Kansas Tort Claims Act Update

Transcription

1 Kansas Tort Claims Act Update Presentation to the City Attorneys Association of Kansas October 5, 2018 David R. Cooper Fisher Patterson Sayler & Smith LLP 3550 SW 5th Street Topeka, Kansas (785)

2 Washburn Law (1994) Law clerk for Honorable Robert J. Lewis, Jr., of the Kansas Court of Appeals ( ) Fisher, Patterson, Sayler & Smith, L.L.P. (1996- present) in the Topeka office Civil litigator focusing on governmental liability, civil rights, constitutional law, and employment matters Presents on issues ranging from open records and open meetings, governmental liability and immunities, civil rights litigation and employment litigation Kansas Board of Law Examiners (2014 present) AV Rated, listed in Best Lawyers in America, listed in SuperLawyers Past President of the Kansas Association of Defense Counsel Adjunct faculty for the Washburn University School of Law Trial Advocacy Program David R. Cooper Fisher Patterson Sayler & Smith LLP 3550 SW 5th Street Topeka, Kansas 66606

3 Kansas Tort Claims Act (KTCA) K.S.A to 3120 Background Enactment of the KTCA in 1979 ended more than a decade of sparring between the judiciary and legislature over the issue of governmental immunity. 5 decisions by Kansas Supreme Court between 1969 and abrogated governmental immunity either partially or completely. Several were countered or negated by legislative action reestablishing governmental immunity either for the state or for municipalities. Kansas Legislative Research Department, Kansas Legislator Briefing Book (2015)

4 Background KTCA transformed approach to governmental liability. Waives sovereign immunity and imposes liability on governmental entities for the torts ( wrongful acts or omissions ) of their employees in the same manner as a private employer. Not a waiver of the State s immunity under the Eleventh Amendment. K.S.A (g).

5 Background A governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of its employees while acting within the scope of their employment under circumstances where a private person, would be liable under Kansas law. K.S.A (a). K.S.A (a) parallels rules for respondeat superior liability under Restatement (Second) of Agency 219, 243.

6 Restatement Restatement (Second) of Agency 219 (1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. (2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: a. the master intended the conduct or the consequences, or b. the master was negligent or reckless, or c. the conduct violated a non-delegable duty of the master, or d. the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation. Restatement (Second) of Agency 243 A master is subject to liability for physical harm caused by the negligent conduct of servants within the scope of employment.

7 219(2)(d) Probably does not apply Apparent authority + reliance + tort accomplished through aid of employment Commerce Bank of St. Joseph v. State, 251 Kan. 207, 833 P.2d 996 (1992) Bank held security interest in grain at elevator Grain sold and sale hidden for years Lack of grain concealed with aid of State Warehouse Examiner who accepted bribes in exchange for warning elevator of surprise audits Court considers whether act was for personal benefit or in furtherance of state's business, whether there was express or implied authority to perform act in question, and whether employee's act was reasonably foreseeable by state. Acceptance of a bribe is not within the employee's scope of employment and does not further the State's or the State agency-employer's business.

8 Liability Framework A city is liable only for negligent acts of its employees in the same manner as a private entity. K.S.A (a) [T]he analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity a governmental entity can be found liable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be liable under the same circumstances and (2) no statutory exception to liability applies. Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 585, 214 P.3d 1173 (2009).

9 No Constitutional Claims under KTCA The KTCA creates no new cause of action beyond what is already available under Kansas law, and there can be no greater liability under the KTCA than a private person would have under Kansas law. Prager v. Kan. Dept. of Revenue, 271 Kan. 1, 34, 20 P.3d 39 (2001). [T]he KTCA provided only for liability where the governmental entity, if a private person, would be liable under the laws of this state. Because there is no statutory or common-law cause of action in Kansas by which a private person may be liable for damages for deprivation of a person's constitutional rights, neither the [State nor the its employee] could be liable for [plaintiff s First Amendment] claims under the KTCA. Id.

