No. 84,987
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MICHAEL R. DUNN,
Appellee,
v.
UNIFIED SCHOOL DISTRICT NO. 367,
MIAMI COUNTY, STATE OF KANSAS,
Appellant,
and
TERRY RAY BALLOU, JR.,
Appellee,
v.
UNIFIED SCHOOL DISTRICT NO. 367,
OSAWATOMIE, MIAMI COUNTY, KANSAS,
Appellant.
SYLLABUS BY THE COURT
1. Ten years from the occurrence of the act giving rise to a negligence cause of action is the absolute limit for filing actions. K.S.A. 60-513(b).
2. An act cannot give rise to a cause of action as that term is used in the statute of repose when such an act is barred by the governmental immunity found in the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.
3. A governmental entity is only liable for negligence caused by the negligent or wrongful act or omission of any of its employees while acting in the scope of their employment to the same extent a private person would be. K.S.A. 75-6103(a).
4. The existence of a duty is a question of law which we review de novo.
5. A private person can be liable for negligence arising from injuries from a broken plate glass door even though the door was in conformity with building codes at the time of installation.
6. Interpretation of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., is a question of law over which we have unlimited review.
7. Under the Kansas Tort Claims Act, liability is the rule, immunity the exception.
8. The burden is on the governmental entity to establish governmental immunity under one or more of the exceptions found in K.S.A. 75-6104.
9. The rules of statutory construction are stated and applied.
10. K.S.A. 75-6104(m) is limited to design-caused accidents and does not immunize the governmental entity from liability caused by negligence independent of design where the independent negligence is a concurring, proximate cause of the accident.
11. A public secondary school owes its high school students a duty to properly supervise the students and to take reasonable steps to protect students' safety.
12. K.S.A. 12-105b requires any person with a claim against a school district to file a notice of claim which must include, inter alia, a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of.
13. Every defense, in law or fact, to a claim of relief in any pleading shall be asserted in the responsive pleading thereto. K.S.A. 60-212(b).
14. Where defendant admits in its answer a notice of claim was filed, fails to amend its answer, and first argues the issue of insufficiency of the K.S.A. 12-105b notice in its supplemental trial brief but the issue is not included in the pretrial order and, thus, never ruled on by the district court, the issue is not properly before this court.
Appeal from Miami District Court; STEPHEN D. HILL, judge. Opinion filed February 8, 2002. Affirmed.
Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellant.
Donald W. Vasos and David A. Hoffman, of Vasos Law Offices, of Shawnee Mission, for appellee Michael R. Dunn.
Lee H. Tetwiler, of Law Office of Lee H. Tetwiler, of Paola, for appellee Terry Ray Ballou, Jr.
Before MARQUARDT, P.J., ELLIOTT, J., and PADDOCK, S.J.
ELLIOTT, J.: Following jury trial, defendant Unified School District (U.S.D.) No. 367 appeals the judgment and the district court's denial of its motion for judgment as a matter of law or new trial. We affirm.
The factual background is straightforward and undisputed; the procedural background is somewhat muddled but manageable. On December 15, 1995, plaintiffs Michael R. Dunn and Terry Ray Ballou, Jr., seniors at Osawatomie High School, finished lunch early and headed back to class. To get back to their classroom, Dunn and Ballou had to pass through double-glass hallway doors that were closed but were normally open and had been open when they went to lunch 20 minutes earlier. The plaintiffs noticed from a distance of 50 feet away the doors were closed but proceeded at a fast pace toward the doors. Both reached for the crossbar to open the door at the same time, but Ballou's hand slipped, striking the glass and breaking it. The glass in the door was plate glass, not safety glass, and as a result broke into knife-like pieces severely injuring both students.
Dunn and Ballou each filed a separate claim of negligence against U.S.D. No. 367 pursuant to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. To summarize, Ballou alleged that U.S.D. No. 367 was negligent in (1) failing to discover the plate glass and replace it with safety glass, (2) failing to warn of the danger the plate glass posed; (3) failure to leave a door with plate glass open for passage and to warn that the door was closed; and (4) failure to supervise the students. Dunn alleged that U.S.D. No. 367 was negligent in (1) failing to use safety glass on an interior door; (2) failing to take reasonable steps to make the school premises safe for anticipated uses by their teenaged students; and (3) failing to remove the plate glass in the face of overwhelming evidence of its propensity to cause enhanced injury when broken.
