1

IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 117,518

 117,519

SHELBY MONTGOMERY and SCOTT E. BENNETT,

Appellants/Cross-appellees,

v.

PATRICK R. SALEH and STATE OF KANSAS,

Appellees/Cross-appellants.

SYLLABUS BY THE COURT

1. 

The public duty doctrine expresses a general rule that law enforcement duties are 

owed to the public at large and not to any specific person. Absent some special 

relationship with or specific duty owed an individual, liability will not lie for damages.

2. 

K.S.A. 8-1506(d) imposes a duty on law enforcement officers in pursuit to "drive 

with due regard for the safety of all persons." Because the plain language of K.S.A 8-

1506(d) imposes a specific duty, law enforcement may be held liable for breach of this 

duty.

3.

A law enforcement officer's pursuit of a fleeing suspect may be the proximate 

cause of a collision between the suspect and a third party as long as the evidence would 

support a reasonable inference that the law enforcement officer's conduct was the cause 

in fact of the collision.
2

4. 

The Kansas Tort Claims Act (KTCA) 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). 

While the KTCA provides that governmental entities may be held liable for the 

negligence of their employees, K.S.A. 75-6104 sets out an extensive list of exceptions, 

explicitly stating that liability will not lie for certain conduct.

5. 

A law enforcement officer's pursuit of a fleeing suspect does not fall within the 

discretionary function exception under K.S.A. 75-6104(e).

6. 

A law enforcement officer's pursuit of a fleeing suspect does not fall within the 

"method of providing police . . . protection" exception found under K.S.A. 75-6104(n).

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 429, 419 P.3d 8 (2018). 

Appeal from Shawnee District Court; FRANKLIN R. THEIS, judge. Opinion filed June 26, 2020. Judgment 

of the Court of Appeals affirming in part and reversing in part the district court is affirmed. Judgment of 

the district court is affirmed in part and reversed in part, and the case is remanded to the district court with 

directions. 

Richard L. Budden, of Shamberg, Johnson & Bergman, Chtd. of Kansas City, Missouri, argued

the cause, and Lynn R. Johnson, of the same firm, was with him on the briefs for appellants/crossappellees. 

Dwight R. Carswell, assistant solicitor general, argued the cause, and Jeffrey A. Chanay, chief 

deputy attorney general, Toby Crouse, solicitor general, Bryan C. Clark, assistant solicitor general, 

Rachael D. Longhofer, assistant attorney general, and Derek Schmidt, attorney general, were with him on 

the briefs for appellees/cross-appellants. 
3

PER CURIAM: This is a civil negligence suit brought by Shelby Montgomery and 

Scott Bennett. Montgomery and Bennett both sustained injuries when a Toyota driven by 

Robert Horton ran a red light and collided with Bennett's truck. At the time, Horton was 

being pursued by Kansas Highway Patrol Trooper Patrick Saleh. Montgomery and 

Bennett sued Trooper Saleh, claiming he was negligent in failing to cease his pursuit of 

Horton prior to when he did. They also sued the State of Kansas under a theory of 

vicarious liability. The district court eventually granted summary judgment for Saleh and 

the State. The Court of Appeals affirmed in part, reversed in part, and remanded for trial. 

We granted Saleh and the State's petition for review.

FACTS AND PROCEDURAL BACKGROUND

On the night of August 23, 2010, Kansas Highway Patrol Sergeant Tim Tillman 

was stopped at a red light at the intersection of Topeka Boulevard and 32nd Terrace. A 

red Toyota was stopped beside him in the northbound lane. Sgt. Tillman saw the Toyota's 

passenger holding a knife and speaking to the driver, though he could not hear what the 

passenger was saying. When the light turned green and the Toyota started to drive away, 

Tillman saw the Toyota's passenger swing the knife toward the driver. Tillman reported 

the Toyota's license plate number to dispatch, and dispatch informed him the license plate 

belonged to a different car.

Because Tillman was in plain clothes and driving an unmarked vehicle, he 

requested back-up. Saleh and Trooper Terry Fields, who were in the area, responded to 

the request. Because Saleh's car had a spotlight, Fields recommended that Saleh take over 

the stop. At this time, Saleh knew only that the Toyota's license plate was registered to a 

different car and that the passenger reportedly had a knife and was "swinging out the 

knife pretty strangely." 
4

Trooper Saleh was traveling south on Topeka Boulevard and drove past the 

Toyota. He made a U-turn directly behind the Toyota and activated his red lights, siren, 

and dashboard video camera. The driver of the Toyota (later identified as Horton) then 

turned right onto 20th Street, heading east and rapidly accelerated. Horton ran a stop sign 

as he turned right onto Kansas Avenue and proceeded south. 

Horton continued to accelerate, running a red light at the intersection of 21st Street 

and Kansas Avenue. Saleh stayed in pursuit, though he fell further behind the Toyota.

Saleh accelerated to 80 to 90 miles per hour, and he estimated the Toyota's speed was 

over 100 miles per hour. Saleh decided to end the pursuit "[s]omewhere around the 

Wonder Bread outlet store," which was located just beyond 27th Street when traveling 

south on Kansas Avenue. 

Before Saleh deactivated his emergency equipment, the Toyota ran through a red 

light at the intersection of Kansas Avenue and 29th Street. It collided with a pickup truck 

occupied by Bennett and Montgomery, who both suffered injuries in the crash. At the

time of the collision, Saleh was about two-and-a-half blocks behind the Toyota. The 

entire pursuit had lasted about a minute and a half.

The Toyota's driver was later confirmed to be Horton. The passenger was a minor 

female who had been reported as a runaway. No knife was found in the Toyota or at the 

accident scene. 

Bennett and Montgomery later filed separate petitions alleging negligence on the 

part of Trooper Saleh and the State of Kansas. Saleh and the State moved for summary 

judgment, arguing in part that (1) Bennett and Montgomery had failed to make a prima 

facie case of negligence; (2) Saleh did not owe a duty to Bennett and Montgomery under 

the public duty doctrine; and (3) the State had absolute immunity and Saleh had qualified 

immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
5

The district court granted the motion. The court rejected the defendants' claims 

that the public duty doctrine applied or that the defendants had immunity under the 

KTCA. It also held a factual dispute existed as to whether Saleh had breached his duty of 

care. But it found that the plaintiffs' proffered evidence was insufficient to support a 

favorable jury verdict on causation in fact. As a result, the court entered summary 

judgment in favor of the defendants.

