1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 124,254

J ASON U NRUH , Appell ant ,

v

.
C ITY OF W ICHITA , ET AL

. , Appell ee s

.

SYLLABUS BY THE COURT

1. Civil battery and negligence are discrete concepts in tort with different elements of proof

.

2. Civil battery is the unprivileged touching or striking of one person by another,
done with the intent of bringing about either a contact or an apprehension of contact that
is harmful or offensive. Intent to inflict such contact or apprehension of such contact is a necessary element for the intentional tort of battery.

3.
A negligence claim requires a plaintiff to prove: ( a ) the defendant owed plaintiff a legally reco gnized duty; ( b ) the defendant breached that duty; ( c ) the defendant's breach
caused plaintiff's injuries; and ( d ) plaintiff suffered damages. None of these concerns the
defendant's mental state.2

4. Substance prevails over form when determining the applicable statute of
limitations

. A party's labeling of a claim in a civil petition as an action in negligence does not alter the character of that claim when deciding the applicable limitations period. A court must look to the particular facts and circumstances to properly characterize the
cause of action

.

5. A negligence claim alleging excessive use of force by a police officer requires the plaintiff to show the officer owed that plaintiff a legally recognized duty of care that

arose independent of the force the plaintiff alleges to be excessive

. A court must be able to analyze the distinct elements of negligence separately from the distinct elements of battery and its associated defense of privilege.

6.
L anguage in Dauffenbach v. City of Wichita , 233 Kan. 1028, 1033, 667 P.2d 380 (1983) , suggesting a police officer owes a special duty anytime "there is an affirmative

act by the officer causing injury" is disapproved.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 1, 2022

. Appeal from Sedgwick District C ourt; S TEPHEN J. T ERNES , judge. Oral argument held March 28 , 2023. Opinion filed January 5, 2024

. Jud gment of the Court of Appeals affirming the district court is affirmed on the issue subject to review

. Judgment of the d istrict c ourt is affirmed on the issue subject to review

.

Michael T. Jilka , of Graves & Jilka, P.C. , of Lawrence , argued the cause and was on the briefs for appellant.

David R. Cooper
, of Fisher, Patterson, Sayler & Smith , LLP , of Topeka
, argued the cause
, and
Sharon L. Dickgrafe , chief deputy city attorney, and Jennifer L . Magana , city attorney
, were with him on the briefs for appellee.3

The opinion of the court was delivered by

B ILES , J.: Wichita police forcefully apprehended J as on Unruh after he led them on

a nighttime car chase down city streets in a pouring rain . The pursuit ended when his
vehicle spun out of control, hopped a curb
, and came to rest over a sidewalk

. H e pulled
himself out through the driver ' s side window holding a bag of methamphetamine and tumbled to the ground . H e ignored commands to stop
, and officer s subdued him as he

scoop ed up drugs that spilled onto the wet pavement

. About 23 months later
, Unruh sue d for personal injuries , claiming officers negligently used excessive force to arrest him

. The
issue is whether his claim is for common

- law civil battery, rather than common

- law negligence as he alleges

.

Unruh contends the officers misperceived the threat he presented at the scene b ut
agrees the y intentionally used force while making a lawful felony arrest

. T he district

court granted defendants summary judgment after constru ing t his claim as an alle gation
of civil battery . This mean s the one

- year statute of limitations for battery bar s Unruh's
lawsuit

. See K.S.A. 60

- 514(b). He appealed th at ruling, but a Court of Appeals panel agreed with the district court

. Unruh v. City of Wichita , No. 124,254, 2022 WL 2392657 , at * 8 (Kan. App. 2022) (unpublished opinion)

. On review, w e affirm

.

Civil battery and negligence are discrete concepts with different elements of proof

. The law defines c ivil battery a s the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of
contact that is harmful or offensive. McElhaney v. Thomas , 307 Kan. 45, 53, 405 P.3d 1214 (2017)

. In contrast, n egligence requires proof that : (1) the defendant owed plaintiff

a legally recognized duty; (2) the defendant breached that duty; (3) the de fendant's breach4

of duty caused plaintiff's injuries; and (4) plaintiff suffered damages

. Reardon v. King
, 310 Kan. 897, 903, 452 P.3d 849 (2019)

. Intent is not an element when deciding whether a breach of a legal duty occurred. Labeling a claim in a pleading as an action in negligence does not alter its character when deciding the applicable limitations period.

Here, Unru h assert s the officers misunderstood how dangerous he may have been
, which in turn
, allegedly caused them to use more force than necessary to make his arrest

. But he fails to come forward with evidence establish ing the officer s owed him a legally recognized duty of care that arose independent of the force he alleges to be excessive.
Unruh state s only a civil battery claim.

Granted, a discrete negligent act might arise during an incident involving
excessive police force
, when the elements of the negligence claim can be separate ly and
distinct ly analyzed apart from the elements of common

- law batter y

. See Unruh
, 2022 WL
2392657 , at * 8 ("[W]e do not discern any negligent act which was separate from and preceding the application of force
, and Unruh does not assert that the officers breached a standard of care beyond that of not using excessive force.")

