Allen v. Kansas Dept. of Social and Rehabilitation Services
| Decision Date | 16 January 1987 |
| Docket Number | No. 59579,59579 |
| Citation | 240 Kan. 620,731 P.2d 314 |
| Parties | Virginia ALLEN, Appellant, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The decision to cleanup a hallway outside of leased premises was within the discretionary function of the defendant Kansas Department of Social and Rehabilitation Services but the actual physical cleanup operation is held to involve a purely ministerial activity not within the discretionary function exception to liability (K.S.A. 75-6104[d] of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.), all as is more fully set forth in the opinion.
2. In an action wherein plaintiff seeks recovery for injuries sustained by falling on a slick hallway floor, the record is examined and it is held: The district court erred in sustaining the motion to dismiss defendant state agency on the ground of the discretionary function exception to liability (K.S.A. 75-6104[d] of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.).
Michael R. McIntosh, Kansas City, argued the cause and was on the brief, for appellant.
James F. Savage, of Kansas Dept. of Social and Rehabilitation Services, argued the cause and was on the brief, for appellee.
This is an action by plaintiff Virginia Allen seeking damages against defendant Kansas Department of Social and Rehabilitation Services (SRS) for injuries she sustained when she fell in a hallway outside of office premises leased by defendant SRS. The district court sustained a motion to dismiss filed by SRS on the ground of immunity under the discretionary function exception (K.S.A. 75-6104[d] of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.). Plaintiff appeals therefrom.
SRS leased office space on the first floor of One Gateway Center, Kansas City, Kansas. Under the lease SRS had no duty to clean or maintain the hallway adjacent to the leased premises. The building was owned by Gateway Complex, Inc. Janitorial services in the building were provided by B & G Maintenance Management, Inc., through a contract with the owner.
On March 15, 1985, an SRS client vomited in the hallway adjacent to the SRS offices. An SRS employee notified the management firm of what had occurred. When no one from the management firm arrived to remedy the problem, SRS sent one of its employees to clean up the mess. The employee cleaned the area. Thereafter, plaintiff, on her way to attend class at the Dickinson Business School which was also located at One Gateway Center slipped and fell on the wet hallway floor, sustaining serious injury.
Plaintiff brought this action against SRS, Gateway Complex, Inc., and B & G Maintenance Management, Inc. The action between plaintiff and B & G was settled. As previously stated, the district court dismissed the action as to SRS. The case went to trial as to plaintiff's claim against Gateway, with SRS remaining in the action for comparison of fault purposes only. The jury found in favor of plaintiff and fixed her damages at $80,000. Fault was apportioned as follows: plaintiff (0%); Gateway Complex, Inc. (45%); and SRS (55%).
The only issue on appeal is the propriety of the district court's dismissal of plaintiff's claim against SRS on the ground of immunity.
K.S.A. 75-6103 provides in part:
"(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."
K.S.A. 75-6104 provides in pertinent part:
"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
....
"(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused."
As we stated in Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984):
K.S.A. 1983 Supp. 75-6104 contains the immunity exceptions to the general rule of governmental liability. In Broadhurst...
To continue reading
Request your trial
-
Gragg v. Wichita State University, 76618
...the State cannot meet this burden, then the general rule of liability set forth in K.S.A. 75-6103 governs. Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 622, 731 P.2d 314 (1987); Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984)." C.J.W. v. State, 253 Kan. 1, 13, 853 P......
-
Williams v. C-U-Out Bail Bonds, LLC
...also is relevant to determining whether an action is discretionary or ministerial. See Allen [v. Kansas Dept. of Social and Rehabilitation Services] , 240 Kan. [620] at 623 [731 P.2d 314 (1987) ] (employee's action not discretionary when decision on how to clean vomit from floor did ‘not in......
-
Schmidt v. HTG, Inc.
...propensities were nondiscretionary. Those duties were imposed by law and were ministerial. We also held in Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987), that the negligent performance of a ministerial act is not within the discretionary function exception, even if the ......
-
Nero v. Kansas State University
...The issue of whether the State exercised reasonable care in doing so was held to be a question of fact. In Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987), this court held the decision to undertake a voluntary or certain task is discretionary; however, once that decision ......
-
Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act
...an applicable exception that provides immunity. Smith v. State, 264 Kan. 348, 358, 955 P.2d 1293 (1998); Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 622, 731 P.2d 314 (1987). 7. The resurgence of states' rights has been especially strong during the Rehnquist Court. See, e.g., Board of Tr......
-
The Kansas Tort Claims Act the Evolving Parameters of Governmental
...754 F. Supp. 844, 848 (D. Kan. 1990). [FN104]. Huseby, 754 F. Supp. at 847. [FN105]. Nero, 253 Kan. at 586; Allen v. Kansas Dept. of SRS, 240 Kan. 620, 731 P.2d 314 (1987). [FN106]. See Finkbiner, 238 Kan. at 861. [FN107]. 235 Kan. 167, 679 P.2d 190 (1984). [FN108]. 235 Kan. at 172. [FN109]......
-
Kora: a Primer on the Kansas Open Records Act
...P.2d 66 (1991). [6] State Dept. of S.R.S. v. Employee Relations Board, 249 Kan. 163; 815 P.2d 66 (1991); Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987). [7] Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 222, 50 P.3d 66, 87 (2002). [8] Kan. Att’y Gen. Op. No. ......
-
Kora: a Primer on the Kansas Open Records Act
...P.2d 66 (1991). [6] State Dept. of S.R.S. v. Employee Relations Board, 249 Kan. 163; 815 P.2d 66 (1991); Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987). [7] Wichita Eagle & Beacon Pub. Co. v. Simmons, 274 Kan. 194, 222, 50 P.3d 66, 87 (2002). [8] Kan. Att’y Gen. Op. No. ......