Bennett and Montgomery appealed. Saleh and the State cross-appealed. On 

Montgomery's motion, the Court of Appeals consolidated Bennett's and Montgomery's 

appeals. A majority of the Court of Appeals' panel affirmed the district court's findings on 

the public duty doctrine, immunity under the KTCA, and proof of breach of duty, but 

reversed the district court's finding on proof of causation and remanded for further 

proceedings. Montgomery v. Saleh, 55 Kan. App. 2d 429, 419 P.3d 8 (2018). A dissenting 

judge would have affirmed on the issue of proof of causation and declined to reach the 

issues on cross-appeal. 55 Kan. App. 2d at 452. We granted the defendants' petition for 

review with respect to all the issues Saleh and the State presented. 

We, briefly, note the Court of Appeals also held that the claims asserted by the 

plaintiffs directly against the State for negligently failing to enforce appropriate pursuit 

policies or for negligence in hiring, retaining, supervising, or training Saleh were 

unsupported by any evidence and were abandoned on appeal. 55 Kan. App. 2d at 452. 

The plaintiffs did not independently seek review of the judgment against these claims. 

Those claims are, therefore, no longer at issue. See, e.g., State v. Brosseit, 308 Kan. 743, 

746-47, 423 P.3d 1036 (2018) (failure to petition or cross-petition for review precludes 

review).
6

ANALYSIS

On review, the defendants argue the district court properly entered summary 

judgment in their favor and the Court of Appeals erred in reversing the district court. The 

rules relating to summary judgment are well established:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may 

reasonably be drawn from the evidence in favor of the party against whom the ruling is 

sought. 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. On appeal, we apply the same rules and when we find reasonable 

minds could differ as to the conclusions drawn from the evidence, summary judgment 

must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 

616, 621, 413 P.3d 432 (2018).

Here, the plaintiffs alleged negligence on the part of the defendants. To succeed on 

a negligence claim, the plaintiff must establish the existence of a duty, a breach of that 

duty, an injury, and proximate cause. Hale v. Brown, 287 Kan. 320, 322-23, 197 P.3d 438 

(2008). While summary judgment is rarely appropriate in negligence cases, it is proper if 

a plaintiff fails to establish a prima facie case demonstrating the existence of these four 

elements. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 221, 262 P.3d 

336 (2011). A plaintiff establishes a prima facie case by presenting "'evidence which, if 

left unexplained or uncontradicted, would be sufficient to carry the case to the jury and 

sustain a verdict in favor of the plaintiff on the issue it supports.'" Robbins v. City of 

Wichita, 285 Kan. 455, 470, 172 P.3d 1187 (2007).
7

Duty

As part of their negligence claim, the plaintiffs had to establish that Saleh owed 

them a duty of care. And, because they are suing a governmental entity and its employee, 

the plaintiffs here must establish that Saleh owed a duty to them individually rather than a 

duty owed to the public at large. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 778, 

450 P.3d 330 (2019). Whether a duty exists is a question of law over which we have 

unlimited review. Robbins, 285 Kan. at 460.

The defendants argue that the public duty doctrine prevents the plaintiffs from 

establishing the existence of a duty owed to them. 

"The public duty doctrine expresses a general rule that law enforcement duties are owed 

to the public at large and not to any specific person. Absent some special relationship 

with or specific duty owed an individual, liability will not lie for damages. Under the 

public duty doctrine, an officer is immune from claims arising out of the performance or 

nonperformance of the officer's general duties. Liability arises only when an officer 

breaches a specific affirmative duty owed to a particular person. [Citations omitted.]" 

Conner v. Janes, 267 Kan. 427, 429, 981 P.2d 1169 (1999).

The defendants further argue that law enforcement pursuits fall within the purview of the 

public duty doctrine thus exempting them from any liability for the plaintiffs' injuries.

Although the public duty doctrine has several exceptions, the plaintiffs do not 

argue that those exceptions are present here. See Williams, 310 Kan. at 788-92. Instead, 

they rely on K.S.A. 8-1506, governing the operation of authorized emergency vehicles, to 

establish a specific duty. K.S.A. 8-1506 grants drivers of authorized emergency vehicles 

certain privileges that excuse them from following traffic laws under specified 

conditions. Along with these privileges, subsection (d) provides: "The foregoing 
8

provisions shall not relieve the driver of an authorized emergency vehicle from the duty 

to drive with due regard for the safety of all persons, nor shall such provisions protect the 

driver from the consequences of reckless disregard for the safety of others." 

The Court of Appeals agreed with the plaintiffs, finding the language of K.S.A. 8-

1506 created a specific duty owed to them. The panel also held this interpretation was 

consistent with Robbins, in which we addressed the standard of care under K.S.A. 8-

1506. The defendants argue the panel's decision was erroneous because the plain 

language of K.S.A. 8-1506 creates a general duty to the public, not a specific duty to 

individuals. The defendants add Robbins did not address the applicability of the public 

duty doctrine to law enforcement pursuits. 

Resolution of this issue requires interpretation of K.S.A. 8-1506. Statutory 

interpretation is a question of law subject to unlimited review. Nauheim v. City of 

Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). The most fundamental rule of statutory 

construction is that the Legislature's intent governs if that intent can be ascertained. State 

ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). We must,

first, try to ascertain legislative intent through the statutory language enacted, giving 

common words their ordinary meanings. Nauheim, 309 Kan. at 149. When a statute is 

plain and unambiguous, we should not speculate about the legislative intent behind that 

clear language, and we should refrain from reading something into the statute that is not 

readily found in its words. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016).

The plain language of K.S.A. 8-1506 imposes a duty on emergency vehicle drivers 

to "drive with due regard for the safety of all persons." As the Court of Appeals pointed 

out, this is a specific duty owed to "all persons" unlike other general duties—such as the 

duty to preserve the peace—which law enforcement owes to the public at large. The

statute adds that its provisions do not "protect the driver from the consequences of 

reckless disregard for the safety of others." This language shows the Legislature did not 
9

intend for K.S.A. 8-1506 to exempt drivers of emergency vehicles from the consequences 

of reckless conduct. Finally, interpreting K.S.A. 8-1506 the way the defendants suggest 

would mean the statute identifies a duty only to allow law enforcement to breach that 

duty with impunity. This would render the statute meaningless, and we presume the 

Legislature does not intend to enact meaningless legislation. In re Marriage of Traster, 

301 Kan. 88, 98, 339 P.3d 778 (2014).

We also note this interpretation of K.S.A. 8-1506 is consistent with our prior 

caselaw. In Robbins, we considered K.S.A. 8-1506 in the context of negligence claims 

brought by individual plaintiffs, and we recognized the statute imposes a duty on law 

enforcement in pursuit of a fleeing vehicle to drive with due regard for the safety of all 

persons. 285 Kan. at 460-65. While prior caselaw had limited this duty to the operation of 

the vehicle during a pursuit, Robbins expanded this duty to include the decisions to 

initiate and continue a pursuit. 285 Kan. at 465-66. Robbins also held that in a negligence

claim brought under this statute, the plaintiffs must establish law enforcement drove with 

reckless disregard for the safety of others in order to demonstrate a breach of that duty. 

