Opinion
Civil Action No. 00-2112-CM
May 14, 2001
MEMORANDUM AND ORDER
This matter is before the court on the motion of the City of Overland Park and John Douglass, its police chief, (municipal defendants) for summary judgment (Doc. 49). For the reasons stated hereinafter, municipal defendants' motion is granted in part and denied in part.
• Procedural History
On March 10, 2000, plaintiff, Leonor Casas, filed a complaint alleging five counts against municipal defendants and Bryan Legg, a police officer formerly employed by the City of Overland Park. Plaintiff bases all her claims upon an incident involving an alleged unlawful search of plaintiff by defendant Legg on the night of September 26, 1998. Count I of the complaint alleged deprivations of plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983. Liability of municipal defendants in Count I was predicated upon an alleged failure to train or supervise. In Counts II, III, IV, and V, plaintiff alleged state law claims of sexual battery, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. In each of Counts II through V, plaintiff asserted liability of municipal defendants based upon both the doctrine of respondeat superior and negligent failure to train or supervise. The court has dismissed Count II (sexual battery) as barred by the statute of limitations. Casas v. City of Overland Park, Civ. A. No. 00-2112, slip op. at 3 (D.Kan. April 11, 2001) (Doc. 59).
In response to municipal defendants' motion for summary judgment, plaintiff asserted that the parties have agreed to dismiss certain of plaintiff's claims. Neither party has filed a stipulation of dismissal or a motion for dismissal of the claims allegedly agreed to be dismissed. Nonetheless, plaintiff has not presented argument relative to those claims, and the court deems the claims to have been abandoned or waived by plaintiff's failure to respond. D. Kan. Rule 7.4 (motion ordinarily granted when opposing party fails to respond within the allowed time).
The court deems plaintiff to have abandoned (1) all claims against defendant John Douglass (Pl.'s Response at 6, 7, 11, 14), (2) § 1983 claims against the city (Pl.'s Response at 6), (3) negligent supervision and training claims against the city (Pl.'s Response at 7), and, (4) any claim for punitive damages against the city (Pl.'s Response at 14). Furthermore, plaintiff has agreed with municipal defendants that plaintiff's claims for non-economic damages are capped at $250,000.00 and that plaintiff's claims pursuant to the Kansas Tort Claims Act are capped at $500,000.00. (Pl.'s Response at 11; compare Def.s' Mem. at 57-58).
Because the court grants municipal defendants' motion for summary judgment in part, the court finds the following claims remain in this case after the decision on defendants' motion for summary judgment; (1) all of plaintiff's claims against defendant Legg except for plaintiff's § 1983 official capacity claim and the claim of sexual battery previously dismissed by the court, (2) plaintiff's claims against the city for negligence and negligent infliction of emotional distress, and (3) punitive damage claims against defendant Legg.
Facts
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
After an extensive background investigation, including interviews with seven references, a polygraph examination, a drug test, and numerous interviews with representatives of former employers, defendant City of Overland Park hired defendant Bryan Legg as a police officer on July 17, 1997. Mr. Legg attended the Johnson County Police Academy and, on November 11, 1997, received his certification from the State of Kansas as a full-time, sworn law enforcement officer. Part of the Academy instruction included training in the proper methods for cursory, pat down or Terry searches. The training included instruction that officers should seek assistance from a female officer to search a female detainee. If a female officer is not available the officer may do the search himself with a second officer present and in view of the video camera in his police cruiser. Officers are instructed to use the blade of the hand or the back of the hand to avoid the appearance that the officer is groping the female detainee.
Plaintiff argues that the instructor did not assert that he instructed Mr. Legg in particular or that Mr. Legg was required to attend the instruction. However, the record reveals that Mr. Legg's class was instructed in these procedures (Affidavit of Frank Cappo), that the instruction at issue was a part of the training given to Mr. Legg's class (Affidavit of Dr. Jerry Wolfskill, Ex. D), and that Mr. Legg completed all 500 hours of instruction (Affidavit of Dr. Jerry Wolfskill, Ex. B). Plaintiff has not presented admissible evidence which raises a question of fact whether Mr. Legg received the instruction.
In early 1998 Mr. Legg completed a twelve-week field training officer training program with the city. Prior to the incident at issue, no complaints had been lodged against Mr. Legg.
