Williams v. C-U-Out Bail Bonds, LLC

450 P.3d 330

JoeAnn WILLIAMS, Eric Williams, Hazel S. Noble, W.J.W., and L.L.W., Appellants,

v.C-U-OUT BAIL BONDS, LLC, Defendant, and City of Overland Park, Kansas, ex rel. Overland Park Police Dept., Appellee.

No. 116,883

Supreme Court of Kansas.

Opinion filed October 11, 2019.

Curtis N. Holmes, of Holmes Law Office, LLC, of Olathe, was on the brief for appellants.

Michael K. Seck, of Fisher, Patterson, Sayler & Smith, LLP, of Overland Park, was on the brief for appellee.

The opinion of the court was delivered by Beier, J.:

This appeal concerns whether a police duty to investigate bail bondsmen's entry into a private home arose and, if so, whether the City of Overland Park is immune from any liability for police officers' breach of the duty.

Those present in the home at the time the bail bondsmen forced their way inside sued the bondsmen's company, C-U-Out Bail Bonds, LLC, and the City on a variety of claims. A district court judge dismissed the City as a defendant, ruling the plaintiffs failed to state a valid cause of action. A Court of Appeals panel affirmed, and this court granted the plaintiffs' petition for review.

We conclude today that the plaintiffs' amended petition alleged sufficient facts to support (a) potential intentional illegal conduct on the part of the bail bondsmen, (b) a police undertaking of a duty to investigate owed to the plaintiffs individually, and (c) no discretionary function immunity for the City under the Kansas Tort Claims Act (KTCA).

FACTUAL AND PROCEDURAL BACKGROUND

Agents of C-U-Out came to the home of JoeAnn and Eric Williams at about 11 p.m. in search of Rickesha Wright, the Williamses' daughter-in-law. JoeAnn; Eric; Hazel Noble, JoeAnn's 90-year-old mother; and two of JoeAnn's grandchildren were in the home at the time.

The agents' entry into the home became the subject of this lawsuit brought by the home's occupants. The plaintiffs' amended petition alleged:

"XI.

"The instant causes of action arise[ ] from the conduct of agents and/or employees of the above-named Defendants while acting within the course and scope of their employment.

"XII.

"At approximately 11:00 o'clock p.m., on the evening of Wednesday, August 6th, 2014, several armed representatives of Defendant, C-U-Out, arrived at a single family residence occupied at the time by all of the above-named Plaintiffs. Upon information and belief, Plaintiffs allege that the representatives of C-U-Out were attempting to locate an individual by the name of Rickesha Wright (hereinafter ‘Ms. Wright’), the daughter-in-law of the first and second named Plaintiffs herein. According to the representatives of C-U-Out, Ms. Wright was a criminal defendant who had been released on bond and had absconded from the law, and as a result of which her surety bond[,] which had been paid by C-U-Out[,] was in jeopardy of being revoked.

"XIII.

"The representatives of C-U-Out knocked at the door and were met by Plaintiff, JoeAnn Williams (hereinafter ‘Ms. Williams’), who answered the door. The representatives inquired as to whether Ms. Wright was present, at which point Ms. Williams informed them that Ms. Wright was not at the house.

"XIV.

"The representatives of C-U-Out then asked to enter the residence to verify that Ms. Wright was not present, at which point Ms. Williams reiterated that Ms. Wright was not at the home and told them that they could not enter. She also informed them that she was caring for her elderly mother who was inside the home suffering from the effects of Alzheimer's Disease.

"XV.

"Ms. Williams closed the door and returned to care for her mother at which time the representatives of C-U-Out began an attempt to force the door open with a steel battering ram.

"XVI.

"Ms. Williams then returned to the front door and told the representatives of C-U-Out again that Ms. Wright was not present, that they were frightening everyone inside the home, and that she intended to call the police. Whereupon one of the representatives of C-U-Out put his foot in the door, informed Ms. Williams that she would be charged with aiding and abetting a felon if she continued to refuse to let them in, and when Ms. Williams' dog started barking at the representative, he put his hand on his gun as if preparing to shoot the dog.

"XVII.

"While holding the door against the representative's foot, Ms. Williams called the Overland Park Police Department and uniformed officers of the Overland Park Police Department arrived a few minutes later.

"XVIII.