285 Kan. at 469. While Robbins did not address the public duty doctrine, it implicitly 

held K.S.A. 8-1506 imposes a specific duty on law enforcement, and individuals may 

bring suit for breach of this duty. 

Breach 

Next, we consider whether a genuine issue of material fact exists as to whether 

Saleh breached the duty imposed by K.S.A. 8-1506. While the existence of a duty is a 

question of law, whether that duty has been breached is generally a question of fact. Deal 

v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008).

The standard of care, under K.S.A. 8-1506, for law enforcement in pursuit is 

higher than mere negligence. Instead, a plaintiff must show law enforcement drove with 
10

reckless disregard for the safety of others to establish a breach of duty. Reckless 

disregard in this context means "driving a vehicle under circumstances that show a 

realization of the imminence of danger to another person or the property of another where 

there is a conscious and unjustifiable disregard of that danger." Robbins, 285 Kan. 455, 

Syl. ¶ 6. This standard applies to the officer's decision to initiate the pursuit of a fleeing 

suspect, the officer's decision to continue that pursuit, and the officer's manner of 

operating his or her vehicle during the pursuit. 285 Kan. at 465-66.

To support their claim of breach of duty, the plaintiffs rely on Saleh's dashboard 

camera recording of the pursuit. They also presented Saleh's deposition in which he

stated he believed the pursuit was unlikely to be successful after the Toyota ran the red 

light at 21st Street. Saleh also stated he did not decide to discontinue the pursuit until 

sometime after passing 27th Street.

The plaintiffs also presented evidence of the Kansas Highway Patrol's policy 

regarding when to initiate and reevaluate a pursuit. That policy, known as OPS-16, states:

"Officers are expected to make a diligent and reasonable effort to stop all suspected or 

actual violators. The decision to initiate pursuit must be based on the pursuing officer's 

conclusion that the immediate danger to the officer and the public created by the pursuit 

is less than the immediate or potential danger to the public should the suspect remain at 

large."

OPS-16 identifies the following factors to take into consideration when deciding 

to initiate a pursuit:

"a. nature and seriousness of violation;

"b. road, weather and environmental conditions;
11

"c. population density and presence of vehicular/pedestrian traffic;

"d. officer's familiarity with area;

"e. patrol vehicle condition;

"f. alternative methods of apprehension;

"g. likelihood of successful apprehension;

"h. mutual aid agreements with city and county authorities."

OPS-16 also provides: "The primary pursuing unit shall continually re-evaluate 

and assess the pursuit situation including all of the initiating factors and terminate the 

pursuit whenever he or she reasonably believes the risks associated with continued 

pursuit are greater than the public safety benefit of making an immediate apprehension." 

Finally, the plaintiffs presented an affidavit from their expert, criminologist

Geoffrey Alpert, Ph.D. Dr. Alpert stated that Trooper Saleh's pursuit became futile once 

Horton ran the "stop sign on 21st" because "it was more likely than not that drivers of 

fleeing vehicles will continue to flee as long as they are being chased." He opined that 

Saleh should have ended the pursuit "between 20th and 21st street and no later than when 

[Horton] ran the red light at 21st street in an attempt to elude police."

Looking at this evidence, we conclude a material issue of fact exists as to whether 

Saleh exhibited reckless disregard in his decision to continue the pursuit of Horton.

Before the pursuit began, Saleh was not aware of any conduct from which he could 

reasonably conclude Horton posed an immediate danger to the public which outweighed 

the danger created by a pursuit. Saleh tried to stop Horton for driving an automobile with 

an improper tag. No one reported that Horton had been driving recklessly before the 

attempted stop. Nor was there any suspicion that Horton might be intoxicated. And while 

Trooper Saleh was aware of reports that the passenger had a knife, nothing indicated 
12

Horton was dangerous or posed an immediate threat to others or was otherwise incapable 

of safely operating his vehicle.

Once Saleh initiated the pursuit, Horton accelerated rapidly, running the stop sign 

on 20th Street. He then ran the red light at 21st Street while two other vehicles were 

poised to enter the intersection. Saleh admitted he did not believe his attempt to stop 

Horton was going to be successful after this point. Nevertheless, he continued to pursue 

Horton, estimating that Horton reached speeds in excess of 100 mph. As seen on the 

video recording, Horton was also crossing the yellow line and weaving in and out of 

traffic. 

This evidence could support a reasonable conclusion that Trooper Saleh breached 

his duty of care under K.S.A. 8-1506. A jury could conclude that the Toyota's improper 

tag did not indicate the driver posed a danger to others which outweighed the danger of a

high-speed pursuit. Still, Saleh initiated a pursuit, and he continued that pursuit after 

observing Horton's reckless driving. Saleh even continued the pursuit once he realized it 

was unlikely to be successful. Drawing all inferences in favor of the plaintiffs, we believe 

a jury could reasonably conclude Saleh realized his pursuit of the Toyota posed an 

imminent danger and he consciously and unjustifiably disregarded that danger.

The defendants argue this conclusion conflicts with Robbins, we disagree. In 

Robbins, the police department received a 911 call that Jeffrey Drechsler had been 

drinking and was causing a domestic disturbance. While police were on their way to the 

residence, Drechsler broke through a door with an ax, chased his wife, then pinned her to 

the bed while holding the ax over his head. After letting his wife go, he went out to the 

garage and broke the windows of her car. 

An officer arrived at the home just as Drechsler got into his truck and left. The 

officer initiated a pursuit with his lights and siren on. The officer continued the pursuit 
13

even after Drechsler ran a red light and temporarily drove on the wrong side of the road. 

Drechsler eventually broadsided a car driven by Amy Robbins, resulting in her death. 

Robbins' husband filed a wrongful death action against the city, chief of police, and the 

officers involved in the pursuit, claiming negligence in the pursuit of Drechsler. The 

district court granted the defendants' motion for summary judgment. 

On review, we affirmed the district court's decision to grant summary judgment. 

We held the evidence was insufficient to support a prima facie finding that the officers 

had breached their duty of care under K.S.A. 8-1506—that is, "that the officers had a 

conscious and unjustifiable disregard of the danger the pursuit caused for other 

motorists." Robbins, 285 Kan. at 470. We concluded the pursuit was clearly justified

given that "the officers were confronted with a drunken, violent, ax-wielding, fleeing 

offender whose very presence put whomever he encountered at serious risk of bodily 

injury." 285 Kan. at 470.

