                                        No. 120,369

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    DAVID HENDERSON,
                                        Appellant,

                                              v.

                   MONTGOMERY COUNTY BOARD OF COMMISSIONERS

                                             and

                                DEPUTY MICHAEL GRIMES,
                                       Appellees.


                              SYLLABUS BY THE COURT


1.
       The Kansas Tort Claims Act provides that "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." K.S.A. 75-6103(a).
Under the Kansas Tort Claims Act, governmental liability is the rule and immunity the
exception. The burden is on the governmental entity to establish immunity under one of
the statutory exceptions in K.S.A. 75-6104.


2.
       Under the circumstances of this case, a law enforcement officer's decision to
return fire at a fleeing felon falls within the discretionary function exception in K.S.A.
75-6104(e). That discretion is not defeated by Felony High Risk Vehicle Stop guidelines.




                                              1
        Appeal from Montgomery District Court; DANIEL D. CREITZ, judge. Opinion filed February 7,
2020. Affirmed.


        W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellant.


        Timothy J. Finnerty and Jason M. Janoski, of Wallace Saunders, Chartered, of Wichita, for
appellees.


Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.


        GARDNER, J: This case illustrates the proverb that "no good deed goes
unpunished." When David Henderson gave hitchhiker Alejandro Garcia a ride in his
pickup truck, he thought Garcia was just having car trouble. But Garcia was a fugitive
who had fled to Kansas after having been involved earlier that day in shooting an
Oklahoma police officer. Garcia's two codefendants were captured in Oklahoma, but
Garcia made it to Kansas where Henderson innocently picked him up.


        Montgomery County Sheriff's Deputy Michael Grimes learned of the situation and
followed Henderson in his patrol car. When Henderson eventually stopped his pickup
truck to let Garcia out in a rural driveway, Grimes tried to apprehend Garcia. But Garcia
got out of Henderson's pickup truck and shot at Grimes. Grimes retreated, fell backwards,
and returned fire. One of his bullets hit Henderson in the neck. Garcia escaped.


        Henderson then sued the Montgomery County, Kansas Commissioners and
Grimes (Appellees) for negligence. In due course, the district court granted summary
judgment in favor of the Appellees. It found them not liable under the public duty
doctrine, since no special relationship was shown, and found them immune from liability
under the discretionary function exception, K.S.A. 75-6104(e). Henderson appeals.
Finding the district court properly applied K.S.A. 75-6104(e), we affirm the grant of
summary judgment.

                                                    2
                            FACTUAL AND PROCEDURAL BACKGROUND


       Both parties generally agree with the district court's recitation of the facts, so we
adopt that recitation here.
                                                 "FACTS
                "Grimes, in addition to being a deputy, was a member of the Montgomery
       County Special Emergency Response Team (SERT). On May 28, 2015, Grimes reported
       for duty to search for and try to apprehend Garcia. Garcia had fled from Oklahoma after
       shooting an Oklahoma officer. Garcia's two co-defendants were apprehended in
       Oklahoma.
                "Before Grimes got into his patrol vehicle, dispatch announced that Garcia was
       last seen in a red pickup truck. Grimes was wearing his tactical vest and had his service
       rifle across his vest.
                "The Plaintiff was driving his red pickup truck when he gave Garcia a ride. The
       Plaintiff's red pickup passed Grimes' patrol vehicle, and Grimes saw Garcia in the
       passenger seat. Due to the heavy dispatch traffic Grimes called dispatch on his personal
       cell phone requesting backup. Grimes remained on his phone and closely followed the
       Plaintiff's truck. Grimes never turned on his emergency lights or siren. He did not try to
       pull over the Plaintiff, and the Plaintiff did not feel that Grimes tried to pull him over.
       The Plaintiff pulled over in a rural Montgomery County driveway to let Garcia out.
       Grimes planned to wait for backup, parking about 75 feet from the Plaintiff's truck.
                "Garcia exited the Plaintiff's vehicle and was walking toward the front
       passenger's side. The Plaintiff's truck was parked between Garcia and Grimes. Grimes
       exited his vehicle and walked toward the Plaintiff's truck. Grimes commanded, 'Sheriff's
       Office—Let me see your hands!' Garcia only raised his left hand. The Plaintiff put his
       hands out the driver's window. Then Garcia dropped his left hand and walked to the back
       of the Plaintiff's truck. Grimes repeated the command.
                "Garcia pointed a semi-automatic handgun at Grimes and fired. Grimes back-
       pedaled, tripped, and fell on his back. Grimes heard bullets ricochet off the road near
       him. Grimes thought he was going to be shot. He laid suppressive fire. If he had not used
       suppressive fire, Grimes believed that he would have been killed.
                "The Plaintiff was shot in the neck during the exchange of gunfire between
       Garcia and Grimes. The Plaintiff filed suit against Grimes and the Montgomery County


                                                      3
       Board of Commissioners for negligence, claiming either Grimes provoked the incident or
       negligently discharged his firearm."


