Martin v. City of Topeka

Opinion

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 127,715

TROY ALAN MARTIN,

Appellant,

v.

CITY OF TOPEKA,

Appellee.

SYLLABUS BY THE COURT

1.

The public-duty doctrine is a common-law rule limiting when a plaintiff may sue a governmental entity for negligence. It bars a plaintiff from establishing the duty element of a negligence claim when the governmental actor's duties are owed to the public at large and not to any specific person. The public-duty doctrine does not apply when a governmental entity has a special relationship with the plaintiff or owes the plaintiff a specific duty.

2.

When statutory language is ambiguous—that is, reasonably susceptible to more than one interpretation—a court may consult canons of construction and the legal and historical context surrounding a statute's passage to discern legislative intent.

3.

Read as a whole and against its enactment history, the Kansas Tort Claims Act waives the sovereign immunity that had shielded governmental entities from suit, subject to the exceptions enumerated in K.S.A. 75-6104. It does not redefine the substantive duties governmental entities owe. The public-duty doctrine survives the Act.

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4.

Since the early years of statehood, Kansas has recognized that a city has a positive legal duty to keep its streets in a condition reasonably safe for their intended use and is liable in a civil action for injuries resulting from neglect of that duty.

5.

A city's duty to keep its streets reasonably safe is owed to a specific class of persons rather than to the public at large. Once a city opens a street and invites public travel, it owes that duty to those who travel the street in response to the invitation. The public-duty doctrine therefore does not bar a claim for breach of that duty. This holding does not affect the doctrine's application to other governmental functions.

6.

Kansas law states duties of care in general terms because duty rules are not meant to be fact specific and instead set broadly applicable guidelines for public behavior. Whether a duty exists is a question of law. Whether a defendant's conduct satisfies or breaches that duty is a question of fact. Defining a duty in ever narrower and more particularized ways conflates "duty" with "breach" and invades the province of the factfinder.

7.

A city does not breach its duty to maintain safe streets unless it knew of a dangerous condition or should have known of it through the exercise of ordinary care and had a reasonable opportunity to repair it before the injury occurred. Notice and opportunity to repair are not independent duties. These are facts bearing on whether the city has satisfied or breached its duty to keep the street reasonably safe.

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8.

Whether a street was reasonably safe for public use by travelers exercising ordinary care, whether a defect was discernible enough to call for repair, and whether the city had notice of the defect are ordinarily questions for the jury. Breach becomes a question of law only when reasonable persons could reach only one conclusion from the evidence or when no evidence bears on the issue.

9.

Under the Kansas Tort Claims Act, liability is the rule and immunity the exception. A governmental entity claiming an exception under K.S.A. 75-6104 bears the burden of establishing it.

10.

K.S.A. 75-6104(a)(5) creates an exception to liability when a governmental entity either performs or fails to perform a "discretionary function." Whether that exception applies turns foremost on the nature and quality of the discretion exercised. The mere exercise of judgment is not enough. The more a decision involves the making of policy, the more likely it is of the nature and quality the Legislature meant to place beyond judicial review. The exception does not apply where a clearly defined mandatory duty or guideline governs, whether that directive arises from statute, agency directive, or caselaw. This type of mandatory guideline leaves little to no room for individual decision making, exercise of judgment, or use of skill, and renders the conduct ministerial rather than discretionary.

11.

A city that knows or should know of a dangerous condition in its street has no discretion to ignore it. The city retains discretion over how it addresses the condition, but the discretionary-function exception does not shield a decision to leave it unaddressed.

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12.

Whether an exception to the Kansas Tort Claims Act immunizes a governmental entity is a question of law. But the answer may depend on facts, and when those material facts are genuinely disputed, a court cannot resolve immunity as a matter of law, and summary judgment is improper.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 12, 2025. Appeal from Shawnee District Court; JAY D. BEFORT, judge. Oral argument held May 18, 2026. Opinion filed September 11, 2026. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded.

Chloe Elizabeth Davis, of Brumley Law Office, of Topeka, argued the cause, and Bruce Alan Brumley, of the same firm, was with her on the briefs for appellant.

Nicholas H. Jefferson, assistant city attorney, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: Troy Alan Martin sued the City of Topeka for negligently failing to maintain its streets. He alleged that he was driving on a busy Topeka street when his car struck a pothole, veered into the median, and flipped. The crash ejected him and left him injured. But his lawsuit never reached a jury. The district court granted summary judgment for the City. After finding no material facts in dispute, the court ruled that the City was entitled to judgment as a matter of law. A Court of Appeals panel affirmed that judgment. See Martin v. City of Topeka, No. 127,715, 2025 WL 2631390, at *9 (Kan. App. 2025) (unpublished opinion).

We do not decide today whether Martin's allegations are true. Nor do we decide whether he will prevail at trial. We ask only whether the lower courts were right to end this litigation now. Answering that question requires us to resolve every factual dispute in

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Martin's favor. It also requires us to resolve ambiguity and possible tension among several legal standards and doctrines unique to negligence lawsuits brought against Kansas governmental entities, including the public-duty doctrine and provisions of the Kansas Tort Claims Act.