On the night of September 26, 1998, plaintiff and three of her friends were in a park within the City of Overland Park. Mr. Legg, wearing his uniform and driving a police cruiser, turned into the park and drove up to plaintiff and her friends. Mr. Legg did not notify the police communications center that he was in the park or that he was checking out plaintiff and her friends. Mr. Legg told plaintiff and her friends that the park was closed and asked them what they were doing in the park so late, how old they were, and whether they were meeting anybody in the park. Plaintiff and her friends responded that it was not their curfew, told the officer their ages, and replied that they were not meeting anybody in the park. The officer then searched the vehicle and plaintiff's purse which was inside the vehicle.
After searching the vehicle and the purse, Mr. Legg informed plaintiff and her friends that he was going to search them for weapons and contraband. Mr. Legg instructed plaintiff and her friends to put their hands upon the trunk of the young women's vehicle and not to look over as he conducted an individual search of each of them. Mr. Legg conducted a physical search of each of the young women at the rear of the vehicle. When it was plaintiff's turn to be searched, Mr. Legg removed her some distance from the vehicle and the other girls and began to search her "in a sexual, violent, and abusive manner, including the cupping of breasts and each and the rubbing of the crotch area of plaintiff, and all of this was done in an effort to satisfy the prurient sexual appetites of the Defendant while acting as a uniformed law enforcement officer and also to humiliate and embarrass the Plaintiff in the presence of the people present at the scene." (Def.s' Mem. at 19, ¶ 42 (quoting Compl. ¶ 11)).
The record reveals that in the course of this search Mr. Legg touched plaintiff's vaginal area all the way across her crotch, stuck his hand between her legs in a banana shaped movement from her buttocks to the front of her crotch, and stood behind her with all parts of his body from his shoulders to his knees touching plaintiff. At this point, Mr. Legg stuck his hands into plaintiff's front pockets and felt around. Mr. Legg then moved his hands around and felt plaintiff's crotch area. Mr. Legg than began to feel plaintiff's breasts from outside her tee-shirt and her sweater. Mr. Legg rubbed around and over plaintiff's breasts and squeezed her breasts. Mr. Legg had his hands on plaintiff's breasts for about forty-seven seconds. Mr. Legg had plaintiff return to the vehicle with her friends, got back into his cruiser, and left the park.
The next day plaintiff described the incident to her sister, who was employed by the Overland Park Police Department, and to her mother. Plaintiff's sister took her to the police station, and plaintiff spoke to the Professional Standards Unit. The police department began an investigation and, on October 1, 1998 interviewed plaintiff and two of her friends who were with plaintiff during the incident on September 26. On October 2, 1998, Mr. Legg was arrested for sexual battery in connection with the incident, and the police department terminated Mr. Legg's employment on October 7. Mr. Legg pled no contest to four counts of sexual battery on August 11, 1999 and was convicted and sentenced to four consecutive terms of one year in jail.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
§ 1983 "Official Capacity" Claims
Municipal defendants seek to dismiss plaintiffs § 1983 official capacity claims against defendant Legg. Defendants argue that official capacity claims are the same as claims against the city and, therefore, the official capacity claims should be dismissed in the interest of judicial economy because plaintiff has also sued the city. The court notes, moreover, that plaintiff's claims of municipal liability under § 1983 have been abandoned. Plaintiff claims the court should strike municipal defendants' argument because the official capacity claims relate to defendant Legg and defendant Legg did not make a motion to dismiss the claims. Further, plaintiff claims the official capacity suit must be allowed because plaintiff alleges defendant Legg acted under color of law.
A city official may be sued in both his individual capacity and his official capacity. Houston v. Reich, 932 F.2d 883, 887 (10th Cir. 1991). A suit against an official in his official capacity is the same as a suit against the city. Id.; see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (state official); Estate of Fuentes ex. rel. Fuentes v. Thomas, 107 F. Supp.2d 1288, 1303 (D.Kan. 2000) (city official). Therefore, once the court determines that there is no basis for municipal liability, the official is being sued in his individual capacity and the official capacity suit may no longer be asserted. Houston, 932 F.2d at 887-88.
As a preliminary matter, the court finds that municipal defendants' motion is proper. Because an official capacity claim is a claim against the city, it is proper for the city to seek its dismissal. Dismissal of an official capacity claim may prejudice defendant Legg in that he will be precluded from seeking payment from the city if he is found liable only in his individual capacity. Id. Municipal defendants' motion was served on defendant Legg, and defendant Legg did not respond. Therefore, pursuant to D. Kan. Rule 7.4, the court may grant the motion as unopposed.