       Appellees moved for summary judgment, arguing:


    The public duty doctrine shielded them from liability because police owe the duty
       of preserving the peace to the general public, not to any one individual;
    Henderson failed to establish the duty element of his negligence claim because he
       could not show a special relationship between himself and Grimes; and
    Appellees were entitled to immunity under K.S.A. 75-6104(e) of the Kansas Tort
       Claims Act (KTCA), because Grimes was performing a discretionary function
       when he injured Henderson.


       Henderson responded that Appellees had failed to claim an affirmative defense
under K.S.A. 75-6104(d) so they had waived that argument. Henderson also argued that
the public duty doctrine under K.S.A. 75-6104(d), even if not waived, still did not apply
because Grimes had a special relationship with Henderson, and because the statute
impermissibly circumvented our Supreme Court's decision in Fudge v. City of Kansas
City, 239 Kan. 369, 720 P.2d 1093 (1986), superseded by statute as stated in Woodruff v.
City of Ottawa, 263 Kan. 557, Syl. ¶ 8, 951 P.2d 953 (1997). Henderson asserted that
Fudge was controlling caselaw.


       Appellees replied that they were not relying on K.S.A. 75-6104(d) but only on the
common-law public duty doctrine as discussed in Keiswetter v. State, 304 Kan. 362, 373
P.3d 803 (2016). That doctrine generally provides that breach of a legal duty owed to the
public at large, such as a law enforcement officer's general duty to preserve the peace, is
not actionable. Instead, a plaintiff suing the government must show that the governmental
entity owed a duty to an individual member of the public. See 304 Kan. at 365. Appellees
also argued that the public duty doctrine is not an affirmative defense and is not waivable.

                                                 4
       The district court granted Appellee's motion for summary judgment, rejecting
Henderson's arguments that a special relationship existed between Henderson and
Grimes. The district court found:


            Henderson was not in the State's custody or care after Grimes commanded
               him to put his hands up; and
            Grimes' commands or other affirmative acts did not cause Henderson to
               justifiably rely on Grimes to protect him.


Because the district court found no special relationship, it found Henderson's claim was
barred by the public duty doctrine. The district court also held that Henderson failed to
provide expert testimony on the issue of duty, as it thought Hopkins v. State, 237 Kan.
601, 702 P.2d 311 (1985), required.


       Alternatively, the district court held that Appellees were immune from suit under
K.S.A. 75-6104(e). The district court explained why it found Grimes was performing a
discretionary function when he injured Henderson:


               "Here, the Plaintiff's allegations of negligent provocation and negligent discharge
       of a firearm directly challenge Grimes' exercise of discretion. Grimes knew that Garcia
       had already shot an Oklahoma police officer. Grimes knew that Garcia was a fugitive.
       Getting out of the car to arrest Garcia, rather than waiting for backup was a discretionary
       decision. Grimes' decision to not wait in the car while an armed felon fled and possibly
       went into a rural Montgomery County home was a discretionary decision. Grimes
       believed that if he did not apprehend Garcia, . . . Garcia could go up the driveway and
       cause someone in the home great bodily harm. So, Grimes, in his discretion, reasoned
       that he should exit his patrol car and approach Garcia.
               "Once Garcia started shooting at Grimes, Grimes testified that if he did not lay
       down suppressive fire, he believed that he would be shot while lying on the road. These
       are discretionary decisions Grimes made "with reason and good conscience in the interest
       of protecting the rights of all parties and serving the ends of justice. Williams, 54 Kan.

                                                     5
       App. 2d at 613. The Defendants are also immune from liability pursuant to the
       discretionary function exemption to the KTCA, K.S.A. 75-6104(e)."


       Henderson timely appeals.


      DID THE DISTRICT COURT ERR IN FINDING THE PUBLIC DUTY DOCTRINE BARS
                                      HENDERSON'S CLAIMS?


       We first address Henderson's claim that the district court erred in applying the
pubic duty doctrine.


The public duty doctrine


       "[T]he first hurdle that a plaintiff suing a governmental entity in negligence
generally must overcome is establishing that the entity owed a duty to the plaintiff
individually rather than a duty to the public at large." Williams v. C-U-Out Bail Bonds,
310 Kan. 775, 788, 450 P.3d 330 (Kan. 2019). This public duty doctrine bars a
governmental entity's liability unless the plaintiff can show a special relationship that
gives rise to a specific duty owed to him or her. Keiswetter, 304 Kan. at 365.