Plaintiffs suing a government defendant must prove the same elements as those suing a private defendant: a duty, a breach of that duty, an injury, and a causal connection between the breach and the injury. But the duty element often operates differently when the defendant is a governmental entity. Our court has long recognized the public-duty doctrine. Under this common-law rule, a governmental entity's duty to the public at large cannot establish a legal duty owed to a particular plaintiff. In other words, a public duty cannot satisfy the "duty" element of a negligence claim against a governmental entity.

But in 1979 the Kansas Legislature enacted the Kansas Tort Claims Act. The Act reformed the common-law sovereign-immunity rules that had long shielded the State from liability. Martin argues that it also displaced governmental-immunity rules like the public-duty doctrine, and that the lower courts erred by invoking the doctrine to foreclose his suit.

We disagree. The Act's text does not resolve whether the Legislature meant to abolish rules like the public-duty doctrine. Our best reading of the text and history is narrower. The Legislature waived the sovereign immunity that had long protected the government from suit, subject to many listed exceptions. But it did not alter common-law duty rules. So we reject Martin's argument that the public-duty doctrine is dead.

We agree with Martin on the result all the same because the duty in question is not a public duty. Since early statehood, and continuing after the Act took effect, our court has recognized a distinct common-law rule: cities must keep their streets in a reasonably safe condition for their intended use, and they are liable to private individuals injured by

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a failure to do so. A city owes that duty to a specific group rather than the general public. The duty protects those the city has invited to travel on a street it opened for public use. The public-duty doctrine therefore does not apply.

But just because the City owed Martin a duty does not mean it breached one.

Whether a city has breached its road-maintenance duty is ordinarily a question of fact. And a city is not liable for a street defect unless it knew or should have known of the defect and had a reasonable opportunity to repair it.

This record does not support summary judgment on that question. A third-party pavement assessment the City had commissioned informed it that the stretch of road where the crash occurred was in "poor" condition, a rating signifying high-severity distress and near-term repair needs. Motorists had repeatedly reported potholes on and near that block in the months before the crash. Some reported that the potholes had grown larger after the City patched them. And the City had frequently issued and completed work orders directing crews to make repairs there. The City reads this evidence differently, but its arguments go to weight, and weight is for a jury.

Nor does the Tort Claims Act end this lawsuit now. The Act makes the government immune from liability when exercising a "discretionary function or duty." The City argues that its road-repair decisions require it to allocate limited resources and such decisions are generally discretionary. But if a city knows or should know of a dangerous condition in its public street, then it has no discretion to ignore it. The City may choose how to address a known hazard, but it may not choose to do nothing.

Whether an exception to the Act applies is a question of law. But its application here turns on the same disputed facts about the City's knowledge. As a result, immunity cannot be resolved as a matter of law on this record, summary judgment was improper, and we reverse and remand.

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FACTS AND PROCEDURAL BACKGROUND

The facts and lower-court proceedings are straightforward. Martin alleged that the City's negligent road maintenance caused the wreck and his injuries. The City let the roadway become defective and dangerous, he claimed, and the pothole grew large enough to make the road unsuitable for ordinary travel. The City failed to use reasonable care to keep the road safe. It failed to maintain the roadway for the traffic that regularly used it. And it failed to fix the pothole after it knew about the hazard.

The City moved for summary judgment on four grounds. First, it owed Martin no duty under the public-duty doctrine. Second, the pothole was open and obvious, so the City had no duty to warn of it or repair it. Third, the City had no knowledge of the defect, so it breached no duty to keep its streets safe. Fourth, discretionary-function immunity under the Tort Claims Act shielded its road-maintenance decisions in any event.

Martin responded that the Tort Claims Act alone governs the City's liability. The Act's text, he argued, displaces common-law immunity doctrines like the public-duty doctrine. He pointed to the Act's liability provision, which subjects a governmental entity to liability "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). From that text Martin argued that cities owe the same duties as private landowners. A private landowner, he contended, must repair a large defect in a public thoroughfare crossing his land. And the City breached that same duty here because it knew or should have known about the pothole and did nothing to correct the hazard.

The district court granted summary judgment for the City under the public-duty doctrine and the Tort Claims Act's discretionary-function immunity without addressing Martin's primary argument. It also resolved two disputed facts against him. It found the

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pothole was so apparent that Martin knew or should have known about it. So the open- and-obvious doctrine relieved the City of any duty it owed to Martin. The district court also found that the City neither knew nor should have known about the pothole. It made that finding despite Martin's summary-judgment evidence showing that motorists had repeatedly reported large, damaging potholes on this stretch, that a third-party report prepared for the City had flagged the road as in poor condition and in need of near-term maintenance, and that the City had issued and completed work orders for road defects on these blocks in the months before the crash.