The plaintiffs' claims were joined for discovery and trial. U.S.D. No. 367's first motion for summary judgment, which argued it was immune pursuant to K.S.A. 75- 6104(m) and that the claim was barred by the statute of repose, was denied by the district court. Following further discovery, U.S.D. No. 367 renewed its motion for summary judgment. The district court orally granted the motion in part and denied it in part on the date of trial. Specifically, the district court orally granted the renewed motion with respect to the governmental immunity found in K.S.A. 75-6104(m) and, thus, dismissed any claims of negligence for failure to replace the plate glass but denied the motion with respect to the statute of repose argument.
No journal entry was prepared with respect to the ruling on the renewed motion for summary judgment. Nonetheless, the case was ultimately tried on plaintiffs' allegations of breaches of duties other than failure to replace the plate glass with safety glass. We will, therefore, assume without deciding that U.S.D. No. 367 cannot be held liable for any design or planning defect that led to the installation of the plate glass.
The trial commenced, but a mistrial was declared during the examination of the plaintiffs' first witness.
The new trial commenced almost a year later. Following the reception of evidence and counsels' arguments, the trial court instructed the jury that the defendant had a duty to warn of the danger of the plate glass, duty to guard against breakage of the plate glass door, duty to inspect the school grounds for dangerous conditions, and a duty to properly supervise students and provide a safe learning environment. The jury found each plaintiff to be 10% at fault and U.S.D. No. 367 to be 90% at fault; it found Ballou's damages to be $123,013.52 and Dunn's damages to be $153,378.06.
U.S.D. No. 367 then moved for a judgment as a matter of law or a new trial, arguing (1) the statute of repose barred plaintiffs' claims; (2) defendant's liability is barred by K.S.A. 75-6104(m); and (3) a private person would not be liable under the facts of this case as required by K.S.A. 75-6103. The motion was denied. U.S.D. No. 367 appeals, bringing several issues. We take them in a slightly different order than presented.
Does the statute of repose bar plaintiffs' claims?
U.S.D. No. 367 argues that the statute of repose, K.S.A. 60-513(b), bars the plaintiffs' claims.
It is difficult to determine from its brief exactly from what ruling U.S.D. No. 367 appeals. The district court orally denied its motion for summary judgment based on a statute of repose argument and also denied its motion for judgment as a matter of law and, in the alternative, a new trial based on a statute of repose argument.
Nonetheless, a determination of whether the statute of repose applies is a question of law which we review de novo. See Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996).
The statute of repose provides:
"Except as provided in subsection (c), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action." (Emphasis added.) K.S.A. 60-513(b).
Thus, 10 years from the occurrence of the act giving rise to the cause of action is the absolute limit for filing actions. Dobson v. Larkin Homes, Inc., 251 Kan. 50, 52-53, 832 P.2d 345 (1992).
U.S.D. No. 367 argues the act giving rise to the cause of action was the installation of the plate glass in the door which occurred in the late 1960s. This argument must be seen as contra to the argument U.S.D. No. 367 has urged throughout this case. U.S.D. No. 367 has consistently and forcefully argued during the entire pendency of this case that there can be no cause of action based on the planning and design of the building which led to the installation of the plate glass door. The district court agreed with this argument in orally granting U.S.D. No. 367 partial summary judgment, and we have assumed that proposition of law without deciding that such is the case. U.S.D. No. 367's actions in the late 1960s, designing and planning a door with plate glass, is not an act that can give rise to a cause of action because that act is not actionable pursuant to K.S.A. 75-6104(m). Thus, the date of the planning and designing of the plate glass doors is immaterial to a statute of repose argument.
