IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 99,195
KATHERINE ADAMS,
Appellant,
v.
BOARD OF SEDGWICK COUNTY COMMISSIONERS,
Appellee/Cross-appellant,
and
GARRY PORTER, M.D., and JOAN HERTLEIN,
Appellees.
ALEXANDRA PAIGE CUMMINS,
Appellant/Cross-appellee,
v.
BOARD OF SEDGWICK COUNTY COMMISSIONERS,
Appellee/Cross-appellant.
SYLLABUS BY THE COURT
1. 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 district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.
2. On appeal from summary judgment, an appellate court applies the same rules as the district court, and where the appellate court finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. When material facts are uncontroverted, appellate courts review summary judgment de novo.
3. The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that a governmental entity can be found liable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be liable under the same circumstances and (2) no statutory exception to liability applies.
4. Whether a duty exists is a question of law, and an appellate court's review is unlimited.
5. There is no duty to control the conduct of a third person so as to prevent him or her from causing physical harm to another unless (a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct or (b) a special relationship exists between the actor and the other which gives to the other a right to protection.
6. A special relationship giving rise to a duty to control another may arise between a parent and child, master and servant, persons in charge of one with dangerous propensities, or persons with custody of another.
7. One who takes charge of a third person whom he or she knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him or her from doing such harm.
8. K.S.A. 59-2967(e), which imposes a duty on an outpatient mental health treatment facility to report material noncompliance with an outpatient order, creates a duty that is owed to the public in general but does not create a statutory duty that is owed to individuals who are injured by an outpatient.
9. K.S.A. 59-2969(a), which imposes a duty to report regarding outpatient treatment performed pursuant to court order and to make a recommendation concerning the patient's need for further treatment, does not impose a duty owed to individuals who are injured by the outpatient if the patient is not a danger to the community when the report is made.
10. An outpatient mental health treatment facility does not take charge of a patient subject to an order for outpatient therapy in a manner that gives rise to a duty to control the patient's conduct or to give rise to a special relationship with others who come in contact with the patient.
Appeal from Sedgwick district court; JEFFREY E. GOERING, judge. Opinion filed September 4, 2009. Affirmed.
David P. Calvert, of David P. Calvert, P.A., of Wichita, argued the cause and was on the briefs for appellants/cross-appellee.
Lisa A. McPherson, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause, and Marcia A. Wood, of the same firm, was with her on the briefs for appellee/cross-appellant Board of Sedgwick County Commissioners.
Trevin E. Wray, of Holbrook & Osborn, P.A., of Overland Park, argued the cause, and Lawrence J. Logback, of the same firm, was with him on the briefs for appellee Garry Porter, M.D.
Christopher A. McElgunn, of Klenda, Mitchell, Austerman & Zuercher, L.L.C, of Wichita, argued the cause, and Gary M. Austerman, of the same firm, was with him on the briefs for appellee Joan Hertlein.
Robert E. Keeshan and William Rein, of Scott, Quinlan, Willard, Barnes & Keeshan, LLC, of Topeka, were on the brief for amicus curiae Kansas Association for Justice.
David R. Cooper, Teresa L. Watson, and J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, were on the brief for amicus curiae Kansas Association of Counties.
The opinion of the court was delivered by
LUCKERT, J.: In this appeal, we hold that an outpatient mental health center and its employees did not owe a duty to those injured by a psychiatric patient who became violent 9 months after an outpatient treatment order was allowed to expire, even though there existed a basis for the continuation of the order. We conclude that an outpatient mental health treatment facility does not take charge of an outpatient subject to an outpatient treatment order in a manner that gives rise to a duty to control the outpatient's conduct or to protect others from the outpatient.
Because no duty arose, we do not consider the question of whether an exception to liability exists because of the discretionary function exception to the Kansas Tort Claims Act (KTCA), K.S.A. 2008 Supp. 75-6104(e), which served as the basis for the district court's grant of summary judgment.
Facts and Procedural Background
Katherine Adams and her granddaughter Alexandra Cummins (the Plaintiffs) brought suits against the Board of Sedgwick County Commissioners and several mental health care professionals after Adam Cummins, Katherine's son and Alexandra's father, attacked Katherine with a hammer. In an effort to save her grandmother's life, Alexandra fatally shot her father.