"While two (2) of the representatives of C-U-Out remained at the front porch attempting to force the front door of the residence open, another of the representatives momentarily left to speak with the police officers who were just beyond the curtilage of the home. At that moment, representatives of C-U-Out who had been standing on the front porch forcibly entered the residence, pushing Ms. Williams backwards. Throughout this incident, the police officers remained outside their patrol unit and observed the forcible entry without taking any action. After the representatives of C-U-Out had forced their way into the home, Ms. Williams called out to the police officers for assistance.

"XIX.

"In response, the officers told Ms. Williams that this was outside of their jurisdiction and that they could do nothing about it and proceeded to withdraw from the scene, leaving Plaintiffs alone and at the mercy of the armed representatives of C-U-Out.

"XX.

"Shortly after the police officers had left the scene, the representatives of C-U-Out proceeded to search the residence going so far as to enter the private bedroom of Ms. William[s'] ninety (90) year-old mother, Plaintiff, Hazel S. Noble, who was in bed, and the private bedrooms of Ms. Williams' grandchildren, Plaintiffs W.J.W. and L.L.W. who were also present.

"XXI.

"After failing to locate Ms. Wright, the representatives of C-U-Out then left the home threatening Plaintiffs that they would return and do another search until they found her.

"XXII.

"The representatives had no personal knowledge that Ms. Wright was or even had been at the home, and, in fact, Ms. Wright was never at the home at the time of the above-described incident, nor was there any available evidence at the time to suggest that she was."

The plaintiffs' only claim against the City was labeled "negligent failure to protect." It formed Count III of the amended petition and stated:

"XXXIII.

"Plaintiffs allege that at all times material hereto, the officers of the Overland Park Police Department and by extension, the City of Overland Park, under the doctrine of Respondeat Superior had an affirmative obligation and duty to protect persons within the jurisdictional limits of the City of Overland Park.

"XXXIV.

"Plaintiffs further allege that the incident described above took place within the jurisdictional limits of the City of Overland Park.

"XXXV.

"Plaintiffs further allege that the police officers who were present at the home of Plaintiffs at the time of the incident described above were personally aware of the facts and circumstances which led to the incident, and had been called to the scene to protect the peace.

"XXXVI.

"Plaintiffs further allege that once the officers were notified of the call, affirmatively responded to the call, presented themselves at the scene, and were made aware of the circumstances as previously described herein, they had an affirmative duty to remain at the scene in order to protect Plaintiffs until the dangers associated with the confrontation between Plaintiffs and armed representatives of Defendant, C-U-Out who were then attempting forcibly to enter Plaintiffs' private residence had passed.

"XXXVII.

"The officers of the Overland Park Police Department violated their affirmative duty to protect Plaintiffs when they left the vicinity of Plaintiffs' home after having been called to and appearing at the scene with full knowledge that there were armed representatives of a bonding company who had expressed their intention of forcibly entering the private residence without the permission of the occupants and without legal authority, and had actually forcibly entered the residence without the permission of the occupants and without legal authority.

"XXXVIII.

"As a proximate result of the breach of the duty of the officers of the Overland Park Police Department, the representatives of C-U-Out were permitted forcibly to enter the private residence of Plaintiffs without privilege or legal authority and to invade the privacy of Plaintiffs. In so doing, the officers of the Overland Park Police Department failed to protect the rights of Plaintiffs in violation of their duty to do so.

"XXXIX.

"Plaintiffs further allege that the foregoing incident was subject to an internal investigation conducted by the Office of Professional Standards of the Overland Park Police Department and was found to be substantiated.

"XL.

"Pursuant to the Kansas Tort Claims Act, Plaintiffs thereafter filed a Notice of Tort Claim with the City of Overland Park more than ONE HUNDRED TWENTY (120) days prior to the filing of the instant Amended Petition to which there has been no response by Defendant, City of Overland Park, as of the current date.

"XLI.

"As a result of the foregoing, Plaintiffs have suffered damages and are entitled to all remedies permitted at law therefor."

The parties agree that the City filed a motion to dismiss, but the motion does not appear in the record on appeal.

The plaintiffs' response, which is in the record, says the City sought dismissal under K.S.A. 2016 Supp. 60-212(b)(6) because "the City owed no duty to Plaintiffs which was breached, and that the City is immune from liability pursuant to K.S.A. § 75-6104(c) and (e)."

The plaintiffs acknowledged in their response that law enforcement officers generally owe a duty only to the public at large and not to particular individuals. Despite this general rule, referred to as the public duty doctrine, the plaintiffs argued that law enforcement officers can owe a special duty to victims of...