10 Analysis of a Claim Under KTCA: The Battle Ground is Duty It s basic, but start at the beginning Four elements for a negligence action: 1. A duty owed to the plaintiff, 2. Breach of that duty, 3. Causation between the breach of duty and the injury to the plaintiff, and 4. Damages suffered by the plaintiff. Shirley v. Glass, 297 Kan. 888, 894, 308 P.3d 1 (2013). Actionable negligence must be based on a duty owed the plaintiff by the defendant. Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982). Whether a duty exists is a question of law to be decided by the court, not the jury. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

11 Litigating: KTCA should be raised early Absent violation of constitutional rights, the legislature may control governmental immunity. Brown v. Wichita State University, 219 Kan. 2, 7, 547 P.2d 1015 (1976). Immunity is an entitlement not to stand trial or face the other burdens of litigation. McCormick v. Bd. of Cty. Comm'rs of Shawnee Cty., 272 Kan. 627, 637, 35 P.3d 815, 825 (2001), quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ( The privilege is an immunity from suit rather than a mere defense to liability; and... it is effectively lost if a case is erroneously permitted to go to trial. ) [I]immunity, is supposed to free the defendant from the burdens of litigation, it typically makes sense to examine immunity as the threshold question. Keiswetter v. State, 304 Kan. 362, 367, 373 P.3d 803 (2016).

12 Litigation Burdens and Presumptions: Summary Judgment vs. Motions to Dismiss The Kansas Supreme Court has supported a refusal to allow depositions and affirmed dismissal of action based on immunity under the KTCA. Keiswetter v. State, 304 Kan. 362, 367, 373 P.3d 803, 807 (2016) (citing Beck v. Kansas Adult Authority, 241 Kan. 13, 23 24, 735 P.2d 222 (1987) and Robertson v. City of Topeka, 231 Kan. 358, , 644 P.2d 458 (1982)). If you assume a duty (i.e., don t need discovery to assess existence of a special relationship) does exception apply? If so, motion to dismiss is appropriate. Gov t has the burden to establish immunity from liability. Keiswetter, 304 Kan. at 368; Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278, 282 (2010).

13 Motion to Stay, Limited Discovery, Bifurcated Discovery Bare allegations should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. Harlow v. Fitzgerald, 457 U.S. 800, (1982) Limited discovery may be required to resolve immunity. Anderson v. Creighton, 483 U.S. 635, 646, n. 6 (1987); Crawford-El v. Britton, 523 U.S. 574, 593 (1998).

14 Public Duty Doctrine Under the public duty doctrine, a plaintiff suing a governmental entity in negligence cannot establish the duty element for a claim when the duty is a public one, i.e., owed to the public at large and not to any particular individual. Keiswetter v. State, 304 Kan. 362, 365, 373 P.3d 803, 805 (2016). Remember that liability under K.S.A (a) exists only if a private person would also be liable under Kansas law.

15 Public Duty Doctrine: Police Broadly speaking, a police officer has immunity from liability on claims by individuals arising from the performance or nonperformance of an officer's general duties such as enforcement of law and crime prevention. Liability arises only where an officer breaches a specific duty owed to an individual. Put another way, an officer must owe an affirmative duty to an individual before he may be held liable. Hendrix v. City of Topeka, 231 Kan. 113, 120, 643 P.2d 129 (1982). LEOs generally owe the duty of preserving the peace to the public at large rather than to any individual. Lamb v. State, 33 Kan.App.2d 843, 847, 109 P.3d 1265 (2005).

16 Public Duty Doctrine Not Limited to Police City building inspections of church building which later fell were a part of the duties prescribed by statutes and ordinances for the protection of the public. Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 792 P.2d 993 (1990). EMS attendants had no special duty to transport a elderly woman to the hospital against her wishes despite demand of daughter with power of attorney. Potts v. Board of County Commissioners of Leavenworth County, Kansas, 39 Kan.App.2d 71, 176 P.3d 988 (2008). Dispatcher has no special duty to a citizen who calls for emergency assistance in absence of a promise by the dispatcher to assist and detrimental reliance by the citizen. Lovitt v. Board of Commissioners of Shawnee County, Kansas, 43 Kan.App.2d 4, 221 P.3d 107 (2009).