During the 3-year period before this tragic incident, Adam had been treated at ComCare, a mental health agency operated by Sedgwick County, Kansas. Adam was first seen at ComCare in 1997 after he was discharged from inpatient treatment at the Topeka State Hospital (TSH). Adam's admission to the TSH was triggered by his threats to kill family members, and while there he was diagnosed with "bipolar disorder, manic with psychotic features." Later, he was diagnosed with "[s]chizophrenia, depressive type, continuous with prominent negative features, polysubstance abuse, personality disorder, NOS [not otherwise specified] with antisocial and dependent features."
Upon release from the TSH and while under the care of ComCare, a cycle began that repeated itself several times: Shortly after discharge from inpatient treatment, Adam would refuse to take his medications, and Adam's mental health would gradually deteriorate. He would become less compliant with the suggested treatment regimen; he would avoid one-on-one contact with his ComCare case managers; he would fail to keep appointments with various ComCare employees; and his behavior would become more hostile and threatening. On at least two occasions, Adam's threats of violence resulted in him being hospitalized. He received court-ordered treatment at Osawatomie State Hospital (OSH) beginning in November 1997 and, for the final time, beginning in May 1999. With each hospitalization, the cycle would come full circle and then begin anew–Adam would stabilize, be discharged, refuse medications, and eventually threaten violence.
ComCare's records relating to treatment before Adam's final hospitalization, which began in May 1999, reflect this cycle, as well as individual practitioner's concerns about Adam's refusal to take medications and his potential for violence. These pre-May 1999 records also reflect that on occasion Katherine called ComCare to express her concerns for and about her son and his behavior. As a result of these contacts and because of other information, ComCare's employees were aware that Adam had threatened Katherine, other family members, social workers, and others on several occasions.
The allegations in this case relate to the cycle that began in May 1999 with Adam's court-ordered–i.e., involuntary–hospitalization at OSH. Adam was released from inpatient hospitalization at OSH in July 1999 and placed in outpatient therapy at ComCare. On July 20, 1999, which was several days after Adam's discharge from OSH, the district court entered an outpatient treatment order. The court ordered that Adam:
"Shall comply with all directives and treatment as required by the treatment staff of the outpatient treatment facility;
"Shall take all medications prescribed without making any changes prior to authorization by the Outpatient Medicine Clinic Staff;
"Shall keep scheduled appointments with the Outpatient Medicine Clinic;
"Shall report use of any medication prescribed by other physicians;
"Shall abstain from using alcohol or illegally obtained drugs;
"Shall submit to random drug testing when requested by Outpatient Medicine Clinic;
"Shall meet with his designated Case Manager, Crisis or Homeless Team Staff member as scheduled; . . .
"Shall attend Day Treatment Program when recommended by clinical staff;
"Shall take all prescribed medications in the presence of the Outpatient Medicine Clinic Physician;
"Shall submit himself for lab work as prescribed by the Outpatient Medicine Clinic Staff."
The order also required ComCare to immediately report to the district court any noncompliance by Adam with the terms of the order.
Even before this outpatient treatment order was entered, Adam's reluctance to take his medications was reflected in a note made by Dr. Garry Porter, a ComCare employee, who wrote that Adam was trying to "chisel down" his medications. Then, 2 days after the outpatient treatment order was entered, Dr. Porter noted that Adam was not taking all his prescribed medications. Dr. Porter notified Adam's case manager about the noncompliance and "assumed" that the noncompliance had been reported to the district court. In fact, the noncompliance was not reported.
On August 13, 1999, ComCare issued a report recommending that the involuntary outpatient care and the treatment order be allowed to expire. The report indicated that Adam was compliant with physician appointments, was taking his medications, and was meeting with his case manager. It was signed by nurse practitioner Joan Hertlein on behalf of Dr. Porter, who testified he had never seen the report. The involuntary treatment order expired on August 27, 1999.
Adam voluntarily saw Dr. Porter on September 10, 1999. At that time, Dr. Porter noted Adam had "taken himself off all his meds," and Adam stated he "feels much better" and "denies any aggressivity." Dr. Porter's diagnosis stated that Adam was "in partial remission" and that he had not heard anything from Adam's family members recently. The following month, Adam's ComCare case manager recommended that Adam's case be closed to all services because of his refusal of ComCare's services and being noncompliant with any services.
By April 2000, Adam's condition had noticeably deteriorated, and on May 15, 2000–almost 9 months after the involuntary order had expired and 6 months after Adam had last been treated at ComCare–Adam became angry with Katherine and placed several phone calls to her home number, leaving messages that frightened both Katherine and Alexandra. They reported Adam's behavior to the police, who told them to keep their doors locked but did nothing else.
