Opinion
No. 110984.
2015-01-16
Pauletta BIEKER, individually and on behalf of the heirs-at-law of Anthony W. Bieker, deceased, and as personal representative of the Estate of Anthony W. Bieker, Appellant, v. STATE of Kansas, DEPARTMENT OF WILDLIFE, PARKS, & TOURISM, by and through its Secretary, Robin JENNISON, and Michael McGinnis, individually, Appellees.
Appeal from Graham District Court; Preston A. Pratt, Judge.Christopher W. Sook, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Hays, for appellant.Steve R. Fabert, assistant attorney general, for appellees.
Appeal from Graham District Court; Preston A. Pratt, Judge.
Christopher W. Sook, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Hays, for appellant. Steve R. Fabert, assistant attorney general, for appellees.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Pauletta Bieker, the widow and an heir-at-law of Anthony W. Bieker, brought this wrongful death action against Kansas Department of Wildlife, Parks, and Tourism (KDWPT) and its employee, Michael McGinnis, for the damages she and the other heirs suffered as a result of the defendants having caused Anthony's drowning at Antelope Lake. As the personal representative of Anthony's estate, Paulette also brought a survivor action for the conscious pain and suffering experienced by Anthony in this incident prior to his death. In this appeal, she challenges the district court's dismissal of her petition for failure to state a claim upon which relief can be granted.
In resolving this appeal, we consider de novo the motion to dismiss. In doing so, the focus of our attention is on plaintiffs petition.
“The granting of motions to dismiss has not been favored by our courts.” Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). From the movant's prospective, the rules governing motions to dismiss for failure to state a claim are much more stringent than the well-known rules governing summary judgment motions, which usually are asserted after the completion of discovery and the framing of the legal issues and theories in the pretrial order.
In considering Pauletta's petition we view the well-pleaded facts in the light favoring Pauletta and treat as true those facts and any inferences we can reasonably draw from them. See Cohen v. Battaglia, 296 Kan. 542, 545–46, 293 P.3d 752 (2013). Further, “it is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.” Noel v. Pizza Hut, Inc., 15 Kan.App.2d 225, 231–32, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991).
The defendants claim they are immune from liability for the claims asserted here. Under notice pleading, the petition does not govern the course of the case because the legal issues and theories on which the case will be decided are ultimately set out in the pretrial order. Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008). Nevertheless, a plaintiff asserting a claim against a public officer must make some allegation of fact which, if true, would tend to establish that immunity does not bar the claim. Robertson v. City of Topeka, 231 Kan. 358, 359, 644 P.2d 458 (1982) (citing Hendrix v. City of Topeka, 231 Kan. 113, Syl. ¶ 5, 643 P.2d 129 [1982] ).
“ ‘However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ “ Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986).
The factual allegations in the petition upon which Pauletta's claims are based are summarized as follows:
In mid-July 2011, Pauletta and Anthony were camping, boating, and fishing at Antelope Lake. Anthony was in the boat while Pauletta remained on shore that evening. The boat became stuck in shallows in an area of open water. As darkness fell with no other boaters on the lake, Anthony decided to bed down for the night in the boat and wait until morning for help to dislodge the boat.
Meanwhile, McGinnis arrived at the campground and saw that Anthony and his boat were still on the lake. McGinnis called out to Anthony and told him to bring the boat to shore. Anthony responded that the boat was stuck and would not move. McGinnis persisted in demanding that Anthony bring the boat to shore.
Responding to McGinnis' demand, Anthony repeatedly tried to free the boat but his efforts were not successful. McGinnis continued to insist that Anthony “ ‘get off the water.’ “ Thus, as McGinnis continued to shine his spotlight on the boat, Anthony undressed so he could get into the water and try to free the boat. Seeing this, Pauletta told McGinnis that Anthony getting into the water “ ‘isn't a good idea.’ “ Nevertheless, McGinnis did not withdraw his order that Anthony “get the boat ‘off the water.’ “
Anthony got into the water but was unable to free the boat. When he tried to climb back into the boat he was unable to do so. McGinnis did no attempt to assist Anthony, nor did he call for assistance.
With no other way of complying with McGinnis' directive, Anthony abandoned the boat which he was unable to reenter and began to come ashore, wading though the shallows until he reached deep water where he began to swim. When he was half way to shore, Anthony called out, “ ‘I'm not going to make it!’ “ Pauletta called out to Anthony, “ ‘I love you!’ “ McGinnis continued to stay on shore and take no action. When Pauletta got into the water to help her husband, McGinnis stopped her. McGinnis then went to his truck to get a rope and flotation device. He threw the rope three times without getting it close to Anthony. At this point Pauletta again got into the water to help her husband, but McGinnis again stopped her and told her he would get his life jacket and try to rescue Anthony. McGinnis told Pauletta to call 911.