A Court of Appeals panel agreed with Martin that the district court had improperly resolved both disputed facts. Martin, 2025 WL 2631390, at *5-6. But the panel affirmed the district-court judgment on two independent grounds. First, it held that the public-duty doctrine barred the claim because the City's duty to keep its streets safe runs to the public rather than to individuals. 2025 WL 2631390, at *3-4. The panel acknowledged Martin's argument that the Legislature had abolished the public-duty doctrine and called it "mildly persuasive." 2025 WL 2631390, at *4. But it declined to evaluate the argument, reasoning that "no Kansas court has so held" and "we will not so hold." 2025 WL 2631390, at *4. Second, the panel held that discretionary-function immunity applied because no statute or guideline set an inspection schedule for the road, and setting one was a policy choice for the City. 2025 WL 2631390, at *7-8.

We granted Martin's petition for review and heard oral argument on May 18, 2026.

We have jurisdiction under K.S.A. 20-3018(b) (petitions for review of Court of Appeals decisions) and K.S.A. 60-2101(b) (Supreme Court jurisdiction to review Court of Appeals decisions on petition for review). The City filed no cross-petition. So the panel's holding that the district court could not resolve the open-and-obvious question on this record is not before us. See Schutt v. Foster, 320 Kan. 852, 855, 572 P.3d 770 (2025); Supreme Court Rule 8.03(i)(1) (2026 Kan. S. Ct. R. at 59).

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ANALYSIS

To reiterate what we've said above, our task is not to decide the merits of Martin's claim against the City. This litigation is at the summary-judgment phase, and that procedural posture frames our analysis. Summary judgment is proper only when the record shows no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The district court must resolve all facts, and all inferences reasonably drawn from the evidence, in favor of the party opposing the motion. We apply those same rules on appeal. And when "'reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'" Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d 432 (2018). The City moved for summary judgment below. So we read this record in Martin's favor.

Martin alleges negligence. He must establish a duty, a breach of that duty, an injury, and proximate cause. Montgomery v. Saleh, 311 Kan. 649, 653, 466 P.3d 902 (2020). Summary judgment is rarely appropriate in negligence cases, but it is proper when a plaintiff fails to make out a prima facie case on these elements. 311 Kan. at 653. A plaintiff makes that showing 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).

Suing a city adds a layer. We've often said that the Tort Claims Act makes governmental liability the general rule and immunity the exception. See, e.g., Soto v. City of Bonner Springs, 291 Kan. 73, Syl. ¶ 3, 238 P.3d 278 (2010). And the governmental entity claiming an exception—here, the City—bears the burden of establishing it. 291 Kan. 73, Syl. ¶ 5.

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With this framework in mind, four questions follow. First, did the Tort Claims Act abolish the public-duty doctrine, or did it instead waive sovereign immunity in defined circumstances and leave the doctrine intact? Second, if the public-duty doctrine survives, does it apply to a city's duty to keep its streets reasonably safe? Third, if not, does the record present a genuine dispute about whether the City breached its street-maintenance duty? And finally, does the Act's discretionary-function exception entitle the City to judgment in any event? We take each in turn.

I. The Tort Claims Act did not abolish the public-duty doctrine.

The public-duty doctrine limits when a plaintiff may sue the government for negligence. A negligence claim requires four elements: duty, breach, injury, and a legally sufficient causal connection between the defendant's conduct and the plaintiff's injuries. Montgomery, 311 Kan. at 653. The doctrine operates at the first element. 311 Kan. at 653-55. It bars a plaintiff from establishing the duty element of a negligence claim when the governmental actor's "'duties are owed to the public at large and not to any specific person.'" 311 Kan. at 653. "'Liability arises only when [the government] breaches a specific affirmative duty owed to a particular person.'" 311 Kan. at 654.

Our court has applied this rule for at least 50 years. See Commercial Union Ins.

Co. v. City of Wichita, 217 Kan. 44, 53-54, 536 P.2d 54 (1975). The rule itself is far older. Courts trace its origin two ways. Some point to the United States Supreme Court's decision in South et al. v. State of Maryland, Use of Pottle, 59 U.S. (18 How.) 396, 15 L. Ed. 433 (1855). Others point to Thomas M. Cooley's 1880 treatise on tort law. See Coleman v. E. Joliet Fire Prot. Dist., 46 N.E.3d 741, 751 (2016) (explaining two potential lineages).

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Kansas courts have most often applied the doctrine in law-enforcement cases. See, e.g., Schreiner v. Hodge, 315 Kan. 25, 48, 504 P.3d 410 (2022); Montgomery, 311 Kan. at 653-55. But they have applied it to other government functions too, including child- abuse investigations, building inspections, and severe-weather warnings. See P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 835-36, 877 P.2d 430 (1994) (child-abuse investigations); Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 678-79, 792 P.2d 993 (1990) (building inspections); Bradley v. Board of Butler County Comm'rs, 20 Kan. App. 2d 602, 606, 890 P.2d 1228 (1995) (severe-weather warnings).