In their motion for summary judgment, municipal defendants assert there is no basis for municipal liability under § 1983. (Def.s' Mem. at 27-48). Plaintiff responds that "the [municipal liability] claim brought against [municipal defendants] under 42 U.S.C. § 1983 will be dismissed with prejudice, and therefore Plaintiff will not discuss the issues brought up in Defendant's Motion in regards to those actions." (Pl.'s Response at 6-7) (emphasis added). Nowhere does plaintiff assert a basis for municipal liability under § 1983. Consequently, plaintiff has failed to meet her burden to establish a genuine issue for trial as to municipal liability. Further, plaintiff's claim of municipal liability was deemed abandoned, and municipal defendants' motion to dismiss that claim is granted as unopposed. Therefore, plaintiff's official capacity claim against defendant Legg is dismissed, but plaintiff may continue to assert her § 1983 claim against defendant Legg in his individual capacity.
State Law Claims
Respondeat Superior Claims Pursuant to the Kansas Tort Claims Act
Plaintiff's respondeat superior claims against the city are essentially assertions that in circumstances such as those presented here, a private person would be liable for the acts of its employee under the doctrine of respondeat superior and that the city, therefore, is liable pursuant to the Kansas Tort Claims Act (KTCA), Kan. Stat. Ann. § 75-6101, et seq. (1997 Supp. 1999). Municipal defendants argue that plaintiff's respondeat superior claims must fail because plaintiff admits that all of defendant Legg's actions in the search of plaintiff's person were "done in an effort to satisfy the prurient sexual appetites of the Defendant while acting as a uniformed law enforcement officer and also to humiliate and embarrass the Plaintiff in the presence of the people present at the scene." Municipal defendants claim that because such conduct was done for the officer's personal benefit, because the officer had no authority to sexually batter plaintiff, and because such conduct is not reasonably foreseeable in furtherance of the city's business, such actions are not within the scope of defendant Legg's employment and the city may not be held liable pursuant to the KTCA.
Plaintiff argues that defendant Legg acted within the scope of his employment because he had authority to stop and frisk suspicious persons, he was encouraged to initiate such activity, and he was in uniform and in a police cruiser. By analogy to the fact that a law enforcement officer is considered to act within the scope of his employment when he uses excessive force, plaintiff claims that defendant Legg was acting within the scope of his employment when he searched plaintiff.
Kansas Tort Claims Act
Pursuant to the Kansas Tort Claims Act a city "shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable." Kan. Stat. Ann. § 75-6103 (1997). Because the doctrine of respondeat superior provides liability of the employer for the acts of its employee in certain circumstances, the doctrine might be asserted to establish liability of the city if the prerequisites of the KTCA are met.
In order to establish liability of a governmental entity, plaintiff must show that the government employee was acting within the scope of the employment. Commerce Bank of St. Joseph v. State, 251 Kan. 207, 215, 833 P.2d 996, 1001 (1992); Hopkins v. State, 237 Kan. 601, 609, 702 P.2d 311, 318 (1985). Municipal defendants deny that defendant Legg was acting within the scope of his employment in doing the acts of which plaintiff complains. Scope of employment is normally a jury question. Commerce Bank, 251 Kan. at 215, 833 P.2d at 1001.
Under the [KTCA], to determine if an employee is acting within the scope of employment the court considers (1) whether the act by the employee was done for the employee's personal benefit or in furtherance of the state's business; (2) whether there was express or implied authority to perform the act in question; and (3) whether the employee's act was reasonably foreseeable by the State. The liability of the State for an act of an employee 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. Kansas courts have used cases deciding scope of employment pursuant to the doctrine of respondeat superior to aid in deciding scope of employment pursuant to the KTCA. E.g., id. at 210-11, 833 P.2d at 998-99.
Search of Plaintiff's Person
Plaintiff cites to two cases dealing with assault by a non-government employee for the proposition that defendant Legg's actions were within the scope of his employment. Williams v. Comty. Drive-In Theater, Inc., 214 Kan. 359, 366, 520 P.2d 1296, 1302 (1974); Beggerly v. Walker, 194 Kan. 61, 64-65, 397 P.2d 395, 399 (1964). In Williams the court found that an employee who shot an intruder acted within the scope of her employment in the circumstances. Part of the employee's duties consisted of preventing unauthorized entry after the ticket office closed, her testimony indicated a motive to further the interests of her employer, the fact that she had a gun was known to her assistant manager, and certain employment at the theater contemplated the use and display of guns to preserve order. Williams, 214 Kan. at 367-68, 520 P.2d at 1303. The Williams court noted that where use of force is contemplated in employment, even though the employee abuses her discretion in the amount of force used, the employer will still be held vicariously liable under the doctrine of respondeat superior. Id. at 367, 520 P.2d at 1303.