17 Public Duty Doctrine Not Limited to Police Child welfare worker duties to investigate and address reports of child abuse or neglect are owed to public, not specific individuals. Roe v. Kansas Dept. of SRS, 278 Kan. 584, 593, 102 P.3d 396 (2004). Correctional officers do not owe a duty to specific individuals because their duty to keep offenders separate from society is owed to the public at large. Cansler v. State, 234 Kan. 554, 571, 675 P.2d 57 (1984); Washington v. State, 17 Kan.App.2d 518, 525, 839 P.2d 555, rev. denied 252 Kan (1992).

18 Special Relationship Required An Affirmative Act to Create the Relationship A plaintiff must show that a special relationship exists which gives rise to a special duty owed by the governmental entity to a specific individual. Keiswetter v. State, 304 Kan. 362, 365, 373 P.2d 803 (2016). There is no affirmative duty to prevent a third party from harming others absent a special relationship. McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991). Special duty arises under three circumstances: (1) When gov t has custody/care of wrongdoer; (2) When gov t has custody/care of the injured person; or (3) When gov t took affirmative action causing injury; or made a specific promise or representation creating justifiable reliance by the person injured. Williams v. C-U-Out Bail Bonds, LLC, 54 Kan.App.2d 600, 608, 402 P.3d 558 (2017); Potts v. Board of Leavenworth County Comm'rs, 39 Kan.App.2d 71, 81, 176 P.3d 988 (2008).

19 Promises A special duty may arise when a specific promise or representation by an officer is made under circumstances creating justifiable reliance by the individual. Taylor v. Phelan, 799 F. Supp. 1095, 1100 (D. Kan. 1992), aff'd, 9 F.3d 882 (10th Cir. 1993) (citing Dauffenbach v. City of Wichita, 233 Kan. 1028, 1033, 667 P.2d 380 (1983)); Glaser ex rel. Glaser v. Emporia Unified Sch. Dist. No. 253, 271 Kan. 178, 191, 21 P.3d 573, 581 (2001) (affirmative acts or promise to act required to create special duty); see also Lovitt v. Board of Commissioners of Shawnee County, Kansas, 43 Kan.App.2d 4, 8, 221 P.3d 107 (2009); Potts v. Board of Leavenworth County Comm'rs, 39 Kan.App.2d 71, 81, 176 P.3d 988 (2008); Kirk v. City of Shawnee, 27 Kan.App.2d 946, Syl. 3, 10 P.3d 27, rev. denied 270 Kan. 898 (2000). General or blanket assurances that everything will be alright or don t worry about it and go about your normal business do not create a special relationship. A specific promise relied upon by plaintiff is required. Taylor v. Phelan, 799 F. Supp. at 1102.

20 K.S.A exceptions to liability A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from: (a) through (x) Now 24 separate exceptions or immunities

21 Legislative Functions K.S.A (a) A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from: (a) Legislative functions, including, but not limited to, the adoption or failure to adopt any statute, regulation, ordinance or resolution.

22 Legislative Functions K.S.A (a) City council members were performing a legislative function when discussing whether to confirm mayoral appointee of zoning administrator and, thus, were immune from claims of defamation and tortious interference. Sayers v. City of Pomona, No. 106,418, 281 P.3d 597 (Kan.App. July 27, 2012), rev. denied (Sep 04, 2013). Whether particular activities fall within the legitimate legislative sphere, depends on whether the activities took place in session by its members in relation to the business before the council. Baze v. City of Frontenac, Kansas, 2004 WL , 1 (D.Kan. 2004) (claim against member of governing body for voting for unconstitutional zoning ordinance for purpose of forcing plaintiffs to sell their property did not defeat immunity for such undoubtedly legislative acts).

