> For the complete documentation index, see [llms.txt](https://studies-de-jure.gitbook.io/learn/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://studies-de-jure.gitbook.io/learn/sourcebooks/cj-liability/civil-liability-under-tort-law-and-1983/mills-v.-city-of-overland-park.md).
# Mills v. City of Overland Park
[251 Kan. 434, 837 P.2d 370](https://www.courtlistener.com/opinion/1179814/mills-v-city-of-overland-park/?q=\&type=o\&order_by=score%20desc\&stat_Precedential=on\&citation=251%20Kan.%20434) (1992)
Kansas Supreme court
**Mills**\
**v.**\
**City of Overland Park;**\
**Overland Park Police Officer Huffman;**\
**Overland Park Police Officer Moore;**\
**Overland Park Police Chief Scafe**
The opinion of the court was delivered by McFarland, J.:
This is a wrongful death and survivorship action seeking damages arising from the death of Timothy R. Mills. The [district court](#user-content-fn-1)[^1] granted [summary judgment](#user-content-fn-2)[^2] in favor of the defendants, and plaintiffs appeal therefrom.
## \[Background]
The facts may be summarized as follows. Timothy Mills was 19 years old at the time of the events in issue. On the afternoon of December 26, 1987, he and his friend Tom Tracy met and began drinking. They first went to the Shawnee Village Bowl, then drove around awhile drinking beer and wine coolers, purchased from liquor stores.
At about 8:00 p.m., they went to Just for Kicks, an indoor soccer stadium. Mills purchased and consumed substantial quantities of alcoholic liquors and cereal malt beverages at the establishment’s bar. Mills became disruptive and was escorted from the bar. He returned and some type of disturbance occurred. The bartender called the Overland Park Police Department for assistance \[...].
Officer Huffman was the first on the scene. At this time, Mills was standing alone on the sidewalk in front of the facility. Mills advised the officer who he was and that he was 19 years old. No disturbance or confrontational incident occurred in the officer’s presence. The weather was cold. Much ice was present and there was a freezing mist. Mills was wearing jeans, cowboy boots, and a flannel shirt. He did not have a coat. Two other officers had arrived — Cauley and Moore.
After conferring with members of the Just for Kicks staff, Huffman announced no charges were to be filed and Mills was free to go. Mills walked from the establishment into a field toward an industrial development. He was found frozen to death in a drainage ditch behind a building in the area the next morning. Other background facts will be set forth as needed for the discussion of particular issues.
This action was brought by Mills’ parents and personal representative seeking damages against \[...] [City of Overland Park and certain police officers](#user-content-fn-3)[^3] for having failed to take Mills into custody when he was incapacitated by alcohol and improperly dressed for the current weather conditions. The district court entered summary judgment in favor of all defendants, and the plaintiffs appeal therefrom.
\[...]
## **\[Liability of Governmental Defendants]**
\[The] plaintiffs challenge the entry of summary judgment in favor of the City of Overland Park and the various individual police officer defendants. The heart of their claim is that, under the circumstances, the officers had a duty to take Mills into custody for his own protection. The district court entered summary judgment for the governmental defendants on the grounds: (1) no special duty was owed to Mills under the public duty doctrine \[...] and (2) the discretionary function exception to liability \[...].
\[The] district court made the following findings of fact relative to the police officers’ contact with Mills:
> “1. In the evening hours of December 26, 1987, officers were summoned to the Just for Kicks Soccer Club in Overland Park, Kansas, on a disturbance call.
>
> “2. Upon arrival, Officer Huffman observed Timothy Mills standing outside the soccer club.
>
> “3. Mills was 19 years of age at the time.
>
> “4. Officer Huffman approached Mills and spoke with him briefly, concluding that he was intoxicated.
>
> “5. Officers Cauley and Moore arrived shortly, and they both spoke with Mills outside the club, while Officer Huffman went inside to speak with employees of the club about the disturbance.
>
> “6. All three officers could smell alcohol on Mills’ breath, and Officers Huffman and Moore described his behavior as ‘cocky’ and ‘argumentative.’