. But w ithout something more, Unruh's dispute over the degree of nonlethal force applied when officers ma de a felony arrest simply invokes civil battery's privilege element , which is tied to a statute in this
instance

. K.S.A. 2022 Supp. 21

- 5227 (a) declar es a police officer is justified in using any
force
, short of deadly force, the officer reasonably believes necessary to effect an arrest or defend one self or another officer from bodily harm while making an arrest

.

T he arresting officer s may have committed civil battery if they used more force
than is statutorily privileged to make a lawful arrest . B ut to pursue that question
, Unruh
should have filed s uit within 12 months of the contested application of force

. See K.S.A.5

60

- 514(b). Substance prevails over form when a court decid es a limitations period . T he
district court and panel properly concluded Unruh's cause of action was for battery

.

F ACTUAL AND P ROCEDURAL B ACKGROUND

Wichita police attempted a traffic stop as Unruh drove down city streets in a
rainstorm . H e did not stop when police activated their overhead lights . He ran a red light
and tried to elude police. Multiple police cars gave chase. Dispatch advised the pursuing
officers that Unruh was known to be a drug dealer and at times armed

. His car r an through other red lights and on occas ion crossed the center line . H e lost control of his
vehicle twice. The first time
, the car spun out on the wet pavement and struck a tree
broadside smashing the driver's side door

. Unruh ignored officers' commands to "show your hands " and "put your hands up" and drove away

. Resuming the chase, o fficers saw Unruh throwing handfuls of what appeared to be methamphetamine out the driver's side
window

.

Several minutes later, U nruh's car spun out again. This time, h e drove over a nother
curb and came to a stop straddling a public sidewalk edged by commercial landscaping

. H e climbed out the driver's side window holding a bag of methamphetamine and fell to the ground

— again ignoring officers' command s to stop and put up his hands

. Officer
Daniel Weidner testified when he approached, he noticed Unruh on the ground, holding something as he reach ed under the car . This caused Weidner to fear Unruh might have a
gun

. Unruh now says he was only trying to gather up the drugs that spilled on to the wet
sidewalk

.

Weidner 's police dog attack ed Unruh as the officers arrived , although it is unclear whether Weidner directed the dog to do so. At any rate, Weidner commanded the canine6

to stop and took control of his collar before Unruh could be handcuffed

. Unruh claims
Weid n er kicked him in the shoulder and in the head as other officers tried to subdue him

. Unruh also alleges Officer Brett Pearce punched him i n the face and struck him in the
back as officers rolled him face down to be handcuffed. Th e entire incident took about 30
seconds from when Unruh's car finally stop ped until he was handcuffed

.

A search of Unruh's vehicle found drugs, a digital scale
, and $19,178 cash. Unruh was charged in federal court with possession with intent to distribute methamphetamine. He pled guilty to that charge.

Unruh later sued Weidner, Pearce, Wichita Police Chief Gordon Ramsay, and the City of Wichita for personal injuries

. Among his claims
, Unruh alleged Weidner and Pearce negligently used excessive force w ithout a reasonable objective basis to believe he posed a threat of serious physical injury or death to the m or others . He also claimed the
officers violated the department 's use

- of

- force policies and procedures. The defendants
moved to dismiss, arguing the one

- year statute of limitations for civil battery barred his
claims because he waited to file his lawsuit until nearly 23 months after the incident

. The
district court denied the motion, stating "at this stage in the proceedings" the petition
asserted valid claims for relief

. The court noted Unruh alleged the officers violated

" specific WPD regulations and norms
, " adding
, "this is a bit of a gray area of the law in
Kansas

. "

The statute of limitations issue returned when the defendants moved for summary judgment

. T his time the district court concluded Unruh's lawsuit sounded in common

- law
civil battery and was time barred

. T he court relied on Estate of Randolph v. City of
Wichita , 57 Kan. App. 2d 686, 459 P.3d 802 (2020)
, to conclude the officers' intentional
use of force could not be framed as negligence. It acknowledged the Randolph decision7

said a person injured by police officers' use of force might claim negligence in some

cases, but concluded Unruh's allegations did not present those circumstances . It dismissed the remaining defendants, holding the same one

- year limitations period barred his derivative claims against the police c hief and the c ity.

Unruh appealed to the Court of Appeals , but t he panel rejected his challenge

. Unruh , 2022 WL 2392657, at *2

- 11. I n doing so, the panel remarked
, "Kansas courts should not recognize a tort of negligent use of excessive force." 2022 WL 2392657 , at *8.
Unruh then asked this court for review
, stating his only issue as , "Does Kansas law recognize a claim of negligent use of force by a police officer?" The problem with t his
less

- than

- precise issue framing , of course, is that facts and their context typically alter the legal question s that need answering , so it is not as simple as Unruh portrays it

.