Several hours later, Adam arrived at Katherine's home and kicked down the door. Tragically, this time the threats of violence became a reality as Adam beat Katherine's head and face with a hammer, leading Alexandra to fire the fatal shot that killed her father. Katherine sustained serious head injuries and permanent disabilities as a result of Adam's attack.
This incident led to separate lawsuits being filed by Katherine and Alexandra. Katherine sued the Board of Sedgwick County Commissioners (County), Dr. Porter, and Hertlein (referred to collectively as Defendants) (Case No. 05-CV-1927). Alexandra sued only the County (Case No. 05-CV-1926). Although Katherine and Alexandra did not sue the same parties, their allegations relating to the Defendants' duty to them and the basis for their claims of breach of duty were identical. As stated in Katherine's petition, they allege:
"9. The Defendants had a duty to control the conduct of Adam Scott Cummins so as to prevent him from causing physical harm to the Plaintiff because:
a. A special relation existed between the Defendants and Cummins which imposed a duty upon the Defendants to control the conduct of Cummins; and
b. A special relation existed between the Defendants and the Plaintiff which gave rise to the Plaintiff a right of protection.
"10. The Defendants, individually and through the agents and employees of ComCare, were negligent in the treatment of Adam Scott Cummins as follows:
a. The Defendants determined or should have determined, under applicable professional standards, that Adam Scott Cummins posed a risk of violence to the Plaintiff;
b. The Defendants had a duty to exercise reasonable care to protect the Plaintiff who was the foreseeable victim of that danger; and
c. The Defendants had a duty to protect the Plaintiff (the intended or potential victim of its patient) when it determined or should have determined under the facts and under the standards of the profession that the patient was or might have been a danger to the Plaintiff."
The Defendants answered and, among other things, alleged that they did not owe a duty to the Plaintiffs and that they were immune from liability under K.S.A. 2008 Supp. 75-6104(e), the discretionary function exception to the KTCA, because any decisions made by ComCare with respect to Adam's treatment were discretionary acts. Eventually, the Defendants sought summary judgment, making the same arguments and also arguing the uncontroverted facts established that the Defendants' actions did not cause the Plaintiffs' injuries.
The district court granted summary judgment in favor of the Defendants. The court did not focus on whether there was a duty owed specifically to the Plaintiffs but instead analyzed whether any duties that might exist were subject to the discretionary function exception, stating:
"The only way that Defendant[s] could have protected Plaintiffs from Adam's violent behavior was to seek and obtain an order for involuntary care and treatment. Such an order was entered in May of 1999. The decision to allow this order to expire and the decision not to seek additional orders for involuntary care and treatment were discretionary functions. Because the Plaintiffs' claims are based upon Defendant[s'] performance or failure to perform discretionary functions, Plaintiffs' claims are barred by K.S.A. 75-6104(e)."
Katherine and Alexandra now appeal, and pursuant to K.S.A. 20-3018(c), this court transferred the appeal on its own motion. The Plaintiffs disagree with the district court's finding that the Defendants' decision to allow the involuntary outpatient treatment order to expire, rather than recommend an extension, was protected under K.S.A. 2008 Supp. 75-6104(e), the discretionary function exception to the KTCA. The Plaintiffs argue the Defendants cannot claim governmental immunity because they violated clearly defined legal duties that they were required to follow.
While the Defendants ask this court to affirm the conclusion that the discretionary function exception applies, they suggest that we should address the preliminary analytical step of determining whether the Defendants owed a duty to the Plaintiffs. The Defendants argue the issue of duty is dispositive. In addition, the County cross-appeals on the limited issue of whether this court lacks jurisdiction over Alexandra's claims because her notice of appeal was not timely filed.
Standard of Review
This court's standard of review on appeal from summary judgment is a familiar one:
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case." Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
On appeal from summary judgment, an appellate court applies the same rules as the district court, and where the appellate court finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Miller, 288 Kan. at 32. When material facts are uncontroverted, as they are in this case, an appellate court reviews summary judgment de novo. Troutman v. Curtis, 286 Kan. 452, Syl. ¶ 1, 185 P.3d 930 (2008); Klein v. Oppenheimer & Co., 281 Kan. 330, Syl. ¶ 7, 130 P.3d 569 (2006).
KTCA
The focus of the district court's decision was an exception to liability under the KTCA, K.S.A. 75-6101 et seq. This suit is subject to the KTCA because the Defendants are a governmental body and employees of that entity (or its agency). See K.S.A. 2008 Supp. 75-6102(b), (c) (defining "[g]overnmental entity" to mean the state or a municipality and including counties such as Sedgwick County in the definition of "municipality"); see also K.S.A. 2008 Supp. 75-6102(d) (defining "employee" as including "any person acting on behalf or in service of a governmental entity in any official capacity").