Appellant's reliance on Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999), is misplaced. In Klose, the last act giving rise to plaintiff's cause of action occurred over 10 years after the statute of repose barred the action. In the present case, any tortious act or failure to act which gave rise to plaintiffs' cause of action occurred well within the statute of repose. We will discuss below whether there were, in fact, any tortious acts or a failure to act that supports plaintiffs' cause of action.
U.S.D. No. 367 argues "[t]he statute of repose cannot be avoided by alleging a continuing failure to protect against an ancient premises hazard. The Klose appeal involved just such a contention, which was clearly rejected in the final paragraph of the Supreme Court's opinion."
A review of the Klose opinion and the appellant's brief filed in that case rejects U.S.D. No. 367's argument. The Supreme Court first held the statute of repose barred a claim against one of the defendants, Wood Valley Racquet Club. 267 Kan. at 168. The court then moved on to discuss plaintiff's claims against the other two defendants, holding those defendants owed plaintiff no duty of care. 267 Kan. at 169-74. The Supreme Court then noted in the last paragraph of the opinion that "Klose makes two final contentions. . . . The second is that Wood Valley had a duty to protect [plaintiff]. Neither is material in light of our conclusions that plaintiff's action against Wood Valley is barred by the statute of repose." 267 Kan. at 174.
Klose does not support the defendant's argument that the statute of repose cannot be avoided by alleging a continuing failure to protect against an ancient premises hazard. We can deduce from the fact that Klose's argument that Wood Valley owed him a duty of care was discussed well after the opinion's discussion of the statute of repose that Klose's argument had nothing to do with the statute of repose. In other words, it appears from the opinion that Klose did not argue Wood Valley breached a duty of care to protect him within the time period specified in the statute of repose, thus barring application of the statute of repose. Klose's argument with respect to Wood Valley's alleged duty of care had nothing to do with the applicability of the statute of repose. In the present case, both the district court and this court have been provided with Klose's brief on appeal, and it is clear that Klose's argument regarding Wood Valley's alleged breach of a duty to protect him had nothing to do with the application of the statute of repose. Klose simply argued Wood Valley owed him a duty of care--the argument was not keyed to the statute of repose issue.
The district court did not err in any of its rulings regarding the statute of repose.
Does the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.,
bar plaintiffs' claims?
U.S.D. No. 367 makes two arguments that the KTCA bars any liability. First, U.S.D. No. 367 argues that (1) a private person would not be liable under the facts of this case, and (2) the KTCA bars all liability even for those torts independent of the "plan or design" exception found in K.S.A. 75-6104(m). We take each argument in turn.
Would a private person be liable for this accident?
U.S.D. No. 367 argues the trial court erred in overruling its motion for a judgment as a matter of law or a new trial because a private person would not be liable under the facts of this case.
The KTCA governs tort claims brought against school districts. Jackson v. U.S.D. 259, 268 Kan. 319, 322-23, 995 P.2d 844 (2000). The KTCA states that unless a statutory exception to liability applies, a governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. K.S.A. 75-6103(a); P.W. v. Kansas Dept. of SRS, 255 Kan. 827, Syl. ¶ 1, 877 P.2d 430 (1994).
Actionable negligence must be based on a breach of duty. The existence of a duty is a question of law for this court. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
Glynos v. Jogoda, 249 Kan. 473, 819 P.2d 1202 (1991), controls. In Glynos, plaintiff was injured when he went through a plate glass door at a private apartment complex. At the time the complex was built, the plate glass was sufficient to meet applicable building codes. Defendant appealed the judgment entered against it, arguing inter alia the trial court erred in denying its motion for a directed verdict because, as a matter of law, it could not be found negligent because the plate glass door complied with all applicable building codes. The Supreme Court held:
"Plaintiffs assert a claim for injuries resulting from Meadowlark Hill's alleged negligence occurring in a common use area of the apartment complex. The duty of ordinary care owing from Meadowlark Hill to Daniel, transcends the building code issue. Conformity with the building code is not an absolute defense to a claim based on ordinary negligence.
"While compliance may be evidence of due care, it does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances.
"At the time of construction in 1968, the complex met all applicable building codes. We agree with Meadowlark Hill that it had no legal duty to rebuild in order to comply with each update in the building code. We do not imply such an onerous economic requirement.
