265 Kan. 372
(961 P.2d 677)
Cert. denied 525 U.S. 964 (1998)
No. 79,039; 79,040
SCHMIDT, et al., Appellees/Cross-appellants, v. HTG, INC., et al., Appellants/Cross-appellees.
SYLLABUS BY THE COURT
1. When a 42 U.S.C. § 1983 (1994) claim is asserted, a State actor may not generally be held liable under the Due Process Clause of the United States Constitution for private misdeeds. The elements necessary to prove one of the recognized exceptions to this rule, the danger creation theory, are: (1) The plaintiff/victim must be a member of a limited and specifically definable group; (2) the defendant's conduct specifically put members of that group at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and, (5) the conduct, when viewed in the totality of the circumstances, is shocking to the conscience.
2. Under the facts of this case, the trial court properly determined that the State actor's conduct was not reckless and did not shock the court's conscience, as there was no proof that the State actor was aware of a risk so great that it was highly probable that the injuries would follow or that the State actor proceeded in conscious disregard of a known danger.
3. Negligence only exists where there is a duty owed by one person to another and a breach of that duty occurs. In order to recover, one must show a causal connection between a duty breached and an injury received.
4. Generally, in the absence of a "special relationship," one has no duty to control the conduct of a third party to prevent harm to others. A special relationship may exist, however, with persons in charge of one with dangerous propensities or persons with custody of another.
5. One who takes charge of a third person whom he or she knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him or her from doing such harm.
6. A parole officer does not take charge or exercise control over a parolee so as to create a special relationship between the officer and the parolee, thereby imposing a duty upon the State to control the conduct of the parolee to prevent harm to other persons or property. The State is not the virtual guarantor of the safety of each and every one of its citizens from illegal and unlawful actions of every parolee or person released from custody under any type or kind of supervision.
7. In the absence of a specific threat of harm, the State has no common-law duty to warn third parties of the dangerous propensities of parolees.
8. Liability cannot be established by the failure to follow a written personnel policy unless an independent duty of care is owed to the injured party.
9. Although an employer may be liable for injuries to a third person which are the result of the incompetence or unfitness of an employee where the employer was negligent in employing or retaining the employee when the employer knew or should have known of such incompetence or unfitness of the employee, liability normally only attaches to acts occurring at the employer's business location or committed during the conduct of the employer's business.
10. In order to find an employer liable for negligently hiring or retaining an employee, there must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries sufferedby the third person; the employer must, by virtue of knowledge of the employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of continued employment of that employee; and the harm which results must be within the risk created by the known propensity.
11. Employers are not required to ascertain the detailed history of every employee, nor must they terminate the employment of an individual who is performing acceptable services and is clearly not unfit or incompetent, but who does pose some degree of risk due to previous actions.
Appeal from Crawford district court; DONALD R. NOLAND, judge. Opinion filed June 5, 1998. Affirmed in part and reversed in part.
Donald Patterson, of Fisher, Patterson, Sayler & Smith, of Topeka, argued the cause, and Michael K. Seck, of the same firm, of Overland Park, was on the briefs for appellants/cross-appellees HTG, Inc. d/b/a Hamilton's and Thomas E. Hamilton.
Lisa A. Mendoza, special assistant attorney general, argued the cause, and Edward F. Britton, Jr., of Kansas Department of Corrections, was on the briefs for appellants/cross-appellees Kansas Department of Corrections and Robert Schirk.
Timothy A. Short, of Spigarelli, McLane, & Short, of Pittsburg, and James F. Adler, of Adler & Manson, L.C., of Kansas City, Missouri, argued the cause, and Carlton Kennard, Esq., of Pittsburg, was with them on the briefs for appellees/cross-appellants.
The opinion of the court was delivered by
LARSON, J.: Gene and Peggy Schmidt, individually and as heirs of their daughter Stephanie Schmidt, and Gene as administrator of her estate, brought these personal injury and wrongful death actions against Stephanie's former employer, HTG, Inc. d/b/a Hamilton's, Thomas E. Hamilton, the Kansas Department of Corrections (KDOC), and Robert Schirk, a state parole officer. On June 30, 1993, Stephanie was raped and killed by Donald Ray Gideon, who had been conditionally released from prison by mandatory operation of law and was under the supervision of Schirk. The Schmidts contend that Stephanie's death was a result of the KDOC's and Schirk's failure to notify Hamilton, Gideon's employer, of defendant's prior convictions for rape and aggravated sodomy and that Hamilton negligently hired and retained Gideon as an employee. A 42 U.S.C. § 1983 (1994) claim was also made against the KDOC and Schirk.