>
> “7. Mills had told Officer Huffman that he was only nineteen when Officer Huffman first arrived.
>
> “8. Officer Huffman had determined, through conversations with employees of Just for Kicks, that Mills and his friend, Tom Tracy, had been drinking together in the club’s bar that night. Huffman did not believe that Tracy was intoxicated, but he arranged for him to use the club’s phone to call for a ride home.
>
> “9. Soccer club employees told Officer Huffman that everything was all right, so Huffman determined he would not detain Mills and told him ... he was free to go. Officer Huffman told Mills that Tracy was calling for a ride home, and Huffman believed that Mills was ‘in control of himself and was fine.’
>
> “10. Officer Cauley then left the scene, and Officers Moore and Huffman remained there in their respective cars to write up their reports. Huffman’s report notes that Mills was ‘obviously very intoxicated,’ and Moore’s report describes him as ‘apparently intoxicated.’
>
> “11. As Officer Moore wrote his report, he saw Mills walk across the parking lot and head into an open field north of the soccer club. Mills was not wearing a coat, even though a freezing mist was falling.
>
> “12. Officer Moore was curious about Mills’ reason for walking across the field to an industrial development, so he drove his car around to the industrial area to check it out. He could not see Mills, nor could he get his car into the parking lot of the building behind which he had seen Mills disappear, because the parking lot was a sheet of ice. He therefore returned to the police station.
>
> “13. Tim Mills was found frozen to death at the bottom of a drainage ditch behind that building the next afternoon.”
None of these findings are controverted. The district court then found the following relative to the applicable provisions of the police manual in effect at the time:
> "14. On December 26, 1987, the Overland Park Police Department had in effect a Standard Operating Procedure (SOP 200-13) which established a procedure for officers to follow in handling a person believed to be incapacitated by alcohol or drugs. The operative portions of SOP 200-13 are set forth below:
>
> "\`PURPOSE:
>
> To establish a procedure for handling of persons to be incapacitated by alcohol or drugs.
>
> "\`STATUTORY REFERENCE:
>
> "Intoxicated Individual" - is an individual whose mental or physical functioning is substantially impaired as a result of the use of alcohol or drugs.
>
> "Incapacitated by Alcohol or Drugs" - means that an individual, as the result of the use of alcohol or drugs, is unconscious or has impaired judgment so that:\
> a. such individual is incapable of realizing and making a rational decision with respect to such individual's need for treatment; or\
> b. such individual lacks sufficient understanding or capacity to make or communicate responsible decisions concerning either such individual's well-being or estate.
>
> “Custody” — in an emergency hospitalization case does not mean arrest.
>
> “ ‘PROCEDURE:
>
> Any officer who, upon observation, reasonably believes a person is intoxicated or is incapacitated by alcohol or drugs and, as a result, is likely to do physical harm to himself or others, may take that person into custody without a warrant.’
>
> “The SOP goes on to instruct officers that, if an intoxicated person is taken into custody, they may release the person to a friend or relative, allow him to check into the Substance Abuse .Services detox center, or commence involuntary commitment proceedings.”
## \[Duty in the Context of a Tort Cause of Action]
We shall \[...] determine whether or not a cause of action in tort is stated. A 'tort is a violation of a duty imposed by law. *Guarantee Abstract* & *Title Co. v. Interstate Fire & Cas. Co.,* [232 Kan. 76](https://www.courtlistener.com/opinion/1165279/guarantee-abstract-title-co-v-interstate-fire-casualty-co/?q=\&type=o\&order_by=score%20desc\&stat_Precedential=on\&citation=%20232%20Kan.%2076), 79 (1982).