The Tort Claims Act, by contrast, is a creature of statute. The Legislature enacted it in 1979 after a decade in which this court narrowed common-law governmental immunity and the Legislature responded by statute. See Schmeck v. City of Shawnee, 232 Kan. 11, 19-20, 651 P.2d 585 (1982) (recounting that history); L. 1979, ch. 186, § 4. The Act creates a general rule of liability—governmental entities are liable for negligence "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). It then exempts roughly two dozen categories of government conduct from that rule, preserving immunity for each. K.S.A. 75-6104.

Martin argues that the Act and the public-duty doctrine cannot coexist, and he asks us to abolish the doctrine. The City believes that the argument is novel and does not warrant serious consideration.

Our court has confronted the question once, and we resolved that appeal on other grounds. See Keiswetter v. State, 304 Kan. 362, 365, 373 P.3d 803 (2016). But the question is well developed elsewhere. And it has divided our sister courts for decades. The division emerges at several levels—whether the public-duty doctrine addresses duty or immunity, whether it promotes government efficiency or shields the government from accountability, whether courts can apply it consistently, and whether separation-of-

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powers principles permit a judge-made doctrine to survive a comprehensive tort claims act. See, e.g., Norg v. City of Seattle, 200 Wash. 2d 749, 758, 522 P.3d 580 (2023) (limiting doctrine); Coleman, 46 N.E.3d at 757-58 (abolishing doctrine); Raas v. State, 729 N.W.2d 444, 448 (Iowa 2007) (reaffirming doctrine); Ryan v. State, 134 Ariz. 308, 310, 656 P.2d 597 (1982) (abolishing doctrine).

Both courts below sidestepped the question, as we did in Keiswetter. We cannot.

Before deciding whether the public-duty doctrine applies here, we must decide whether it exists at all. That inquiry starts with what the Tort Claims Act did and did not do.

A. The Tort Claims Act is ambiguous.

The Act makes a governmental entity, subject to many exceptions, "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). It then lists nearly two dozen exceptions. Among them: immunity for legislative and judicial functions, for enforcing or failing to enforce a law, and for providing or failing to provide police protection. K.S.A. 75-6104(a)(1)-(3), (14). The Act also immunizes discretionary functions. No governmental entity or employee is liable for exercising or failing to exercise a discretionary function or duty, whether the discretion was abused and no matter how much discretion the decision involved. K.S.A. 75- 6104(a)(5).

Our interpretive framework is familiar. Statutory interpretation is a question of law subject to unlimited review. See Nicholson v. Mercer, 319 Kan. 712, 714, 559 P.3d 350 (2024). Legislative intent governs when we can discern it. We start with the statute's plain language. But if that language is ambiguous—reasonably susceptible to more than one interpretation—we may consult canons of construction and legislative history to

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resolve it. And whether a statute is clear or ambiguous turns on the disputed language, the context in which the Legislature used it, and the statute as a whole. See State v. Martin, 318 Kan. 538, 549-50, 544 P.3d 820 (2024).

Both parties insist that the text is unambiguous. They read it differently.

Martin reads the "private person" clause to do more than waive immunity. It incorporates the substantive law of negligence, duty included. Private persons owe ordinary duties of reasonable care. Governmental entities, on this reading, owe the same. The statute thus does two things at once. It waives sovereign immunity. And it places the government in the shoes of a private defendant.

That reading is not implausible. Duty is an element of negligence. A court cannot decide whether "a private person would be liable" without asking what duty that person owed. Martin's reading answers the question directly by importing the private law of duty wholesale. Under it, the government owes the identical duties that private parties owe one another at common law. Taken to its logical end, that reading abolishes the public-duty doctrine.

The City reads the same text the opposite way and calls its reading equally clear.

K.S.A. 75-6103(a) speaks throughout in terms of liability, damages, and governmental entities, not duty. Nothing in it says that governmental entities owe every duty a private person owes. And nothing mentions the public-duty doctrine or purports to modify common-law duty principles. On this reading, the Act waives sovereign immunity and leaves substantive negligence law alone. That interpretation is textually permissible too.

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Each side treats its own reading as the only one the statute allows. Both cannot be right. But neither is unreasonable, and "'[a] statute is ambiguous when two or more interpretations can fairly be made.'" Glaze v. J.K. Williams, 309 Kan. 562, 564, 439 P.3d 920 (2019). K.S.A. 75-6103(a) is such a statute.

B. The Tort Claims Act waived sovereign immunity without abolishing common-

law duty principles.

Because K.S.A. 75-6103(a) is ambiguous, we turn to canons of construction and to legislative history—the legal and historical context surrounding the Act's passage. Canons of construction are accepted rules that help courts determine the intended meaning of statutory text. See Black's Law Dictionary 254 (12th ed. 2024) (defining canon of construction). The legal and historical context the Legislature confronted may reveal what the enacting Legislature intended to accomplish by enacting a statute and reveal how that Legislature understood the words it adopted. Both tools point to the same answer here. The Legislature waived the State's immunity from suit. It did not redefine the duties that governmental entities owe.