The defendants moved for summary judgment, essentially alleging there was no duty owed to Stephanie, causation was lacking, and the KDOC and Schirk were entitled to immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The trial court granted Schirk and the KDOC summary judgment regarding the Schmidts' § 1983 claims, but denied the remaining summary judgment motions. The trial court granted permission for the defendants to file an interlocutory appeal and for the Schmidts to file their cross-appeal. The cases were consolidated and transferred to us pursuant to K.S.A. 20-3018(c).
Factual Statement
Donald Ray Gideon was conditionally released from prison by mandatory operation of law on November 5, 1992, having served approximately 10 years in prison for convictions of aggravated rape and sodomy of a young college woman. Prior to his mandatory release, Gideon had been denied parole at every prior parole hearing. Gideon completed the Sexual Offender Treatment Program while incarcerated.
Gideon was supervised by Robert Schirk. Schirk had worked for the KDOC for 12 years as a parole officer and had completed its basic and annual training requirements. He had previously supervised other sex offenders.
Schirk completed a Risk and Needs Assessment of Gideon to determine his level of risk and likelihood of reoffending and to establish the level of supervision he required. Gideon was assessed as high risk, although the KDOC policy so classifies all sex offenders.
When released, Gideon signed a conditional release certificate imposing certain conditions on his release. In addition to these requirements, Schirk ordered Gideon to meet with a mental health therapist and to obtain employment. Schirk possessed the inherent authority to impose additional conditions of release if warranted.
In 1992 and 1993, the KDOC had an unwritten policy which required the parole officer to give notice of a parolee's criminal history to any third party who was determined, in the parole officer's discretion, to be at risk through association with a parolee. The present policy regarding third-party notification has been reduced to writing and requires employer notification of a parolee's criminal history.
HTG, Inc. d/b/a Hamilton's opened for business in Pittsburg, Kansas, in December 1992. Hamilton had agreed to manage the restaurant for HTG, Inc. Hamilton hired and fired all employees of the restaurant. He had extensive experience in the food service industry and had hired approximately 1,000 employees. He had never run a records check on any potential employee, nor had he ever fired, or been told to fire, anyone for falsifying an employment application.
Gideon initially was employed at Superior Industries but quit soon thereafter. Gideon then obtained employment at Hamilton's Restaurant in December 1992, without any involvement of Schirk. Gideon did not inform Hamilton of defendant's criminal record or tell him he was on parole. Hamilton did not run a background check on Gideon before hiring him, nor did he check Gideon's references or employment history.
Hamilton also hired Stephanie, a Pittsburg State University student, who started working in December 1992. She remained employed until mid-June 1993, when she left Hamilton's after a dispute and did not return.
In February 1993, Gideon admitted to Hamilton he had been in prison and was on parole. Gideon lied to Hamilton and stated he had been incarcerated as a result of a bar fight where he had severely beaten a man with an axe handle. Hamilton never attempted to verify this story, which eventually became generally known by the other employees at Hamilton's, including Stephanie.
Hamilton learned Gideon had a parole officer and was attending counseling. Gideon informed Schirk that Hamilton knew he was on parole, but Schirk never contacted Hamilton to determine if the information divulged was correct. Hamilton had a chance meeting with Schirk at a convenience store in May or June 1993, in which Hamilton told Schirk that Gideon was doing fine at his job. Hamilton did not inquire about Gideon's conviction, nor did Schirk volunteer any information.
Hamilton never received any complaints from his employees concerning Gideon's conduct. Gideon was polite, dependable, and soft-spoken, and the waitresses seemed to like him. Stephanie told her father that Gideon was nice to her, never tried to hit on her, helped protect the waitresses' tips, and that she trusted him. Hamilton also trusted Gideon, permitting his two sons to work in the restaurant and allowing Gideon to transport his fiancee and daughter to work.
