discretionary function exception in Kansas

2020"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]).

2020"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]).

2008No. 259, 272 Kan. 250, 263 , 32 P.3d 1156 (2001); see Nero v. Kansas State University, 253 Kan. 567, 585 , 861 P.2d 768 (1993) (“If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.”); see also Cansler v. State, 234 Kan. 554, 570 , 675 P.2d 57 (1984) (holding that discretionary immunity does not apply where plaintiff alleged facts that, if true, constituted a breach of State’s duty of reasonable care).

2008No. 259, 272 Kan. 250, 263 , 32 P.3d 1156 (2001); see Nero v. Kansas State University, 253 Kan. 567, 585 , 861 P.2d 768 (1993) (“If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.”); see also Cansler v. State, 234 Kan. 554, 570 , 675 P.2d 57 (1984) (holding that discretionary immunity does not apply where plaintiff alleged facts that, if true, constituted a breach of State’s duty of reasonable care).

2020See Thomas, 293 Kan. at 236 (discretionary function immunity does not shield choice among 17 available options that violates legal duty); Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322 , 757 P.2d 272 (1988) ("The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty."); Schreiner v. Hodge, 55 Kan.

2020See Thomas, 293 Kan. at 236 (discretionary function immunity does not shield choice among 17 available options that violates legal duty); Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322 , 757 P.2d 272 (1988) ("The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty."); Schreiner v. Hodge, 55 Kan.

2017Cases where courts have limited the discretionary function exception to policy decisions include Schmidt v. HTG, Inc., 265 Kan. 372 , 961 P.2d 677 (1998) (conditions of release imposed on prisoner by parole board); Jarboe v. Board of Sedgwick County Commrs, 262 Kan. 615 , 938 P.2d 1293 (1997) (appropriate facility in which to place a troubled youth); Bolyard v. Kansas Dept. of SRS, 259 Kan. 447 , 912 P.2d 729 (1996) (placing children with mother); G. v. State Dept. of SRS, 251 Kan. 179 , 833 P.2d 979 (1992) (removing child from foster home); and Beck v. Kansas Adult Authority, 241 Kan. 13 , 73

2017Cases where courts have limited the discretionary function exception to policy decisions include Schmidt v. HTG, Inc., 265 Kan. 372 , 961 P.2d 677 (1998) (conditions of release imposed on prisoner by parole board); Jarboe v. Board of Sedgwick County Commrs, 262 Kan. 615 , 938 P.2d 1293 (1997) (appropriate facility in which to place a troubled youth); Bolyard v. Kansas Dept. of SRS, 259 Kan. 447 , 912 P.2d 729 (1996) (placing children with mother); G. v. State Dept. of SRS, 251 Kan. 179 , 833 P.2d 979 (1992) (removing child from foster home); and Beck v. Kansas Adult Authority, 241 Kan. 13 , 73

2000See Durflinger v. Artiles, 234 Kan. 484 , 673 P.2d 86 (1983).

2000See Durflinger v. Artiles, 234 Kan. 484 , 673 P.2d 86 (1983).

2020In Robertson, this court held an officer's decision to remove the owner of a property rather than a trespasser was "an exercise of discretion within the discretionary function exception." 231 Kan. at 362 .

2017In finding the discretionary function exception applicable, the district court relied on Robertson v. City of Topeka, 231 Kan. 358 , 644 P.2d 458 (1982).

2024Ministerial activities are less likely to fall within the discretionary function immunity, and the "expertise, whether educational or experiential," employed in decision making is relevant to determining whether it is a discretionary function. 293 Kan. at 234-35 .

2022And we noted three principles that guide the application of the discretionary function exception: "(1) '[T]he discretionary function primarily involves policy-oriented decisions and decisions of such a nature that the legislature intended them to be beyond judicial review,' (2) 'the immunity does not depend upon the status of the individual exercising discretion and thus may apply to discretionary decisions made at the operational level as well as at the planning level,' and (3) 'the discretionary function does not encompass conduct that is deemed "ministerial," i.e., conduct that involves no

2022See Soto, 291 Kan. at 80 ("[I]f there is a duty owed [and breached], the discretionary function exception to liability is not necessarily barred as a defense."); Schmidt v. HTG, Inc., 265 Kan. 372, 392 , 961 P.2d 677 (1998) ("Although governmental entities do not have discretion to violate a legal duty, we have not held that the existence of any duty deprives the State of immunity under the discretionary function exception.").

2022See Soto, 291 Kan. at 80 ("[I]f there is a duty owed [and breached], the discretionary function exception to liability is not necessarily barred as a defense."); Schmidt v. HTG, Inc., 265 Kan. 372, 392 , 961 P.2d 677 (1998) ("Although governmental entities do not have discretion to violate a legal duty, we have not held that the existence of any duty deprives the State of immunity under the discretionary function exception.").

2020Accordingly, the discretionary function exception—then K.S.A. 1981 Supp. 75-6104(d)—did not apply. 239 Kan. at 374-75 .

2020In 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.

2022Servs., 240 Kan. 620, 622-23 , 731 P.2d 314 (1987), the court held that while the decision of SRS to clean up a hallway outside its leased premises fit within the discretionary function exception because SRS had no legal obligation to do so, the actual physical cleanup of the hallway was a purely ministerial act not within the discretionary function exception.