In *Hendrix v. City of Topeka,* [231 Kan. 113](https://www.courtlistener.com/opinion/1439982/hendrix-ex-rel-smith-v-city-of-topeka/?type=o\&q=\&type=o\&order_by=score%20desc\&stat_Precedential=on\&citation=231%20Kan.%20113) \[...] (1982), the decedent, a former Topeka State Hospital patient, had appeared at the hospital and demanded admission. This was denied and Topeka police were summoned and requested to remove the former patient from the grounds. This was done. Later the former patient was found frozen to death in a Topeka park. Liability was sought, [*inter alia*](#user-content-fn-4)[^4]*,* against the City of Topeka for the actions of its police officers. We stated:
> “Broadly speaking, a police officer has immunity from liability on claims by individuals arising from the performance or nonperformance of an officer’s general duties such as enforcement' of law and crime prevention. Liability arises only where an officer breaches a specific duty owned to an individual. Put another way, an officer must owe an affirmative duty to an individual before he may be held liable.” [231 Kan. at 120](https://www.courtlistener.com/opinion/1439982/hendrix-ex-rel-smith-v-city-of-topeka/?type=o\&q=\&type=o\&order_by=score%20desc\&stat_Precedential=on\&citation=231%20Kan.%20113).
There was no allegation in *Hendrix* that the decedent had been transported to a remote area and left helpless. He was simply removed from the hospital grounds.
In *Fudge v. City of Kansas City,* [239 Kan. 369](https://www.courtlistener.com/opinion/1390070/fudge-v-city-of-kansas-city/) \[...] (1986), we discussed liability based upon failure of police to take an intoxicated person into custody. We stated:
> “In order for an individual to be liable for a negligent or wrongful act, there must be a duty to act. Appellants, relying upon the ‘public duty doctrine,’ argue the City of Kansas City and its police officers did not owe a duty of care to James Fudge. The public duty doctrine provides a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party. Under this doctrine, the police officers owed a duty to the public at large, rather than to any individual ... .
>
> "Appellants find support for their argument in *Hopkins v. State,* \[[237 Kan. 601](https://www.courtlistener.com/opinion/1154149/hopkins-v-state/), 611 ... (1985)], where we stated:
>
> "\`Defendants correctly state that, as a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. *Absent same special relationship with or specific duty owed an individual, liability will not lie for damages. Robertson v. City of Topeka,* [231 Kan. at 363](https://www.courtlistener.com/opinion/1439982/hendrix-ex-rel-smith-v-city-of-topeka/?type=o\&q=\&type=o\&order_by=score%20desc\&stat_Precedential=on\&citation=231%20Kan.%20113). *Absent guidelines,* police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public.'" (Emphasis added.) [239 Kan. at 372](https://www.courtlistener.com/opinion/1390070/fudge-v-city-of-kansas-city/).
*Fudge* was a wrongful death action arising out of an automobile accident wherein the decedent’s vehicle was struck by one driven by Delmar Henley, the intoxicated person the police had not taken into custody.
A special duty was held to exist because of the applicable police standard operating manual, which provided in pertinent part:
> “ ‘An individual, male or female, who is incapacitated by alcohol or drugs, and because of such condition, is likely to do physical injury to himself or herself or others if allowed to remain at liberty *will* be taken into protective custody and processed in the following manner ....’” (Emphasis supplied.) [239 Kan. at 372-73](https://www.courtlistener.com/opinion/1390070/fudge-v-city-of-kansas-city/).
Based upon this manual provision, we held the police had a duty to take Henley into protective custody under the circumstances.
The Standard Operating Procedure (SOP) manual in *Fudge* stated the intoxicated person *will* be taken into protective custody. The SOP manual herein states the intoxicated person *may* be taken into custody. The district court held that the will/may language was crucial. We agree. The use of “will” is an order to act, removing the officer’s discretion and creating a special duty. The use of “may” is not a discretion to act, but a grant of authority to act if the officer deems such action to be appropriate. No special duty is thereby created.
Deprivation of a person’s liberty that is protected by the Fifth Amendment to the United States Constitution is a drastic action. A law enforcement officer’s right to arrest is governed by K.S.A. 22-2401, which provides:
> “A law enforcement officer may arrest a person under any of the following circumstances:
>
> “(a) The officer has a warrant commanding that the person be arrested.
>
> “(b) The officer has probable cause to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction for a felony committed therein.
>
> “(c) The officer has probable cause to believe that the person is committing or has committed:
>
> (1) A felony; or
>
> (2) a misdemeanor, and the law enforcement officer has probable cause to believe that:
>
> (A) The person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested;
>
> (B) the person may cause injury to self or others or damage to property unless immediately arrested; or
>
> (C) the person has intentionally inflicted bodily harm to another person.