Gideon once told Hamilton he had slapped a woman for insulting him and thrown her purse down the stairs. He also informed Hamilton he had told a woman to leave his apartment unless she had oral sex with him. On one occasion, Hamilton gave Gideon a day off work after he had been involved in a fight at a local tavern.
Schirk never informed Hamilton or any of the restaurant employees that Gideon was a paroled sex offender and stated he did not disclose this information because he was concerned Gideon would be fired. Schirk's goal was to assist Gideon in reintegrating into society, and Schirk believed society is better protected from recidivism by ensuring that parolees are employed and self-supporting. By May 1993, Schirk no longer believed Gideon would lose his employment if he informed Hamilton of Gideon's past criminal history.
Hamilton stated he would have informed Schirk of Gideon's inappropriate conduct if he had been aware of Gideon's actual criminal history. Hamilton indicated he would not have initially hired Gideon had he been aware of Gideon's true criminal history and would have informed his employees about it had he later been informed.
Schirk believed Gideon was adequately complying with the conditions of his parole. Gideon reported to Schirk as directed, maintained employment, attended counseling, made restitution and costs payments, and reported spending leisure time in appropriate pursuits. In May 1993, Gideon's supervision status was relaxed to "intermediate." Schirk indicated he might have requested the revocation of Gideon's parole had he known of the incidents of inappropriate conduct with women which Gideon had described to Hamilton.
Schirk was aware that young women were employed at Hamilton's. He acknowledged that female employees of Hamilton's were at a risk of harm due to their association with Gideon, although Schirk specifically stated he "did not feel that there was a third party at risk."
On the night of June 30, 1993, Stephanie and several friends went to a bar in Frontenac, Kansas, to celebrate her birthday. Gideon was at the bar. Stephanie became ill and accepted a ride home from Gideon. She was never again seen alive.
In the Schmidts' personal injury and wrongful death suit, they alleged the Hamilton defendants breached a duty owed to Stephanie and to them by negligently hiring and retaining Gideon as an employee at Hamilton's. The Schmidts claimed the State defendants breached both a common-law duty and KDOC policy by failing to warn Hamilton of Gideon's criminal history. The Schmidts also made 42 U.S.C. § 1983 claims against Schirk and the KDOC.
In denying motions for summary judgment, the trial court ruled against the Hamilton defendants as to their claims that they owed no duty to Stephanie or the Schmidts and that the breach of any such duty did not proximately cause the Schmidts' injuries. The court also determined that a special relationship existed between the State defendants and Gideon, in addition to KDOC policy, giving rise to a duty to warn, and rejected the State defendants' claims to immunity under the KTCA. The court did reject the Schmidts' § 1983 claims, holding the record did not support a showing of reckless conduct under the totality of the surrounding circumstances such that the court's conscience was shocked.
The trial court issued a K.S.A. 60-2102(b) order that its rulings on the summary judgment motions involved controlling questions of law as to which there is a substantial ground for difference of opinion such that an immediate appeal would materially advance the termination of litigation. The Hamilton and State defendants all appeal their adverse rulings. The Schmidts cross-appeal the dismissal of their § 1983 claims. The Court of Appeals granted permission to take the interlocutory appeals.
Standard of review:
A party is entitled to summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." K.S.A. 60-256(c).
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case." Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
We are obligated on appeal to resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom summary judgment was entered. Summary judgment should be denied where reasonable minds could differ as to the conclusions to be drawn from the evidence. Gragg v. Wichita State Univ., 261 Kan. 1037, 1044, 934 P.2d 121 (1997).
The trial court's rulings that the State defendants and Hamilton's owed a recognizable duty to Stephanie and that Schirk and the KDOC were not immune from liability under exceptions to the KTCA are all questions of law. See Gragg, 261 Kan. at 1044; Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 451, 912 P.2d 729 (1996). We have unlimited review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996).
