, would be liable under the laws of this state."
K.S.A. 2015 Supp. 75-6104 lists several exceptions to liability, including the
police protection exception. Under this exception, "[a] governmental entity or an
employee acting within the scope of the employee's employment shall not be liable for
damages resulting from . . . failure to provide, or the method of providing, police or fire
protection[.]" K.S.A. 2015 Supp. 75-6104(n). Such exceptions to governmental liability,
like the general allowance of liability itself, are matters of public policy left to the
legislature. See Barrett v. U. S. D. No. 259, 272 Kan. 250, 260, 32 P.3d 1156 (2001).
In interpreting the KTCA, K.S.A. 2003 Supp. 75-6101 et seq. we have held:
"'[T]he analytical matrix established by the legislature in enacting the KTCA dictates that
a governmental entity can be found liable for the negligent or wrongful act or omission of
6
any of its employees while acting within the scope of their employment only if (1) a
private person could be liable under the same circumstances and (2) no statutory
exception to liability applies.'" (Emphasis added.) Soto, 291 Kan. at 78 (quoting Adams v.
Board of Sedgwick County Comm'rs, 289 Kan. 577, 585, 214 P.3d 1173 [2009]).
As in Soto, for the sake of a straightforward review we will assume, but not
decide, that a duty—here, to Keiswetter—existed. See 291 Kan. at 78; cf. Jarboe v. Board
of Sedgwick County Comm'rs, 262 Kan. 615, 623, 938 P.2d 1293 (1997) (decision to
grant summary judgment on basis of immunity is not an acknowledgment "any duty
existed on the part of defendants to protect [victim] from [escaped juvenile's] criminal
actions"). So we need only determine whether the State's claimed statutory exception to
liability, i.e., the police protection exception, applies. If the exception applies, it disposes
of this case.
Moreover, because an exception to liability, i.e., an immunity, is supposed to free
the defendant from the burdens of litigation, it typically makes sense to examine
immunity as the threshold question. As we have stated about the related issue of qualified
immunity:
"'"Qualified immunity is 'an entitlement not to stand trial or face the other burdens of
litigation.' [Citation omitted.] The privilege is 'an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.' [Citation omitted.] As a result, 'we repeatedly have
stressed the importance of resolving immunity questions at the earliest possible stage in
litigation.' [Citation omitted.]"'" State v. Jones, 298 Kan. 324, 332, 311 P.3d 1125 (2013).
Consistent with this view, this court has supported a district court's refusal to
allow depositions and affirmed its dismissal of a negligence action against a defendant
because of the plaintiff's failure to state a claim upon which relief could be granted. This
failure was due, among other things, to the defendant's immunity from liability provided
by the police protection exception in the KTCA. Beck v. Kansas Adult Authority, 241
7
Kan. 13, 23-24, 735 P.2d 222 (1987). Accord Robertson, 231 Kan. at 362-63 (affirming
dismissal of negligence action for failure to state a claim based upon discretionary
function exception in KTCA).
The Beck court generally explained the advantages of addressing dispositive issues
early, i.e., by a motion to dismiss instead of a motion for summary judgment—even
though both can avoid the burdens of trial:
"The important distinction between the handling of a motion to dismiss on the one
hand and a motion for summary judgment on the other is that in the former the trial court
is limited to a review of the pleadings, while in the latter, the trial court takes into
consideration all of the facts disclosed during the discovery process—affidavits,
depositions, admissions, and answers to interrogatories. Thus, a party opposing a motion
for summary judgment may point to or provide depositions, affidavits, or other documents
to demonstrate that there are genuine issues of material fact, necessitating a trial."
(Emphasis added.) 241 Kan. at 26.
Given our assumption that a duty to Keiswetter exists, our immunity analysis
proceeds by acknowledging that the State has the burden to establish it is immune from
liability under the police protection exception. See Soto, 291 Kan. at 78. If the State
cannot meet this burden, then the general rule of liability set forth in K.S.A. 2015 Supp.
75-6103(a) applies. Jarboe, 262 Kan. at 624.
The Court of Appeals panel in the instant case relied upon Cansler v. State, 234
Kan. 554, 675 P.2d 57 (1984), to hold the State was entitled to immunity under the police
protection exception. There, the plaintiff claimed the State was negligent in (1) failing to
confine seven armed and dangerous inmates who escaped from a correctional facility and
(2) failing to warn the public and local law enforcement of the escape. The Cansler court
determined the failure to warn did not constitute a failure to provide police protection,
and, therefore, the State was not immune from liability under the police protection
8
exception. 234 Kan. at 572. But, as the Keiswetter panel noted, Cansler suggests that
without the duty-to-warn claim, the State would have been immune from liability under
that exception. See Keiswetter, 2014 WL 3732021, at *6 ("Absent the failure to warn of
the escape after it occurred, Cansler indicates that the State would have been immune.").
In discussing the State's duty to confine the dangerous inmates before their escape,
the Cansler court acknowledged that "police protection" was implicated:
"There is no question that penal officials and employees have the powers of law
enforcement officers when such powers are necessary for the performance of their duties.