We also note Unruh fails in his appellate briefing to identify specific Wichita police department policies he claims created a duty owed to him that the arresting officers
violated

. This shortcoming create s problems because i t is not for us to connect those dots.
See In re Adoption of T.M.M.H. , 307 Kan. 902, 912, 416 P.3d 999 (2018) ("Where the appellant fails to brief an issue, that issue is waived or abandoned."). Similarly
, Unruh gives us no explanation about contradictory references in his briefing on whether officers deployed the canine, or it engaged without prompt. Again, this is not for us to figure out
, so we are left with his assertion that a police officer owes a legally recognized duty that is actionable in negligence anytime there is an " affirmative act " by the officer causing injury

.

Our j urisdiction is proper. See K.S.A. 20

- 3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60

- 2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).8 A NALYSIS

Unruh must distinguish his cause of action from battery to avoid its shorter statute
of limitations , a nd he is not the first to face that predicament. See , e.g., Murray v. Modoc
State Bank , 181 Kan. 642, 64 7

- 49 , 313 P.2d 304 (1957) (liberally construing petition as an action against employer for negligent hiring and retention of employee with propensities towards violence who struck plaintiff and threw him to the ground); Hershey
v. Peake , 115 Kan. 562, 565

- 67 , 223 P. 1113 (1924) ( construing claim that dentist pulled a healthy tooth as malpractice rather than assault and battery ). But Unruh's problem is that the officers' decision to use force was "part and parcel of [ their ] intent to inflict harmful or offensive contact," which standing alone does not create an applicable duty.
See Ryan v. Napier , 245 Ariz. 54, 61, 425 P.3d 230 (2 018). As the court in District of
Columbia v. Chinn , 839 A.2d 701, 707 (2003) , explained:

" What is required to justify [a negligence] instruction is at least one distinct element, involving an independent breach of a standard of care beyond that of not using excessive force in making an arrest , which may properly be analyzed and considered by the jury on its own terms apart from the intentional tort of battery and the defense of privilege. " (Emphasis added.)

Unruh focus es on what he claims is the officers' flawed evaluation regarding the appropriate degree of nonlethal force needed to subdue him because he says he did not

pose a threat to anyone

. Acknowledging the officers acted intentionally, h e characterizes
the ir decision to use force as negligent. His "use of force" expert testified the officers
should not have considered Unruh hostile while he was on the ground outside the car
, explaining: " It was very evident that [Unruh] was scooping up the methamphetamine and
it was so illuminated by the h eadlights that there was obviously no sign of any type of9

firearm or weapon or anything of that nature. It's very evident through the video that Mr. Unruh was more concerned about collecting the narcotics than he is anything else. "

For their part, the officers emphasize the y applied force purposefully and intentionally to make a lawful felony arrest . In his affidavit, Weidner testified he knew during the chase Unruh was a member of "a violent group that moved large amounts of
meth and was often armed

. " He said that when " [he] saw Unruh climbing out of his car through the driver's window
, " " Unruh had something in his hands

. " He " feared Unruh may have dropped a weapon and, because he was not trying to run away and was not immediately su rrendering, [he] was afraid Unruh could be trying to arm himself and could then present a risk of harm [to] himself or other officers

. " Weidner said he intentionally sent his canine to apprehend Unruh when he saw that "Unruh continued to reach to the underside of the car, causing [him] to fear Unruh was armed or trying to reach for a weapon

. " Weidner conceded his physical contact with Unruh was " intentional, intended to gain compliance." Likewise, Pearce explained his "physical contact with Jason Unruh was intentional, intended to gain compliance, effect an arrest, and to protect [himself] and other officers."

Unruh describes his claim for "negligent use of force" by the officers as a tort centered at all times on the reasonableness of their determination to use force, applicable anytime "there is an affirmative act by the officer causing injury." And he insists the lower courts' rulings categorically abolish any "negligent use of force" claim against police officers. But we do not read the ir decisions the same way. In fact, b oth courts agreed " in some circumstances " one might be able to bring a negligence claim for injuries
when a law enforcement officer makes intentional physical contact. See Unruh
, 2022 WL
2392657 , at *8

. The difference, they explain, is that Unruh's claims rest entirely within
the elements of common

- law battery and do not articulate a legally recognized duty10

separate from the officers' application of force with the admitted intent to cause harmful
or offensive contact

.

T he analytical path presented here is not new , although it is confused by judicial
dictum from Dauffenbach v. City of Wichita , 233 Kan. 1028 , 1033, 667 P.2d 380 (1983)
, suggesting a special duty arises anytime "there is an affirmative act by the officer causing injury

. " But a s we explain below, t his phrasing over simplifi es how a law enforcement
officer might be subject to a special duty of care with a n individual member of the public

.

Standard of review

Th e district court decided this case on summary judgment, so the legal standard for our review is no surprise:

"' 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 mu st 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. ' " Schreiner v. Hodge , 315 Kan. 25, 30, 504 P.3d 410 (2022)

.
Appellate courts apply the same rules. And i f the reviewing court determines reasonable minds could differ as to the conclusions to be drawn from the evidence, it must deny summary judgment. Schreiner , 315 Kan. at 30. Here, the essential facts are
uncontroverted on the issue subject to our review

.11

Discussion

Some of our earliest caselaw considered the line between civil battery and negligence, although t he language used to explain the ruling was fairly terse in reach ing a result . For example, in Laurent v. Bernier , 1 Kan. 428 , 431

- 32 , 1863 WL 306 (1863) , the
court decided a claim for accidental discharge of a gun was barred by the one

- year statute of limitations for civil battery. Citing old English caselaw, the Laurent court simply held the injury alleged "may properly be described as a battery." 1 Kan. at 432.