We start with the contextual canons. These principles recognize that statutory language draws meaning from its surrounding text, structure, and relationship to other provisions. See Scalia & Garner, Reading Law 167-239 (2012) (listing contextual canons). Two matter most here. The whole-text canon asks a court to read the disputed language against the language and design of the text as a whole. See Scalia & Garner, Reading Law 167-69 (2012). The related surplusage canon asks a court to avoid, where possible, a reading that renders any word or provision meaningless. See Scalia & Garner, Reading Law 174-79 (2012); see also City of Wichita v. Trotter, 316 Kan. 310, 318, 514 P.3d 1050 (2022) (courts presume the Legislature didn't intend to enact meaningless legislation).

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Both canons favor the City. Read as a whole, every operative provision of the Act regulates liability, claims, damages, or immunity. They tell us how claims against the government are brought, defended, limited, and paid. They neither define a standard of conduct nor concern the conduct that gives rise to the claims. See K.S.A. 75-6103(a) (liability of governmental entities for employee acts); K.S.A. 75-6103(b) (procedure governing actions under the Act); K.S.A. 75-6104 (exceptions preserving immunity); K.S.A. 75-6105(a) (cap on liability); K.S.A. 75-6105(b) (apportionment among multiple claimants); K.S.A. 75-6105(c) (no punitive or exemplary damages, no prejudgment interest); K.S.A. 75-6106 (settlement of claims); K.S.A. 75-6107 (preclusive effect of judgments); K.S.A. 75-6108 (defense of employees); K.S.A. 75-6109 (indemnification of employees); K.S.A. 75-6110 (municipal liability expense funds); K.S.A. 75-6111 (purchase of insurance and pooling arrangements); K.S.A. 75-6112 (periodic payment of municipal judgments); K.S.A. 75-6113 (funding sources for paying judgments); K.S.A. 75-6115 (claims against health care providers); K.S.A. 75-6117 (tort claims fund).

Martin's reading also drains meaning from many of the Act's immunities. Several statutory immunities protect functions that only governmental entities perform: legislative functions, K.S.A. 75-6104(a)(1); judicial functions, K.S.A. 75-6104(a)(2); enforcement of the laws, K.S.A. 75-6104(a)(3); tax collection, K.S.A. 75-6104(a)(6); emergency management activities, K.S.A. 75-6104(a)(10); and police and fire protection, K.S.A. 75-6104(a)(14). Private individuals do not perform these functions. So if K.S.A. 75-6103 imposes the duties of a private person on the government, then the government would not be liable for negligent performance of these uniquely governmental functions. And the exceptions listed in K.S.A. 75-6104 shielding these functions from liability would serve no purpose. The two provisions cohere only under the City's reading. K.S.A. 75-6103 exposes the government to suit under substantive duty law as it stands. And K.S.A. 75-6104 insulates the government from that exposure in defined circumstances.

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A stabilizing canon points the same direction. Stabilizing canons promote consistency, continuity, and coherence in the law by presuming that legislatures do not lightly alter established rules. See Scalia & Garner, Reading Law 318-40 (2012) (listing stabilizing canons). One such rule asks us to construe statutes to alter the common law only when the text clearly requires it, and "[a] fair construction ordinarily disfavors implied change." Scalia & Garner, Reading Law 318 (2012) (presumption against change in the common law). Martin's reading would abolish the public-duty doctrine by implication. The Act's "private person" language can bear that reading, but it does not expressly require it. We find it unlikely that the Legislature intended to rewrite substantive tort law and strip governmental entities of long-established duty principles without saying so.

The Legislature also acted against a specific legal and historical backdrop, and that backdrop confirms our reading. The Act closed a decade-long exchange between this court and the Legislature over governmental immunity. This court abolished immunity for the proprietary activities of the State and its agencies in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). The Legislature restored that immunity through K.S.A. 46-901 (Weeks 1973) and K.S.A. 46-902 (Weeks 1973). This court struck those statutes down in Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), then modified that holding on rehearing in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976). The court then abolished municipal immunity outright in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978). The Legislature answered with a one-year moratorium restoring immunity, L. 1978, ch. 202, § 1. Then when the moratorium expired, it enacted the Tort Claims Act. L. 1979, ch. 186, § 4.

That exchange was fueled by a lingering question about whether existing tort principles could be enforced against the government at all. The Act settled it. Liability became the general rule subject to exceptions where the Legislature retained immunity for enumerated governmental functions. See K.S.A. 75-6103; K.S.A. 75-6104. Nothing

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in that history suggests that the Legislature also undertook to rewrite the substantive law of duty. And we decline to attribute so large a project to a statute enacted for a different purpose.