When moving prisoners from one penal institution to another, or to and from court, penal
officers would have and exercise the same powers as would, for example, a deputy
sheriff. The operation of a penal institution is carried on pursuant to the police power of
the state, and the institution itself provides police protection for all Kansas residents by
keeping apart from the rest of the population those convicted felony offenders whose
actions have been and perhaps promise to be dangerous and inimical to society. . . .
". . . While the seven inmates were within the walls of the penitentiary, the State's
duty could be classified as custodial and as providing police protection for the benefit of
all Kansans." (Emphasis added.) 234 Kan. at 571-72.
See also K.S.A. 2015 Supp. 22-2202(m) (defining "law enforcement officer" as a person
who has a "duty to maintain or assert custody or supervision over persons accused or
convicted of crime"); K.S.A. 75-5247a (prison officials "acting within the scope of their
duties as employees of the department of corrections, shall possess such powers and
duties of a law enforcement officer as are necessary for the performance of such duties").
So we conclude per these statements from Cansler that under certain circumstances, the
KTCA's police protection exception can apply to correctional facilities and their
supervisory personnel.
9
Generally, whether an exception under K.S.A. 2015 Supp. 75-6104 applies
depends on the specific allegations raised by the plaintiff. See Thomas v. Board of
Shawnee County Comm'rs, 293 Kan. 208, 235, 262 P.3d 336 (2011) (discretionary
function exception under K.S.A. 2010 Supp. 75-6104[e] does not apply when plaintiff
alleges government defendant negligently performed a ministerial act); Cansler, 234 Kan.
at 568 (enforcement of a law exception under K.S.A. 1981 Supp. 75-6104[c] applies
when plaintiff's sole claim is that government defendant enforced or failed to enforce a
law). And exceptions are not to be liberally construed. See Jackson v. City of Kansas
City, 235 Kan. 278, 286, 680 P.2d 877 (1984) (ordinarily a strict or narrow interpretation
must be applied to statutory exceptions), overruled on other grounds by Simmons v.
Porter, 298 Kan. 299, 312 P.3d 345 (2013); see also Robertson, 231 Kan. at 363
(ordinarily a strict or narrow interpretation is applied to statutory exceptions, but statutes
must be construed in their entirety with a view of giving effect to the legislative intent).
Here, Keiswetter claims only that the State failed to take reasonable care in
preventing Zorn from escaping from custody and attacking Helen Keiswetter, i.e., that the
State breached an individual duty to her to confine Zorn. Relying on Cansler, the State
responds that because the duty to keep an inmate confined is a duty of "providing police
protection for the benefit of all Kansans," any breach of that duty is immunized by the
police protection exception. See Cansler, 234 Kan. at 572. Keiswetter counters with a
1992 opinion of a Court of Appeals panel to contend that the police protection exception
does not apply when a government defendant breaches a specific duty owed to an
individual rather than the public at large. See Washington v. State, 17 Kan. App. 2d 518,
525-26, 839 P.2d 555 (1992). As discussed below, we agree with the State and conclude
the police protection exception exempts the State from liability in this case.
We start with Washington. Inmate Washington of the Lansing Correctional
Facility had been in a fight with an inmate named Vaughn. Both were later placed in the
Adjustment and Treatment Unit where, while separated, Vaughn repeatedly threatened
10
Washington. Both were released from the unit and placed in general population the same
day in cells four cells apart. Vaughn then attacked and injured Washington who sued to
recover for his injuries.
The Washington Court of Appeals panel rejected the argument that the State was
immunized because of the police protection exception with the following discussion:
"The State argues the administration of a correctional facility is a police function exempt
from liability pursuant to this provision. As a general rule, this is correct. In Cansler, 234
Kan. at 571, the court concluded that '[t]he operation of a penal institution is carried on
pursuant to the police power of the state.'
"Although the language of 75-6104(n) suggests immunity for failure to provide
adequate police protection is absolute, the police protection exemption will not provide
governmental immunity in all instances where the State fails to provide adequate
protection. Where a government employee (1) possesses the power of a law enforcement
officer and (2) breaches a specific duty owed to an individual rather than the public at
large, 75-6104(n) will not protect the State from liability. Robertson v. City of Topeka,
231 Kan. 358, 363, 644 P.2d 458 (1982). If upon remand it is concluded that prison
officials breached a specific duty owed to Washington as an individual pursuant to
Restatement (Second) of Torts § 320, the police protection exemption would not provide
the State with immunity from liability." (Emphasis added.) 17 Kan. App. 2d at 525-26.
We reject Washington's blanket statement that the police protection exception
never applies to a breach of "a specific duty owed to an individual rather than the public
at large"—a rejection which eliminates our need to determine whether special duties
existed here. 17 Kan. App. 2d at 526. In support of our conclusion we first observe that
the sole authority cited by the Washington panel for this particular statement is Robertson
v. City of Topeka. But this court's decision in Robertson is not supportive. We simply
noted that "[a]bsent some special relationship with or specific duty owed an individual,
liability will not lie for damages"—a statement with which we agree. 231 Kan. at 363.
The Washington panel goes farther, however, to conclude there can never be immunity
11
under the police protection exception when law enforcement breaches this special duty.