Forty years later, the court similarly held a damages action for an officer's careless shooting of the plaintiff was for battery. Byrum v. Edwards , 66 Kan. 96, Syl., 71 P. 250 (1903) (" An action to recover damages for carelessly or negligently shooting another is an action for a battery and is barred in one year. ")

. In Byrum , both the plaintiff and an
undersheriff search ed for a robbery suspect. When the two crossed paths
, they mistakenly thought the other was the robber and opened fire . The undersheriff hit the plaintiff, who
sued alleging a negligent shooting because the undersheriff incorrectly thought he was
the robber

. T he Byrum court , citing Laurent as its analog, held the one

- year limitations period for battery barred the action. 66 Kan. at 97

. Three decades after that
, the court described Byrum as articulating that one factor differentiating battery from negligence is
the defendant's intent to cause a harm ful contact

. Hackenberger v. Travelers Mut ual Cas

. Co. , 144 Kan. 607, 609, 62 P.2d 545 (1936) (" It is well to note the shooting in the Byrum Case was in fact intentional. The undersheriff intended to shoot and he did shoot. True, the injured party was not the robber as the undersheriff thought, but the act of shooting

was nevertheless intentional. ").

Th ese cases returned to the court's attention in Baska v. Scherzer , 283 Kan. 750,
756

- 57, 156 P.3d 617 (2007) , in which the plaintiff sued for negligence for injuries12

suffered when she tried to stop a fight between the two defendants , who mistakenly hit
her while scuffling with each other

. She sued more than a year later , which presented a
statute of limitations concern

. The Baska court observed that simply labeling the claim as

an action for negligence could n ot alter its underlying nature

. 283 Kan. at 76 4

- 6 6

.

The Baska court held the plaintiff's lawsuit fell outside the applicable one

- year statute of limitations because the claim 's substance could only be for intentional acts to cause harm

. It reasoned the evidence showed both defendants intended to hit one another
, but missed, so the tort claim was for assault and battery under the transferred

- intent
doctrine
, even though any harm to her was unintentional

. It summarized its holding as:

" The defendants ' acts of throwing punches in this case were intentional actions.
Each defendant intended to strike at the other in order to cause harm. The defendants intended to punch, and they did punch. The fact that the punches in question hit the plaintiff rather tha n the defendants is immaterial to the analysis. Because the defendants ' actions were intentional, the ' substance ' of Baska ' s action is one for assault and battery. Failure to initiate her action within 1 year of the fight bars her action by reason of the 1

- year statute of limitations in K.S.A. 60

- 514(b). " 283 Kan. at 764.

The Unruh panel relied on this line of cases, from Laurent through Baska
, to construe the cause of action here as common

- law civil battery . See Unruh
, 2022 WL
2392657 , at *3

- 4 ( citing Baska to characterize Unruh's claim). But t hese earlier cases, as exemplified by Baska 's reasoning
, seem to oversimplif y the distin ction between common

law battery and common

- law negligence by viewing it from a rudimentary intentional vs. unintentional perspective

. Baska
, 283 Kan. at 756 (describing negligence as an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred ) ; see also 283 Kan. at 764 (describing13

the lower court's ruling in Baska as " contrary to the law of Kansas expressed in Laurent , Byrum , and Hackenberger ")

. There is more to it than that.

To explain, consider Hershey in which a dentist mistakenly extracted t he wrong
tooth. 115 Kan. at 563

- 67. The Hershey court recognized a valid negligence claim, despite the dentist's intentional act of pulling the tooth , because the dentist failed to
exercise the ordinary care and skill owed to a patient when deciding which tooth to pull

. 115 Kan. at 565. T he Hershey court's differentiation between civil battery and negligence

more precisely recognizes the two torts as distinct legal constructs with different
elements. Compare McElhaney , 307 Kan. 45 , Syl. ¶ 1 (defining civil battery as "the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact . . . that is harmful or offensive")
, with Reardon , 310 Kan. at 903 (defining the elements of negligence as: " [ 1 ] defendant owed a duty to the plaintiff; [ 2 ] defendant breached that duty; [ 3 ] plaintiff's injuries were caused by the defendant's breach; and [ 4 ] plaintiff suffered damages").

As Dobbs' Law of Torts instructs:

"Intent and negligence are entirely different concepts. Negligence entails unreasonably risky conduct; the emphasis is on risk as it would be perceived by a reasonable person, not on the defendant's purpose or on the certainty required to show intent.

. . . Indeed, negligence does not require a state of mind at all but focuses instead on outward conduct. Even if the defendant recognizes the risk and deliberately decides to chance it without having purpose or certainty required for intent, he is not liable f or an intentional tort, only for negligence. " Dobbs, The Law of Torts § 31 ( 2d ed.)