               "The mere fact that a governmental entity owes a legal duty to the public at large
       does not establish that the governmental entity owed a duty to an individual member of
       the public. See Montgomery v. Saleh, 55 Kan. App. 2d 429, 438-39, 419 P.3d 8 (2018)
       (quoting Kirk v. City of Shawnee, 27 Kan. App. 2d 946, Syl. ¶ 3, 10 P.3d 27 [2000]). A
       law enforcement officer's general duty to preserve the peace is one such duty. Accord
       Mills v. City of Overland Park, 251 Kan. 434, Syl. ¶ 5, 837 P.2d 370 (1992) ('As a
       general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to
       the public at large.'); see Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 53,
       536 P.2d 54 (1975); see also South et al. v. State of Maryland, Use of Pottle, 59 U.S. (18
       How.) 396, 402-03, 15 L. Ed. 433 (1855) ('It is an undisputed principle of the common
       law, that for a breach of a public duty, an officer is punishable by indictment; but where

                                                    6
      he acts ministerially, and is bound to render certain services to individuals . . . he is liable
      for acts of misfeasance or non-feasance to the [injured] party.').
              "To warrant an exception to the public duty doctrine, a plaintiff suing a
      governmental entity must establish either a special relationship or a specific duty owed to
      the plaintiff individually. See Mills, 251 Kan. 434, Syl. ¶ 5 ('Absent some special
      relationship with or specific duty owed an individual, liability will not lie for damages.')."
      Williams, 310 Kan. 775 at 788-89.


      A special duty may arise from various sources. See Williams, 310 Kan. at 789.
Henderson contends, among other theories, that he was in the State's custody or care at
the time of the shooting, thus a special duty existed between Grimes and himself,
rendering the public duty doctrine inapplicable.


              "Generally, a special duty may exist between a government agency and an
      injured person, rendering the public duty doctrine inapplicable to their encounter, when:
      (1) a special relationship existed between the governmental agency and the wrongdoer
      (i.e., the wrongdoer was in the State's custody or care); (2) a special relationship existed
      between the governmental agency and the injured person (i.e., the injured person was in
      the State's custody or care); or (3) the government agency performed an affirmative act
      that caused injury or made a specific promise or representation that under the
      circumstances created a justifiable reliance on the part of the person injured. [Citation
      omitted.]" Potts v. Board of Leavenworth County Comm'rs, 39 Kan. App. 2d 71, 81, 176
      P.3d 988 (2008).


Henderson argues that he became disabled from exercising any care for his own safety
when he stuck his hands out of the window of his pickup truck to comply with Officer
Grimes' order, "Let me see your hands." At that point, Henderson contends, his safety
rested solely in Grimes' hands, establishing a special relationship between them. See
Williams, 310 Kan. at 789 (discussing special relationships set out in Restatement
[Second] of Torts §§ 314A, 316-319, and 320 [1964]).



                                                     7
       The parties raise several thorny procedural issues about the public duty doctrine.
These include:


     whether that doctrine has been fully codified in the KTCA or continues to exist at
       common law;
     whether the plaintiff has the burden to prove the existence of a special
       relationship to avoid application of the public duty doctrine; or
     whether the State has the burden to prove the absence of a special relationship to
       invoke the protection of the public duty doctrine.


But we find it unnecessary to jump into the briar patch and resolve these issues now.


       As the Kansas Supreme Court has repeatedly done in similar cases, we assume,
but do not decide, that a special relationship or individual duty existed, sufficient to avoid
the public duty doctrine. See, e.g., Keiswetter, 304 Kan. at 367; Soto v. City of Bonner
Springs, 291 Kan. 73, 78, 238 P.3d 278 (2010). Thus, we proceed as though we agree that
Henderson was in the State's custody or care when Henderson complied with Grimes'
command to put his hands where Grimes could see them. So we need determine only
whether the Appellees' claimed statutory exception to liability—the discretionary
function exception—applies. If that exception applies, it disposes of this case.


DID THE DISTRICT COURT ERR BY APPLYING THE DISCRETIONARY FUNCTION EXCEPTION
                            OF THE KANSAS TORT CLAIMS ACT?