"The question is, simply, did Meadowlark Hill exercise ordinary care to maintain a common area of the complex in a safe condition?" Glynos, 249 Kan. at 485.
Here, U.S.D. No. 367 words its argument as follows:
"Judge Hill was aware of the Glynos case but failed to heed its holding. He concluded that premises liability instructions were proper and that liability could be imposed for failing to replace the plate glass which was installed in conformity with the building codes applicable at the time the school was built. His instructions were clearly erroneous and bluntly violated the remand directions in Glynos."
The record clearly refutes this argument. Contrary to U.S.D. No. 367's argument, the jury was not instructed to find fault based on a premises liability theory with respect to the installation of the plate glass or on a theory the school should have replaced the plate glass. Glynos holds a private person may be liable for injuries resulting from the breakage of a plate glass door if it is proven the defendant breached a duty of care to exercise ordinary care to maintain a common area of an apartment complex. Glynos, 249 Kan. at 485.
Does K.S.A. 75-6104(m) bar plaintiffs' claims despite any breach of duty?
U.S.D. No. 367 argues the grant of governmental immunity found in K.S.A. 75- 6104(m) acts as a total bar to plaintiffs' claims even if torts independent of the immunity statute are pled and proven.
K.S.A. 75-6104(m) states:
"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
. . . .
"(m) the plan or design for the construction of or an improvement to public property, either in its original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such approval and if the plan or design was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared."
Plaintiffs alleged in their petitions multiple duties and breaches of those duties and causes of their injuries. The causes alleged by plaintiffs can be summarized as failure to warn, failure to provide a safe learning environment, failure to inspect for dangers, failure to properly supervise the students, and failure to replace the plate glass in the doors with safety glass. The jury was instructed on all of these causes except the failure to replace the plate glass with safety glass, presumably based on the trial court's oral ruling preceding the first trial that K.S.A. 75-6104(m) barred it as a basis of liability.
The failure to replace the plate glass with safety glass, however, was a "but-for" and proximate cause of the injuries sustained by the students. Thus, taking into consideration the jury's verdict, there were multiple causes of the students' injuries, one of which, the failure to replace the plate glass with safety glass, we have presumed is barred by K.S.A. 75-6104(m) as a basis for liability. The question becomes whether a governmental entity may be liable for damages caused in part by a breach of duty from which the governmental entity is immune from tort liability pursuant to K.S.A. 75- 6104(m) and in part by breaches of duties not so barred.
We begin by noting our standards of review. This issue requires us to construe the KTCA, an issue of statutory construction over which we have unlimited review. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
"[T]he Kansas Tort Claims Act takes an open-ended approach to governmental liability. In other words, liability is the rule while immunity the exception. This approach is consistent with the general principle of law that for negligent or tortious conduct, liability is the rule, immunity the exception. Durflinger v. Artiles, 234 Kan. 484, 501, 673 P.2d 86 (1983); Noel v. Menninger Foundation, 175 Kan. 751, 762, 267 P.2d 934 (1954). . . . K.S.A. 1983 Supp. 75-6104 contains the immunity exceptions to the general rule of governmental liability. In Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P.2d 360 (1964), this court observed ordinarily a strict or narrow interpretation must be applied to statutory exceptions. 194 Kan. at 44. In construing a statute, any doubt should be resolved against the exception, and anyone claiming to be relieved from the statute's operation must establish it comes within the exception. In other words, the burden is not upon the claimants herein to establish the defendants do not come within one or more of the K.S.A. 1983 Supp. 75-6104 exceptions. Rather, the burden is upon the defendant governmental entity, or defendant employee, to establish governmental immunity under one or more of the exceptions of K.S.A. 1983 Supp. 75- 6104. If the party claiming this exception cannot meet this burden, the general rule of liability, in K.S.A. 1983 Supp. 75- 6103, governs." Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs when we can ascertain that intent. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). "Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible." State v. Engles, 270 Kan. 530, Syl. ¶ 3, 17 P.3d 355 (2001). The maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. See State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982).
