 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
WOODRUFF v. CITY OF OTTAWA12/30/1997
r (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. 239 Kan. at 373 (citing Restatement [Second] of Torts § 324A ). The Fudge court noted that K.S.A. 75-6104(d) (Ensley 1984) grants immunity 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 be abused." 239 Kan. at 374.
The Fudge court pointed out that the Kansas City police department had a standard operating procedure manual which mandated that an intoxicated individual likely to do physical injury to himself or others "will be taken into protective custody." 239 Kan. at 373. After a discussion of Robertson and the city's adoption of a specific mandatory set of guidelines for police officers to use with regard to handling intoxicated persons, the Fudge court determined that the guidelines adopted by the city left no discretion to the police. The Fudge court held that where the police are subject to a specific, mandatory set of guidelines to use with regard to handling intoxicated persons, the officers and the employing municipality are subject to liability under the Kansas Tort Claims Act for the failure to follow those guidelines. The court found that under these circumstances, K.S.A. 75-6104(d) was inapplicable and the defendants were not immune under the discretionary function exception to the Act. 239 Kan. at 374-75. The Fudge court also concluded that since the officers should have realized that taking Henley into protective custody was necessary under the city's
mandatory guidelines for the protection of third persons, their failure to do so increased the risk that Henley would cause physical harm to others, and under such circumstances, the City of Kansas City was subject to liability. 239 Kan. at 373.
Fudge was decided in 1986. Kansas courts> recognize the rule that a breach of a duty imposed by law is negligence and that damages may be predicated on a violation of a statute if the breach is the proximate cause of the injury or substantially contributes to the injury. The declaration of public policy of whether an action can be brought pursuant to a statute is a function of the legislative branch of our government. Brunett v. Albrecht, 248 Kan. 634, Syl. 5, 810 P.2d 276 (1991). After Fudge, the legislature made a clear statement that this court had wrongly interpreted the discretionary function exception. The 1987 amendment to 75-6104 provided that governmental employees when exercising discretion are immune from tort liability resulting from:
"adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons' health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence." K.S.A. 75-6104(d).
In Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, Syl. 1, 938 P.2d 1293 (1997), the court analyzed K.S.A. 75-6104(d) and determined:
"The legislative history of K.S.A. 75-6104(d) makes it clear that the 1987 amendment to that statute was intended to not allow the result in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), to remain as the law in Kansas. 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."
Here, the Woodruffs acknowledge that
Page 1 2 3 4 5 6 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|