2022Servs., 240 Kan. 620, 622-23 , 731 P.2d 314 (1987), the court held that while the decision of SRS to clean up a hallway outside its leased premises fit within the discretionary function exception because SRS had no legal obligation to do so, the actual physical cleanup of the hallway was a purely ministerial act not within the discretionary function exception.

2022See Soto, 291 Kan. 73 , Syl. ¶ 6 ("In deciding whether the discretionary function exception of the Kansas Tort Claims Act applies, it is the nature and quality of the discretion exercised which should be the focus rather than the status of the employee exercising the discretion.").

2022See Soto, 291 Kan. at 80 ("[I]f there is a duty owed [and breached], the discretionary function exception to liability is not necessarily barred as a defense."); Schmidt v. HTG, Inc., 265 Kan. 372, 392 , 961 P.2d 677 (1998) ("Although governmental entities do not have discretion to violate a legal duty, we have not held that the existence of any duty deprives the State of immunity under the discretionary function exception.").

2007However, the case cited by Soto, Hopkins v. State, 237 Kan. 601 , 702 P.2d 311 (1985), does not address the discretionary function exception of the KTCA.

2007However, the case cited by Soto, Hopkins v. State, 237 Kan. 601 , 702 P.2d 311 (1985), does not address the discretionary function exception of the KTCA.

2024Likewise, the discretionary function exception "provides a defense against only ordinary negligence and does not apply to allegations of willful, gross, or wanton negligence." Barrett, 272 Kan. at 264 .

2010If such were tire case, K.S.A. 75-6104(e) could never apply in a negligence action, for in order to recover for negligence, a plaintiff must establish the existence of a duty.”); see also Barrett, 272 Kan. at 264 (the discretionary function exception provides a defense against ordinary negligence).

1994Co., 240 Kan. 86 , Syl. ¶ 3, 727 P.2d 450 (1986), and Toumberlin v. Haas, 236 Kan. 138 , Syl. ¶ 2, 689 P.2d 808 (1984): “Although the statutory liability of the state, counties, and townships for defects in highways was repealed by the Kansas Tort Claims Act, a duty to maintain the highways remains under the general liability for negligence created by the Act.” Plaintiff points out that the discretionary function exception to liability under the KTCA does not apply where there is a mandatory legal duty.

1994Co., 240 Kan. 86 , Syl. ¶ 3, 727 P.2d 450 (1986), and Toumberlin v. Haas, 236 Kan. 138 , Syl. ¶ 2, 689 P.2d 808 (1984): “Although the statutory liability of the state, counties, and townships for defects in highways was repealed by the Kansas Tort Claims Act, a duty to maintain the highways remains under the general liability for negligence created by the Act.” Plaintiff points out that the discretionary function exception to liability under the KTCA does not apply where there is a mandatory legal duty.

1996See Collins v. Board of Douglas County Comm’rs, 249 Kan. 712, 721 , 822 P.2d 1042 (1991); Dougan v. Rossville Drainage Dist., 243 Kan. 315, 323 , 757 P.2d 272 (1988); and Toumberlin v. Haas, 236 Kan. 138, 142 , 689 P.2d 808 (1984).

1996Collins, 249 Kan. at 721 ; Dugan, 243 Kan. at 322 .

1992The Supreme Court, referring to its analysis of the discretionary function exception and the signing exception in Finkbiner v. Clay County, 238 Kan. 856 ; Toumberlin v. Haas, 236 Kan. 138 ; and Carpenter v. Johnson, 231 Kan. 783 , held: “The relevant question under both exceptions is whether the placement of such a sign or indicator is a discretionary act.

1991See Finkbiner v. Clay County, 238 Kan. 856 , 714 P.2d 1380 (1986); Toumberlin v. Haas, 236 Kan. 138 , 689 P.2d 808 (1984); and Carpenter v. Johnson, 231 Kan. 783 .

2022The FTCA's discretionary function exception applies only to those acts that "'involv[e] an element of judgment or choice.'" United States v. Gaubert, 499 U.S. 315, 322 , 111 S. Ct. 1267 , 113 L.

2022The FTCA's discretionary function exception applies only to those acts that "'involv[e] an element of judgment or choice.'" United States v. Gaubert, 499 U.S. 315, 322 , 111 S. Ct. 1267 , 113 L.

2022In one of its more recent cases, the United States Supreme Court has explained "the basis for the discretionary function exception was Congress' desire to 'prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'" Berkovitz v. United States, 486 U.S. 531, 536-37 , 108 S. Ct. 1954 , 100 L.

2022In one of its more recent cases, the United States Supreme Court has explained "the basis for the discretionary function exception was Congress' desire to 'prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'" Berkovitz v. United States, 486 U.S. 531, 536-37 , 108 S. Ct. 1954 , 100 L.

2017The discretionary function exception is designed to prevent “judicial “second-guessing”’” and therefore “protects only governmental actions and decisions based on considerations of public policy.” 486 U.S. at 536 -37 (quoting United States v. Varig Airlines, 467 U.S. 797, 814 , 104 S. Ct. 2755 , 81 L.

2017The discretionary function exception is designed to prevent “judicial “second-guessing”’” and therefore “protects only governmental actions and decisions based on considerations of public policy.” 486 U.S. at 536 -37 (quoting United States v. Varig Airlines, 467 U.S. 797, 814 , 104 S. Ct. 2755 , 81 L.