As the Court of Appeals noted, Trooper Saleh was not dealing with "similarly dire 

circumstances" as the officers in Robbins when he began his pursuit of the Toyota.

Montgomery, 55 Kan. App. 2d at 442. Given this disparity, we cannot reach the same 

conclusion as we did in Robbins. We agree with the district court and the Court of 

Appeals that the proffered evidence presents a question of material fact as to whether 

Trooper Saleh breached his duty of care.

Causation

Next, we address whether the plaintiffs have established a prima facie case that 

Saleh's conduct was the proximate cause of their injuries. Whether a causal connection 

exists between a breached duty and the plaintiffs' injuries is a question of fact. Yount v. 

Deibert, 282 Kan. 619, 624, 147 P.3d 1065 (2006).
14

We have defined proximate cause as a cause that "in natural and continuous 

sequence, unbroken by an efficient intervening cause, produces the injury and without 

which the injury would not have occurred, the injury being the natural and probable 

consequence of the wrongful act." Puckett v. Mt. Carmel Regional Medical Center, 290 

Kan. 406, 420, 228 P.3d 1048 (2010). Proximate cause has two components: causation in 

fact and legal causation. Causation in fact means a cause-and-effect relationship exists 

between a party's conduct and the resulting harm. Legal causation means a party's 

conduct might foreseeably create a risk of harm and cause or contribute to the resulting 

harm. Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 (2015).

The defendants cite Carl v. City of Overland Park, Kan., 65 F.3d 866 (10th Cir. 

1995), in arguing the plaintiffs have failed to show Saleh's conduct was the proximate 

cause of their injuries. In Carl, the Tenth Circuit had to predict whether Kansas courts

might allow a finding of proximate cause when a fleeing driver was injured or killed in 

the course of a police pursuit. It reviewed several Kansas cases and concluded that 

Kansas courts would find no proximate cause, noting that, in Kansas, "'the officer is not 

liable to the third party because the sole proximate cause is the fleeing party's negligence 

rather than the officer's conduct in electing to pursue.'" 65 F.3d at 873 (quoting Hammig

v. Ford, 246 Kan. 70, 76, 785 P.2d 977 [1990]). The Tenth Circuit declined to speculate 

whether this court might allow liability in the event of a showing of egregious 

misconduct, such as deliberately initiating a pursuit through a parade, a school crossing 

zone, or a densely populated area during rush hour. 65 F.3d at 874.

Relying on Carl, the defendants argue that the sole legal cause of the plaintiffs' 

injuries was Horton's conduct. But the Court of Appeals declined to follow Carl, 

concluding it was an outlier from the modern trend of putting the issue of proximate 

cause in police pursuit cases to the jury. Montgomery, 55 Kan. App. 2d at 445; see also 

Carl, 65 F.3d at 875 (Bright, J., concurring) (noting the "modern trend of police chase 

cases leaves the proximate cause issue to the jury"). On review, the defendants challenge 
15

the panel's conclusion. They argue the panel failed to explain why Carl was inconsistent 

with Kansas precedent.

We note that the Tenth Circuit decided Carl before our decision in Robbins. 

Robbins did not reach the issue of causation because it held the plaintiffs had failed to 

present evidence of a breach of duty. But the conclusion that police conduct can, in some 

circumstances, be the proximate cause of an accident involving a third party is consistent 

with Robbins. If law enforcement conduct can never be the proximate cause of an 

accident, then the issue of breach of duty would be irrelevant. 

Moreover, the extent to which the panel's decision conflicts with Carl is of little 

consequence. Carl represents the Tenth Circuit's prediction on how this court would rule 

on this issue. It is not binding on Kansas courts. 

While we did not reach the issue of causation in Robbins, we moved to the brink 

of holding that law enforcement's conduct can be the proximate cause of injuries to a 

third party. We also note a majority of jurisdictions have concluded that causation in 

police pursuit cases is a question of fact for the jury. See Montgomery, 55 Kan. App. 2d 

at 446-47 (listing cases). We now join this majority and hold law enforcement's conduct 

during a pursuit can be the legal cause of a third party's injuries.

Having determined Saleh's conduct could legally be the cause of the plaintiffs' 

injuries, we turn to whether the plaintiffs have proffered evidence from which a 

reasonable jury could conclude his conduct did cause their injuries. We have described 

the burden of proof on causation as follows:

"'The plaintiff must introduce evidence which affords a reasonable basis for the 

conclusion that it is more likely than not that the conduct of the defendant was a cause in 

fact of the result. A mere possibility of such causation is not enough; and when the matter 
16

remains one of pure speculation or conjecture, or the probabilities are at best evenly 

balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the 

conclusion is not one within common knowledge, expert testimony may provide a 

sufficient basis for it, but in the absence of such testimony it may not be drawn. . . .

"'The plaintiff is not, however, required to prove the case beyond a reasonable doubt. The 

plaintiff need not [negate] entirely the possibility that the defendant's conduct was not a 

cause, and it is enough to introduce evidence from which reasonable persons may 

conclude that it is more probable that the event was caused by the defendant than that it 

was not. The fact of causation is incapable of mathematical proof, since no one can say 

with absolute certainty what would have occurred if the defendant had acted otherwise. 

Proof of what we call the relation of cause and effect, that of necessary antecedent and 

inevitable consequence, can be nothing more than 'the projection of our habit of 

expecting certain consequents to follow certain antecedents merely because we had 

observed these sequences on previous occasions.' If as a matter of ordinary experience a 

particular act or omission might be expected, under the circumstances, to produce a 

particular result, and that result in fact has followed, the conclusion may be permissible 

that the causal relation exists.'" Yount v. Deibert, 282 Kan. 619, 628-29, 147 P.3d 1065 

(2006) (quoting Prosser & Keeton on Torts § 41, 269 [5th ed. 1984]).

The plaintiffs rely on three pieces of evidence to show causation: Trooper Saleh's 

dashboard video camera recording of the pursuit; Dr. Alpert's affidavit; and the 

deposition testimony of a Kansas Highway Patrol officer explaining the purpose behind 

certain pursuit procedures. 

Saleh's video shows Horton began to engage in reckless driving once the pursuit 

began. Horton was driving at a high rate of speed and disobeying traffic signals during 

the pursuit. The video indicates about 46 seconds pass from the time the plaintiffs argue 

Trooper Saleh should have ended the pursuit and the time of the crash. During much of 

this time, the Toyota is visible to Trooper Saleh. 
17

As previously noted, Alpert stated in his affidavit that Saleh's pursuit became 

futile once Horton ran the "stop sign on 21st" because "it was more likely than not that 

drivers of fleeing vehicles will continue to flee as long as they are being chased." Alpert 

went on to conclude that if "the police [had] terminated their active attempt to apprehend 

[Horton], it is more likely than not that he would not have crashed into the pick-up driven

by [plaintiff Bennett] at 29th."

