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WOODRUFF v. CITY OF OTTAWA12/30/1997
s within the discretionary function exception of the Kansas Tort Claims Act, the concern of the court should be the nature and quality of the discretion exercised rather than the status of the employee exercising that discretion. It pointed out that under the common law, 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. 231 Kan. at 362-63. The Robertson court concluded that under the circumstances, the officers had exercised discretion;
therefore, there was no duty for the officers to protect the plaintiff's property.
After Robertson, this court again addressed liability based upon a failure of police to take an intoxicated person into custody in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). In Fudge, plaintiffs filed a wrongful death action arising out of an automobile accident. The decedent James Fudge's delivery van was struck by the vehicle driven by Delmar Henley. Henley had consumed 29 to 30 beers and 10 "kamikazees" at a bar. The bartender told Henley to leave. Henley refused. The bartender called the Kansas City police. When the police arrived, Henley and others were in the adjoining parking lot. The officers observed that Henley was intoxicated. The police officers instructed everyone in the parking lot to leave the premises. As instructed, the intoxicated Henley drove his car from the scene. As Henley left the parking lot, his vehicle collided with the van driven by Fudge. Fudge died 20 days later of injuries received in the accident. The results of a blood alcohol test taken shortly after the accident showed Henley's blood alcohol level to be .26%.
Fudge's wife and children brought a wrongful death and survival action against Henley and the City of Kansas City. Plaintiffs asserted that because the officers were subject to specific, mandatory guidelines to take an intoxicated person into custody, the officers had no discretion because of the specific duty to protect others from injury by the intoxicated person. At trial, the jury found the decedent 7% at fault, Henley 75% at fault, and the City of Kansas City and the police officers 18% at fault and awarded damages in the amount of $1,095,103.66. On appeal, relying on the rationale of Robertson, the City of Kansas City asserted it was immune from liability for the discretionary actions of its law enforcement officers under the Kansas Tort Claims Act and that the officers had no special relationship with nor owed a duty to Fudge.
The Fudge court observed:
"` s a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages. Robertson v. City of Topeka, 231 Kan. at 363. Absent guidelines, police officers are vested with
the necessary discretionary authority to act in an appropriate manner to protect the public.'" 239 Kan. at 372 (quoting Hopkins, 237 Kan. at 611).
The court observed that one who undertakes, gratuitously or for consideration, to render services to another which he or she should recognize as necessary for the protection of a third person or his or her things is subject to liability to the third person for physical harm resulting from his or her failure to exercise reasonable care to protect the undertaking, if (a) his or her failure to exercise reasonable care increases the risk of such harm, or (b) he or she has undertaken to perform a duty owed by the other to the third person, o
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