       Henderson contends the district court erred by applying an exception to liability
under the KTCA. That Act provides that "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." K.S.A. 75-6103(a). Under the
KTCA, governmental liability is the rule and immunity the exception. The KTCA
                                              8
provides many exceptions to liability which are set forth in K.S.A. 75-6104. The burden
rests on the governmental entity to establish any KTCA exception. Patterson v. Cowley
County, Kansas, 307 Kan. 616, 630, 413 P.3d 432 (2018). The district court found K.S.A.
75-6104(e), the discretionary function exception, applied here. Whether a governmental
entity is immune from liability under an immunity exception of the KTCA is a matter of
law. Accordingly, our review is de novo. Soto, 291 Kan. 73, Syl. ¶ 4. And summary
judgment is appropriate if there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. K.S.A. 60-256(c). Our standard of review for
summary judgments is de novo. Associated Wholesale Grocers, Inc. v. Americold Corp.,
261 Kan. 806, 820, 934 P.2d 65 (1997).


Other immunities are irrelevant


       We pause to note what is not argued here. First, although Appellees asserted the
police protection immunity exception of K.S.A. 75-6104(n) to the district court, they do
not rely on that subsection on appeal. That subsection provides immunity for the "failure
to provide, or the method of providing, police or fire protection." We have previously
found that this subsection codifies the common-law public duty doctrine.


               "In K.S.A. 75-6104, the KTCA sets forth a lengthy, nonexclusive list of
       immunities to the general rule of governmental liability for tortious conduct. The police
       protection immunity states that a public entity or its employees 'shall not be liable for
       damages resulting from failure to provide, or the method of providing, police or fire
       protection.' K.S.A. 75-6104(n). That section codifies the common-law principle of
       government immunity known as the public duty doctrine. Hopkins, 237 Kan. at 609-10
       (Various immunities in K.S.A. 75-6104, including that for police and fire protection,
       codify preexisting common-law doctrine.); see Robertson v. City of Topeka, 231 Kan.
       358, 363, 644 P.2d 458 (1982). Under that doctrine, governmental entities could not be
       liable for breach of duties owed the general public as opposed to particular individuals.
       231 Kan. at 363 ('[T]he duty of a law enforcement officer to preserve the peace is owed
       to the public at large, not a particular individual.'); Potts v. Board of Leavenworth County

                                                     9
       Comm'rs, 39 Kan. App. 2d 71, 80-81, 176 P.3d 988 (2008) (outlining scope of public
       duty doctrine). Because municipalities provide police protection to the public at large,
       they could not be sued for the negligent delivery of that service in a particular instance.
       Robertson, 231 Kan. at 363 ('Absent some special relationship with or specific duty owed
       an individual, liability will not lie for damages.'); Potts, 39 Kan. App. 2d at 81. For
       example, a city could not be successfully sued because police officers were inexcusably
       slow in responding to a call of a home invasion in progress and, as a result, the victim
       suffered prolonged abuse and serious injuries at the hands of the criminals." Estate of
       Belden v. Brown County, 46 Kan. App. 2d 247, 290-91, 261 P.3d 943 (2011).


Because Appellees do not argue K.S.A. 75-6104(n), the KTCA immunity modeled on the
public duty doctrine, we do not address it.


       Second, although Henderson devotes a good chunk of his argument to arguing that
K.S.A. 75-6104(d) does not apply, Appellees have not invoked that exception either. That
exception provides immunity for:


               "(d) 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).


       We have found that this subsection supplies the appropriate tort claim immunity
where the adoption or enforcement of agency policies and procedures is directly alleged
to give rise to the injury and no duty independent of the challenged policy is shown. This
occurred in Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 634, 938 P.2d
1293 (1997). After Jarboe's son was shot by a juvenile who had escaped from a youth
residence facility, Jarboe alleged, among other matters, that the County had negligently
failed to follow its policy on room checks. The court found that even assuming the policy
had been violated, the County was immune under K.S.A. 1996 Supp. 75-6104(d) because

                                                    10
the County owed no independent duty to the Jarboes to prevent the juvenile from leaving
the facility.


       In contrast, when a plaintiff claimed a jail's policy for monitoring inmates was
substandard, leading to an inmate's suicide, but the jail owed a duty to the inmate
independent of that policy, K.S.A. 75-6104(d) did not apply. Estate of Belden, 46 Kan.
App. 2d at 285, 293.


       "K.S.A. 75-6104(d) supplies the appropriate tort claim immunity here, at least as to the
       jail policies and procedures directly at issue. Those policies—regulating the monitoring
       of inmates in distress and prohibiting inmates from obscuring the windows in their
       cells—pertain to the health and safety of those confined in the jail. In turn, K.S.A. 75-
       6104(d) affords immunity to government entities based on the adoption and enforcement
       of health and safety policies only if the entities owe no independent duty to the persons
       protected. As the Kansas courts recognize, governmental bodies maintaining penal
       facilities owe a freestanding duty to the inmates to act reasonably to provide a safe
       environment. Accordingly, Brown County secures no refuge in K.S.A. 75-6104(d)."
       Estate of Belden, 46 Kan. App. 2d at 293.