In a deposition, Kansas Highway Patrol Lieutenant Scott Martin agreed officers 

generally follow a specific procedure when ending a pursuit, including notifying dispatch 

of the termination, slowing down to the speed limit, and turning off emergency 

equipment. He also agreed that "one of the reasons for terminating a pursuit is the hope 

that the vehicle being pursued will then slow down and not create a hazard to vehicular 

and pedestrian traffic." 

We believe this evidence establishes a dispute as to whether Saleh's conduct was a

cause in fact of the plaintiffs' injuries. Here, Horton had not been driving recklessly 

before Saleh initiated the pursuit. Instead, the pursuit incited Horton to rapidly accelerate 

and to ignore traffic signals. As the Court of Appeals concluded,

"Had the pursuit ended before the scene of the crash, Horton would have had no incentive 

to continue at such a break-neck speed and in such a reckless manner, risking his own life 

in the process. Whether, in fact, he would have is not for us to say. Our task is to view the 

evidence in the light favoring the plaintiffs to determine if one could reasonably infer that 

once the chase ended Horton would have changed his behavior accordingly." 

Montgomery, 55 Kan. App. 2d at 448-49.

The defendants argue the plaintiffs' theory of causation is purely speculative. They 

point out the plaintiffs provided no direct evidence of what Horton saw as he sped down 

Kansas Avenue toward 29th Street. They question whether Horton could have even seen 
18

if Saleh had terminated his pursuit, noting Saleh had fallen two-and-a-half blocks behind 

Horton by the time of the crash, and Kansas Avenue leading up to 29th Street is curved 

and passes over a hill. They also assert Alpert's opinion is based on mere speculation, and 

he provided no reason to support his conclusion that more likely than not the crash would 

not have happened if Saleh had ended his pursuit no later than 21st Street. 

We find the defendants' arguments unpersuasive. While the defendants are correct 

that the plaintiffs did not present direct evidence of what Horton saw during the pursuit or 

what he was thinking, lack of direct evidence is not fatal to the plaintiffs' attempt to 

present a prima facie case. A plaintiff may use circumstantial evidence to prove 

causation. That evidence need not exclude every other reasonable conclusion as long as it 

forms a basis from which a jury could draw a reasonable inference. Yount, 282 Kan. 619, 

Syl. ¶ 1. 

At this point in the proceedings, we must view the evidence in the light most 

favorable to the plaintiffs. Looking at the evidence in this light, a jury could reasonably 

conclude that Horton was aware of Saleh's pursuit. Experience would also allow the jury 

to draw the conclusion that Horton "engaged in such reckless conduct primarily because 

he was being chased by police, and that this misconduct would have ceased had the 

police discontinued the pursuit. There is nothing extraordinary in this conclusion." 

Montgomery, 55 Kan. App. 2d at 449 (quoting City of Pinellas Park v. Brown, 604 So. 2d 

1222, 1228 [Fla. 1992]).

Finally, the defendants argue Dr. Alpert provided no reasons supporting his 

conclusion that the collision more likely than not would have been avoided if Trooper 

Saleh had ended his pursuit sooner. But this goes to the weight of Dr. Alpert's testimony. 

It is the jury's role to consider and determine the weight of a witness' testimony. And 

even without Dr. Alpert's testimony, a jury could still rely on the video recording of the 
19

pursuit. As a result, we conclude a dispute exists as to whether Trooper Saleh's conduct 

was a cause in fact of the plaintiffs' injuries. 

Immunity

Finally, the defendants argue that regardless of whether the plaintiffs have 

established a prima facie case of negligence, they are immune from liability under the 

KTCA. The KTCA governs "claims arising from acts or omissions" by government 

entities. K.S.A. 75-6101(b). It provides that, subject to the Act's own limitations, "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 

under circumstances where the governmental entity, if a private person, would be liable 

under the laws of this state." K.S.A. 75-6103(a).

While the KTCA provides that governmental entities may be held liable for the 

negligence of their employees, K.S.A. 75-6104 sets out an extensive list of immunities, 

explicitly stating that liability will not lie for certain conduct. The defendants claim two 

of those exceptions are applicable here: the discretionary function exception under K.S.A. 

75-6104(e) and the "method of providing police . . . protection" exception under K.S.A. 

75-6104(n). The Court of Appeals rejected the defendants' argument, finding that not 

only does neither exception apply here, but also that the KTCA does not apply at all and 

that K.S.A. 8-1506(d) controls because it is the more specific statute. 

On review, the defendants argue the Court of Appeals' conclusion regarding the 

discretionary function exception's applicability is incorrect. They add this court has yet to 

address whether the "method of providing police . . . protection" exception applies to an 

officer's decision to pursue a subject. We will address these exceptions in turn.
20

Under the discretionary function exception as set forth in K.S.A. 75-6104(e), 

government actors and entities are immune 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." The KTCA does not define 

"discretionary function or duty," so we primarily look to the nature and quality of the 

discretion exercised to determine whether a function or duty is discretionary. Soto v. City 

of Bonner Springs, 291 Kan. 73, 79, 238 P.3d 278 (2010). This exception does not apply 

to any and every exercise of judgment. Instead, "'[t]he more a judgment involves the 

making of policy[,] the more it is of a "nature and quality" to be recognized as 

inappropriate for judicial review.'" Williams, 310 Kan. at 795.

Where, however, a clearly defined mandatory duty exists, the discretionary 

function exception does not apply. Such duty may arise from agency directive, caselaw, 

or statute. Soto, 291 Kan. at 80. As the Court of Appeals correctly notes, K.S.A. 8-

1506(d) provides a mandatory duty for law enforcement officers such as Saleh to "drive 

with due regard for the safety of all persons" when pursuing fleeing suspects. As a result, 

the discretionary function exception does not apply to Saleh's pursuit of Horton.

The defendants argue that the Court of Appeals' conclusion that the discretionary 

function exception does not apply here conflicts with our precedent. Specifically, they

highlight Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). In 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. They contend the decision to pursue a fleeing suspect is just as 

discretionary. 

Notably, though, the court in Robertson held the police conduct in that case was 

discretionary because there was no police procedure mandating how the situation should 
21

have been handled. 231 Kan. at 362. The Robertson court went on to hold the officers did 

not owe a specific duty to the plaintiffs because "the duty of a law enforcement officer to 

preserve the peace is a duty owed to the public at large, not to a particular individual." 

