Missouri Court of Appeals Affirms Immunity in Fatal 2019 Central High School Shooting Case

Background

A non-student minor (“Victim”) was fatally shot on the grounds of Central High School in Kansas City, Missouri, following a confrontation during an evening basketball game. After the individuals involved were escorted from the building by an off-duty Kansas City Police Department (“KCPD”) officer, the Victim was shot on school property by a participant in the earlier altercation. The Victim’s mother filed a wrongful death action in the Circuit Court of Jackson County, Missouri against Kansas City Public Schools (“KCPS”), individual school administrators and security personnel, two KCPD officers, and the Kansas City Board of Police Commissioners (“BOPC”), asserting claims for wrongful death, negligence, breach of ministerial duties, recklessness, and vicarious liability. The defendants moved to dismiss and for judgment on the pleadings based on sovereign and official immunity.

After the circuit court entered judgment in favor of the public-entity defendants, the Victim’s mother appealed. The Missouri Court of Appeals for the Western District affirmed, holding that sovereign immunity was not waived by the existence of a self-retention liability fund maintained by KCPD and the BOPC, and that the conduct of the KCPD officers and Kansas City Public School officials was protected by official immunity because the cited policies involved discretionary judgment and the petition alleged no facts demonstrating intent to injure the victim.

Sovereign Immunity, the Existence of Liability Insurance or Self-Insurance and Potential Waiver

On appeal, the Victim’s mother first argued that the BOPC waived sovereign immunity under section 537.610 by adopting a self-insurance plan covering the claims at issue. Under Missouri law, sovereign immunity protects public entities engaged in governmental functions, including BOPC through its operation of a police force. Among other exceptions under Missouri law, sovereign immunity may be waived through the purchase of liability insurance or the adoption of a self-insurance plan. Such a waiver is narrowly construed. A plaintiff bears the burden of establishing both the existence of self-insurance coverage and that a plaintiff’s claims fall within its scope. The Victim’s mother relied on a statement on KCPD’s website describing the BOPC as “self-insured,” deposition testimony from a BOPC representative, and the existence of a liability self-retention fund within KCPD’s annual budget.

The Court of Appeals examined the KCPD Board’s “Liability Self-Retention General Fund Subsidiary Account” (the “KCPD Fund”) maintained at the time in question. The KCPD fund was created to manage potential liability exposure and was financed primarily through annual transfers from Kansas City’s General Fund, along with potential reimbursement from the State Legal Expense Fund (“SLEF”). The KCPD Fund simply provided for appropriated funds including those that could potentially be available under the SLEF, and under Missouri law, the SLEF does not constitute insurance. The Court found adoption of a “self-insurance plan” requires something more than merely establishing statutorily mandated budgetary reserves for mandated liability. Furthermore, the scope of any waiver of sovereign immunity is limited to the amounts and purposes provided in any self-insurance plan duly adopted by the governing body. Nothing in the KCPD Fund’s description indicated formal adoption of a self-insurance program and the Victim’s mother presented no evidence that Kansas City passed an ordinance duly adopting a plan of self-insurance for KCPD.

The Court further held that the KCPD website statement and the BOPC representative’s deposition testimony did not establish waiver. The website language did not constitute proof of a self-insurance plan, and the testimony reflected only the representative’s personal understanding of the KCPD Fund’s purpose.

Official Immunity, its Application to School District Employees and Police Officers, and Potential Waiver

The Victim’s mother next argues that KCPS Individuals and the KCPD officers are not entitled to official immunity. Official immunity protects a public official from liability if that official acts within the course of his [or her] official duties and without malice. The Victim’s mother’s argument attacks the two narrow exceptions where official immunity does not apply: (1) when a public official fails to perform a ministerial duty required by law, or (2) when a public official acts in bad faith or with malice. The Victim’s mother claims that there are three ministerial duties the KCPD officers and the KCPS officials breached: (1) a general policy not to place individuals in “dangerous or potentially dangerous” situations; (2) a “parental hold policy” requiring students to be held inside the school until a parent picked them up; and (3) a policy to ensure “combating individuals” are separated while on KCPS premises.

A ministerial duty has been defined by the Missouri Supreme Court as one in which a certain act is to be performed in obedience to the law, without regard to the public official’s judgment or opinion concerning the property or impropriety of the acts to be performed. Thus, when any slight discretion exists for the public official, the duty is not ministerial. The Court of Appeals found the alleged duties described by the Victim’s mother required the use of discretion in interpreting and enforcing such policies and thus did not fall into the narrow ministerial exception to official immunity.

Regarding the “bad faith or malice” exception to official immunity, the Victim’s mother argues KCPS officials and KCPD officers acted with “reckless indifference to the rights of others” and/or with “conscious wrongdoing.” Even a discretionary act is not protected by official immunity where such conduct is done with malice or corruption. However, reckless conduct alone, as plead by the Victim’s mother does not satisfy malice; there must be evidence demonstrating actual intent to injure or prejudice a plaintiff. The Victim’s mother failed to plead any specific factual allegations that the KCPS officials or KCPD officers intended for the minor victim to be injured.

Outcome and Lessons Learned