23 Judicial Functions K.S.A (b) A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from: (b) judicial function. District Court, sued by participant in sexual predator treatment program, immune from claims for damages. Merryfield v. State, No. 115,260, 390 P.3d 915 (Kan. App. Mar. 10, 2017), review denied (June 29, 2017). Setting pretrial release bonds in criminal cases were judicial functions, for which State was entitled to immunity with respect to action challenging release orders. Smith v. State, 264 Kan. 348, 955 P.2d 1293 (1998). Municipal court clerk's failure to recall a bench warrant was held to be ministerial and nondiscretionary, thus, not a judicial function. Cook v. City of Topeka, 232 Kan. 334, 337, 654 P.2d 953 (1982).

24 Enforcement/Failure to Enforce Law K.S.A (c) A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from: (c) enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, rule and regulation, ordinance or resolution.

25 Enforcement/Failure to Enforce Law K.S.A (c) No liability for: Failing to enforce speed limits. Sisk v. Nat l R.R. Passenger Corp., 647 F.Supp. 861 (D.Kan. 1986). Negligently performing background checks in connection with licensing a fortune-teller. Barber v. Williams, 244 Kan. 318, , 767 P.2d 1284 (1989). Negligent issuance of building permits allowing a septic system despite percolation testing showing soil unsuitable. Collins v. Heavener Properties, Inc., 245 Kan. 623, 783 P.2d 883 (1989). Trespass, conversion, and negligence when entering property without additional notice to abate a nuisance under habitual violator ordinance (ordinance held invalid). Bratton v. City of Atchison, No. 114,000, 2016 WL (Jun. 24, 2016), review denied (Oct. 6, 2017).

26 Enforcement/Failure to Enforce Law K.S.A (c) But municipal employees must not act outside the purview of the statute or ordinance: E.g., cutting 63 trees using chain saws when abating weeds under city ordinance. Lantz v. City of Lawrence, 232 Kan. 492, 657 P.2d 539 (1983) (remanding for fact determination whether trees fell within definition of weeds). Immunity for enforcement/failure does not foreclose liability for breach of duty independent of statute/law: E.g., failing to warn of escape of dangerous inmates armed with rifles during escape when duty to warn was undertaken voluntarily and separately from statute/law. Cansler v. State, 234 Kan. 554, 569, 675 P.2d 57, 69 (1984).

27 Traffic Signing K.S.A (h) A governmental entity or an employee acting within the scope of the employee s employment shall not be liable for damages resulting from: (h) the malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or removing any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity Bifurcates liability for traffic signs into two areas: (i) maintenance; and (ii) placement or removal of signs. Patterson v. Cowley County, 307 Kan. 616, 633, 413 P.3d 432, 444 (2018).

28 Traffic Signing K.S.A (h) The first clause provides liability for replacement of signs only after an unreasonable period has elapsed before repair occurs. The second clause provides immunity as to the decision whether to place a sign or signal at a particular location if discretionary. For claims predicated on failure to place a traffic-control device the discretionary element in that decision is crucial to determining whether the governmental entity can be liable. Patterson, 307 Kan. at 633 (quoting Carpenter v. Johnson, 231 Kan. 783, 786, 649 P.2d 400 (1982)). Accordingly, failure to place a traffic-control device is not per se a discretionary function; rather, the test is whether the judgments of the government employee are of the nature and quality which the legislature intended to put beyond judicial review. This is how the MUTCD comes into play. Id. ( quoting Carpenter, 231 Kan. at 788).

29 Traffic Signing K.S.A (h) Discretion is limited by application of the MUTCD. Discretion in the erection of traffic-control devices exists but under certain specified conditions may be preempted by the MUTCD. If the conditions specified by the MUTCD as warranting the placement of a traffic-control device are satisfied, then the placement of the device is a matter of professional judgment; no discretion is involved. Force By and Through Force v. City of Lawrence, 17 Kan.App.2d 90, 99, 838 P.2d 896, 902 (1992). Where MUTCD does not mandate an advisory or traffic control sign nor does it trigger a need to seek out professional engineering judgment the local authority has discretion not to consider whether to install and the KTCA shields the local authority from liability. Patterson, 307 Kan. at 638.