In Williams the court found the employee's actions within the scope of employment because they could reasonably be considered incidental to the employee's duties to prevent unauthorized entry and preserve order. Id. at 367-68, 520 P.2d at 1303. Similarly, the Beggerly court found the employer liable because the duty of the employee included "preserving decorum in the club rooms." Beggarly, 194 Kan. at 66, 397 P.2d at 400. That court stated:
Generally, where the employment contemplates some use of force, niceties of distinction are not indulged in to determine whether the use of excessive force was motivated by personal reasons, the view generally taken being that the amount of force to be used is discretionary with the employee, and even though there has been an abuse of such discretion the employer is nevertheless vicariously liable under the doctrine of respondeat superior.
Id. at 65, 397 P.2d at 399-400.
This court believes plaintiff's argument more properly applies to the use of force by a law enforcement officer. Some use of force is contemplated in the employment of a law enforcement officer. However, some use of sexual assault or battery is not contemplated in such employment. Furthermore, to the extent plaintiff asserts liability of the city for defendant Legg's acts which might constitute sexual assault or battery, the court has already found that such charges are barred by the one-year statute of limitations in Kan. Stat. Ann. § 60-514(b) (1994). Casas v. City of Overland Park, Civ. A. No. 00-2112, slip op. at 3 (D.Kan. April 11, 2001) (Doc. 59).
Other Kansas cases addressing scope of employment are helpful in the court's analysis. In 1978, the Kansas Court of Appeals considered the case of an employee playing a practical joke. Hollinger v. Jane C. Stormont Hosp. Training Sch. for Nurses, 2 Kan. App.2d 302, 304, 578 P.2d 1121, 1125 (1978). The hospital had allowed the plaintiff to sell newspapers to employees inside the hospital, and the employees were allowed to read the newspapers so purchased. On the day in question, the allegedly negligent employee approached the plaintiff from behind and attempted to remove a newspaper from plaintiff's tightly packed bag. He jerked the bag in such a manner as to injure the plaintiff. Id. The trial court determined that the act of playing a practical joke was not within the scope of employment and denied liability on the theory of respondeat superior. Plaintiff appealed arguing that the proper act to be considered was the buying of a newspaper. Id. at 311, 578 P.2d at 1130.
The appellate court held that plaintiff's injuries were caused by the act of attempting to pull the newspaper out, not by the act of purchasing or reading a newspaper. Id. The court determined that the act was not within the scope of employment because the "conduct in this instance could not reasonably have been foreseen from the nature of his employment or the manner in which [the employee] performed his duties." Id. at 312, 578 P.2d at 1130. The employee's "conduct which resulted in plaintiff's injury [was not] within the scope of his authority or reasonably incidental to his employment." Id.
The lead Kansas case in deciding scope of employment for a government employee is Commerce Bank. In that case, the State's chief grain inspector was bribed by a grain storage company. Commerce Bank, 251 Kan. at 208, 833 P.2d at 997. The inspector informed the company when "unannounced" audits would take place, explained the methods to be used in the audits and falsely registered grain receipts for the company. Id. at 208-09, 833 P.2d at 997-98. The company was thereby able to secure additional loans from Commerce Bank and hide the fact of missing grain for a number of years. When the problem was eventually discovered, the bank sued the state under the KTCA. Id. The state denied liability, alleging that the acts by the chief grain inspector were not within the scope of his employment. The Kansas Supreme Court, in Commerce Bank, provided the three-factor test set out above to aid the court in determining whether a government employee is acting within the scope of his employment. The court applied the factors and held that accepting a bribe, as a matter of law, cannot be considered within the scope of a government employee's employment. Id. at 215, 833 P.2d at 1001.
In this case, factor one-whether the act was done for the employee's personal benefit or in furtherance of the state's business-is admitted by the plaintiff. (Def.s' Mem. at 19, Statement of Uncontroverted Facts, ¶ 42) (search of plaintiff's person was done "to satisfy the prurient sexual appetites," of defendant Legg).
With regard to factor two — whether there is express or implied authority to perform the act — plaintiff points to no evidence to show that the search of her person in the manner described was within the express authority of defendant Legg. Plaintiff attempts to argue that the manner of search was impliedly authorized by the fact that the city's training and procedures allow officers to search detainees of the opposite sex. However, the uncontroverted facts show that officers are instructed to seek assistance from a female officer to search a female detainee. If a female officer is not available the officer may do the search himself with a second officer present and in view of the video camera in his police cruiser. Officers are instructed to use the blade or the back of the hand to avoid the appearance that the officer is groping the female detainee. Such training does not imply authority to make a sexual, abusive search of a female detainee. Factor two does not weigh in favor of finding that defendant Legg's actions were within the scope of his employment.
