Recently, a very divided Kansas Supreme Court dealt a blow to law enforcement immunity in vehicle pursuits when an uninvolved third-party is injured. Only a few facts are necessary here because the Court did not actually resolve the lawsuit. Instead, it decided a few legal issues and then sent the case back to the district court. So, which party will ultimately prevail in this particular lawsuit is unknown at this juncture. Based upon the following reviewed legal issues, the case will settle, or a judge or jury will decide it by applying these new standards to the facts in this particular chase event. That said, it is the following reviewed legal issues that are the point of this summary.
In 2010, a KHP Trooper was involved in a chase in Topeka involving a vehicle driven by Robert Horton. The chase lasted about a minute and a half and covered about a mile. The Trooper decided to end the chase and was about two-and-a-half blocks behind Horton when Horton ran through a red light and collided with a vehicle driven by Shelby Montgomery, an uninvolved third-party. A passenger in Montgomery’s vehicle, Scott Bennett, was also injured. Montgomery and Bennett sued. Prior to trial, the district court judge granted summary judgment to the State and the Trooper. Montgomery and Bennett appealed. A split Court of Appeals panel reversed. The State and Trooper appealed to the Kansas Supreme Court and it issued its opinion on June 26, 2020 on the following issues, all of which directly affect law enforcement officer immunity during a flee and elude event.
In a civil negligence claim like this one, a plaintiff must establish the existence of: 1) a duty of care owed to the plaintiff; 2) a breach of that duty of care; 3) an injury to the plaintiff; and, 4) the breach of that duty of care having been the proximate cause of the plaintiff’s injury.
First, K.S.A. 8-1506 “grants drivers of authorized emergency vehicles certain privileges that excuse them from following traffic laws under specified conditions. Along with these privileges, subsection (d) provides: ‘The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.” The Court emphasized that such a statutory duty is a “specific duty owed to all persons, unlike other general duties–like the duty to preserve the peace—which is owed to the public at large.” That court holding results in injured individuals having the right to sue officers and their employers for a breach of the statutory duty in K.S.A. 8-1506.
Second, for a breach of that duty to have occurred, a plaintiff must show that law enforcement drove “a vehicle under circumstances that show a realization of the imminence of danger to another person or property of another where there is a conscious and unjustifiable disregard of that danger. This standard applies to the officer’s decision to initiate the pursuit of a fleeing suspect, the officers decision to continue that pursuit, and the officer’s manner of operating his or her vehicle during the pursuit.” The majority opinion reminds us that the Court had in 2007 in Robbins v. City of Wichita implicitly held that K.S.A. 8-1506 imposed such a specific duty on law enforcement. So, it being mentioned in this case should be nothing new. However, it is not at all clear that the law enforcement community was aware of that 2007 “implicit” holding.
Third, the Court defines proximate cause as a cause that “in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.” “We also note a majority of jurisdictions have concluded that causation in police pursuits is a question of fact for the jury. We now join this majority [of jurisdictions] and hold [that] law enforcement’s conduct during a pursuit can be the legal cause of a third party’s injuries.”
Fourth, the Kansas Tort Claims Act provides that governmental entities may be held liable for the negligence of their employees. However, the KTCA also sets out an extensive list of immunities to that liability, including the “discretionary function exception” and the “method of providing police … protection exception”:
**Under the discretionary function exception government actors are immune from liability for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” But, the Court majority held that because of the statutory duty to drive with due regard for the safety of all persons in K.S.A. 8-1506, an officer’s decision to pursue or to continue to pursue is not a discretionary function. Thus, no immunity here for car chase decisions.
**The method of providing police … protection exception “is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments . . . a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. . . “ “[The] pursuit of Horton is not a basic matter of police protection, such as the number of personnel and cars necessary for the operation of the police department.” Thus, no immunity here for car chase decisions.
The vote on this case was 4-3. The Court for this matter was made up of four justices and two court of appeals judges who were sitting in because of the two current vacancies on the Supreme Court.
Any changes to this new case law will probably have to be legislative and involve amending the KTCA list of exceptions, especially the definition of the discretionary function exception.