Finally, the Court is mindful that Kansas law cautions that “summary judgments are to be granted with caution in negligence actions.” Smith v. Kansas Gas Serv. Co., 285 Kan. 33, 169 P.3d 1052, 1057 (2007) (citing Fettke v. City of Wichita, 264 Kan. 629, 957 P.2d 409 (1998) ); see also Esquivel v. Watters, 286 Kan. 292, 183 P.3d 847, 850 (2008) (“summary judgment is seldom proper in negligence cases”) (quotation omitted). Because there are genuine issues of material fact about the foreseeability of plaintiff's injuries, the Court concludes that it may not grant summary judgment.

The KCTA makes governmental liability the rule and immunity the exception. Fettke v. City of Wichita, 264 Kan. 629, 633 (1998). The burden is on the defendant, here JCCC, to establish immunity under one or more of the exceptions to liability set forth in K.S.A. § 75-6104.

Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998).

The KTCA makes governmental liability the rule and immunity the exception. Fettke v. City of Wichita, 264 Kan. 629, 633, 957 P.2d 409, 412 (1998). The burden is upon the defendant to establish immunity under one or more of the immunity exceptions.

Woodruff, 263 Kan. at 566, 951 P.2d at 959 ('Fudge can no longer be relied upon as valid precedent to establish liability as a result of a public employee's failure to follow written personnel policies, unless an independent duty of care is owed to the injured party.'" (emphasis added) (quoting Jarboe))', see, e.g., Fettke v. City of Wichita, 264 Kan. 629, 636, 957 P.2d 409, 414 (1998) (concluding the governmental entity was immune from liability under subsection (d) because of the lack of an independent legal duty); Schmidt v. HTG, Inc., 265 Kan. 372, 391-92, 961 P.2d 677, 689-90 (1998) (same). In this case, all of the defendants owed an independent legal duty to Sisk.

The KTCA includes various exceptions to liability, but immunity is the exception and liability is the rule. Fettke v. City of Wichita, 264 Kan. 629, 633, 957 P.2d 409, 112 (1998). The court finds defendants are not entitled to immunity under the exceptions contained in the KTCA. Plaintiffs' claims involve intentional torts and allege willful and malicious conduct by defendants. Plaintiffs' claims do not sound in negligence.

The KTCA includes various exceptions to liability, but immunity is the exception and liability is the rule. Fettke v. City of Wichita, 264 Kan. 629, 633, 957 P.2d 409, 412 (1998). Plaintiffs bring state tort claims for trespass, outrage, invasion of privacy, invasion of privacy by false light, tortious interference with existing contracts, tortious interference with prospective business advantage, false arrest, conspiracy and abuse of process.

We also recognize that summary judgment should be granted with caution in negligence cases. Apodaca v. Willmore , 306 Kan. 103, 106, 392 P.3d 529 (2017) ; Fettke v. City of Wichita , 264 Kan. 629, 632, 957 P.2d 409 (1998). Ultimately, whether a duty exists is a question of law over which this court's review is unlimited.

As the Court of Appeals acknowledged, summary judgments should be granted with caution in negligence cases. See Fettke v. City of Wichita , 264 Kan. 629, 632, 957 P.2d 409 (1998). An exception to that general rule applies when the only question presented is one of law.

“In the vast majority of cases, the question of negligence is a factual determination for the jury, not a legal question for the court.” Deal, 286 Kan. at 859, 188 P.3d 941 (discussing motions for judgment as a matter of law); see, e.g., Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998) (summary judgment is to be granted “with caution” in negligence cases). Whether a party breached a duty and was negligent can become a legal question, however, “ ‘when the facts are such that reasonable men must draw the same conclusion from them’ ” or when “no evidence is presented on a particular issue.”