30 Negligent Inspection K.S.A (k) A governmental entity or an employee acting within the scope of the employee s employment shall not be liable for damages resulting from: (k) the failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the governmental entity, to determine whether the property complies with or violates any law or rule and regulation or contains a hazard to public health or safety. No liability for failing to inspect railroad s property to determine whether it contained hazard to public safety (sight obstructions). Sisk v. National R.R. Passenger Corp., 647 F.Supp. 861 (D.Kan. 1986). No liability for the negligent inspection of a tree that later fell and damaged a car. Siple v. City of Topeka, 235 Kan. 167, 679 P.2d 190 (1984). Cemetery district not liable for failure inspect headstone which fell on girl because headstone was property other than of the District. Brock v. Richmond-Berea Cemetery Dist., 264 Kan. 613, 620, 957 P.2d 505, 511 (1998).

31 Police & Fire Protection K.S.A (n) A governmental entity or an employee acting within the scope of the employee s employment shall not be liable for damages resulting from: (n) failure to provide, or the method of providing, police or fire protection. Historically given restrictive interpretation to address only policy level functions such as decisions on how many police cars should be on patrol or what fire equipment should be available. Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984).

32 Police & Fire Protection K.S.A (n) Found to apply to: Determination of how to provide police protection at a hospital emergency room. Beck v. Kansas Adult Authority, 241 Kan. 13, 24, 735 P.2d 222 (1987) ( The determination of how to provide police protection is immunized. ). Determination of the nature and type of police protection to provide at a special event no liability on claim that inadequate personnel at event to dissuade gang violence. Gragg v. Wichita State Univ., 261 Kan. 1037, , 934 P.2d 121 (1997). Determination of how to supervise a work crew of inmates mowing grass outside the confines of a correctional facility. Keiswetter v. State, 304 Kan. 362, , 373 P.3d 803, 805 (2016).

33 Recreational Use Immunity K.S.A (o) A governmental entity or an employee acting within the scope of the employee s employment shall not be liable for damages resulting from: (o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury. Applies to any public property permitted to be used for recreational purposes. Immunity does not depend upon the primary use of the property but rather depends on its character. Lane v. Atchison Heritage Conference Center, 283 Kan. 439, , 153 P.3d 541 (2007). Correct test is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged. Id., at 447.

34 Recreational Use Immunity: Broadly applied; includes any property which is integral or necessary to the recreational use. Bathrooms at football stadium. Wilson v. Kansas State University, 273 Kan. 584, 44 P.3d 454 (2002). Ice on the loading dock to conference center used for recreation and was used for a dance the night of the accident. Lane v. Atchison Heritage Conference Center, 283 Kan Equipment building for swimming pool which housed chlorinator. Stone ex rel. Stone v. City of La Cygne, No. 88,996, 2003 WL (Kan.App. Apr. 11, 2003). Commons adjacent to school gym which housed ticket booths, restrooms, concession stand and other uses integral to recreational use of gym. Poston v. U.S.D. No. 387, 286 Kan. 809, 189 P.3d 517 (2008).

35 Unless Gross and Wanton Negligence Recreational Use Immunity does not insulate against gross and wanton negligence. K.S.A (o). The keys to a finding of gross and wanton negligence are the knowledge of a dangerous condition and indifference to the consequences. Lanning v. Anderson, 22 Kan.App.2d 474, 481, 921 P.2d 813, 819 (1996). Prior accident/injury at same location/same condition suffices to make gross and wanton negligence a jury question. Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, , 836 P.2d 1222, (1992). Absent evidence of prior accident or knowledge of dangerous condition, immunity applies as a matter of law. Lanning, 22 Kan.App.2d at 481.