231 Kan. at 363-64. In contrast, K.S.A. 8-1506 imposes a specific duty on law 

enforcement officers to drive with due regard for the safety of all persons. Because of this 

mandatory duty, the discretionary function exception does not apply here.

As for the "method of providing police . . . protection" exception under K.S.A. 75-

6104(n), we agree with the Court of Appeals that the exception does not apply to Saleh's 

pursuit of Horton. In addressing this exception, we have explained,

"'We believe [the police protection exception] is aimed at such basic matters as the type 

and number of fire trucks and police cars considered necessary for the operation of the 

respective departments; how many personnel might be required; how many and where 

police patrol cars are to operate; the placement and supply of fire hydrants; and the 

selection of equipment options. Accordingly, a city is immunized from such claims as a 

burglary could have been prevented if additional police cars had been on patrol, or a 

house could have been saved if more or better fire equipment had been purchased. We do 

not believe subsection (m) [now subsection (n)] is so broad as to immunize a city on 

every aspect of negligent police and fire department operations. Should firemen 

negligently go to the wrong house and chop a hole in the roof thereof, we do not believe 

the city has immunity therefor on the basis the negligent act was a part of the method of 

fire protection.'" Keiswetter v. State, 304 Kan. 362, 371-72, 373 P.3d 803 (2016) (quoting 

Jackson v. City of Kansas City, 235 Kan. 278, 292, 680 P.2d 877 [1984], overruled on 

other grounds by Simmons v. Porter, 298 Kan. 299, 312 P.3d 345 [2013]).

Saleh's pursuit of Horton is not a basic matter of police protection, such as the 

number of personnel and cars necessary for the operation of the police department. As a 

result, neither Saleh nor the State are immune under this exception. As this resolves the 

defendants' claims of immunity under the KTCA, we decline to address the Court of

Appeals' further rulings on this issue.
22

 We find no error in the issues that have been presented to us for review. The 

judgment of the Court of Appeals is affirmed. The judgment of the district court is 

affirmed in part and reversed in part. The case is remanded to the district court for further 

proceedings consistent with this opinion.

HENRY W. GREEN JR., J., assigned.1

STEVE LEBEN, J., assigned.2

* * *

ROSEN, J., dissenting: I respectfully dissent. I would reverse the Court of Appeals 

and affirm the district court's grant of summary judgment. I would find summary 

judgment is appropriate here because the plaintiffs have failed to establish a prima facie 

case that Kansas Highway Patrol Trooper Patrick Saleh breached his duty of care under 

K.S.A. 8-1506 and that this alleged breach caused the plaintiffs' injuries. 

Breach

Under K.S.A. 8-1506, law enforcement officers in pursuit have a duty to drive 

with "due regard for the safety of all persons." Mere negligence will not suffice to 

establish a breach of this duty. Instead, the evidence must show reckless disregard on the 

 

1 REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed 

to hear case No. 117,518 under the authority vested in the Supreme Court by K.S.A. 2019 

Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. 

Johnson.

2 REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed 

to hear case No. 117,518 under the authority vested in the Supreme Court by K.S.A. 2019 

Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice 

Lawton R. Nuss.
23

part of the driver—that is, that the driver was not only aware of imminent danger to 

another person or the property of another but also exhibited a conscious and unjustifiable 

disregard for that danger. "Recklessness . . . requires running a risk substantially greater 

than the risk which makes the conduct merely negligent or careless." Robbins v. City of 

Wichita, 285 Kan. 455, 470, 172 P.3d 1187 (2007). 

The plaintiffs do not contend Trooper Saleh recklessly initiated the pursuit, nor 

does the evidence suggest he did so. At the time Saleh sought to pull over the Toyota, he 

was aware the car had an improper license plate, which suggested the car may have been 

stolen. And while the plaintiffs seek to minimize this fact, Kansas Highway Patrol 

Sergeant Tim Tillman had observed a passenger in the car wielding a knife. Although this 

observation later proved likely to be in error, Saleh had reason to believe a violent crime 

might be taking place. When the Toyota fled, the suspicion of a dangerous situation 

would have been reinforced. As a result, Saleh had reason to believe the driver of the 

Toyota and/or its occupant were at risk independent of any traffic infraction or improper 

license tag.

The issue here, then, is whether Saleh acted recklessly in continuing the pursuit. 

Dr. Geoffrey Alpert stated in his affidavit that the pursuit became dangerous when 

Horton accelerated on 20th Street. He also concluded Trooper Saleh should have ended 

the pursuit no later than 21st Street, which would have been about 40 seconds before the

accident. But Dr. Alpert did not opine that Saleh acted with a conscious and unjustifiable 

disregard of the danger to the public in those remaining seconds prior to ending his 

pursuit. 

The circumstances around the pursuit do not suggest Saleh acted with reckless 

disregard, either. The pursuit started around 9:30 p.m. and lasted about a minute and a 

half. It took place mainly on a dry, artificially lit four-lane road with light traffic. During 

the pursuit, Saleh activated his emergency equipment. Saleh followed Robert Horton 
24

through a stop sign at 20th Street while turning south on to Kansas Avenue. As the two

cars were preparing to enter the intersection on 21st Street, Horton ran through a red light 

at a high rate of speed while Saleh slowed down as he passed through the intersection. 

The pursuit also passed several other cars waiting to cross or turn onto Kansas Avenue. 

Horton also crossed the yellow lane line and weaved around a car as he approached 29th 

Street.

Looking at this evidence, Saleh did not exhibit a conscious and unjustifiable 

disregard for imminent danger. While the pursuit posed some danger to the public, 

Saleh's conduct was not egregious, particularly given how light traffic was on Kansas 

Avenue at that time. While Saleh acknowledged that the pursuit was unlikely to be 

successful after Horton ran the red light at 21st Street, his failure to immediately 

terminate the pursuit at that particular juncture could hardly be characterized as a 

"consequential, material, and wanton act[]." Robbins, 285 Kan. at 467. This is 

particularly so because Saleh did not appear to have an alternative method of

apprehending Horton or determining if Horton or his passenger were at risk. At that time, 

Horton's identity was unknown. Additionally, the Toyota had an improper license plate, 

so the vehicle registration likely could not be used to identify the driver. 

In Robbins, we held summary judgment was appropriate because the plaintiffs had 

failed to present a prima facie case that law enforcement had breached the duty imposed 

by K.S.A. 8-1506:

"In this case, there is not sufficient evidence to support a prima facie finding that the 

officers had a conscious and unjustifiable disregard of the danger the pursuit caused for 

other motorists. Here, the officers were confronted with a drunken, violent, ax-wielding, 

fleeing offender whose very presence put whomever he encountered at serious risk of 

bodily injury. Clearly, the pursuit of Drechsler was justified and the officers' were 

operating their vehicles in compliance with the safeguards required by K.S.A. 8-1506.