§ 1983 claims
In granting summary judgment in favor of the KDOC and Schirk on the Schmidts' § 1983 claims, the trial court first noted that the Schmidts acknowledge their § 1983 claim against the KDOC is not presently allowed under the law. The trial court then held that as to the § 1983 claim against Schirk, the Schmidts had been unable to prove that their claim fell within one of the exceptions to the general rule that a State actor may not be held liable under the Due Process Clause to the United States Constitution for private misdeeds. Citing DeShaney v. Winnebago Cty. Dept. Soc. Servs. Dept., 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), the court noted that the two recognized exceptions are: (1) the special relationship doctrine, and (2) the danger creation theory. Both the Schmidts and the trial court focused exclusively on the second exception, recognizing that the first was not applicable.
Federal courts have established the elements necessary for proving this second exception: (1) The plaintiff/victim must be a member of a limited and specifically definable group; (2) the defendant's conduct specifically put members of that group at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and (5) the conduct, when viewed in the totality of the circumstances, is shocking to the conscience. Collins v. Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992); Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir. 1992).
The trial court decided that Schirk's conduct did not meet the elements of the danger creation theory primarily because it found his conduct was not reckless or shocking to its conscience. The court held:
"Although plaintiffs argue quite strongly that Schirk's conduct was reckless, the Court disagrees. Arguably Schirk's conduct is actionable in the traditional 'tort' sense of the word, yet the Court does not find that the record supports a showing of reckless conduct. That is, the plaintiffs have failed to demonstrate that Schirk was aware of a risk to Ms. Schmidt so great that it was highly probable that serious harm would occur. Nor have the plaintiffs demonstrated that Schirk proceeded in a conscious and unreasonable disregard of probable consequences with an intent to harm or an intent to place Ms. Schmidt in an unreasonable risk of harm. Again, it can perhaps be argued that Schirk's conduct was negligent, yet the complained of conduct falls short of that which is contemplated by a Section 1983 claim.
"The facts which were developed in the discovery phase support this conclusion. Undeniably Schirk was aware that sex offenders are at a high risk of re-offending. A logical extension of this awareness would be the knowledge that Gideon's female co-employees were at risk. Yet Schirk at that point in time had been given no reason to believe that Gideon was engaging in any inappropriate behavior which focused on the Hamilton waitresses. Gideon reported to Schirk as ordered, indicated no problems at work, and had maintained the same job for seven months. There was nothing about Gideon's known conduct which would indicate to Schirk that the Hamilton waitresses were in specific danger of imminent harm. Accordingly, the plaintiffs have been unable to demonstrate either an intent to harm or an intent to place a person unreasonably at risk of harm, as per the requirement of Medina, supra.
"As previously noted, the Court is required to consider the totality of the surrounding circumstances in ruling on the propriety of a Section 1983 claim. [Citation omitted.] In doing so, the Court notes that Schirk's role in the supervision of Gideon involved the balancing of competing interests: the protection of the public versus the rehabilitation of the offender. This at times is a difficult balancing act to accomplish. The Court has closely scrutinized Schirk's actions in fulfilling this role. The Court does not find that Schirk's errors, if any, are so egregious and outrageous that the Court's conscience is shocked."
The Schmidts have extensively briefed this issue and have argued that the facts of this case are comparable to many cases where § 1983 liability was imposed and distinguishable from many cases where no liability was found. We hold, however, that the trial court's analysis of this issue was sound and correct.
The trial court focused on the definition of reckless conduct "as an awareness or knowledge of an 'obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.' Medina, [960 F.2d at] 1496." Further, the court, citing Collins, 503 U.S. at 127-28, noted the shocking to the conscience standard cannot be met by ordinary negligent conduct, but rather presupposes deliberate wrongful decisions that must be more than an ordinary tort to be actionable.
In the present case, as will be further discussed, we find that Schirk owed no duty to warn Stephanie's employer of Gideon's criminal history and dangerous propensities such that liability could be imposed on a theory of negligence. As Schirk's conduct is not deemed to be negligent, it is not possible for this same conduct to be considered reckless and shocking to the conscience. Although the end result was clearly tragic, the Schmidts have failed to establish that Schirk was aware of an obvious risk so great that it was highly probable that the attack upon Stephanie would follow. Schirk most definitely did not intend any harm to come to Stephanie or Gideon's other co-workers. In light of the knowledge he possessed pertaining to Gideon's conduct during his 7 months of employment at Hamilton's, Schirk did not proceed in conscious disregard of an obvious danger.
We affirm the trial court's grant of summary judgment on the § 1983 claims.