Because Appellees do not rely on any immunity that subsection (d) may provide, we do
not address it further.


The discretionary function exception


       The sole exception Appellees invoke is K.S.A. 75-6104(e), the discretionary
function exception. Henderson argues that the district court erred by applying this
exception.




                                                    11
       Has Henderson waived this argument?


       Before we can reach the merits of Henderson's argument, we need to resolve a
procedural matter—Appellees' assertion that Henderson waived this argument by
insufficiently briefing it. Appellees rely on the principle that a point raised incidentally in
a brief and not argued further is considered abandoned. Russell v. May, 306 Kan. 1058,
1089, 400 P.3d 647 (2017).


       Appellees correctly note that Henderson gives K.S.A. 75-6104(e) short shrift in his
appellate brief. That brief refers to that subsection only twice, summarily stating:


            "Due to [Felony High Risk Vehicle Stop] FHRS guidelines, exclusions in
              K.S.A. 75-6104(e) and (n) are neutered by Fudge"; and
            "Fudge disposes of any claim under exceptions (e) and (n) due to the
              [FHRS] guidelines."


Henderson then argues how negligence claims against the government escape the grasp
of K.S.A. 75-6104(d) when an independent duty and mandatory guidelines, such as
FHRS, are shown.


       Yet Henderson does not explain why he believes K.S.A. 75-6104 (e) is neutered
by Fudge, or why he believes Fudge remains good law. An argument not supported with
pertinent authority is considered waived and abandoned. Friedman v. Kansas State Bd. of
Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).


       Henderson's reply brief explains that he intended his argument about the FHRS
guidelines to challenge the district court's reliance on K.S.A. 75-6104(e). Henderson was
arguing that under the principles outlined in Fudge, the discretionary function exception
does not apply when a clearly defined mandatory duty or guideline applies, as he
                                              12
contends FHRS guidelines are. See Thomas v. Board of Shawnee County Comm'rs, 293
Kan. 208, 235, 262 P.3d 336 (2011).


       Although this issue presents a close call, we decline to find waiver or
abandonment here. Henderson has sufficiently, although summarily and somewhat
confusingly, argued against the district court's reliance on K.S.A. 75-6104(e). We thus
reach the merits of this issue.


       Does Fudge make K.S.A. 75-6104(e) inapplicable?


       Henderson first contends that K.S.A. 75-6104(e), the discretionary function
exception, is inapplicable as a matter of law. That statute provides a "discretionary
function" exception to government liability. It immunizes government actors and entities
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 and regardless of the level of
discretion involved." K.S.A. 75-6104(e).


       Henderson's main argument is that our Supreme Court's decision in Fudge
precludes application of this exception to liability, given that Grimes was required to act
in accordance with the FHRS guidelines. In Fudge, after a man died as a result of a drunk
driver's actions, his widow sued Kansas City and various police officers who had contact
with the drunk driver. Our Supreme Court found that because the Kansas City Police
Department had a specific standard in its operating procedure manual which detailed
mandatory procedures for handling various police situations, including how to deal with
intoxicated persons, the officers had no discretion to deviate from those procedures. The
manual required the officers to take the intoxicated person into protective custody, yet
they had not done so. 239 Kan. at 372-73. The Fudge court held: "Where police officers
are subject to a specific, mandatory set of guidelines to use with regard to handling

                                             13
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." 239 Kan.
369, Syl. ¶ 3. Accordingly, the discretionary function exception—then K.S.A. 1981 Supp.
75-6104(d)—did not apply. 239 Kan. at 374-75.


        Fudge was decided in 1986. In 1987, the Legislature swiftly showed its
displeasure with Fudge by enacting a new subsection (e), rewording the discretionary
function exception previously in (d), and moving it to subsection (e). The statute then
read:


                "A governmental entity or an employee acting within the scope of the employee's
        employment shall not be liable by damages resulting from:
                ....
                "(d) 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;
                "(e) 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 and regardless of the level of discretion involved.”
        (Emphasis added to show new language.) K.S.A. 1987 Supp. 75-6104; L 1987, ch. 353, § 3.


        In Jarboe, our Supreme Court held that those legislative amendments to the
discretionary function exception were enacted to overrule the holding in Fudge:


                "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." 262 Kan. 615, Syl. ¶ 1.


