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Kirk v. City Shawnee8/11/2000
ty, the plaintiff must establish: (1) the defendant owed a duty to the plaintiff; (2) that duty was breached; (3) the breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff sustained damages. Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 397, 931 P.2d 26 (1997). If there is no duty, there can be no claim of negligence. Whether a duty exists is a question of law, and our review is unlimited. Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993).
The Public Duty Doctrine
When a negligence claim is asserted against a governmental agency, the court must consider the so-called "public duty doctrine." That doctrine establishes the general principle that a governmental agency owes duties to the public at large rather than to individuals. Fudge v. City of Kansas City, 239 Kan. 369, 372, 720 P.2d 1093 (1986). Under this doctrine, the fact the governmental entity owes a legal duty to the public at large does not establish a basis for an individual to claim the agency owed a legal duty to him or her personally. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 631, 938 P.2d 1293 (1997). No duty exists unless the plaintiff establishes that the agency owed a special duty to the injured party. Fudge, 239 Kan. at 372.
Situations where a "special duty" have been found vary greatly. However, the cases generally fall into two categories. One is where a special relationship existed between the governmental agency and the wrongdoers (i.e., the State has custody of the wrongdoer). See, e.g., Cansler v. State, 234 Kan. 554, 564-65, 675 P.2d 57 (1984) (State correctional officials owe a special duty to nearby residents to exercise reasonable care in maintaining prison security and issuing warnings when dangerous inmates escape); Washington v. State, 17 Kan. App. 2d 518, 523, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992) (prison officials owe duty of reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners). The second category involves cases where a special relationship existed between the agency and the injured person. See e.g., C.J.W. v. State, 253 Kan. 1, 12, 853 P.2d 4 (1993) (State had duty to warn of a detained child's propensity toward violence and to protect other children in custody from the violent child); Nero, 253 Kan. at 584-85 (state university, as landlord of dormitory students, had duty to protect students from reasonably foreseeable dangers, including other students known to be dangerous).
On the other hand, tort claims against a governmental entity have been dismissed on a number of occasions because no special duty was owed to the plaintiff. In P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 877 P.2d 430 (1994), for example, the Kansas Supreme Court held that state regulatory agencies did not owe a special duty to children in state-licensed daycare centers to protect them from abuse. 255 Kan. at 833-34. Likewise, SRS and its agents also owed no special duty to allegedly abused children or alleged child abusers to avoid negligence in investigation of allegations of child abuse. See Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d at 398 (no special duty owed to man accused of child abuse); Beebe v. Fraktman, 22 Kan. App. 2d 493, 496, 921 P.2d 216 (1996) (no special duty owed to allegedly abused child to protect him from the alleged abuser).
Similarly, the public duty doctrine applies to policing functions as well. For example, in Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982), the court held that a law enforcement officer owed no special duty to a homeowner when the officer refused to remove a trespasser from the premises.
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