36 Discretionary Functions K.S.A (e) A governmental entity or an employee acting within the scope of the employee s employment shall not be liable for damages resulting from: (e) 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.

37 Discretionary Functions Officer's decision on how to investigate subject s claims of mistaken identity was of the nature and quality which the legislature intended to put beyond judicial review. Soto v. City of Bonner Springs, 291 Kan. 73, 88, 238 P.3d 278 (2010). Existence of a duty does not preclude application of discretionary function exception. Though gov t entities/employees do not have discretion to violate a legal duty, the existence of a duty does not preclude immunity under the discretionary function exception. If such were the case, K.S.A (e) could never apply in a negligence action, for in order to recover for negligence, a plaintiff must establish the existence of a duty. Schmidt v. HTG, Inc., 265 Kan. 372, 392, 961 P.2d 677 (1998).

38 Discretionary Functions Where mandatory controls exist whether arising from agency directives, caselaw, or statutes the discretionary function exception does not apply. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 235, 262 P.3d 336 (2011). The necessity that the actor employ expertise, whether educational or experiential, also is relevant to determining whether an action is discretionary or ministerial. Id., at Corrections officer had no discretion to ignore jail policy for inmates on suicide watch mandating 15-minute cell-checks, cell shakedowns, and requirement that window to cell remain unobstructed. Id., at 237; Estate of Belden v. Brown County, 46 Kan. App. 2d 247, , 261 P.3d 943, 972 (2011) (another jail suicide case).

39 Discretionary Function The Battleground The decision to continue pursuit of a fleeing suspect. Held not within the discretionary function exception. Montgomery v. Saleh, 55 Kan. App. 2d 429, , 419 P.3d 8 (Mar. 30, 2018), petition for review pending. Rationale: If the law permitted a grant of immunity under the KTCA in police pursuit cases, then the provision of K.S.A (d) which requires the officer to drive with due regard for the safety of all persons would be rendered totally meaningless. Id. at 451. Chase began at 21 st & Topeka (to 20 th, then to Kansas Ave.) Suspect exceeded 100 mph Suspect ran red light and crashed at 29 th & Kansas Trooper 2½ blocks back when crash occurred

40 Montgomery v. Saleh misapplies K.S.A (d) K.S.A allows driver of an authorized emergency vehicle to park/stand wherever, run lights and stop signs, exceed speed limit, disregard direction or turn restrictions, skip toll booths Authorized emergency vehicle = light and sirens (both, not just lights). Driver has duty to drive with due regard for the safety of all persons, [and is liable for ] the consequences of reckless disregard for the safety of others. Driving under statute includes the decision to pursue or continue a pursuit of a fleeing law violator. Robbins v. City of Wichita, 285 Kan. 455, , 172 P.3d 1187 (2007). BUT standard under statute requires reckless disregard, which requires showing a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger. Id. at

41 Resources Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty Five Years, 52 Kan. L.Rev. 939, (2004). Kansas Legislative Research Department, Kansas Legislator Briefing Book (2015) Hesse & Burger, Recreational Use Immunity: Play at Your Own Risk, J. Kan. B.A. 28 (Feb. 2008)

42 Notice of Claim: K.S.A b(d) Condition precedent to filing suit. Applies (now) to claims against employees acting within the scope of their employment. Whaley v. Sharp, 301 Kan. 192, 343 P.3d 63 (2014) (holding notice requirement did not apply to suit against municipal hospital physician; overruling King v. Pimentel, 20 Kan.App.2d 579, 890 P.2d 1217 (1994)). Laws 2015, ch. 28, 2, eff. July 1, 2015 (amended K.S.A a to define employee and K.S.A b(d) to apply equally to municipalities and their employees). Does not apply to federal claims. Sage v. Williams, 23 Kan. App. 2d 624, 631, 933 P.2d 775, 781 (1997). Nor to contract claims. Wiggins v. Housing Authority of Kansas City, Ks., 19 Kan.App.2d 610, , 873 P.2d 1377 (1994).