                                                     14
As noted above, Jarboe's parents argued that under Fudge, the Kansas Department of
Social and Rehabilitation Services and Sedgwick County employees owed their son a
special duty arising from the mandatory policies that may have prevented the juvenile
from leaving the premises. But our Supreme Court squarely rejected that argument
stating: "Fudge is no longer a decision that can be relied upon." Jarboe, 262 Kan. at 626.
Thus, a duty must arise from somewhere other than the bed check policy allegedly
violated.


       Our Supreme Court affirmed the district court's application of K.S.A. 1996 Supp.
75-6104(d) and (e) in Jarboe:


       "[I]t is clear to us that fact situations like the one in this case are exactly the type where
       the Kansas Legislature desired to grant immunity to governmental units. The legislative
       history makes this clear, and the addition of the present subsection (d) and the new
       wording of subsection (e) to 75-6104 protects the actions of SRS and Sedgwick County
       in this case." 262 Kan. at 634.


       The court again addressed Fudge, Jarboe, and the effects of the 1987 amendments
on the discretionary function exception in Woodruff:


               "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." 263 Kan. at 566.


Justice Six concurred, writing separately "to counter any inference that the Fudge
rationale, as described in Jarboe, 262 Kan. 615, Syl. ¶ 1, may remain alive and well. The

                                                      15
post-Fudge amendment in K.S.A. 75-6104(d) controls." 263 Kan. at 567 (Six, J.,
concurring).


       Because the legislative amendments to K.S.A. 75-6104(d) and (e) superseded
Fudge, Henderson's argument that Fudge is still good law fails. Henderson contends that
the Legislature has no power to overrule the Kansas Supreme Court in Fudge or other
cases. But the Kansas Supreme Court has twice found that its decision in Fudge is no
longer alive and well. Woodruff, 263 Kan. at 567. We are duty-bound to follow Kansas
Supreme Court precedent, absent some indication the Supreme Court is departing from
its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We
find no indication of a departure from Jarboe and Woodruff. Because the legislative
amendments superseded Fudge, Fudge is not a decision that we can rely on.


Does an Independent Duty Plus Guidelines Make Appellees Liable?


       Despite Henderson's erroneous reliance on Fudge, the thrust of his argument, as
we understand it, remains—that no discretionary function immunity exists under
subsection (e), as a matter of law, when an independent duty has been shown and specific
agency guidelines govern the employee's conduct. Again, we assume the existence of an
independent duty here based on a special relationship, as though we had found that
Henderson was in the State's custody from the moment Henderson complied with Grimes'
command to put his hands up. So our focus turns to whether agency policies required
Grimes to act, or to refrain from acting, in specific ways—were they mandatory or,
instead, discretionary.


       Henderson asserts that agency guidelines eliminate discretionary immunity under
(e), citing Thomas:




                                           16
                "This court also has repeatedly put emphasis on the mandatory versus permissive
      character of direction given to the defendant actor. '[W]here there is a "clearly defined
      mandatory duty or guideline, the discretionary function exception is not applicable."'
      Soto, 291 Kan. at 80 (quoting Nero, 253 Kan. at 585; and citing Barrett v. U.S.D. No.
      259, 272 Kan. at 263; Kansas State Bank & Tr. Co., 249 Kan. at 365). For purposes of
      the exception, '[a] mandatory guideline can arise from agency directives, case law, or
      statutes.' Soto, 291 Kan. at 80 (citing Barrett, 272 Kan. at 263; Bolyard, 259 Kan. at 452-
      54). Such a guideline leaves little to no room for individual decision making, exercise of
      judgment, or use of skill, and qualifies a defendant's actions as ministerial rather than
      discretionary. See Nero, 253 Kan. at 593-94 (citing Dougan, 243 Kan. at 322-23)
      (ministerial act 'performance of some duty involving no discretion' where discretion
      defined as 'capacity to distinguish between what is right and wrong, lawful and unlawful,
      or wise or foolish sufficiently to render one amenable and responsible for his acts')."
      Thomas, 293 Kan. at 235.


      Henderson is thus correct that when a "clearly defined mandatory duty or
guideline" governs the employee's conduct, the discretionary function exception
generally does not apply.


                "Generally, the discretionary function exception is inapplicable when there is a
      '"clearly defined mandatory duty or guideline,"' which can arise from statutes, caselaw, or
      agency directives. [Soto,] 291 Kan. at 80 (quoting Nero v. Kansas State University, 253
      Kan. 567, 585, 861 P.2d 768 [1993]). Compare Cansler v. State, 234 Kan. 554, 570, 675
      P.2d 57 (1984) (the State's duties to confine prisoners and warn the public when they
      escape were imposed by law and therefore nondiscretionary), with Patterson, 307 Kan. at
      638 (discretionary function immunity for road sign decisions barred suit against county
      when applicable guidelines did not mandate placement of allegedly missing road sign
      under facts alleged by defendant). But this court has cautioned that '"we have not held
      that the existence of any duty deprives the State of immunity under the discretionary
      function exception."' Thomas, 293 Kan. at 236 (quoting Schmidt v. HTG, Inc., 265 Kan.
      372, 392, 961 P.2d 677 [1998])." Hill v. State, 310 Kan. 490, 510-11, 448 P.3d 457
      (2019).