Duty--State defendants
The KDOC and Schirk allege that under Kansas case law, they owed no duty to warn of Gideon's criminal history and possible danger to young women. The Schmidts claimed in their petition that Schirk owed a duty to warn Hamilton, Gideon's employer, of Gideon's prior crimes, and that the breach of this duty proximately caused their injuries.
The trial court held that because Gideon was a parolee under the direct supervision of Schirk, a special relationship existed such that Schirk had a duty to warn readily identifiable groups of potential victims. Further, the court noted that because the KDOC had adopted an unwritten policy of warning individuals potentially at risk, it was required to administer the policy in an effective manner.
We have repeatedly stated that negligence only exists where there is a duty owed by one person to another and a breach of that duty occurs. In order to recover, one must show a causal connection between a duty breached and an injury received. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
"In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. . . . An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. [Citation omitted.] The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based." Durflinger, 234 Kan. at 488-89.
Generally, in the absence of a "special relationship," there is no duty to control the conduct of a third party to prevent harm to others. Calwell v. Hassan, 260 Kan. 769, 778, 925 P.2d 422 (1996). A special relationship may exist, however, with persons in charge of one with dangerous propensities or persons with custody of another. C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993). We have not, in any previously reported Kansas case, extended or found a "special relationship" to exist between one conditionally released from incarceration by mandatory operation of law and the State or its duly authorized employee who is responsible to supervise such individual. We first consider whether we should do so under the facts of this case.
The Restatement (Second) of Torts § 315-20 (1965) sets forth the basic rules regarding liability for the conduct of third persons:
"§ 315 General Principle
"There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection."
Comment c to § 315 provides:
"The relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316-319. The relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320."
Sections 316, 317, and 318 of the Restatement relate to the duty of a parent to control the conduct of a child, the duty of a master to control the conduct of a servant, and the duty of a possessor of land to control the conduct of a licensee, respectively, and none are applicable to our case.
Section 319 of the Restatement reads:
"§ 319. Duty of Those in Charge of Person Having Dangerous Propensities
"One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."
Section 320 of the Restatement requires those taking custody of a person to use reasonable care to control the conduct of third persons so as to prevent them from harming the person in custody. This section does not apply to the facts of the present case, as Stephanie clearly was never in the custody of the KDOC or Schirk.
Section 319 is the only section remotely applicable to our situation. However, we find neither Schirk nor the KDOC had charge of Gideon to the extent necessary to fall within this section. The Comment to the Restatement (Second) of Torts § 319 states:
"Comment:
"a. The rule stated in this Section applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.
"Illustrations:
"1. A operates a private hospital for contagious diseases. Through the negligence of the medical staff, B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage. Through the negligence of a guard employee by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate the scarlet fever and smallpox to D and E respectively. A is subject to liability to D and E.
"2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C."
In refusing to grant summary judgment, the trial court primarily relied on two cases from other jurisdictions, Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986), and Rieser v. District of Columbia, 563 F.2d 462 (D.C. Cir. 1977), to support the belief that a special relationship exists between a parole officer and a parolee so that a duty is owed to protect third persons. We first determine if the trial court correctly concluded Schirk was "in charge of" Gideon to the extent necessary to form a § 319 special relationship and, if it did, whether the duty to protect third parties extends to and includes a duty to warn either the public at large or a limited class of persons having a current or previous involvement with the parolee.
We utilized § 319 in Kansas in Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), where we found that the Kansas State Penitentiary owed a duty to warn local law enforcement officers of the escape of armed and dangerous prisoners who had been in the charge of the penitentiary. This was a prison escape case, and we had no problem holding the State was in charge of seven prison escapees, all of whom were alleged to have been serving life terms after convictions for murders in various degrees. This is a far cry from imposing like obligations on the State as to every prisoner released from incarceration under parole or conditionally released by mandatory operation of law after serving a sentence less good time credits.
Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), a negligence case involving a person on conditional release who committed multiple murders at the University of Kansas Medical Center, refrained from addressing the question of whether a duty to warn or control existed and rendered judgment against plaintiffs by directly addressing the question of whether the adult authority was entitled to immunity under the KTCA. Thus, the question of whether § 319 applies to those on parole such that a duty exists has not previously been directly a