.

The difference then is not whether the act itself was intentional or accidental ; rather, it is whether a claim meets the separate elements of the different causes of action.14

Battery asks whether the actor intentionally caused contact with the intent to injure

. See McElhaney , 307 Kan. at 53 ( noting the "intent to injure" element of civil battery can be satisfied in alternative ways

— either by an intent to cause a harmful bodily contact or by

an intent to cause an offensive bodily contact). In contrast, n egligence asks whether the

actor 's action, regardless of mental state
, e.g., innocent
, intentional, or accidental
, breache d an applicable duty of care that cause d harm. These dist inctions cannot be accurately captured in shorthand phrasing like intentional vs. unintentional

— t he two torts

are discrete causes of action

.

Unruh argues his claim meets the required elements for negligence , such that it establishes both duty and breach

— specifically, he argues the officers owed him a duty to
not use excessive force when arresting him and breached that duty by negligently misperceiv ing the degree of physical force necessary under the circumstances

. But that conflates the analytical process. O ur first step in a ny negligence analysis is identifying
the duty owed by the defendant to the pla intiff because only then can one examine sequentially the remaining three elements

— i.e., breach, causation, and damages.

Broadly speaking , police officers have a general duty to prevent crime and enforce
laws. Hopkins v. State
, 237 Kan. 601, 611, 702 P.2d 311 (1985) ("[ T]he duty of a law enforcement officer to preserve the peace is a duty owed to the public at large. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages ."); Dauffenbach
, 233 Kan. at 1033 ; Montgomery v. Saleh , 311 Kan. 649, 653, 466 P.3d 902 (2020)

. And w hen acting within the scope of their general duty, officers have immunity. K.S.A. 75

- 6104 ( c ). This includes the privileged use of force to make a lawful arrest. K.S.A. 2022 Supp. 21

- 5227 (a)

. But , despite this, l iability in negligence may arise whe n an officer breaches a specific or special duty owed to an15

individual. The challenge is determining w hen an officer's general duty to the public

narrows to a special duty to the individual

.

In Kansas , Dauffenbach shortcuts the first step ( identify ing the applicable duty ) in the negligence analysis

. Its questionable passage states :

" Police officers have immunity from liability on claims arising from performance or nonperformance of an officer's general duties to prevent crime and enforce the laws. Liability arises only where an officer breaches a specific or special duty owed an
individual. Such a special duty arises in two circumstances: (1) where there is an affirmative act by the officer causing injury ; and (2) when a specific promise or representation by the officer is made under circumstances creating justifiable reliance. McGeorg e v. City of Phoenix , 117 Ariz. 272, 572 P.2d 100 (1977); Doe v. Hendricks , 92 N.M. 499, 590 P.2d 647 (1979). Examples of situations within the first category are placing an individual under arrest or committing an assault. A line of Kansas cases which recognize that an officer is liable for false arrest or the unnecessary use of force lends support to the existence of a special duty arising from such affirmative acts

. Bradford v.
Mahan , 219 Kan. 450, 548 P.2d 1223 (1976); Gardner v. McDowell , 202 Kan. 705, 451 P.2d 501 (1969); Bukaty v. Berglund , 179 Kan. 259, 294 P.2d 228 (1956). " (Emphasis added.) Dauffenbach , 233 Kan. at 1033

.

S ome courts have referenced the italicized language to justify imposing a special duty on law enforcement , looking no further than simply deciding whether the officer

act ed affirmatively

. See , e.g., McHenry v. City of Ottawa , No. 16

- 2736

- DDC

- JPO, 2017 WL 4269903, at *14 (D. Kan. 2017) (unpublished opinion) (characterizing officers' shooting of plaintiff as a potential affirmative act); Richards v. City of Wichita , No. 15

- 1279

- EFM

- KGG, 2016 WL 5341756, at *8 (D. Kan. 2016) (unpublished opinion) (describing officer's entry into plaintiff's home as an affirmative act); and Price v. City of
Wichita
, No. 12

- 1432

- CM, 2013 WL 6081103, at * 4 (D. Kan. 20 13 ) (unpublished16

opinion) ( stating officer affirmatively acted by stomping on plaintiff's leg )

. The problem
with this from a tort law perspective
, of course, is that almost all acts can be characterized
as affirmative ones. See Black's Law Dictionary 73 (11th ed. 2019) (defining

" affirmative " as meaning " [ i ] nvolving or requiring effort" )

.

I t seems obvious more is needed when imposing a special duty on law
enforcement than just deciding if an officer's affirmative act caus e d an injury

. After all, most anything requires exertion, and the separate tort of common

- law battery would be
swallowed whole by a negligence framing such as this

. Dauffenbach cannot be reduced to
such simplistic shorthand
, and t he caselaw cited by the Dauffenbach court in support of
this dubious passage shows something else is required

.

