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Kirk v. City Shawnee8/11/2000
e phone and to call 911 if matters deteriorated.
That same day, Kathryn's aunt, Geraldine (Gerry) Stewart, called and requested an officer to come out and protect Kathryn. Stewart wanted an officer to come out to stay with them while Roland was in the house. There was no indication Roland was at the house or what time this call took place. Again, the dispatcher advised they could not send out a police officer simply to sit there while Roland was there for an extended period of time.
The next day, Roland shot and killed Kathryn at their home and then killed himself. At the time, Tommy Smith (a friend of a friend) was at Kathryn's house to provide her some protection. According to Smith, Roland arrived that morning, went down to the basement, and began taking boxes out to his truck. Smith, Kathryn, and Stewart were eating in the kitchen when Roland reentered the home with a shotgun. Roland used the gun to force Smith out the door of the house. The shootings then occurred.
Under policies of the Shawnee Police Department at the time, certain standards were established for enforcing PFA orders, including completing reports on all violations of a PFA order. The standards provided that the department's policy was the "vigorous enforcement of laws relating to domestic violence." Dispatchers were required to give domestic violence calls the same priority as any other life-threatening call. The department also had a policy for assisting in civil matters (a "civil standby") in order to preserve the peace in situations involving evictions, transfer of custody of children, and other civil matters.
In 1998, appellants James S. Kirk, Kathryn's son, and Darlene Mullin, the executrix of Kathryn's estate, filed a wrongful death and survivor action against the City and Roland's estate. The appellants claimed the City had breached a specific duty owed to Kathryn and had been negligent in failing to protect her from Roland. In answering the petition, the City asserted it was immune under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
After discovery was conducted, the City filed a motion for summary judgment. The City argued it was entitled to summary judgment because it had immunity under the KTCA--specifically, under the exceptions to liability--the failure to provide police protection. In controverting the City's motion, plaintiffs disputed some of the City's facts by inferring the department's actions discouraged Kathryn from calling the police and/or gave her no reasonable expectation that the City would protect her. The plaintiffs argued the City owed a duty to Kathryn based on the PFA order and the City's mandatory policies for handling domestic abuse cases.
In a memorandum decision, the trial court set forth its findings of fact which mirrored the factual statements from both parties' briefs. The trial court held that the City, through its police department, owed no individualized duty to Kathryn and that, as a result, the City was immune from liability under the discretionary function exception of the KTCA. Thereafter, two journal entries dismissing the claims against the City were filed on the same day. The next day, the plaintiffs filed their notice of appeal.
SPECIFIC INDIVIDUALIZED DUTY TO KATHRYN MORSE
On appeal, appellants challenge the trial court's ruling that the City, through its police department, did not owe an individualized duty to protect Kathryn from Roland. Plaintiffs allege that a duty existed based on the mandatory policies of the police department and the language of the PFA order.
In order to establish liability for negligence against any defendant, including a governmental enti
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