II. The public-duty doctrine does not apply because a city's street-maintenance duty runs to those it invites to travel, not to the public at large.

The public-duty doctrine survives the Tort Claims Act. Whether it reaches Martin's claim is a separate question, and we conclude the answer is no. The doctrine bars a plaintiff from establishing a duty when the government's obligation "'[is] owed to the public at large and not to any specific person.'" Montgomery, 311 Kan. at 653. But it does not apply when a governmental entity has a special relationship with the plaintiff or owes the plaintiff a specific duty. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 788, 450 P.3d 330 (2019).

The City argues that street maintenance is a paradigm of public duty. A city maintains its roads for everyone, it says, not for Martin. Some jurisdictions have taken this view. See Georges v. State, 249 A.3d 1261, 1266 (R.I. 2021) ("[R]epairing potholes, no matter how numerous they may be, is part and parcel of the state's responsibility for roadway maintenance and falls squarely within the protections of the public duty doctrine."); Johnson v. Humboldt County, 913 N.W.2d 256, 265 (Iowa 2018) (public-duty doctrine applies to highway authority's duty to remove obstructions in highway right-ofway because duty owed to the public at large). But see Fulps v. City of Urbandale, 956 N.W.2d 469, 470 (Iowa 2021) (city's common-law and statutory duty to maintain safe sidewalks coexists with the public-duty doctrine); Estate of Farrell by Farrell v. State, 974 N.W.2d 132, 138 (Iowa 2022) (same as to design and opening of highway interchange).

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We disagree. Under Kansas common law, a city has a "positive legal duty to keep its streets in a condition reasonably safe for their intended use, and it is liable in a civil action for injuries resulting from neglect to perform this duty." Grantham v. City of Topeka, 196 Kan. 393, 398, 411 P.2d 634 (1966). That duty is mandatory. Schmeck, 232 Kan. 11, Syl. ¶ 2. That rule is well settled. This court recognized it soon after statehood. See Jansen v. City of Atchison, 16 Kan. 358, Syl. ¶ 1, 1876 WL 1041 (1876). The decisions applying it, as one opinion put it, "are legion." Grantham, 196 Kan. at 398. And they continue to the present. See Patterson, 307 Kan. at 622 ("Generally speaking, there is a duty to maintain highways . . . ."); Draskowich v. City of Kansas City, 242 Kan. 734, 739, 750 P.2d 411 (1988) (resolving claim for failure to correct a highway defect under "a series of cases handed down by this court which recognize that a city has an obligation to keep its streets in a reasonably safe condition"); Trout v. Koss Constr. Co., 240 Kan. 86, 89-90, 727 P.2d 450 (1986) (rejecting State's argument that municipal street cases did not apply to state-government conduct).

In our view, that duty is a specific one so the public-duty doctrine does not apply.

A recent case involving emergency responders' statutory duty to "'drive with due regard for the safety of all persons'" explains why. See Montgomery, 311 Kan. at 653-55.

In Montgomery, a trooper was sued for injuring a third party during a pursuit.

The trooper invoked the public-duty doctrine. The plaintiffs relied instead on K.S.A. 8- 1506(d), which requires drivers of emergency vehicles to proceed "with due regard for the safety of all persons" and withholds protection from "the consequences of reckless disregard for the safety of others." We held the doctrine inapplicable for two reasons. First, an express duty to operate emergency vehicles with regard for the safety of "all persons" is a specific duty to a class of people in a way that a general duty, like preserving the peace, is not. 311 Kan. at 655. Second, applying the doctrine would have nullified the statutory duty. A specific duty that law enforcement could breach without consequence would be no duty at all. Both reasons apply here.

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The street-maintenance duty protects a narrower class than the duty in Montgomery. Once a city "'opens a street and invites public travel, it must be made reasonably safe for such use.'" City of Wellington v. Gregson, 31 Kan. 99, 103, 1 P. 253 (1883) (quoting 2 Dillon, Municipal Corporations § 1016 [3d ed.]). The duty protects those persons who travel the street in response to that invitation, and they are identifiable from the moment the city opens the road. In contrast, the duty to preserve the peace attaches to all circumstances and all interactions with the public.

Applying the public-duty doctrine here would also nullify this longstanding street-

maintenance duty. This court's decisions recognizing the duty arise from private damages actions, and they hold a city "liable in a civil action" for neglecting that duty. Grantham, 196 Kan. at 398. Treating that obligation as one owed to the public at large would leave nothing of it. A city could learn that a busy arterial street had broken apart into foot-deep craters, receive complaints for months, decline to repair or even mark the hazard, and answer to no one injured by the hazard. As in Montgomery, a duty that a city could breach without consequence would be no duty at all.

We therefore hold that the public-duty doctrine does not bar Martin's claim. But our holding is a narrow one. The doctrine remains available to cities, and it may well reach other municipal functions. We hold only that a duty running to those a city invites onto its streets is not a duty owed to the public at large.