>
> “(d) Any crime, except a traffic infraction, has been or is being committed
>
> by the person in the officer’s view.”
K.S.A. 65-4026 concerns voluntary treatment of intoxicated persons and provides, in part:
> “(a) An intoxicated person may come voluntarily to a public treatment facility or state institution for emergency treatment. A *person who appears to be intoxicated in a public place and to be in need of help, if the person consents* to the proffered help, *may be assisted* to such person’s home, a public treatment facility or state institution, a private treatment facility, or other health facility or state institution *by a law enforcement officer* or the emergency service patrol.
>
> “(e) The *law enforcement officer* or members of the emergency patrol who act in compliance with this section are acting in the course of their official duty and *shall not be held criminally or civilly liable therefor.”* (Emphasis supplied.)
K.S.A. 65-4027 concerns involuntary or emergency detention of intoxicated persons and provides, in part:
> “(A) Any law enforcement officer who has reasonable belief, upon observation, that any individual is intoxicated or incapacitated by alcohol and because of this condition is likely to be physically injured or to physically injure others if allowed to remain at liberty may take such individual into custody without a warrant. The officer shall transport such individual to any' treatment facility, or other facility for care or treatment, which has a physician or psychologist on staff where such individual shall be examined by a physician or psychologist at such facility.”
Medical personnel then determine if such individual is a danger to him or herself or others and needs to be detained involuntarily.
The SOP manual herein with its grant of authority that the officer “may” take the intoxicated person into custody is consistent with K.S.A. 65-4027. Neither mandates or directs that any person be taken into custody but is merely a grant of authority to act.
We conclude that the governmental defendants owed no special duty to Timothy Mills to take him into custody. Likewise, Mills had no right to be taken into protective custody.
It should be noted, before leaving this point, that plaintiffs contend that the police had taken Mills into custody and then released him under circumstances contrary to the manual. We do not agree. The police were called to the scene on a report of a disturbance. When they arrived, Mills was out in front of the establishment and no disturbance or confrontational incident was in progress. They talked to Mills and the establishment’s employees and concluded *no charges would be filed* and that Mills was then free to leave. If Mills had been detained, it was merely investigational in nature for possible criminal arrest. There is nothing in the record that Mills had been, at any time, taken into protective custody as an intoxicated person.
\[...]
The judgment is affirmed.
***
Editorial Notes and Licensing
Editing to the original by Matthew L. Mac Kelly. Many of the court's original citations to authorities and other content may have been omitted for length and readability purposes. Many elisions of text are not identified, particularly string citations and original footnotes when not materially necessary to the purpose of this portion of the sourcebook. However, some elisions are identified by bracketed ellipses (e.g., \[...]).
Judicial decisions and annotations thereto by third parties are not subject to copyright protection and are in the public domain. *See, e.g., Georgia v. Public.Resource.Org, Inc*., [140 S. Ct. 1498](https://scholar.google.com/scholar_case?case=8288711378870515248\&q=Georgia+et+al.+v.+Public.Resource.Org,+Inc.\&hl=en\&as_sdt=6,50) (2020).
Note: Hyperlinks within this case are not original. Some of these hyperlinks (such as cases and footnotes) may direct you to an external publicly accessible display of the case. This is helpful for reference purposes, and no copyright is claimed here over a third party's hyperlinking choices and methodologies, if applicable.
Subject to limitations above, if any, this page is in the public domain. [CC0 1.0](https://creativecommons.org/publicdomain/zero/1.0/) 
[^1]: This is what state trial courts are called in Kansas.
[^2]: A summary judgment is a judgment entered by a court for one party and against another party without a full trial.[\[\*\]](https://www.law.cornell.edu/wex/summary_judgment)
[^3]: Mills also sued Just for Kicks and certain of its employees. This portion of the case is excluded for the purposes of this course.
[^4]: "among other things"[\[\*\]](https://www.law.cornell.edu/wex/inter_alia)
---
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