To find otherwise would be implementing the use of judicial hindsight to the many split-
25

second decisions that are made by law enforcement officers under the stress of protecting 

the lives and safety of the public and themselves. The facts failed to establish under a 

reckless disregard standard that the officers in this instance breached any duty owed to 

the plaintiffs. Accordingly, the district court properly granted summary judgment on 

behalf of the defendants." 285 Kan. at 470-71.

While the circumstances facing Saleh were not as extreme as those facing the 

officers in Robbins, this does not mean Saleh's pursuit was not justified. Based on the 

information available at the time, Saleh had reason to believe Horton posed a danger to 

the public. As in Robbins, Saleh was faced with split-second decisions, particularly given 

the relative brevity of the pursuit, and I am reluctant to second-guess those decisions 

based on this record.

 Put another way, Saleh was placed in an impossible decision-making situation. If 

he had not pursued a car in which he had reason to believe a violent crime could be 

occurring, he risked being found liable for a "negligent or wrongful . . . omission" under 

the Tort Claims Act. But if he did not stop the pursuit a few seconds earlier, he risked 

being found liable for engaging in "reckless" conduct by exhibiting "a conscious and 

unjustifiable disregard of the danger" under K.S.A. 8-1506. See Robbins, 285 Kan. at 

470. In hindsight and sitting well away from a fleeing suspect, we may contemplate that 

Saleh made an error in judgment. But I simply cannot conclude from the proffered 

evidence that Saleh engaged in reckless behavior by not turning off his siren a few 

seconds earlier. The majority opinion gives no guidance that would be helpful to a police 

officer in deciding what to do because it doesn't set out how Saleh was to know when to 

discontinue the pursuit and how to distinguish between a decision to continue a pursuit 

and a reckless act consciously and unjustifiably presenting danger to the public.

 As the Tenth Circuit explained in Carl v. City of Overland Park, Kan., "[r]eckless 

acts are qualitatively different from negligent or grossly negligent acts (which are merely 
26

an extreme variant of carelessness), because reckless acts require an element of 

deliberateness—'a conscious acceptance of a known, serious risk.'" 65 F.3d 866, 874 

(10th Cir. 1995). Looking at the record, I do not find any evidence that could support a 

finding that Trooper Saleh's acts exhibited an element of deliberateness or the conscious 

acceptance of a known serious risk. At most, the plaintiffs have presented evidence of 

possible negligence, but mere negligence is insufficient to establish a prima facie case of 

a breach of the duty imposed by K.S.A. 8-1506. 

Causation

Not only would I find that the plaintiffs have failed to establish Saleh breached his 

duty of care, I would also find the plaintiffs have failed to establish any alleged breach 

caused the plaintiffs' injuries. Before analyzing this issue, it is important to clarify the 

plaintiffs' precise theory of causation. The plaintiffs do not allege negligence or

misconduct on Saleh's part when he commenced the pursuit. Nor do they contend that 

Saleh should have discontinued the pursuit immediately. Instead, the plaintiffs' case is 

predicated on Saleh not ceasing his pursuit during a narrow window of time—some 30 

seconds, perhaps, after starting the chase and some 40 seconds before the collision. 

Failing to stop the pursuit during that timeframe was, according to the plaintiffs, the 

proximate cause of the collision.

Ordinarily, proximate cause is a question of fact for the jury. Kudlacik v. Johnny's 

Shawnee, Inc., 309 Kan. 788, 793, 440 P.3d 576 (2019); Hale v. Brown, 287 Kan. 320, 

324, 197 P.3d 438 (2008). But to survive summary judgment, the plaintiff must provide 

evidence supporting a reasonable inference that the defendant's conduct more likely than 

not caused the injuries sustained. A plaintiff cannot accomplish this task by relying on 

conjecture, speculation, or surmise. Nor will evidence of the mere possibility of causation 

suffice. Moreover, if "the probabilities are at best evenly balanced," courts must enter 
27

judgment in favor of the defendant. Yount v. Deibert, 282 Kan. 619, 628, 147 P.3d 1065 

(2006).

The narrow issue we are faced with, then, is whether the plaintiffs provided 

sufficient evidence, viewing that evidence in the light most favorable to the plaintiffs, to 

allow a reasonable factfinder to conclude that Saleh's failure to terminate the pursuit at or 

around 21st Street more likely than not caused Horton to collide with the plaintiffs at 

29th Street. Put another way, the issue here is whether Horton behaved as he did during 

the pursuit because of what Saleh did or did not do. The plaintiffs' case ultimately hinges 

on whether they presented evidence not just that Horton may possibly have ceased his 

reckless driving if Saleh had ended the pursuit between 20th and 21st Streets, but that 

Horton more likely than not would have done so and that he more likely than not would 

have done so before reaching 29th Street.

In its ruling, the district court correctly identified the crux of the causation issue, 

focusing on Saleh's decision to continue, not initiate, the pursuit and Horton's resulting 

behavior. After reviewing the evidence, the court concluded the plaintiffs' theory that 

Horton would have stopped driving recklessly before 29th Street if Saleh had terminated 

the pursuit by 21st Street was purely speculative. The court held:

"[W]ithout extrinsic evidence or some evidence emanating from either Mr. Horton or his 

passenger about the extent or likelihood of their attention to the pursuing vehicle of 

Trooper Saleh or of Mr. Horton's state of mind or probable reactions, a conclusion that he 

would have stopped if Trooper Saleh had stopped rests within the realm of speculative 

assumption . . . .

. . . .
28

"Plaintiffs cannot, as a matter of proof—and based on the entirety of the evidence 

advanced—establish that Mr. Horton would see, hear, or be aware of, and if he did, 

would have responded positively, timely, or responsibly to the termination of the pursuit 

even had Trooper Saleh elected to do so at any point where the specter of a finding of 

reckless disregard in the act of continuing to pursue might reasonably arise." 

The first component of the plaintiffs' proffered proof of causation is Dr. Alpert's 

affidavit, in which he stated: 

"When Mr. Horton ran the stop sign on 21st, the pursuit became futile, as it is more likely 

than not that drivers of fleeing vehicles will continue to flee as long as they are being 

chased. . . . Had the police terminated their active attempt to apprehend Mr. Horton, it is 

more likely than not that he would not have crashed into the pick-up driven by Mr. 

Bennett at 29th."

"'An expert must have a factual basis for his or her opinions in order to separate 

them from mere speculation.'" Kuxhausen v. Tillman Partners, L.P., 291 Kan. 314, 318, 

241 P.3d 75 (2010). 

Dr. Alpert lists several facts in his affidavit to support his conclusion that Saleh 

should have ended the pursuit between 20th and 21st Streets and no later than 21st Street. 