Factor three is whether the employee's act was reasonably foreseeable. The fact that police departments provide training to prevent sexually motivated conduct or allegations of such conduct is evidence that it is foreseeable that a police officer might abuse his authority and perform such a search. But, that is not the kind of foreseeability contemplated in Commerce Bank. In the circumstances presented in Commerce Bank, it was foreseeable that a state grain inspector or other state employee might accept a bribe to pervert his duties; case books and newspapers are full of such allegations. Yet, the Commerce Bank court found, as a matter of law, that accepting a bribe was not within the scope of a grain inspector's employment. It is foreseeable that an employee might play a practical joke and injure a regular invitee on an employer's premises, yet the Hollinger court held that the act of playing a practical joke was not within the scope of employment.
The focus of factor three is whether the negligent act is foreseeable in furtherance of the duties of the employment. In Commerce Bank, the grain inspector had "stepped aside from the State's business and done an individual wrong." The grain inspector's wrong was counterproductive to the duties of his employment. In Hollinger, the negligent employee had engaged in an act which, though potentially foreseeable, was not reasonably foreseeable from the nature of the employment or in the manner of performance of the duties of the employment. In this case, the city's business does not involve sexual, abusive searches, and such searches are not reasonably foreseeable in performing duties furthering the employment.
Therefore, because the sexual conduct at issue indicates that defendant Legg stepped aside from the city's business and did an individual wrong, the court finds that such conduct is not within the scope of defendant Legg's employment as a police officer for the City of Overland Park and will not support a claim against the city under the KTCA. Furthermore, the court finds that such conduct may not be asserted to establish the city's liability for the additional reason that a cause of action for sexual assault or sexual battery is barred by the statute of limitations as discussed in the court's order of April 11, 2001 (Doc. 59).
However, the court's finding does not end the inquiry whether the city might be liable under the KTCA for other acts of defendant Legg.
Stop in Park and Search of Purse
In her complaint, plaintiff alleges that defendant Legg, "without warrant or probable cause," detained plaintiff, demanded identification, and searched plaintiff's purse. In the pretrial order, plaintiff alleges that defendant Legg performed a illegal search of plaintiff in violation of plaintiff's constitutional rights and that there was no basis for the search. In these circumstances, plaintiff may be claiming that the city is liable under the KTCA for defendant Legg's tortious acts, not involving sexual conduct, of stopping plaintiff and searching her purse.
In a summary judgment motion, the movant has the burden in the first instance to demonstrate the absence of a genuine issue of material fact. However, in this case defendants did not assert in their statement of facts that the stop of plaintiff or the search of plaintiff's purse was proper. Defendants do not even assert that the stop or the search of the purse was consensual. Defendants did not put such matters into issue in the summary judgment motion. Consequently, plaintiff had no burden beyond the previous pleadings to respond and provide evidence of a genuine issue of material fact regarding those matters.
Viewing the facts in the light most favorable to plaintiff, the court finds a genuine issue of material fact whether the stop of plaintiff or the search of her purse was voluntary and whether stopping her or the search of her purse was proper. Further, the court finds a question of fact whether defendant Legg's actions other than the search of the person of plaintiff or of her friends were within the scope of his employment as a law enforcement officer for the city.
Intentional Infliction of Emotional Distress
Municipal defendants argue that plaintiff's claim of municipal liability for intentional infliction of emotional distress based upon the KTCA must fail because outrageous conduct by a governmental employee is outside the scope of employment as a matter of law. Defendants base their argument on a federal case decided under Kansas law, Bolden v. PRC, Inc., 43 F.3d 545 (10th Cir. 1994), and note that, in Bolden, the plaintiff sought to hold his employer vicariously liable for the outrageous conduct of plaintiff's coworkers. The Bolden court found that the plaintiff failed to demonstrate how the employer could be liable for conduct of the coworkers. However, the Bolden court recognized that the plaintiff did not allege the coworkers' conduct was within the scope of their employment. Bolden, 43 F.3d at 553. Therefore, the question of whether outrageous conduct is within the scope of employment was not before that court. The Bolden court noted that the plaintiff failed to bring before the court any Kansas case in which an employer was held liable for the outrageous conduct of an employee. The case relied upon by the plaintiff in Bolden was a case where the employer was held liable for his own outrageous conduct. Id. at 554.