43 Notice of Claim Substantial compliance with statute is necessary before a court may obtain subject matter jurisdiction over the claim. Sleeth v. Sedan City Hosp., 298 Kan. 853, 868, 317 P.3d 782, 792 (2014). Notice requirement cannot be avoided by consent, waiver, or estoppel. Id. A petition filed before substantial compliance occurs does not confer subject matter jurisdiction. Id. A amended petition filed after a timely notice cures the defect caused by petition filed before substantial compliance occurs. Steed v. McPherson Area Solid Waste Util., 43 Kan. App. 2d 75, 90 91, 221 P.3d 1157, 1167 (2010).

44 Notice of Claim: Damages Claimed Complete omission of amount of damages claimed is fatal to claim. Sleeth, 298 Kan. at 862 (notice that lacks any statement of damages does not comply) Dodge City Implement, Inc. v. Board of Barber County Comm rs, 288 Kan. 619, 642, 205 P.3d 1265, 1283 (2009) (letters to township that do not include statement of damages claimed do not confer subject matter jurisdiction). Amount of damages claimed in notice is not a cap and does preclude request for a greater amount in the lawsuit. Absent bad faith or misleading conduct in its initial submission of the claim notice, trial court has discretion to permit amendment to damages claimed in petition. Cont'l W. Ins. Co. v. Shultz, 297 Kan. 769, 771, 778, 304 P.3d 1239 (2013) (notice demanded $19,590.07; suit filed demanding same amount; damage claim later amended to $228,088.25).

45 Defense and Indemnification of Employees K.S.A (a) requires a governmental entity to: Provide for the defense of any civil action or proceeding against such employee, in such employee's official or individual capacity or both, on account of an act or omission in the scope of such employee's employment as an employee. An employee s request for a governmental entity to provide for the defense of the employee or representation shall be made in writing within 15 days after service of process or subpoena upon the employee. K.S.A (e). Defense may be provided, at discretion of entity, where request made beyond 15 days. No right to recover defense expenses from the employee except where employee fails to cooperate in good faith in the defense or if the trier of fact finds that the act or omission of the employee was because of actual fraud or actual malice. K.S.A (b) and

46 Factors to determine whether employee acted within scope of employment a. Whether the act by the employee was done for the employee s personal benefit or in furtherance of the government s business b. Whether there was express or implied authority to perform the act in question; and c. Whether the employee s act was reasonably foreseeable by the government employer. Commerce Bank of St. Joseph v. State, 251 Kan. 207, 215, 833 P.2d 996, 1001 (1992). Liability depends upon whether the employee, when the employee did the wrong, was acting in the prosecution of the State s business and within the scope of the employee s authority, or had stepped aside from that business and done an individual wrong. Id.

47 Foreseeability does not require anticipation of criminal conduct. Foreseeability, hinges on more than mere ability to anticipate bad acts. Depends on whether the negligent act is foreseeable in furtherance of the employee s duties. Casas v. City of Overland Park, No CM, 2001 WL , at *8 (D. Kan. May 14, 2001) (sexual assault is not foreseeably within scope of employment of a police officer whereas an unlawful search may be); Hollinger v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 2 Kan. App. 2d 302, 311, 578 P.2d 1121, 1130 (1978) (horseplay/prank by employee not within scope of employment). Was action for the employee s personal benefit or in furtherance of the employer s business. If the assault is committed by the employee while furthering the employer s interest in some way the employer is liable under the doctrine of respondeat superior. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 366, 520 P.2d 1296 (1974) ( accidental shooting of trespassers with shotgun by drive-in employee in the scope of employment).