For example, he notes the pursuit had become dangerous and the most serious offense 

known to the officers was an improper license plate. From here, though, he leaps to the 

conclusion that if Saleh had terminated the pursuit, the collision at 29th Street more likely 

than not would have been avoided. Dr. Alpert does not explain how he reached this 

conclusion, nor does he provide any facts to support it. 

The plaintiffs contend Dr. Alpert's opinion that a fleeing suspect will continue to 

flee as long as he or she is being pursued supports his ultimate conclusion. But even 

assuming this is true, this does not necessarily mean the inverse is true—that fleeing 
29

suspects will stop fleeing once the police stop the pursuit. It is certainly conceivable that 

the suspect will stop fleeing. But, it is also likely the suspect may want to get as far away 

as possible from law enforcement and thus continue driving at a high rate of speed and 

ignoring traffic signals. Nothing in Dr. Alpert's affidavit, or elsewhere in the record, 

suggests either one of these possibilities is more likely than the other. And when the 

possibilities are equally likely, courts should enter judgment in favor of the defendant.

Even if Dr. Alpert's opinion on fleeing suspects could support an inference that 

fleeing suspects more likely than not will slow down once the pursuit has ended, nothing 

suggests the timeframe in which this would happen. Based on the plaintiffs' theory of 

causation, they needed to prove not just that Horton would have slowed down, but that he 

would have done so within about 40 seconds from when they allege Saleh should have 

ended the pursuit. Nothing in the affidavit would support this conclusion.

For these reasons, I agree with the district court and Judge Gardner that Dr. 

Alpert's opinion on causation does not rise above mere speculation. As Judge Gardner 

explained in her dissent:

"Dr. Alpert's report lacks the type of factual basis normally found in expert reports. It 

does not, for example, state why, or in what time frame, or in what distance, or under 

what circumstances fleeing criminals generally slow down after they realize a police 

pursuit has ended. Nothing in Dr. Alpert's report shows why he thinks Horton would 

likely have slowed down by 29th Street if he had somehow known that the trooper 

discontinued his pursuit at 21st Street. Nor does Dr. Alpert attempt to apply his theory to 

the facts of this case—he fails to explain why a reasonable person in Horton's position, 

having a suspended license, driving a car with a tag not assigned to it, fleeing from a law 

enforcement officer, and whose passenger was a runaway minor, would likely have 

slowed down at any point after the pursuit began. In such cases, causation is merely 

speculative, as the district court found. See Drouhard-Nordhus, 301 Kan. at 624-25, 345 

P.3d 281 (finding generalized references to be speculative and inadequate to meet 
30

plaintiff's causation burden)." Montgomery v. Saleh, 55 Kan. App. 2d 429, 460, 419 P.3d 

8 (2018). 

Saleh's dashboard video camera recording of the pursuit provides no better support 

for the plaintiffs' theory of causation. Nothing in this recording suggests Horton was 

prepared to slow down within seconds of losing sight and sound of the police pursuit. In 

fact, in the latter half of the pursuit, Horton had already far outdistanced Saleh and at 

some points he was out of Saleh's sight. Saleh was too far behind Horton to witness the 

collision. Furthermore, Saleh was reducing his speed of travel, realizing that he could not 

safely keep pace with Horton, but Horton did not slowdown in response.

The plaintiffs also point to Kansas Highway Patrol Lieutenant Scott Martin's 

deposition. There, Lt. Martin was asked if "one of the reasons for terminating a pursuit is 

the hope that the vehicle being pursued will then slow down and not create a hazard to 

vehicular and pedestrian traffic?" to which Martin responded, "Right." But the "hope" 

that a pursued vehicle will slow down and drive more carefully does not rise to the level 

of evidence that fleeing suspects in general, and Horton in particular, will change their 

driving behavior within seconds of a pursuing officer turning off their emergency 

equipment. 

If the plaintiffs were trying to prove that Saleh caused Horton to drive off at a high 

rate of speed by initiating the pursuit, the evidence here might allow a jury to find 

causation. Horton had been sitting at a traffic light, apparently conforming with traffic 

laws, until Saleh signaled to him to pull over. But based on the current record, it requires 

a significant amount of speculation to find that Horton would have stopped his reckless, 

high-speed driving purely because he would have become aware that Trooper Saleh had 

turned off his lights and siren after about a minute or so of pursuit and just seconds before 

Horton drove into an intersection against a red light.
31

A case from our sister state Missouri supports the conclusion that the plaintiffs 

have failed to make a prima facie case on proximate cause. In Stanley v. City of 

Independence, 995 S.W.2d 485 (Mo. 1999), a police officer attempted to stop a van used 

in an armed robbery. The van fled, leading to a 45-second pursuit reaching 70 miles per 

hour. During the pursuit, the fleeing van moved into the oncoming lane of traffic and 

collided with another car, killing the occupants. 

In a wrongful death suit brought on behalf of the decedents, the district court 

entered summary judgment in favor of the City. On appeal, the Missouri Supreme Court 

affirmed. Applying the same standard for proximate cause as Kansas, the court found the 

officer's conduct was not the proximate cause of the collision, explaining:

"The suspects in the van made the initial decision to flee, sped through red lights and in 

the wrong lane of traffic, and collided with the decedents. Any negligence by [the officer]

is connected to the plaintiffs' injury solely through the conduct of the fleeing van. Thus, 

the only conceivable causal link between the officer's alleged negligence and the collision 

is the conjectural effect of his pursuit on the pursued vehicle. Shortly after initiating the 

pursuit, the officer observed, 'this guy is going nuts on us.' There is nothing other than 

speculation to reach a conclusion that the officer's conduct was a 'cause' of the collision. 

Put another way, there is no way to tell whether the collision would have been avoided if 

the officer had abandoned the pursuit after initiating it. Thus, there is no factual basis to 

support a finding of proximate cause." (Emphasis added.) 995 S.W.2d at 488. 

Here, the plaintiffs proffered evidence of what Trooper Saleh did, and they 

presented evidence of what Trooper Saleh perhaps should have done. But what they also 

needed was evidence of how Horton's behavior was affected by Trooper Saleh's failure to 

do what they argue he should have done. While it is certainly not unreasonable to assume 

a fleeing suspect may slow down if police end a pursuit, a prima facie case of negligence 

must be built on evidence and reasonable inferences, not assumptions. 
32

Based on this lack of evidence as to causation, as well as the lack of evidence 

establishing a breach of duty, I would reverse the Court of Appeals and affirm the district 

court's grant of summary judgment to the defendants.

STEGALL, J., and GREEN, J., join in the foregoing dissent.