The court finds municipal defendants' argument persuasive. Moreover, this court has found no Kansas case in which a court has held an employer liable for the outrageous conduct of its employees. The court's research disclosed a case in which a court of this district addressed scope of employment relative to a claim of intentional infliction of emotional distress against a government employee. In Miller v. Brungardt, 916 F. Supp. 1096 (D.Kan. 1996), the plaintiff filed a claim of intentional infliction of emotional distress against two government employees. The employees argued the claim must be dismissed because plaintiff failed to comply with the Kansas notice statute, Kan. Stat. Ann. § 12-105b(d) (discussed hereinafter). Plaintiff alleged that one of the government employees' behavior was threatening, intimidating and abusive and that the government employee made sexually inappropriate comments to her, accused her of being in a lesbian relationship, and made sexually explicit comments concerning lesbian behavior. Miller, 916 F. Supp. at 1101. The court found that such conduct was not within the scope of the government employee's employment because "'[S]exual harassment . . . is not within the job description . . . of any . . . worker in any reputable business.'" Id. (quoting Ulrich v. K-Mart Corp., 858 F. Supp. 1087, 1092 (D.Kan. 1994) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1417-18 (10th Cir. 1987))).
A claim for intentional infliction of emotional distress under Kansas law must be based upon outrageous conduct. Based upon the courts' analyses in Bolden and Miller, and upon this court's discussion of scope of employment pursuant to the Commerce Bank factors, the court finds that, as a matter of law, outrageous conduct sufficient to establish a claim for intentional infliction of emotional distress is not within the scope of employment of a government employee. Therefore, plaintiff's claim for intentional infliction of emotional distress against the city under a theory of respondeat superior is dismissed.
An unpublished Tenth Circuit decision based upon an Oklahoma statute similar to the KTCA provides further support for the court's decision. Scheerer v. City of Oklahoma City, No. 96-6178, 1997 WL 4276 (10th Cir. Jan. 7, 1997) (based upon the Government Tort Claims Act, 51 Okla. Stat. Ann. § 153A[51-153A]). In Scheerer the court held that an intentional infliction of emotional distress claim asserted against the city based upon respondeat superior liability was precluded. The claim was based on willful, wanton, malicious, and/or reckless conduct, and such conduct was held to be outside the scope of the government employees' employment. Id. at * 2.
Claims not Stated in the Pretrial Order
Municipal defendants assert in their reply memorandum that plaintiff failed to assert her claims for negligence or negligent infliction of emotional distress in the pretrial order and has, therefore, waived those claims. The court finds, that in the circumstances here plaintiff has not waived her claims.
In Counts III and V of her complaint, plaintiff asserted that the city was liable under the doctrine of respondeat superior for the negligence and negligent infliction of emotional distress caused by defendant Legg. The complaint notified municipal defendants of plaintiff's claims and defendants filed an answer. Nowhere has plaintiff withdrawn or dismissed those claims.
In the pretrial order, plaintiff does not specify that she is still making those claims against the city. However, plaintiff alleges that defendant Legg performed an illegal search of plaintiff, that there was no basis for the search, that the search was in the scope of defendant Legg's employment, that the search caused the damages alleged by plaintiff, and that the city is liable for the actions of defendant Legg under the KTCA. Moreover, the issue of waiver was argued for the first time in defendants' reply memorandum and plaintiff has not had an opportunity to respond to the allegations.
Further, in their motion for summary judgment, defendants refer to the complaint to establish facts and explore the contours of the claims made by plaintiff in the pretrial order. (See, e.g., Def.s' Mem. at 19, 25, 32, 33, 43, 53, 55-56; Def.s' Reply Mem. at 7, 8, 10). For example, defendants acknowledge that the pretrial order states a claim for intentional infliction of emotional distress and refer to the complaint to establish the contours of that claim, to show that the claim is identical to the claims for failure to train and supervise, to show that plaintiff fails to state a cause of action, and to show that plaintiff has not established outrageous conduct. (Def.s' Mem. at 55-57).
Considering the allegations of the pretrial order as understood in light of the complaint in this case, the court finds that plaintiff has not waived her claims of negligence or negligent infliction of emotional distress. The court finds, further, that defendants will not be unfairly prejudiced by the court's holding because defendants are aware of the claims in the complaint and because defendants have relied upon the allegations in the complaint as late as the time of filing their reply memorandum on May 3, 2001.
Negligent Infliction of Emotional Distress
Municipal defendants argue in their reply memorandum that plaintiff's claim for negligent infliction of emotional distress must fail because plaintiff has not established that the conduct complained of caused immediate physical injury other than physical symptoms of emotional distress.