                                                   17
       Henderson then contends that when viewed in the light most favorable to him,
Grimes was subject to mandatory guidelines—the FHRS guidelines—throughout his
pursuit of Garcia. He argues that the district court erred by finding these guidelines were
"only guidelines," which, by implication, were not mandatory.


       Did the FHRS Guidelines Apply to Grimes?


       The parties dispute whether the FHRS guidelines Henderson relies on applied to
Grimes at the time of the event. Appellees cite Grimes' testimony that he could not
identify those FHRS guidelines as the same ones he had received 10 years earlier when
he attended the Kansas Law Enforcement Training Center. Henderson counters with
Grimes' testimony that he was instructed about the standard for felony high risk vehicle
stops during his training there, and that these FHRS guidelines appear to be similar or the
same as the standard he learned when he was certified. We assume, without finding, that
the FHRS guidelines Henderson and his expert rely on did apply to Grimes when he
injured Henderson.


                Are the Guidelines Mandatory or Permissive?


       We thus reach the crucial issue—whether the FHRS guidelines create a clearly
defined mandatory duty or guideline rendering the discretionary function exception
inapplicable.


       When all material facts are uncontroverted, "whether an exception of the KTCA
applies to grant immunity to a governmental entity is a question of law." Keiswetter, 304
Kan. at 366. The sole disputed fact here is when Garcia got out of Henderson's pickup
truck. Grimes testified that when he got out of his patrol car, Garcia was already out of
Henderson's pickup truck. Grimes then shouted for the first time, "Let me see your
hands." The district court credited that view. But Henderson testified that Garcia

                                             18
remained in the pickup truck until the second time Grimes shouted, "Let me see your
hands," as Grimes was approaching the pickup truck. Yet Henderson does not contend
that this factual dispute creates a genuine issue of material fact precluding summary
judgment. The material facts here are undisputed.


       The term "discretionary function or duty" is not defined in the KTCA, so our
courts look "foremost to the nature and quality of the discretion exercised" to determine
whether a function or duty is discretionary. Soto, 291 Kan. at 79. The question of whether
discretionary function immunity applies is highly contextual. Williams, 450 P.3d at 346.
The mere application of some judgment is not enough, since judgment is used in almost
every human endeavor. Soto, 291 Kan. at 79. Discretionary acts may involve policy-
making or require some kind of expertise. Thomas, 293 Kan. at 234. On the other hand,
ministerial decisions require very little expertise or decision-making. 293 Kan. at 235.
Although Kansas cases may state the narrow view that the discretionary function is
limited to policy-oriented decisions, they apply the broader view that the discretionary
function encompasses decisions that are not ministerial, as Williams recently noted.
Williams, 450 P.3d at 345. We believe that broader view adheres more closely to the
plain language of the statute which immunizes the government from liability for "any
claim based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty." K.S.A. 75-6104(e).


       With that general overview of the law, we examine the guidelines that Henderson
asserts preclude Grimes' exercise of discretion. The first page of the FHRS guidelines
affords officers the discretion to modify the procedures when they find it necessary. The
introductory "Definition of a High Risk Stop" section states that the guidelines are
general guidelines only that the officers may need to modify on a case-by-case basis:


               "When a police officer has a reasonable belief that a motor vehicle to be stopped
       contains an individual(s) that fall into this category the officer must employ a set of

                                                    19
       tactics substantially different from those used in a low/unknown risk stop. The officer's
       reasonable belief can be based on the officer's observations, official communications
       (radio broadcast, etc.) and other sources of reliable information (reliable informant,
       civilian witness). You should consider the procedure outlined here as a general guideline
       only. You may at times find it necessary to modify these procedures in order to
       accommodate your particular and unique situation. If you are forced to modify these
       procedures, think before you act and use logic." (Emphasis added.)


The FHRS guidelines thus broadly describe an officer's actions in this kind of stop
as highly discretionary.


