 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kirk v. City Shawnee8/11/2000
, appellants seem to be arguing the PFA order imposed a specific duty on the City to protect Kathryn from her husband. Appellants cite the language of the order requiring law enforcement to provide assistance, as well as the police department's policies, to support this contention.
While the existence of the PFA order indicates there were problems of violence between Kathryn and Roland, the order clearly does not put either of them within the control of the police department sufficient to create an individualized duty of care. Absent a special relationship, there is no duty to control the conduct of a third party to prevent harm to others. Schmidt v. HTG, Inc., 265 Kan. 372, Syl. 4, 961 P.2d 677, cert. denied 525 U.S. 964 (1998).
In this case, the facts do not fall within any of the cases discussed above that recognize special relationships creating a duty. Moreover, in light of the Schmidt case, finding such a special relationship under the present facts is unjustified. In Schmidt, the Supreme Court held a special relationship did not exist between a parolee and his parole officer to create a duty on the parole officer to warn others about the parolee's status or propensities. 265 Kan. at 387-90. If a special relationship did not exist in Schmidt, it clearly could not exist in this case.
A special duty to an individual also can be created when the governmental entity performs an affirmative act that causes injury or where it made a specific promise or representation that under the circumstances creates a justifiable reliance on the part of the person injured. P.W. v. Kansas Dept. of SRS, 255 Kan. at 835-37. Appellants contend Kathryn relied on the government's affirmative acts promising protection.
Appellants' contentions are not supported by the facts or the law. The only citation to the record to support Kathryn's alleged reliance is the deposition testimony of Stewart, who testified that Kathryn understood after the PFA hearing that a police officer would be present when Roland came to the house. Nothing in the transcript from that hearing indicates that any governmental official (and certainly not an agent of the City) told Kathryn that police would be present during the periods her husband was allowed to be in the house. Likewise, there is no evidence that Kathryn was aware of, or relied upon, any of the police department policies regarding domestic abuse cases or civil standbys.
Moreover, even if a promise was made at the courthouse at the time of the PFA hearing, the record shows Kathryn was advised that afternoon, by both a police dispatcher and a police sergeant, that police officers could not be provided for any extended period when Roland was allowed, by court order, to be in the house. The only "promise" made was that the department would send over a couple of officers, if they were available, to Kathryn's home if she called them right before or when Roland arrived; she was told these officers would stay for a brief period, presumably to make a point to Roland that the police were concerned. There was no evidence that Kathryn called the department when Roland arrived on the evening of September 18 or the next day, when the shootings occurred.
Finally, appellants rely on the PFA order's language which required all " aw enforcement officers" to "grant any assistance necessary to protect the plaintiff . . . from abuse by the defendant." While the Shawnee Police Department knew of the order, the order did not (and should not be read to) require the department to provide police protection 24 hours a day, 7 days a week, nor to be guarantors of Kathryn's safety. The court specifically allowed Roland to be in the house on September 18
Page 1 2 3 4 5 6 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|