Defendants correctly state the law of Kansas, that a negligent infliction of emotional distress claim may only be maintained upon a showing that plaintiff sustained immediate physical injury more than mere physical symptoms of emotional distress. Bowman v. Doherty, 235 Kan. 870, 877, 686 P.2d 112, 119 (1984); Reynolds v. Highland Manor, Inc., 24 Kan. App.2d 859, 861-62, 954 P.2d 11, 13-14 (1998). After stating the rule, the Kansas Supreme Court, in Bowman, found that "[o]ne being negligently deprived of [her] freedom suffers an injury which could cause mental distress." Bowman, 235 Kan. at 877, 686 P.2d at 119.
The uncontroverted facts show that defendant Legg stopped plaintiff, searched the vehicle, searched plaintiff's purse, and required plaintiff to place her hands on the trunk of the vehicle while he frisked plaintiff's friends. The court finds plaintiff has provided evidence that she sustained the physical injury of deprivation of her freedom sufficient to maintain a claim of negligent infliction of emotional distress.
Compliance with Kansas Notice Statute
Municipal defendants argue that plaintiff's state law claims must be dismissed because plaintiff failed to plead compliance with the notice statute and because the damages asserted in the pretrial order vary from the damages sought in plaintiff's notice to the city. The court disagrees and finds that plaintiff has made substantial compliance with the notice statute.
Kansas statute requires that before filing a suit under the KTCA, a person having a claim against a city shall file a written notice with the clerk or governing body of the city. Kan. Stat. Ann. § 12-105b(d) (Supp. 1999). The statute establishes a condition precedent with which a claimant must comply before filing suit. Tucking v. Bd. of Comm'rs, 14 Kan. App.2d 442, 446, 796 P.2d 1055, 1058 (1990); Welch v. Kansas City, 204 Kan. 765, 766, 465 P.2d 951, 953 (1970) (referring to predecessor statute § 12-105).
The statute lists five elements required in the notice, one of which is a statement of the amount of monetary damages requested. Kan. Stat. Ann. § 12-105b(d) (Supp. 1999). "[S]ubstantial compliance with the provisions and requirements of [the statute] shall constitute valid filing of a claim." Id. Under Kansas law "substantial compliance" means "compliance in respect to the essential matters necessary to assure every reasonable objective of the statute." Tank v. Chronister, 941 F. Supp. 969, 975 (D.Kan. 1996) (quoting City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983)). Under the notice statute at issue, a claimant must "make an attempt to state each element required of the notice." Id. (quoting Wiggins v. Housing Auth. of Kansas City, 19 Kan. App.2d 610, 613, 873 P.2d 1377 (1994)).
Defendants' argument that this case must be dismissed because plaintiff failed to plead compliance with the statute is unpersuasive. As the statute states, the standard for valid filing of a claim is substantial compliance, not complete compliance. Furthermore, the cases to which defendants cite for the proposition that pleading compliance is a jurisdictional requirement make that assertion in dicta. The decisions in those cases do not rely upon the stated jurisdictional requirement. The Tucking court stated: "The district court, however, did not rely on Tucking's failure to plead compliance. . . . It is necessary then to determine the limits of substantial compliance."
Defendants also cite Zeferjohn v. Shawnee County Sheriff's Dep't, 26 Kan. App.2d 379, 384, 988 P.2d 263, 267 (1999). In Zeferjohn, the Court of Appeals affirmed the trial court's dismissal due to plaintiff's "failure to file the statement of notice with the county clerk. . . . He also failed to properly plead the occurrence of a condition of precedent and did not comply with the statute." Id. The Zeferjohn court's opinion mentioned that filing of a proper notice pursuant to § 12-105b(d) is a condition precedent to filing suit. Id. at 382, 988 P.2d at 266. However, the issue which the court decided in its affirmance of the district court's dismissal was "whether service on the county counselor . . . substantially complied with the requirements of [the] statute." Id. Nowhere did the court discuss whether it would be appropriate to dismiss the case for failure to plead compliance in light of the statutory standard of substantial compliance.
Defendants do not cite and the court did not find a Kansas case which dismissed a KTCA claim solely because plaintiff failed to plead compliance with the statute. The court finds that such a result is not consistent with the legislative intent that filing is valid even though plaintiff has shown only substantial compliance with the statutory requirements. Lacking controlling or persuasive authority otherwise, the court finds that it would be inappropriate in the circumstances of this case to dismiss for failure to plead compliance with the statute.