       Henderson recognizes that the FHRS guidelines are not set in stone, but he still
argues that they required Grimes to keep his distance from Henderson's vehicle and to
wait for backup before approaching Garcia—an armed suspect. Henderson alleges that
Grimes negligently followed Garcia too closely, provoking Garcia to force Henderson to
stop driving, and provoking Garcia to fire at Grimes. True, the guidelines say to
"[m]aintain a safe surveillance distance." And Grimes may not have done that, as it is
uncontroverted that he closely followed the suspect's car before it stopped. But
Henderson fails to point to any causal connection between Grimes' close following of
Henderson's pickup truck before it stopped and Henderson's injury. The district court
correctly rejected this "provocation" theory as inconsistent with negligence principles.


       It is the stop and the events that followed the stop that provide any basis for
liability. Henderson admits that when he stopped his pickup truck, without Grimes having
used his emergency lights or siren, Grimes stopped roughly 75 feet away. But this
distance did not violate the FHRS distance guidelines, which state: "Depending on the
location you want to be a minimum of 25' to 35' (1 ½ - 2 ½ car lengths behind the
suspect's vehicle when you stop. Remembering that distance is our ally, the more
distance, the safer you will be." And that paragraph concludes by saying: "Remember to


                                                    20
use your best judgment for the situation you are in." So this guideline, which Grimes
complied with, leaves some discretion to the officers.


       Henderson's primary claim is that Grimes was negligent by not waiting for backup
to arrive. But the guidelines do not require Grimes to do so. Instead, the guidelines
"recommend[] that a minimum of three officers are needed to effectively perform a High
Risk Stop." (Emphasis added.) And that same paragraph notes that a lone officer could be
forced to make the stop without backup, acknowledging the flexibility of the
recommendation:


       "If a lone officer is forced to make the stop then he should wait until additional officers
       arrive before initiating any further tactics. The officer will want to contain and isolate the
       suspect(s) in the vehicle until backup arrives. Your Verbal Commands will establish
       contact and control over the suspects."


       And even this guideline does not dictate what a lone officer must do in a felony
high risk vehicle stop—it merely states what he should do. As our courts have repeatedly
held, the word should is less of an imperative than must or will. That word is advisory,
not compulsory. See State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014);
State v. Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994).


               "Unlike the words 'must,' 'shall,' and 'will,' the word 'should' does not express a
       mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of
       action and encourages following the advised path." State v. Allen, 52 Kan. App. 2d 729,
       Syl. ¶ 5, 372 P.3d 432 (2016).


       These and other guideline provisions support the district court's factual finding
that the FHRS guidelines are "only guidelines." They do not dictate the specific actions
Grimes was required to take throughout the stop. Henderson's expert appeared to concede
as much in testifying that the FHRS guidelines establish "best practices" for officers.

                                                     21
       Discretionary function immunity under the KTCA comes into play when a
government actor makes a choice among discretionary options in addressing a given set
of circumstances.


               "Discretion implies the exercise of discriminating judgment within the bounds of
       reason. Sanford v. Smith, 11 Cal. App. 3d 991, 1000, 90 Cal. Rptr. 256 (1970). It involves
       the choice of exercising of the will, of determination made between competing and
       sometimes conflicting considerations. Discretion imparts that a choice of action is
       determined, and that action should be taken with reason and good conscience in the
       interest of protecting the rights of all parties and serving the ends of justice." Hopkins,
       237 Kan. at 610.


       Grimes made such choices here—those choices led to Henderson's injury. Grimes
did not know how far away backup was or when they would arrive. He could have
chosen to remain in his patrol car until backup arrived, but that would have permitted
Garcia's likely escape and potential injury of others. And Grimes could have chosen not
to return suppressive fire while lying on his back, on the ground, in plain view of the
fleeing felon shooting at him, but that would have meant the certain sacrifice of his own
safety and the potential sacrifice of his own life. Grimes understood that serious
consequences would flow from whatever decision he made. His decisions reflect a course
of conduct grounded in legitimate options requiring an exercise of reasonable judgment
to select one option over the others. See Hesler v. Osawatomie State Hospital, 266 Kan.
616, 633, 971 P.2d 1169 (1999).


       These are precisely the kind of decisions that the Legislature intended to place
beyond judicial review. Because this kind of stop necessarily involves high risk, a myriad
of situations, and rapidly changing circumstances, the procedural guidelines for these
stops permit a broad range of discretion. The FHRS guidelines leave room for individual
decision making, exercise of judgment, and use of skill. They do not create a clearly

                                                     22
defined mandatory duty or guideline rendering the discretionary function exception
inapplicable. Because Henderson's negligence claims arise from Grimes' discretionary
acts, the district court properly found that Appellees are protected from liability by
K.S.A. 75-6104(e).


       In light of this ruling, Henderson's other issues raised on appeal are moot.


       Affirmed.




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