III. A genuine issue of material fact exists as to whether the City breached its duty.

Just because the City had a street-maintenance duty doesn't mean it breached that duty. So we must consider whether the breach issue can be resolved as a matter of law on summary judgment. We conclude that it cannot.

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The duty we described above sets broad guidelines for cities: they must keep their streets in a condition reasonably safe for their intended use. Kansas law states duties of care in general terms because duty rules "are not meant to be fact specific" and instead "set broadly applicable guidelines for public behavior." Reardon v. King, 310 Kan. 897, 904, 452 P.3d 849 (2019). A court that defines a duty in "'ever narrower and more particularized ways'" conflates the legal question of duty and the factual question of breach and so invades the province of the factfinder. 310 Kan. at 904; see Granados v. Wilson, 317 Kan. 34, 44-48, 523 P.3d 501 (2023). Our role is to state the duty, and the factfinder's role is to apply it to the facts of the case and decide whether the duty has been breached. Reardon, 310 Kan. at 903.

Our court has said that a city is not liable for a street defect unless it knew of the defect or should have known of it through the exercise of ordinary care and had a reasonable opportunity to repair it before the injury occurred. McCollister v. City of Wichita, 180 Kan. 401, 403, 304 P.2d 543 (1956); Blankenship v. Kansas City, 156 Kan. 607, Syl. ¶ 2, 135 P.2d 538 (1943). But neither requirement creates a duty of its own. The City owes no separate duty to inspect a given block on a fixed schedule or to patch a defect within a set number of days. Notice and opportunity to repair are facts bearing on whether the City satisfied the one duty it owes—to keep the street reasonably safe.

Our cases assign that question to the jury. Whether a street was reasonably safe for public use by travelers exercising ordinary care is "almost always [a] question[] for the jury." Gregson, 31 Kan. at 103. Smith, for example, reserved for the jury whether the city kept the street reasonably safe, whether defects were "so discernible as to call for repairs," and whether the city had notice, actual or constructive. Smith v. Kansas City, 158 Kan. 213, 219, 146 P.2d 660 (1944). Breach becomes a question of law only when reasonable persons must draw the same conclusion from the facts, or when no evidence bears on the issue. Deal v. Bowman, 286 Kan. 853, 858-59, 188 P.3d 941 (2008).

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But the record here does not support that conclusion. A third-party assessment prepared for the City graded the block of SW Topeka Boulevard where the accident occurred as poor. This rating signifies high-severity distresses and near-term repair needs. Motorists repeatedly reported potholes on and near that block in the months before the crash. Some even reported that potholes the City had patched returned larger than before. And the City issued work orders directing crews to repair potholes on those blocks.

A city can avoid fault if it lacked knowledge of a defect "or of any facts from which it might reasonably have presumed that there was a defect." Jansen, 16 Kan. at 384. But the City's knowledge is disputed here. A jury could find that the City had the facts necessary to know about the defect.

We understand that the City views the evidence very differently. But its position goes to the weight of the evidence, and weighing evidence is the jury's task, not the court's. And because the district court granted summary judgment for the City, on appeal we must resolve all facts, and all inferences reasonably drawn from the evidence, in Martin's favor. See Patterson, 307 Kan. at 621.

The City emphasizes that no one reported a defect at this precise location and that it does not patrol its streets for potholes. But constructive notice turns on what the exercise of ordinary care would have revealed. And in Smith, the evidence of a defect's persistence and of widespread awareness of it was enough to reach the jury. 158 Kan. at 216-19. The City also argues that the third-party pavement assessment measures maintenance priorities rather than road safety, which is an argument a jury may credit in deciding what weight the assessment deserves. But it is not a finding a court can make on summary judgment, as the panel itself acknowledged. See Martin, 2025 WL 2631390, at *5-6.

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Reasonable minds could differ on whether the City kept this street reasonably safe and on whether it had notice of the defect and a reasonable opportunity to repair it. Viewing the summary judgment evidence in the light most favorable to Martin, those are disputed fact questions for a jury. Whether the Tort Claims Act nonetheless shields the City's road-maintenance decisions from liability is a separate question, which we address next.

IV. Discretionary-function immunity does not entitle the City to judgment on this record.

The Tort Claims Act preserves immunity for "the exercise or performance or the failure to exercise or perform a discretionary function or duty," and it does so "whether or not the discretion is abused and regardless of the level of discretion involved." K.S.A. 75- 6104(a)(5). Whether an exception to liability applies is a question of law. Soto, 291 Kan. 73, Syl. ¶ 4. The governmental entity claiming an exception bears the burden of establishing it. 291 Kan. 73, Syl. ¶ 5.

Both courts below held that this exception barred Martin's claim. Martin, 2025 WL 2631390, at *7-8. The panel acknowledged that the City had a general duty to keep its streets reasonably safe, and it went so far as to say that if Topeka knew the pothole was dangerous, negligence would be a jury question. 2025 WL 2631390, at *7-8. But Martin's theory rested on constructive knowledge, and the panel recast that theory as a complaint about inadequate inspections. How often a city inspects its streets, the panel reasoned, is a resource-allocation decision the discretionary-function exception shields from review. 2025 WL 2631390, at *8.