Look first at McGeorge , an Arizona Court of Appeals decision h o ld ing a police officer did not owe a special duty for failing to prevent an irate person from shooting the
deceased based solely on the officer's encounter with the killer just 15 minutes earlier

. McGeorge , 117 Ariz. a t 274

- 75, 277

. It reasoned, " [W]e do not think that any duty [the officer] owed to the public generally had narrowed so as to create a duty toward [the deceased]

. " 117 Ariz. at 277. I n citing ex amples of what would constitute an affirmative

act creat ing a special duty , the McGeorge court referenced scenarios such as police taking

a n assault victim to identify the attackers
, one of whom got loose and hurt the victim ; a city sewer inspector direct ing someone to climb into an open trench that collapsed and
killed him ; and a fire department order ing a company to use carbon dioxide on a damaged ship as a preventative that caused an explosion destroy ing the ship. 117 Ariz. at
277

.

Now consider Hendricks
, also cited by the Dauffenbac h court, in which the New Mexico Court of Appeals held no special relationship existed to give rise to a special duty17

between a sexual assault victim and a police chief, who did not immediately respond to a telephoned tip that the victim had been abducted and was being held in a house

. In so holding, it list ed the same three examples as the McGeorge court from Arizona

. Hendricks , 92 N.M. at 503

.

The circumstances listed in McGeorge and Hendricks are decidedly different from those asserted by Unruh because they are independent of an officer's use of force. A s the
Unruh panel observed, n either case " provide [s] that the affirmative act giving rise to the duty can be the same act that breaches the duty." Unruh , 2022 WL 2392657, at * 9.
Unruh's claim does not square with these cases' reasoning, as it starts and stops with the
officers' use of force.

Similarly, the three Kansas cases referenced in Dauffenbach do not fit Unruh's procedural posture or his factual scenario

. Both Bradford and Gardner held the district court erred in granting a motion to dismiss

. In Bradford
, a defamation claim, the allegations were sufficient to entitle the plaintiff to proceed. Bradford , 219 Kan. at 454.
And t he Gardner court reversed a district court's granting a motion to dismiss, stating: "It is alleged they used unlawful and unnecessary force to apprehend the decedent in that they carelessly, negligently, wilfully and wantonly shot the decedent at point blank range of less than five feet"; and "[u]nder the posture of the case as it comes to us we are not at liberty to consider facts alleged by the officers i n the answer ." (Emphasis added.)
Gardner , 202 Kan. at 711.

Obviously, surviving a motion to dismiss requires less than a motion for summary judgment
, a s the plaintiff must come forward with facts to demonstrate the claims made
to avoid summary judgment

. Compare Sperry v. McKune , 305 Kan. 469, 480, 384 P.3d 1003 (2016) (stating " a district court, when considering

. . . a motion [to dismiss for a18

failure to state a claim] , must decide it ' from the well

- pleaded facts of plaintiff's petition '"), with K.S.A. 2022 Supp. 60

- 256 (c)(2) (stating the "judgment sought should be rendered if" evidence shows "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law") ; First Sec urity Bank v. Buehne , 314 Kan. 507, 510, 501 P.3d 362 (2021) (noting when "'opposing a motion for summary judgment, an adverse party must come forward with evidence ' "). And recall in Unruh's

case, the district court initially denied the defendants ' motion to dismiss the petition before discovery , showing the court recognized the procedural posture at that time

. Neither Bradford nor Gardner help Unruh's argument.

I n Bukaty
, the third and final Kansas case cited by Dauffenbach
, a mentally ill man was jailed for his own protection and later died after officers injected sulfur dioxide gas
into his jail cell to subdue him. The district court granted judgment for the defendants at the close of plaintiff's trial evidence. On appeal, t he Bukaty court reversed and held "it is not a question of the officers having a right to subdue [the man.] The question is whether the use of such a deadly gas was reasonably necessary under all the surrounding facts and
circumstances." Bukaty , 179 Kan. at 268. T he Bukaty court then provided this more detailed explanation for its ruling, which underscores the profound differences between
its facts , the legal duties separately imposed on the jailers, and Unruh's circumstances :

" [W] e have a story of a colored man picked up by an officer under circumstances from which an inference might be drawn that he was at least mentally disturbed. He was taken to the jail as seemed was proper under the circumstances; that he created a disturbance in the jail there can be no doubt; the sheriff as keeper of the jail had a duty under all the surrounding facts and circumstances. Just what his duty was we need not answer. Apparently the officers present had in mind causing him to leave the cell blo ck since that is the usual function of tear gas. It temporarily blinds the one against whom it is used so he may be more easily subdued once he is in the open. This did not work on account of the windows Bush broke out, thus enabling him to get some fresh air.19 " Then the deadly sulfur dioxide was used. A reasonable inference is, the purpose of using this gas was to render Bush unconscious, since an officer was detailed to watch him, and come around and tell the officers feeding the gas into the jail when he had

' keeled over. ' The drum in which the gas was contained had the label ' sulfa dioxide ' on it.
There was evidence that one of the defendants called a doctor and asked him about the
use of ' refrigerator gas. ' There was nothing in the record that anything was said about

' sulfa dioxide ' although the drum was so labeled. There is evidence that the man who furnished the gas advised the officers to call a doctor but none was called until Bush was dragged from the jail. There was substantial testimony by a doctor as t o the deadly nature of sulfuric acid, which is formed when sulfur dioxide is exposed to the air and comes in contact with moisture in the lungs.