48 Sexual Assault NOT Within Scope of Employment Kocsis v. Cty. of Sedgwick, No. CV CM, 2016 WL , at *16 (D. Kan. Mar. 29, 2016), appeal dismissed (Sept. 27, 2016) (KTCA does not impose liability for sexual assault by a corrections officer) Emcasco Ins. Co. v. Habegger, 2015 WL , *3 (D.Kan. Aug. 21, 2015) (child molestation by school official done for personal for own interest); Meyer v. Nava, 518 F.Supp.2d 1279, 1290 (D.Kan. 2007) (sexual assault by jail employee for his own interest); Healey v. Scovone, 1999 WL (10th Cir. July 26, 1999) (sexual assault was not authorized by employer and done for defendant s own personal interest); Miller v. Brungardt, 916 F.Supp. 1096, 1101 (D.Kan. 1996) (sexual harrassment is not within the job description of any reputable employer); Hicks v. Gates Rubber Co., 833 F.2d 1406, (10th Cir. 1987) (same).

49 Foreseeability: Off Duty Officers Many cities permit or even require officers to carry weapons while off duty and authorize them, under certain circumstances, to exercise police powers. It is foreseeable that off-duty officers, authorized to carry a weapon while off duty, may be in a situation requiring the use of deadly force. Whether an off duty officer is acting within the scope of employment is a fact intensive analysis whether the officer believed he was acting to enforce the law or keep the peace, or is involved in a personal confrontation.

50 Indemnity Obligation The governmental entity shall pay any judgment or settlement, including any award of attorney fees, costs and fees incurred by the employee if: The entity finds that the employee reasonably cooperated in good faith in the defense of the action or proceeding; Court or jury finds that the action arose out of an act or omission in the scope of employment; and Court or jury does not find that the employee acted or failed to act because of actual fraud or actual malice. K.S.A (b).

51 Indemnity for Punitive Damages Gov t entity is not liable for punitive damages (state or federal claims). K.S.A (c); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (municipalities are immune from punitive damages). Employees are not liable for punitive damages (for state law claims under KTCA) except for fraud or malice. K.S.A (c); Alden v. Maine, 527 U.S. 706, 757 (1999) (suit against a officer in individual capacity permissible so long as the relief is sought not from the state treasury but from the officer personally ). Though not required, a city may pay part or all of a punitive damage award in a civil rights case upon finding by entity that: Action arose in the scope of employment; Employee cooperated in the defense; and Liability was not the result of actual fraud or actual malice. K.S.A (c).

52 Defense for claims arguably within scope of employment Employees can compel a defense or collect fees and expenses after the action is over. K.S.A (d) allows employees denied a defense by a governmental entity to recover attorney fees, costs and expenses incurred in defending the action. Prevailing on such an action requires a finding the employee did not act or fail to act because of actual fraud or actual malice. Id. Also contemplates the right of an employee to petition a court of competent jurisdiction to compel the governmental entity to provide the defense. Id.

53 Bad Faith Set-up Recovery of defense costs may be an assignable claim. Brown v. Gray, 227 F.3d 1278, 1290 (10th Cir. 2000). Gray, while off-duty, shot plaintiff Brown after purportedly attempting to affect a traffic stop during a road rage incident. Gov t employer withheld a defense asserting Gray acted outside the scope of his employment. Gray settled before trial and assigned his cross-claim for defense costs to Brown. Policy of Always Armed/Always on Duty plus lack of training on when not to use firearm = shooting foreseeable and within scope of employment. Held assignment was effective and collectible against the City.

54 Damage Caps Limits of liability for state law claims under the KTCA is $500,000 or the limits of applicable insurance. K.S.A (a); K.S.A No limitation as to liability for federal civil rights claims against the entity or for judgments or settlements of civil rights claims against employees acting within the scope of their employment. Capped damages for pain, suffering, and emotional distress: < 7/1/ $250,000 7/1/1014 to 7/1/ $300,000 7/1/2018 to 7/1/ $325,000 >7/1/ $350,000 K.S.A a02 Wrongful death cap for nonpecuniary loss - $250,000 K.S.A

55 Fisher, Patterson, Sayler & Smith L.L.P. David R. Cooper