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Kirk v. City Shawnee8/11/2000
Appeal from Johnson District Court; JOHN P. BENNETT, Judge.
Affirmed.
Appellants James S. Kirk, as heir at law, and Darlene Mullin, as executrix of the estate of Kathryn Stewart Morse, deceased, sued the City of Shawnee (City) for the police department's failure to protect Morse from her estranged husband. Appellants appeal from the entry of summary judgment in favor of the City.
Kathryn Stewart Morse and Roland James Morse were married. In September 1997, Kathryn filed for divorce in Johnson County District Court. On September 15, 1997, she filed a petition for protection from abuse (PFA). At this time, the court issued a temporary PFA order, prohibiting Roland from contacting Kathryn or entering their house in Shawnee. Roland also was ordered to turn over a handgun to the sheriff.
On September 16, 1997, Kathryn completed a "house watch" form and delivered it to the Shawnee Police Department. The form indicated that she had a PFA order against Roland, that he had threatened her life, and that he possessed a gun.
On September 17, 1997, Kathryn called the Shawnee Police Department to report that Roland had violated the PFA order. The police dispatcher confirmed a PFA order had been entered and dispatched an officer to Kathryn's residence to take a report. However, Kathryn was not at home when she made the call, but was in the police station. By the time the dispatcher determined the source of the call, Kathryn had left. On the same day, Shawnee police were notified that Roland had removed a gun from the house prior to being served with court papers and that Roland was extremely upset.
On September 18, 1997, Kathryn obtained a long-term PFA order--valid for 5 months--which prohibited Roland from entering or approaching their residence. The order contained the statutory language stating: "Law enforcement officers are directed to grant any assistance necessary to protect the plaintiff . . . from abuse by the defendant, and to provide any other assistance necessary to enforce these orders."
In addition, the PFA order allowed Roland access to the residence the evening of September 18 and all day September 19 to remove personal belongings and business records. During the hearing, Kathryn's attorney commented they wanted a third person in the house while Roland was there, and the court agreed it was a good idea. During this hearing, Roland advised the court he had taken the revolver he was ordered to deliver to the sheriff and had delivered it to his son for safekeeping.
Kathryn talked to a police dispatcher in the mid-afternoon of September 18. This conversation was recorded. During the conversation with the dispatcher, Kathryn advised the dispatcher that Roland had changed his arrival time and they were "shooting for" 7:30 p.m. Kathryn told the dispatcher "I will let you know as soon as I know."
Minutes later, Kathryn talked with Sergeant Rob Moser. Kathryn advised Moser her husband had threatened her in the past and had a gun. When she asked for police presence at the home while Roland was there, Sergeant Moser advised Kathryn they could not keep an officer at her home for extended periods of time. He suggested she call a private security company or talk to another officer about police officers who might be willing to provide security while off-duty.
Sergeant Moser offered to send two officers to her home, if they were available, for a short period of time when Roland arrived. Sergeant Moser specifically advised Kathryn to call back shortly before or when Roland arrived and they would send officers over to the home for a few minutes. Sergeant Moser also advised Kathryn to stay near th
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