 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kirk v. City Shawnee8/11/2000
or 19, but made no specific order requiring police to be present. From the transcript of the PFA hearing, while it is clear that the court believed it would be a good idea if a third person were present, the order did not expressly or impliedly require the City to provide constant police presence during this period.
For these reasons, the trial court correctly found the City did not owe an individualized duty to Kathryn under the facts of this case. The PFA order did not create the type of obligation appellants seek to impose on the City in this case. Moreover, there is no evidence the City made any promise of constant protection on which Kathryn relied. Finally, there is no special relationship between the City and either Roland or Kathryn other than the same duty police owe to members of the public in general. Absent a basis for an individualized duty to Kathryn, the appellants' claim fails as a matter of law.
DISCRETIONARY FUNCTION EXCEPTION OF THE KANSAS TORT CLAIMS ACT
Even if the PFA order created some duty the City owed in protecting Kathryn, the question remains whether any of the exceptions of the KTCA apply to give immunity to the City in this case. The trial court found the discretionary function exception, K.S.A. 1999 Supp. 75-6104(e), applied to grant immunity to the City. In their brief, appellants contend the mandatory policies of the police department in handling domestic abuse cases took away any discretion department officials had in handling Kathryn's situation. Again, appellants do not expressly state what they believe these policies required the City to do in this case.
Appellants cite to various cases, which assert the discretionary function exception does not apply when a legal duty to act exists by case law or by statute. However, appellants do not cite any statute or case law that imposes a legal duty on the City in this context. Appellants' conclusory reliance on the PFA order is to no avail because the order did not specify how law enforcement officers were to act in providing assistance, in protecting Kathryn or in enforcing the order. Absent a statutory or legal directive to perform a specified act, the cases cited by appellants have no relevance to the issues in this case.
Appellants also argue the department had no discretion under its own policies, therefore, appellants contend the discretionary function exception could not apply. While this might have been true prior to 1987, it is no longer the case.
In Fudge v. City of Kansas City, the Supreme Court held that written guidelines of a police department created a duty that required a police officer to arrest an intoxicated individual who subsequently injured the plaintiff. In Fudge, the existence of the written guidelines converted an otherwise discretionary act into a non-discretionary one. 239 Kan. at 375.
In response to Fudge, the 1987 Legislature amended the KTCA to add what is now K.S.A. 1999 Supp. 75-6104(d). L. 1987, ch. 353, ยง 3. This provision states that a governmental entity is not liable for damages resulting from the "adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons' health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured." K.S.A. 1999 Supp. 75-6104(d). This subsection was added in response to Fudge and has been acknowledged as legislatively overruling this portion of the Fudge decision. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. at 628-29 (governmental agencies are immune from claims that they failed to follow their own mandatory policies in placing juvenile offenders). See also Burney v. Kansas Dept of SRS
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.
|
|