" The statute makes it the duty of the sheriff to treat all prisoners with humanity. See, G.S.1949, 19

- 1919. It also makes him the keeper of the jail. See, G.S.1949, 19

- 1903 and G.S.1949, 19

- 811. " 179 Kan. at 266

- 67.

The Bukaty wrongful death claim arose from specific statut ory duties, independent
of some generic duty to not us e excessive force, owed to those already in custody
, and constituting a breach , i.e., the gas

. T hose duties and the surrounding circumstance s could be considered by a fact

- finder separately from any claim of intentional civil battery

. But
Unruh's claim cannot , so Bukaty also does not advance Unruh's case

.

The point to all this is simply to explain Dauffenbach should not be literally read

to mean a special duty cognizable in negligence is owed anytime a police officer
affirmative ly act s and causes injury

. T he caselaw the Dauffenbach court cites contextualizes its language to require something more is necessary to constitute an
actionable negligence claim

. Otherwise, a claim for negligent excessive force , without a special duty independent of the force itself
, simply transforms civil battery into negligence
, merging distinct legal concepts into one

.20

Unruh counters that Dauffenbach would have been decided differently if negligence was never allowed in excessive force cases

. But that misses the point. Dauffenbach answered a specific question about the proper burden to overcome a statutory presumption

— not how to categorize the claimed cause of action under the facts presented. Dauffenbach
, 233 Kan. at 1035 ("The key question is whether to continue following the preponderance of evidence standard applied to negligence and tort actions or adopt, as the trial court did, a clear and convincing standard in determining whether the police officer s breached a duty."). It should not be read more broadly than the question presented and the caselaw cited to support what it says

. Any reading of Dauffenbach suggesting a police officer owes a special duty anytime there is an affirmative act by the officer causing injury is disapproved.

Similarly, prior cases c onstruing Dauffenbach 's language that did not grapple with
the caselaw it cites cannot remain on firm ground. See, e.g., Price , 2013 WL 6081103, at

* 2 (permitting plaintiff to proceed with a negligent excessive force claim at the motion to dismiss stage after defendants argued it was a time barred battery claim )

. Price did not
convince the Unruh panel, and it similarly does not convince us.

As the Unruh panel explained
,

" The Price court did not investigate the meaning of the term ' affirmative act ' as used in Dauffenbach . The Dauffenbach court cited two out of state cases

— McGeorge v. City of Phoenix , 117 Ariz. 272, 572 P.2d 100 (1977)
, and Doe v. Hendricks , 92 N.M. 499, 590 P.2d 647 (1979)

— for the proposition that a special duty may arise when there is an affirmative act by the officer causing injury. Neither of these cases provide that the affirmative act giving rise to the duty can be the same act that breache s the duty. " Unruh
, 2022 WL 2392657, at *9.21

Unruh also argues a police officer ' s misperception form s a basis for breach of a special duty in tort , but that rationale exemplifies the problem of using misperception without an accompanying special duty. Generally, one's misperception, misjudgment, or misappraisal alone does not provide grounds for negligence. See Restatement (Second) of Torts § 284 (1965) (stating a negligence claim requires either "an act" or "a failure to do an act"); Ryan , 245 Ariz. a t 61 ("A n actor's internal evaluation about whether to use force and the decision to do so are not 'acts' and therefore cannot, by themselves, constitute negligence."). An actor's judgment about whether to use intentional force should be
considered part of their intent to inflict harmful or offensive contact. See McElhaney , 307 Kan. at 53 (defining battery).

Estate of Randolph v. City of Wichita , 57 Kan. App. 2d 686, 459 P.3d 802 (2020)
, seemingly addresses such a misperception

- as

- breach argument . In that case, an estate sued police officers for "[n]egligent use of force" alleging the officer incorrectly judg ed
the need to deploy a Taser and then a firearm against a mentally ill person approaching
with a knife with a four

- inch blade. 57 Kan. App. 2d at 694. The allegation focused on whether the officer correctly perceived whether the deceased was trying to stab him or was just holding the knife. 57 Kan. App. 2d at 692

- 93. But the Randolph panel held that regardless of the answer to that disagreement, the estate's claim could only be a common

law civil battery without a special duty breached by the intentional act. It explained:

"[The officer]' s use of force, particularly the fatal shooting of Randolph, virtually defines a civil battery if not otherwise privileged. [The officer] deliberately fired four shots at Randolph ' s torso

— an intentional application of deadly force. The shooting was not the product of negligence or carelessness, and [the officer] understood the likely consequence of his conduct was a grave or fatal injury to Randolph. Liability, therefore, turns on [the officer]' s entitlement to a self

- defense privilege. The s hooting was either a privileged use22

of force or it was an actionable battery. The same analysis and result controls [the officer]' s use of the Taser whether the estate treats it as a distinct claim for negligent use of force or as a component of a single claim combined with the shooting. " (Emphasis added.) 57 Kan. App. 2d at 714.