When McGinnis reached Anthony, Anthony's face was under the water. McGinnis pulled Anthony to shore, and Pauletta helped lift Anthony out of the water. An ambulance arrived at 1:18 a.m., and Anthony was transported to the hospital where he was pronounced dead.
The fundamental argument advanced by the defendants is that they owed no duty to Anthony. The State concedes that under the Kansas Tort Claims Act (KCTA), K.S.A.2013 Supp. 75–6103 in particular, it “may be held liable for the wrongful acts of its employees acting within the course and scope of their employment, under circumstances where a private actor would be liable.” The State does not contend that McGinnis was acting beyond the course and scope of his employment. Rather, the State argues that under the facts McGinnis owed no duty to Anthony and, therefore, breached no duty which resulted in Anthony's death. Under the KTCA, liability is the rule for tortious conduct and immunity is the exception. Here, the defendants have the burden to show they are entitled to any such exception. McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, 642, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
The existence of a duty is a question of law over which we have unlimited review. 272 Kan. 627, Syl. ¶ 13. Defendants argue the claims asserted here are barred by the public duty doctrine.
“When a negligence claim is asserted against a governmental agency, the court must consider the so-called ‘public duty doctrine.’ That doctrine establishes the general principle that a governmental agency owes duties to the public at large rather than to individuals. [Citation omitted.] Under this doctrine, the fact the governmental entity owes a legal duty to the public at large does not establish a basis for an individual to claim the agency owed a legal duty to the individual personally. [Citation omitted.] No duty exists unless it is established that the agency owed a special duty to the injured party. [Citation omitted.]” Kirk v. City of Shawnee, 27 Kan.App.2d 946, 950, 10 P.3d 27, rev. denied 270 Kan. 898 (2000).
Before the enactment of the KTCA, police officers were generally immune from liability on claims arising from performance or nonperformance of an officer's general duties to prevent crime and enforce laws. Dauffenbach v. City of Wichita, 233 Kan. 1028, 1033, 667 P.2d 380 (1983). Liability arose only when an officer breached a specific or special duty owed an individual. 233 Kan. at 1033. A special duty exists, thereby rendering the public duty doctrine inapplicable, when: (1) a special relationship existed between the governmental agency and the wrongdoer; (2) a special relationship existed between the governmental agency and the injured person; or (3) the governmental agency performed an affirmative act that caused the injury or made a specific promise or representation that under the circumstances created a justifiable reliance on the part of the person injured. 233 Kan. at 1033; Potts v. Board of Leavenworth County Comm'rs, 39 Kan.App.2d 71, 81, 176 P.3d 988 (2008) (citing Kirk, 27 Kan.App.2d at 950–52).
Taking the pleaded facts and reasonable inference to be drawn from those facts as true and viewing them in the light favoring Pauletta, we infer, as defendants do in their appellate brief, that the “relationship evident from the allegations of the petition is that of law enforcement officer and suspected lawbreaker.” Thus, we can reasonably infer that McGinnis, through his repeated commands to lawbreaker Anthony, had seized Anthony and apparently was in the process of taking him into custody. McGinnis' repeated order to come ashore and his refusal to withdraw the order under the circumstances demonstrates that noncompliance was not an option for Anthony. Because his boat could not be moved, Anthony's only method of complying with McGinnis' command was to swim to shore from the middle of the lake.
“A seizure of a person occurs if there is the application of physical force or if there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.” State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003).
In Morris, the first element necessary to establish a seizure was met when the officer activated the emergency lights on his police car in a remote area off a roadway as a show of authority which a reasonable person would not feel free to ignore. But a seizure is not complete until the officer exerts physical force to restrain the defendant's movement or the defendant submits to the officer's assertion of authority. See California v. Hodari D., 499 U.S. 621, 626–28, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Morris, the defendant submitted to the officer. “Upon seeing the flashing emergency lights of the officer's patrol car, Morris complied with the officer's ‘show of authority’ enjoining him to remain. He did not flee; instead, he complied with the assertion of authority.” 276 Kan. at 23.
In the present case, McGinnis asserted his authority by demanding that Anthony “ ‘get off the water.’ “ Anthony submitted to McGinnis' authority by trying to free the boat so he could return to shore. When that was unsuccessful, he further submitted by getting out of the boat attempting to swim ashore. When Anthony attempted to dislodge the boat at McGinnis' command, McGinnis' seizure of him was complete.
At this point, we cannot exclude the theory that Anthony had been seized by McGinnis in that McGinnis restrained Anthony's freedom of movement (or in this case, Anthony's nonmovement of staying in the stranded boat overnight) by a show of authority, to which Anthony submitted. From the facts stated in the petition, a reasonable person would have believed Anthony was not free to ignore McGinnis' command to “ ‘get off the water.’ “ See Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).