Second, we note this view by the Washington panel contravenes Cansler's indication 8
years earlier that the police protection exception would have applied absent the duty to
warn. And it is important to recognize that the Cansler plaintiff and Keiswetter both
claimed, among other things, the State breached a special duty to confine those respective
inmates under Restatement (Second) of Torts § 319 (1964).
We turn now to Keiswetter's implicit contention during oral arguments that
rejecting this Washington panel conclusion would violate the general rule that exceptions
to liability under the KTCA must be narrowly construed. See Robertson, 231 Kan. at 363.
We acknowledge this court previously rejected an overbroad construction of the police
protection exception in Jackson v. City of Kansas City, 235 Kan. 278. The Jackson
decision was a personal injury action under the KTCA involving a collision between two
Kansas City fire trucks responding to the same fire.
The City argued the police protection exception granted "absolute" immunity in
any suit under the KTCA where the plaintiff alleged a governmental entity failed to
provide or negligently provided fire protection through its methods. Specifically, "[T]he
City asserts that under subsection (m) [now subsection (n)] the sole fact the incident
herein occurred while two city fire trucks were responding to a fire alarm operates as a
complete bar to claimants' actions." 235 Kan. at 290. In holding the exception should not
be construed quite so broadly, the Jackson court stated:
"We believe [the police protection exception] is aimed at such basic matters as
the type and number of fire trucks and police cars considered necessary for the operation
of the respective departments; how many personnel might be required; how many and
where police patrol cars are to operate; the placement and supply of fire hydrants; and
the selection of equipment options. Accordingly, a city is immunized from such claims as
a burglary could have been prevented if additional police cars had been on patrol, or a
house could have been saved if more or better fire equipment had been purchased. We do
12
not believe subsection (m) is so broad as to immunize a city on every aspect of negligent
police and fire department operations. Should firemen negligently go to the wrong house
and chop a hole in the roof thereof, we do not believe the city has immunity therefor on
the basis the negligent act was a part of the method of fire protection." (Emphasis added.)
235 Kan. at 292.
Three years later we approvingly quoted this full Jackson language as we again
examined the police protection exception in Beck, 241 Kan. 13. There, after a man
entered the University of Kansas Medical Center's emergency department and killed two
people with a shotgun, the plaintiffs brought personal injury and wrongful death actions
against the Kansas Adult Authority, Board of Regents, and Medical Center. Following
our confirmation that the university police officers had the same rights, protections, and
immunities afforded to other law enforcement officers, we determined that "[T]he
negligent acts complained of consist only of the failure to provide more adequate police
protection, and the failure to warn." (Emphasis added.) 241 Kan. at 22. We relied on the
plain language of the police protection exception and Jackson's rationale to hold that
"[t]he determination of how to provide police protection is immunized. The Medical
Center is not liable because of the methods it adopted for police protection." (Emphasis
added.) 241 Kan. at 24.
We conclude Keiswetter's claim that the State failed to take reasonable care in
preventing Zorn from escaping from custody and attacking Helen Keiswetter falls under
the police protection exception to liability under the KTCA because it invokes the State's
"failure to provide, or the method of providing, police . . . protection." See K.S.A. 2015
Supp. 75-6104(n). As mentioned, this court has held: "[A] city is immunized from such
claims as a burglary could have been prevented if additional police cars had been on
patrol, or a house could have been saved if more or better fire equipment had been
purchased" and a university medical center is immunized "because of the methods it
adopted for police protection." (Emphasis added.) See Jackson, 235 Kan. at 292; Beck,
241 Kan. at 24; see also Cansler, 234 Kan. at 571-72. So the State likewise is immunized
13
from Keiswetter's claim that the attack on his mother could have been prevented if
corrections personnel had more closely supervised Zorn, e.g., with additional personnel,
to prevent his escape. As we have stated previously: "'[T]he legislature is better equipped
to resolve the difficult policy questions inherent in the field of governmental immunity.
As judges our desire to achieve what may seem fair to us as individuals cannot overcome
the laws enacted by our duly elected legislators.'" Barrett, 272 Kan. at 260 (quoting
Brown v. Wichita State University, 219 Kan. 2, 9, 547 P.2d 1015 [1976]).
Because the State has demonstrated it is entitled to immunity under the KTCA's
police protection exception, we do not consider the lower courts' additional grounds for
rejecting Keiswetter's claim for relief, i.e., the public duty doctrine, the lack of a special
duty owed to Helen Keiswetter, or the failure to present sufficient evidence of negligence
to survive summary judgment. See Barrett, 272 Kan. at 264 (after holding KTCA's
recreational use exception provided immunity, no need to consider KTCA's discretionary
function exception); Nichols v. U.S.D. No. 400, 246 Kan. 93, 98, 785 P.2d 986 (1990)
(after holding KTCA's recreational use exception provided immunity, no need to discuss
discretionary function exception or Land and Water Recreational Areas Act defenses);
Beck, 241 Kan. at 24 (after holding KTCA's police protection exception provided
immunity, no need to reach the discretionary function exception).
The judgment of the Court of Appeals affirming the district court is affirmed. The
judgment of the district court is affirmed.
14