The Act does not define "discretionary function or duty." So we look foremost to the nature and quality of the discretion exercised. Soto, 291 Kan. at 79. The mere application of judgment is not enough. 291 Kan. at 79. The more a judgment involves making policy, the more likely it is of the nature and quality the Legislature meant to

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place beyond judicial review. Schreiner, 315 Kan. at 40. And where a clearly defined mandatory duty or guideline governs—whether it arises from agency directives, caselaw, or statutes—the exception does not apply. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 235, 262 P.3d 336 (2011).

Our court has deliberately distinguished a general legal duty of care, the duty element of a negligence claim, from the more specific mandatory guideline that forecloses discretionary-function immunity. The two are not the same, and treating them as one would nullify this immunity altogether. As we explained in Thomas, "'governmental entities do not have discretion to violate a legal duty,'" but that observation alone does not strip the government of immunity—if it did, the exception could never apply to a negligence claim because every negligence claim requires a duty. 293 Kan. at 235-36. A mandatory guideline is something narrower. It "leaves little to no room for individual decision making, exercise of judgment, or use of skill, and qualifies a defendant's actions as ministerial rather than discretionary." 293 Kan. at 235.

Thomas itself illustrates the point. The defendants there were jailers sued for negligence in connection with an inmate's suicide. No one disputed that a general duty of care existed. The question was instead whether jail rules and policies, including a specific suicide-prevention policy, imposed mandatory limits on how the jailers discharged that duty under the circumstances they faced. 293 Kan. at 236.

Here, the City plainly had a general duty to keep its streets reasonably safe, and as we explained above, whether it satisfied that duty is ordinarily a question of fact. See Gregson, 31 Kan. 99, Syl. ¶ 2 (whether "in any given case a city can be charged with negligence" presents a "question[] of fact for the determination of a jury"). But as in Thomas, the existence of that general duty is not what makes the City's obligations

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mandatory rather than discretionary. Instead, the question is whether any mandatory duty or guideline governed how the City was required to discharge its street-maintenance duty as to this stretch of road.

Our longstanding caselaw supplies just such a directive. A city with actual or constructive knowledge of a dangerous road condition has no discretion to ignore it. See Schmeck, 232 Kan. 11, Syl. ¶ 2 ("A city's common-law duty to keep its streets reasonably safe is mandatory, and the city has no right or discretion to avoid this duty."); Smith, 158 Kan. at 218 ("That the city must have actual or constructive notice of the defective condition of a street cannot be disputed."). And discretionary-function immunity does not reach a governmental entity that knew of a dangerous condition and "simply failed to take acts reasonably necessary" to address it. Draskowich, 242 Kan. at 741.

The panel came within a step of this conclusion. It said that if the City actually knew the pothole was dangerous, then liability would be a jury question—which is to say that the mandatory duty would displace the discretionary-function defense. Martin, 2025 WL 2631390, at *8. The City conceded the same at oral argument. But the panel stopped there without considering that constructive knowledge carries the same legal consequence as actual knowledge in street-defect cases. McCollister, 180 Kan. at 403; Blankenship, 156 Kan. 607, Syl. ¶ 2. And whether the City should have known of this pothole is, as the panel itself recognized and we have explained, genuinely disputed on this record.

Martin correctly argues that the court cannot resolve the immunity question on summary judgment. Whether an exception to the Tort Claims Act immunizes a governmental entity is a question of law. Soto, 291 Kan. 73, Syl. ¶ 4. But the answer often depends on facts. And when those facts are genuinely disputed, immunity cannot be determined as a matter of law, and summary judgment is improper. See Carpenter v.

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Johnson, 231 Kan. 783, 790, 649 P.2d 400 (1982) (whether placement of a warning sign "was discretionary or mandatory depends upon the totality of the circumstances involved and may not be determined as a matter of law without regard thereto").

CONCLUSION

In sum, we hold that the Tort Claims Act waived the sovereign immunity that had shielded governmental entities from suit, subject to the exceptions the Act enumerates, and that it did not redefine the duties those entities owe. The public-duty doctrine thus survives. But it does not bar this claim because a city's duty to keep its streets reasonably safe runs to those it invites to travel them, not to the public at large. Genuine issues of material fact remain as to whether the City breached that duty. And those same disputes control whether the Act immunizes its road-maintenance decisions here. Neither question could be resolved for the City as a matter of law. So although we express no view on whether Martin will prevail, we must reverse the judgment of the Court of Appeals affirming the district court's order granting summary judgment to the City, and we remand to the district court for further proceedings.

Judgment of the Court of Appeals affirming the district court is reversed.

Judgment of the district court is reversed, and the case is remanded.