Neither Pauletta nor McGinnis have been deposed. We have nothing before us but Pauletta's unverified petition. Whether Pauletta's allegations are true can be explored during the course of discovery. Ultimately, whether Anthony had been seized will turn on facts uncovered in discovery. But based on the allegations now before us, which we accept as true for the purpose of this analysis, it is clear that Anthony had been seized and had no valid option but to comply with McGinnis' command to come ashore. It was Anthony's compliance with McGinnis' command that lead to his death. Under these circumstances, we conclude that for purposes of this motion Pauletta has alleged facts from which a special relationship could be found, excepting McGinnis from the general rule that would immunize him and the State from liability for claims arising from the performance of his law enforcement duties.
Aside from the special duty exception to an officer's immunity under the KTCA, an officer is not immune from liability for wanton or malicious acts. Hopkins v. State, 237 Kan. 601, 611, 702 P.2d 311 (1985). In response to the defendants' motion to dismiss, Pauletta argued that McGinnis' conduct constituted wanton conduct, i.e., “ ‘a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act.’ “ Defendants responded that Pauletta's claim is based upon negligence, not wanton conduct. But we are mindful that in considering a motion to dismiss, we are to determine whether the petition states a cause of action based on the theory asserted by plaintiff or any other possible theory, and we are not bound by how a plaintiff characterizes the facts, particularly if viewing the facts in the light favoring the plaintiff could lead to a different characterization. Bruggeman, 239 Kan. at 245; Noel, 15 Kan.App.2d at 231–32.
Wanton conduct is an act performed with a realization of the imminence of danger and a reckless disregard of or complete indifference to the probable consequences of the act. Reeves v. Carlson, 266 Kan. 310, Syl. ¶¶ 3–5, 969 P.2d 252 (1998). The facts as alleged here tend to demonstrate that McGinnis exhibited more than a lack of ordinary care and diligence through his repeated orders when it was clear Anthony could not free the boat and the alternative of swimming to shore posed an obvious risk of drowning. Accepting as true the allegations in the petition and the reasonable inferences we can draw from these allegations, and viewing them in the light favoring Pauletta, a reasonable factfinder could characterize McGinnis' conduct as wanton, thereby excluding him from immunity under the KTCA for this conduct.
In their appellate brief and before the district court the defendants stressed Anthony's failure to put on a life preserver before attempting to swim to shore. Anthony's comparative fault is certainly an issue to be explored in discovery. But any comparative fault of Anthony does not relieve the defendants of their duty to him and certainly does not permit the defendants to treat him in a wanton manner.
In oral argument the defendants focus our attention on the holdings in Hendrix and Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992). In Hendrix, the decedent had been a patient at the Topeka State Hospital. He was denied readmission to the hospital and was removed from the hospital grounds. He was later found frozen to is death at Gage Park in Topeka. The wrongful death and survivor actions that followed were dismissed for failure to state an actionable claim because of the defendants' governmental immunity after the court noted the general rule of immunity for public officials exercising in good faith their judgment and discretion in performing their statutory duties. 231 Kan. at 118–19. But it also noted that this rule does not apply to instances of wanton conduct. 231 Kan. at 120–21 (citing and discussing Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 53–54, 536 P.2d 54 [1975] ).
Mills came to the court in a motion for summary judgment, not a motion to dismiss in which the standards for granting the motion are clearly more stringent. In Mills, the police officer was called to a bar where Mills had been drinking and was disruptive. The officer found Mills outside the bar without a coat. Mills was apparently intoxicated and his behavior was “ ‘cocky’ and ‘argumentative,’ “ 251 Kan. at 444, but “no disturbance or confrontational incident was in progress.” 251 Kan. at 448. The weather was cold. The bar proprietor told the officer he did not want to press charges, so the officer told Mills he was free to go. The officer did not take Mills into protective custody as an intoxicated person. Mills left, walking from the bar across a field toward an industrial development. As noted in a concurring opinion, the officer thought Mills was heading toward an open service station where shelter and a telephone were available. The officer drove his car to the industrial area where Mills had headed but did not find him. The next day Mills was found frozen to death behind a building in the area. The claim against the officer was that he failed to take Mills into custody when he was incapacitated by alcohol and not dressed for the cold.
Mills did not die during the time he was seized by the police. He was released by the police and sent on his way. No special relationship existed between Mills and the police at the time of his death. Further, there was no assertion that the conduct of the police constituted wanton conduct.
In our de novo review of the defendants' motion, we conclude that the defendants are not entitled to a dismissal of Pauletta's petition for failure to assert an actionable claim.
Reversed and remanded.