We see no factual distinction between Randolph and Unruh's claim . T he legal inquiry is certainly the same, i.e., whether there was a n independent special duty breached by the officers' intentional acts. The Unruh panel observed:

" While Unruh ' s appellate brief creatively tries to make a distinction and argue that there was a separate negligent act, as we read the facts here it appears to us that in reality the
officers ' decision to continue the encounter in a violent way was merely a decision to use intentional force. Thus, we do not discern any negligent act which was separate from and preceding the application of force, and Unruh does not assert that the officers breac hed a standard of care beyond that of not using excessive force. For these reasons, this case is
like Estate of Ra ndolph , and the district court properly construed Unruh ' s claim as a claim for battery. " Unruh , 2022 WL 2392657, at * 8

.

This is not to say, of course, that in some situations an actor's negligent evaluation cannot serve as the foundation for a negligence claim. See, e.g., Smith v. Welch , 265 Kan. 868, 881, 967 P.2d 727 (1998) (holding a "physician is obligated to his or her pat i ent to use . . . his or her best judgment" in providing patient care). But here, Unruh falls short in demonstrating any separate and discernible duty beyond not committing the tort of battery as a basis for actionable negligence under the circumstance s presented

.

Finally, Unruh cites Beltran

- Serrano v. City of Tacoma , 193 Wash. 2d 537, 442 P.3d 608 (2019) , but he is mistaken in believing it helps support his theory

. In fact,
Beltran

- Serrano exemplifies the rule we have explained that a police officer may create a legally recognized duty during an encounter
, independent of the mere use of force

. There
,23

a mentally ill homeless man sued for negligence after a police officer shot him multiple times. The plaintiff argued the officer "unreasonably failed to follow police practices calculated to avoid the use of deadly force," which included the officer's "failure to respond appropriately to clear signs of menta l illness or impairment, her decision to continue to engage with [him] in English, and her decision to prevent him from walking away." 193 Wash. 2d at 544. In making these arguments, the plaintiff identi fied the potential negligence in the officer's actions occurring before the decision to shoot. On appeal, t he Beltran

- Serrano court held the fact the officer's shooting "may constitute assault and battery does not preclude a negligence claim premised on her alleged failure to use ordinary care to avoid unreasonably escalating the encounter to the use of deadly force ." (Emphasis added.) 193 Wash. 2d at 540. But in so deciding, it explained the negligence claim arose from the officer's interactions with the p laintiff before things deteriorated to the use of deadly force and that those interactions created a "specific tort duty" for the officer to exercise reasonable care. 193 Wash

. 2d at 552.

U nlike th e Beltran

- Serrano plaintiff, Unruh fail s to support his negligence theory separate and apart from the officers' application of force

— something the Unruh panel highlighted

. Unruh , 2022 WL 2392657, at *6. And as the Chinn court emphasized, " one incident may give rise to both negligence and intentional tort claims but . . . plaintiffs must set forth theories meeting the individual requirements of each claim

. " (Emphasis added.) Chinn
, 839 A.2d at 708

.

Ultimately , t he Unruh panel concluded:

" These examples [from McGeorge and Hendricks ] all involve an affirmative act that established a duty independent of the act that harmed the plaintiff. These examples of affirmative acts giving rise to a special duty do not support the argument that an officer ' s intentional injury of a person gives rise to a special duty, actionable in negligence, not to24

use excessive force in intentionally injuring that person.

. . . It is also consistent with the suggestions in Chinn and Ryan that a negligent act must precede the use of force. Chinn
, 839 A.2d at 711; Ryan , 245 Ariz. at 62. For these reasons, we will adhere to the reasoning
in Estate of Randolph rather than the Price court ' s contrary conclusion. " Unruh
, 2022 WL
2392657 , at *10.

We agree and not e t he Ryan court succinctly stated the principle : "Plaintiffs may plead a negligence claim for conduct that is independent of the intentional use of force or plead negligence and battery as alternate theories if the evidence supports each theory," but they " cannot assert a negligence claim based solely on an officer's intentional use of physical force ." (Emphasis added.) Ryan , 245 Ariz. at 57, 62.

C ONCLUSION

While it might be possible in some circumstances to have a distinct act of negligence arise during an incident involving excessive police force when making a lawful felony arrest , negligence requires establish ing a separate duty owed to an
individual beyond the intentional force applied. Unruh's dispute goes to civil battery's privilege element, which in this instance is tied to a statute. See K.S.A. 2022 Supp. 21

- 5227(a). Unruh fail s to "come forward with evidence to establish a dispute as to a material fact," i.e., the arresting officers' conduct creating a special duty to Unruh other than not allegedly applying excessive force . See Schreiner v. Hodge , 315 Kan. 25, 30, 504 P.3d 410 (2022). The panel correctly upheld the district court's grant of the defendants' summary judgment motion.

Judgment of the Court of Appeals affirming the district court is affirmed on the issue subject to review. Judgment of the district court is affirmed on the issue subject to
review

.