The KTCA provides:
"(a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." (Emphasis added.) K.S.A. 2008 Supp. 75-6103(a).
.
Several exceptions modify this general rule, including the exception relied on by the district court–the discretionary function exception of K.S.A. 2008 Supp. 75-6104(e). In order to invoke one of these exceptions and "'avoid liability, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions found in K.S.A. 75-6104.'" Lane v. Atchison Heritage Conf. Center, Inc., 283 Kan. 439, 444, 153 P.3d 541 (2007) (quoting Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 [2000]).
Hence, the analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity can be found liable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be liable under the same circumstances and (2) no statutory exception to liability applies.
Negligence
Regarding the first requirement, in order to establish liability for negligence against a defendant, including a governmental agency, the plaintiff must establish: (1) The defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff sustained damages. Hesler v. Osawatamie State Hospital, 266 Kan. 616, 623, 971 P.2d 1169 (1999); Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 397, 931 P.2d 26 (1997). Whether a duty exists is a question of law, and an appellate court's review is unlimited. See Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993).
Although the Defendants' summary judgment motion touched on each of these elements, on appeal the Defendants focus on the element of whether they owed a duty to the Plaintiffs. In response, the Plaintiffs argue, as they alleged in their petitions, that the Defendants had a special relationship with Adam and with them. The language of the petitions parallels that found in the Restatement (Second) of Torts (1964) (Restatement), specifically Restatement § 315, which recognizes a duty in certain situations where a special relationship exists. The Plaintiffs also argue that the Defendants breached statutory duties.
Care and Treatment Act
The Plaintiffs' arguments regarding a special relationship and a statutory duty are framed by the provisions of the Kansas Care and Treatment Act for Mentally Ill Persons, K.S.A. 59-2945 et seq. (the Act). Consequently, some discussion of the Act is necessary to our analysis of whether the Defendants owed a duty to the Plaintiffs.
In general, the Act includes provisions for (1) protecting the rights of individuals subject to the Act; (2) determining whether a person is a mentally ill person subject to involuntary commitment; (3) admitting and discharging voluntary patients from treatment facilities; (4) authorizing law enforcement officers to take a person suspected of being mentally ill into custody without a warrant; (5) administering medical treatment to individuals subject to the Act; (6) ordering outpatient treatment; (7) reviewing the status of individuals committed for treatment; and (8) disclosing a patient's medical records.
Under the provisions of this Act, on several occasions Adam was determined to be subject to involuntary commitment. This means that at the time of commitment Adam was a
"mentally ill person . . . who also lacks capacity to make an informed decision concerning treatment, is likely to cause harm to self or others, and whose diagnosis is not solely one of the following mental disorders: Alcohol or chemical substance abuse; antisocial personality disorder; mental retardation; organic personality syndrome; or an organic mental disorder." K.S.A. 59-2946(f)(1).
Each of the phrases "mentally ill person," "lacks capacity to make an informed decision concerning treatment," and "likely to cause harm to self or others" are defined in K.S.A. 59-2946(e) and (f). The first phrase–"mentally ill person"–is defined to mean:
"[A]ny person who is suffering from a mental disorder which is manifested by a clinically significant behavioral or psychological syndrome or pattern and associated with either a painful symptom or an impairment in one or more important areas of functioning, and involving substantial behavioral, psychological or biological dysfunction, to the extent that the person is in need of treatment." K.S.A. 59-2946(e).
The second phrase–"lacks capacity to make an informed decision concerning treatment"–is defined to mean that
"the person, by reason of the person's mental disorder, is unable, despite conscientious efforts at explanation, to understand basically the nature and effects of hospitalization or treatment or is unable to engage in a rational decision-making process regarding hospitalization or treatment, as evidenced by an inability to weigh the possible risks and benefits." K.S.A. 59-2946(f)(2).
The final phrase–"likely to cause harm to self or others"–is defined to mean, in relevant part, that "the person, by reason of the person's mental disorder: (a) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another's property, as evidenced by behavior threatening, attempting or causing such injury, abuse or damage." (Emphasis added.) K.S.A. 59-2946(f)(3).
