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WOODRUFF v. CITY OF OTTAWA12/30/1997
tect the State from interference with the performance of its governmental functions. The common law is subject to modification by judicial decision or legislative enactments in light of changing conditions.
In Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), the court recognized that in Kansas the doctrine of governmental immunity had a judicial origin. The legislature, having adopted no general rules regarding immunity, had left the matter to the Kansas courts> to determine the applicable public policy. The Kansas courts> had provided general rules for determining whether the governmental body had embarked on an enterprise which was commercial in character or which was usually carried on by private individuals or private companies, thereby losing its immunity. Because the legislature was in a better position than the court to restrict the application of governmental immunity, the Kansas Supreme Court in Carroll abolished the judicially created doctrine of governmental immunity.
Subsequently, the legislature enacted the Kansas Tort Claims Act which became effective July 1, 1979. Under the Act, liability became the rule for negligent or tortious conduct of a governmental employee and immunity became the exception. When wrongful death or injury are caused by a governmental employee acting within the scope of his or her employment, K.S.A. 75-6103(a) extends liability to the employing governmental entity, stating:
"Subject to the limitations of this act, each governmental entity 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 under the laws of this state."
The Act provides immunity from liability for "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." K.S.A. 75-6104(e). The Act places the burden upon the governmental
entity or employee to establish entitlement to any of the exceptions to liability set forth in K.S.A. 75-6104. The legislature failed to define what it meant by the term "discretionary function" and shifted that obligation to the courts>. See Hopkins v. State, 237 Kan. 601, 608-10, 702 P.2d 311 (1985). Because the legislature had not clearly defined what was a discretionary function, Kansas courts> began to determine what discretionary acts of a governmental employee were immune under the Act.
II. DISCRETIONARY FUNCTION
In Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982), the court attempted to determine which acts of law enforcement officers fell within the discretionary function exception of the Act. Robertson called the Topeka police to seek their assistance in removing a trespasser from his property. When the police arrived, Robertson advised the officers that the trespasser was drunk, had no right to be on the property, and would likely burn the house down. The officers allowed the trespasser to remain and ordered the plaintiff to leave his premises. Fifteen minutes later, the plaintiff's house burned.
Robertson filed an action claiming that under the circumstances, the police had a duty to insure that the trespasser did not burn the house down. The Robertson court refused to impose liability upon the city or the police, finding that the officers' determination of what action to take was discretionary and protected under K.S.A. 1981 Supp. 75-6104(d). The Robertson court noted that in determining whether an action fall
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