Protecting the Protectors the Public Duty Doctrine
| Jurisdiction | Kansas,United States |
| Citation | Vol. 67 No. 10 Pg. 22 |
| Pages | 22 |
| Publication year | 1998 |
67 J. Kan. Bar Assn. October, 22 (1998). PROTECTING THE PROTECTORS THE PUBLIC DUTY DOCTRINE
October, 1998
Copyright (c) 1998 by the Kansas Bar Association; David C. Kresin
The public duty doctrine protects governmental entities and their employees against tort liability resulting from failure to perform governmental duties. The doctrine provides that the duties of a governmental entity are owed to the public at large, not to any particular individual. [FN1] Governmental entities are not liable in tort for the breach of such duties because tort liability depends on a duty owed by the defendant to the plaintiff individually. Since the Kansas Supreme Court first articulated the doctrine in 1982, [FN2] the doctrine's application has spread from law enforcement officers to all governmental entities. [FN3] Likewise, the exceptions to the rule against liability have grown. Although few cases actually discuss the doctrine by name, it is implicit in every negligence case in which the duty of a governmental actor is at issue. Several cases discuss only the exceptions to the rule. Accordingly, this article includes cases involving governmental entities, discussing only the exceptions. This article is intended to be a map for navigating through a case that potentially involves the public duty doctrine.
*23 I. History
The public duty doctrine first came to light in Robertson v. City of Topeka [FN4] in 1982. The doctrine's late emergence is due to the enactment of the Kansas Tort Claims Act [FN5] in 1979. Before the act, all governmental units enjoyed immunity from tort liability for any conduct in performance of a governmental function, [FN6] and there was no need to analyze duty or any other elements of a negligence action against a governmental entity.
In Robertson v. City of Topeka, the Kansas Supreme Court upheld dismissal of a negligence action against the city and three individual police officers. [FN7] The plaintiff alleged that the police were negligent in failing to evict a trespasser. [FN8] The Kansas Supreme Court held that the discretionary function exception to the Kansas Tort Claims Act applied to make the city and its employees immune from liability. [FN9] In dicta, the court found a second reason to dismiss the case:
It is generally held that the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large, not to a particular individual. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. A special relationship or specific duty has been found to exist when an informant is endangered because of his assistance or when one who creates a foreseeable peril, not readily discoverable, fails to warn. No such special relationship or specific duty exists in the case at bar. [FN10] The Robertson court relied on two previous Kansas Supreme Court decisions, Commercial Union v. City of Wichita and Hendrix v. City of Topeka. [FN11] In Commercial Union, the court held that police officers were not liable to property-insurers after the officers violated a state statute requiring them to disperse a mob. [FN12] The mob firebombed the insured property. [FN13] The Commercial Union court first recognized that the statute was a codification of the common law duty to preserve the peace and, as such, was owed to the public at large and not to any particular individual. [FN14] "For the breach of such duty an officer is answerable only to the public acting through its official representatives, and not to any particular individual." [FN15] The Commercial Union court quoted an 1856 U.S. Supreme Court case indicating that indictment was the sole vindication for a breach of a public duty:
It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals, for a compensation in fees or salary, he is liable for acts of misfeasance or nonfeasance to the party who is injured by them. The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only ... The history of the law for centuries proves this to be the case. [FN16] The Commercial Union court then dismissed the suit on immunity grounds. [FN17]
The Robertson court also relied on Hendrix v. City of Topeka. [FN18] In Hendrix, after an individual requested admission to a hospital where he had previously been a patient, the hospital staff refused admission, and a police officer removed the individual from the hospital at the hospital's request. Subsequently, the individual froze to death in a nearby park. The officer acted inspite of a statute allowing an officer to take into custody anyone the officer believed to be mentally ill if the officer reasonably believed such person might be dangerous to anyone. The statute did not, however, allow the officer to override the determination of a doctor as to the admission of the individual. [FN19]
In rejecting the plaintiff's claimthe Hendrix court articulated the policy rationale behind the public duty doctrine; "by virtue of the nature of a police officer's duties and the vast exposure to liability police work entails, some refinements of the basic rules have occurred." [FN20] The Hendrix court also set forth the current exceptions to the public duty doctrine, analyzing
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them as exceptions to the immunity of law enforcement officers. [FN21] Thus, the Commercial Union and Hendrix cases were about common law immunity but defined the public duty doctrine as we know it.
Hendrix and Robertson were decided within weeks of each other, but the difference between them was the applicability of the Kansas Tort Claims Act. The act was inapplicable in Hendrix because the hospital incident took place before its enactment. Conversely, the act applied to the facts of Robertson. Accordingly, the Hendrix court addressed the public duty framework as part of common law immunity and the Robertson court relied on statutory immunity and then alternatively dismissed based on the public duty doctrine. These cases are indicative of the confusion that has plagued the public duty doctrine, not to mention the Kansas Tort Claims Act, since 1982. [FN22] These cases also articulate the policies underlying the public duty doctrine. First, governmental actors are potentially liable in criminal law for their breaches of duty. Second, tort liability for every breach of a governmental duty would unduly burden the treasury and hinder the performance of such duties.
II. A public duty
"The public duty doctrine provides a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party." [FN23] The doctrine applies to all governmental entities. [FN24] Moreover, the doctrine applies to both common law and statutory duties. [FN25] The primary beneficiaries of the public duty doctrine have been two types of public servants:law enforcement officers and social service workers.
It is well-settled that law enforcement's duty to preserve the peace and protect the public welfare is a public duty. [FN26] Accordingly, whether the specific actions of the officer involve the duties to preserve the peace and protect the public welfare is the most important issue in determining the applicability of the public duty doctrine.
The Kansas Supreme Court has recognized that the public duty to preserve the peace and protect the public subsumes the duty to evict trespassers at the request of landowners. [FN27] In Robertson v. City of Topeka, the plaintiff brought the suit for damages to real property resulting from the officers' alleged failure to evict a trespasser. After the plaintiff informed the police that the person was trespassing, was intoxicated and would most likely burn down the house, the officers refused to remove the trespasser and ordered the plaintiff to leave. Within 15 minutes, the house was aflame. The plaintiff brought the negligence action relying on the officers' duty to protect plaintiff's property. [FN28] The court, however, held that any obligation to remove the trespasser sprang only from the duty to preserve the peace, which was a public duty, so neither the city nor the officers were liable. [FN29]
The duty to preserve the peace and protect the public welfare includes taking an intoxicated individual into custody for his own protection. [FN30] In Mills v. City of Overland Park, the Kansas Supreme Court invoked the public duty doctrine after the plaintiff asserted that a police officer had witnessed an individual's abnormal behavior and negligently failed to take the individual into custody. [FN31] The court held that the officer owed no duty to the individual because the only duty at issue was the duty to preserve the peace, which was owed to the public at large. [FN32]
Protecting a sexual assault victim from a repeat attack is also part of the public duty to preserve the peace and protect the public welfare. [FN33] In Taylor v. Phelan, the plaintiff alleged that a police officer negligently failed to protect a victim after she reported a sexual assault. Although the U.S. Court of Appeals for the 10th Circuit did not expressly address the public duty doctrine, it recognized that there was no duty to the victim individually. Because the only source for the duty was the public duty to protect, the court concluded that the officer was not liable. [FN34]
Likewise, law enforcement...
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