With these standards firmly in mind, we turn to the question posed. Is a governmental entity liable for damages caused in part by a breach of duty from which the governmental entity is immune from tort liability pursuant to K.S.A. 75-6104(m) and, in part, by breaches of duties not so barred?
This question has not been resolved with respect to K.S.A. 75-6104(m), but has been with respect to two other subsections of K.S.A. 75-6104.
In Jackson v. U.S.D. 259, 268 Kan. 319, 995 P.2d 844 (2000), plaintiff was injured in a school gymnasium. The district court granted defendant summary judgment, ruling the "recreational use" exception to governmental entity liability, K.S.A. 75-6104(o), barred plaintiff's claim. That statute states a governmental entity or its employees acting within the scope of their employment are not liable for damages resulting from "any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or employee thereof is guilty of gross and wanton negligence proximately causing such injury." (Emphasis added.) K.S.A. 75-6104(o).
Jackson argued, similarly to the plaintiffs in the instant case, that the immunity provisions of the KTCA do not apply because the defendant had a duty "under the common law to supervise school children in a non-negligent manner." 268 Kan. at 331.
The Kansas Supreme Court rejected this argument, holding:
"The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be liable for damages which are the result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of the public without fear that they will be unable to fund them because of the high cost of litigation. The benefit to the public is enormous. The public benefits from having facilities in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The public benefits from having a place to meet with others in its community. In the case of an indoor gymnasium, the public benefits from having a place to participate in recreational activities when the weather outside is wet or cold.
"There is no consideration of ordinary negligence in a case in which the defendant asserts that it is immune pursuant to K.S.A. 75-6104(o), and, therefore, no consideration of duty or breach. K.S.A. 75-6104(o) is a complete defense to actions where the plaintiff alleges only ordinary negligence. [Citations omitted.] Qualified immunity, as found in K.S.A. 75-6104(o), means that the defendant is immune, regardless of any common-law duty, absent a showing of gross or wanton negligence." Jackson, 268 Kan. at 331.
See also Barrett v. U.S.D. No. 259, 272 Kan. ___, Syl. ¶ 8, 32 P.3d 1156 (2001) (holding the recreational use exception eliminates any liability of the defendants for ordinary negligence); Lanning v. Anderson, 22 Kan. App. 2d 474, 921 P.2d 813 (1996) (holding recreational use exception eliminates any liability of the defendants despite argument teachers and school districts owe a duty of ordinary care to properly supervise and provide a safe learning environment).
Thus, when the recreational use exception applies, it acts as a total bar to claims of ordinary negligence. However, the Kansas Supreme Court has interpreted the exception found in K.S.A. 75-6104(c) differently. That subsection provides immunity to governmental agencies when damages result from "enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution." In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), a Bonner Springs police officer was badly wounded by three escaped inmates from the Kansas State Penitentiary in Lansing. The officer sued, alleging the State breached a duty to protect him from escaped convicts. The State claimed it was exempt from liability by virtue of K.S.A. 1981 Supp. 75-6104(c).
The Court rejected the argument that the exemption applied in that set of circumstances, reasoning:
"True, the statutes not only authorize the State, through the secretary of corrections, to assume and maintain custody of inmates in the State's penal institutions, including the Kansas State Penitentiary at Lansing, Kansas, but they also impose a duty upon the secretary to retain custody. But state agencies all are created by law; their powers and their duties are established by law; and, in one sense or another, they carry out or enforce the law when they proceed with their day-to- day operations. If 75-6104(c) is given the broadest possible construction, then it becomes almost impossible to conceive of an action by a governmental agency which does not constitute enforcing or carrying out a law.
"We construe K.S.A. 1981 Supp. 75-6104(c) to provide an exemption from claimed liability only where claimant's sole asserted claim of causal negligence is the public entity's enforcement or failure to enforce a law. That section does not provide an exemption where the agency, in enforcing or failing to enforce a law, commits some additional tortious act or omission which would be negligence at common law, and which act or omission causes damage." (Emphasis added.) Cansler, 234 Kan. at 568.