419 P.3d 8
Kan. Ct. App.2018Background
- At ~9:30 p.m. on Aug. 23, 2010, KHP Trooper Patrick Saleh initiated a ~1 minute 32 second high-speed pursuit of a red Toyota driven by Robert Horton after a tip about a passenger waving a knife and an improper license plate.
- Horton accelerated to >100 mph, ran a stop sign and at least one red light, weaved across lanes; Saleh pursued at 80–90 mph and recorded the chase on dash cam.
- Saleh stated he intended to terminate pursuit near 27th–29th St but did not; ~2½ blocks behind, his pursuit continued and Horton collided with plaintiffs Bennett and Montgomery at Kansas Ave & 29th St.
- Plaintiffs sued Saleh and the State: (1) Trooper acted recklessly in initiating/continuing pursuit in violation of K.S.A. 8-1506 and KHP policy (OPS-16); (2) State vicariously liable and also directly negligent in policy/training/hiring (the latter claims abandoned).
- Defendants moved for summary judgment claiming (a) no duty/breach/proximate cause; (b) KTCA immunity; (c) plaintiffs’ expert opinions speculative.
- The court applied Robbins’ reckless-disregard standard, found triable issues on duty/breach/causation as to Saleh (and vicarious State liability), rejected KTCA immunity, but granted summary judgment to the State on plaintiffs’ abandoned direct-institutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of duty under K.S.A. 8-1506 | K.S.A. 8-1506(d) imposes duty to "drive with due regard for the safety of all persons," creating an individual-duty exception to public-duty doctrine | Public-duty doctrine bars individual claims; statute privileges emergency driving so duty is to the public generally | Duty exists: statute and Robbins create a legally cognizable duty owed to individuals in pursuits under K.S.A. 8-1506(d) |
| Breach (reckless disregard standard) | Saleh should have terminated pursuit when it became futile (between 20th–21st St); continuing constituted conscious/unjustifiable disregard under Robbins | Saleh reasonably pursued: perceived facts justified pursuit; defendant expert said conduct consistent with accepted training/policy | Triable issue: facts could support jury finding Saleh breached the reckless-disregard standard; summary judgment inappropriate on breach |
| Causation (proximate cause) | Continued pursuit caused Horton to accelerate and crash; expert Alpert opined termination would likely have prevented the collision | Causation is speculative; fleeing driver was sole proximate cause; expert opinion unreliable/conjectural; pursuit too brief/typical to infer causation as matter of law | Triable issue: majority found circumstantial evidence and expert opinion sufficient to create genuine factual dispute for jury on causation; dissent would have granted summary judgment for lack of causation |
| KTCA immunity / discretionary-function | K.S.A. 8-1506(d) imposes a statutory duty, displacing KTCA discretionary and method-of-police-protection exceptions | Defendants invoke KTCA exceptions (discretionary function; method of providing police protection) to bar liability | KTCA immunity inapplicable: specific statutory duty in K.S.A. 8-1506(d) precludes KTCA exceptions; governmental immunity denied for pursuit-related recklessness |
Key Cases Cited
- Robbins v. City of Wichita, 285 Kan. 455 (Kan. 2007) (establishes reckless-disregard standard and statutory duty under K.S.A. 8-1506(d) covering initiation/continuation of pursuits)
- Yount v. Deibert, 282 Kan. 619 (Kan. 2006) (proximate cause requires ‘‘more likely than not’’ causal link; speculation insufficient)
- Carl v. City of Overland Park, 65 F.3d 866 (10th Cir. 1995) (predicts Kansas courts generally treat fleeing suspect as sole proximate cause absent egregious officer recklessness)
- City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla. 1992) (pursuit can cause suspect’s reckless driving; causation typically jury question)
- Stanley v. City of Independence, 995 S.W.2d 485 (Mo. 1999) (affirmed summary judgment for officer where causal link between pursuit and collision was speculative)