Evidence establishing that a proposed patient's condition meets these definitions must be presented at a trial. If a district court determines the criteria are met, an order of involuntary commitment may be entered. The order may not commit the patient for more than 3 months from the date of the trial. K.S.A. 2008 Supp. 59-2966(a). At least 14 days before the end of the treatment period, the head of the treatment facility must file a report "summarizing the treatment provided and the findings and recommendations for the treatment facility concerning the need for further treatment for the patient." If further treatment is recommended, the patient has a right to a hearing. K.S.A. 59-2969(a),(b). At that point:
"Upon completion of the hearing, if the court finds by clear and convincing evidence that the patient continues to be a mentally ill person subject to involuntary commitment for care and treatment under this act, the court shall order continued treatment for a specified period of time not to exceed three months for any initial order for continued treatment, nor more than six months in any subsequent order for continued treatment, at an inpatient treatment facility as provided for in K.S.A. 59-2966 and amendments thereto, or at an outpatient treatment facility if the court determines that outpatient treatment is appropriate under K.S.A. 59-2967 and amendments thereto." (Emphasis added.) K.S.A. 59-2969(f).
As this provision indicates, there are criteria for determining if outpatient treatment, such as the order relating to Adam's treatment, is appropriate. K.S.A. 59-2967 provides:
"(a) An order for outpatient treatment may be entered by the court at any time in lieu of any type of order which would have required inpatient care and treatment if the court finds that the patient is likely to comply with an outpatient treatment order and that the patient will not likely be a danger to the community or be likely to cause harm to self or others while subject to an outpatient treatment order." (Emphasis added.)
If these requirements are met, the court may order outpatient treatment and, in doing so, may state specific conditions for outpatient treatment. These conditions impose obligations on both the treatment facility and the patient. See K.S.A. 59-2967(c), (e). It is those obligations imposed on treatment facilities that are relied on by the Plaintiffs as a basis for the Defendants' duties.
The first statutory provision that Plaintiffs assert as a basis for a duty–K.S.A. 59-2967(e)–provides that "[t]he treatment facility shall immediately report to the court any material noncompliance by the patient with the outpatient treatment order." The district court found it uncontroverted that Adam was not compliant in taking at least some of his medications, "which is material noncompliance with the outpatient treatment order." Further, it is uncontroverted that the Defendants did not report this noncompliance to the court.
The Plaintiffs note that on receipt of a report of noncompliance, the court can modify the order and allow the patient to remain at liberty or "the court may enter an ex parte emergency custody order providing for the immediate detention of the patient." K.S.A. 59-2967(e). If the patient is taken into custody, a hearing must be conducted "not later than the close of business on the second day the court is open for business after the patient is taken into custody." K.S.A. 59-2967(f)(1). The statute further provides:
"The hearing held pursuant to subsection (f) shall be conducted in the same manner as hearings provided for in K.S.A. 59-2959 and amendments thereto. Upon the completion of the hearing, if the court finds by clear and convincing evidence that the patient violated any condition of the outpatient treatment order, the court may enter an order for inpatient treatment, except that the court shall not order treatment at a state psychiatric hospital unless a written statement from a qualified mental health professional authorizing such treatment at a state psychiatric hospital has been filed with the court, or may modify the order for outpatient treatment with different terms and conditions in accordance with this section." K.S.A. 59-2627(g).
If a report of noncompliance is not filed, there is still a reporting obligation. K.S.A. 59-2969(a) requires that the head of a treatment facility–at least 14 days prior to the end of each treatment period–must submit a report summarizing the treatment provided and the findings and recommendations of the treatment facility concerning the patient's need for further treatment. The Plaintiffs cite this provision as the second basis for arguing a statutory duty existed. Although the Plaintiffs recognize that the Defendants filed a report, they argued to the district court, as they do on appeal, that the Defendants breached a statutory duty to file an accurate progress report regarding Adam before his treatment ended. The Plaintiffs point to the Defendants' failure to report that Adam was noncompliant with his medications and was resistant to case management.
Duty
Although the failure to report the noncompliance or to accurately report Adam's progress during treatment is undisputed, the Defendants insist that they did not breach a duty owed to the Plaintiffs. The parties cite several cases decided by this court and federal courts that have considered whether Kansas statutes impose duties that are owed to individuals injured by psychiatric patients and whether a special relationship exists that gives rise to a duty under Restatement § 315. None of these cases deal with a patient who was subject to an outpatient treatment order, but each assists in our analysis. We will discuss those cases but also consider additional Kansas cases that discuss Restatement § 315 and associated sections, outpatient treatment cases from other jurisdictions that apply Restatement § 315, and additional Kansas cases discussing