Defendants also argue that the KTCA claims should be dismissed because plaintiff varied the amount of damages alleged in the pretrial order from the amount alleged in her statutory notice. Defendants direct the court to Zeferjohn, in which the Court of Appeals noted that plaintiff's statutory claim alleged $15,000.00 damages and the petition alleged damages in excess of $50,000.00. Zeferjohn, 26 Kan. App.2d at 383, 988 P.2d at 267. The Zeferjohn court stated: "Although we rest our decision on plaintiff's failure to serve the county clerk, there are other reasons that the claim did not comply with the statute." Id. (emphasis added). The court noted the difference in amount of damages as "an additional reason why the claim did not substantially comply with the statute." Id.
This case is factually different than Zeferjohn. In Zeferjohn, the plaintiff demanded over three times as much for noneconomic damages in his petition as in his statutory claim. Here, plaintiff's statutory claim asserted medical expenses to the date of the demand of $800.00, future medical estimated at $5,000.00 to $10,000.00, pain and suffering of $175,000.00, emotional distress of $75,000.00 and attorney fees to the date of the demand of $5,000.00. In the pretrial order plaintiff asserts medical damages "at a minimum" of $595.00, future medical estimated at $36,000.00, pain and suffering and loss of enjoyment of life of $500,000.00, damages for violation of her constitutional rights of $500,000.00, attorney fees to the date of the pretrial order of $15,525.00, and punitive damages of $500,000.00. Plaintiff has abandoned any constitutional claims or punitive damage claims against the city. Plaintiff admits that her noneconomic damages are capped at $250,000.00 which is precisely the total amount claimed for pain and suffering and emotional distress in her statutory claim.
Plaintiff's demand for medical damages decreased in the pretrial order. Plaintiffs demand for future medical was stated in terms of an estimate in both claims and plaintiff's attorney fees were stated as fees to date on each occasion. Furthermore, plaintiff notified the city that her damages might increase: "However, my client reserves the right to claim damages in excess of the amount demanded in this letter at the time of the filing of any lawsuit." (Def.s' Mem, Ex. 16, p. 2). Moreover, this court, in Tank, has accepted mere knowledge that "a substantial claim for damages would be advanced" as sufficient to meet the amount of damages element required by the statute. Tank, 941 F.2d at 975.
The court in Zeferjohn did not decide that a variation in the amount of claimed damages alone would justify dismissal of a suit under the KTCA. The standard for valid filing of a claim is substantial compliance. As this case stands today, the elements of plaintiff's damage claims against the city are substantially the same as the claims made in the statutory notice, and the city was notified that the amounts might increase. Plaintiff attempted to state each element required by the statute. Therefore, the court finds substantial compliance with the statute and will not dismiss plaintiff's KTCA claims merely because the amount of damages sought in the pretrial order is in some respects different than the amount sought in plaintiff's statutory claim and notice.
Conclusion
Plaintiff has abandoned (1) all claims against defendant John Douglass, (2) § 1983 claims against the city, (3) negligent supervision and training claims against the city, and (4) any claim for punitive damages against the city. Furthermore, plaintiff has agreed with defendant that plaintiff's claims for non-economic damages are capped at $250,000.00 and that plaintiff's claims pursuant to the Kansas Tort Claims Act are capped at $500,000.00.
The court finds that plaintiff has asserted no basis for municipal liability under § 1983 and, therefore, plaintiff's official capacity claim against defendant Legg is dismissed. Plaintiff's § 1983 claim against defendant Legg in his individual capacity remains.
The court finds that the sexual conduct of defendant Legg in the search of the person of plaintiff and her friends and any "outrageous" conduct by defendant Legg, as a matter of law, is not within the scope of defendant Legg's employment as a police officer for the City of Overland Park. Therefore, under the KTCA, any claims against the city based upon such conduct are dismissed. Furthermore, plaintiff's claim of intentional infliction of emotional distress against the city is dismissed. Plaintiff may continue to assert her claim of intentional infliction of emotional distress against defendant Legg in his individual capacity. Plaintiff may continue to assert her claims of negligence and negligent infliction of emotional distress against the city pursuant to the KTCA but only in so far as such claims are based upon conduct by defendant Legg which is within the scope of his employment.
IT IS THEREFORE ORDERED that municipal defendants' motion for summary judgment (Doc. 49) is granted in part and denied in part.
IT IS FURTHER ORDERED that (1) all claims against defendant John Douglass, (2) all § 1983 claims against the city, (3) all negligent supervision and training claims against the city, (4) any claim for punitive damages against the city, (5) plaintiff's official capacity claim against defendant Legg, and (6) plaintiff's claim of intentional infliction of emotional distress against the city are dismissed.