Aubertin v. Board of County Com'rs of Woodson County, Kan., 77-1358

• Citation: 588 F.2d 781
• Decision Date: 07 December 1978
• Docket Number: No. 77-1358,77-1358
• Parties: Anthony AUBERTIN, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF WOODSON COUNTY, KANSAS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 781

588 F.2d 781

Anthony AUBERTIN, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF WOODSON COUNTY, KANSAS Defendant-Appellee.

No. 77-1358.

United States Court of Appeals Tenth Circuit.

Argued Sept. 28, 1978.

Decided Dec. 7, 1978.

Donald E. Shelton, Ann Arbor, Mich. (Forsythe, Campbell, Vanderberg, Clevenger & Bishop, P. C., Ann Arbor, Mich., and James P. Nordstrom of Fisher, Patterson, Sayler & Smith, Topeka, Kan., on the brief), for plaintiff-appellant.

Jerry W. Hannah, Topeka, Kan. (Hannah & Worden, Topeka, Kan., and Robert W. Manske, Yates Center, Kan., on the brief), for defendant-appellee.

Before McWILLIAMS, McKAY and LOGAN, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a tort action with jurisdiction based on diversity. Anthony Aubertin, a resident and citizen of the State of Michigan, sustained serious personal injuries when a truck he was driving struck and knocked over the hand rail on a county bridge in Kansas and plunged into the stream below. The bridge in question was maintained by the Board of County Commissioners of Woodson County. Based on this incident, Aubertin brought suit in the United States District Court for the District of Kansas against the Board of County Commissioners, seeking compensatory and punitive damages.

Aubertin's complaint set forth three claims for relief. Count 1 was based on the so-called "highway defect" statute, K.S.A. § 68-301, which provides, in pertinent part, as follows:

Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, culvert or highway which by law, or agreement entered into pursuant to law, the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer or superintendent of roads and bridges of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.

Count 2 was based on simple negligence, the allegation being that the county was negligent in its construction and maintenance of the bridge and the road leading onto the bridge.

Count 3 charged the county with gross negligence, recklessness and willful and wanton misconduct in the construction and maintenance of the bridge and road, and asked for punitive damages.

By pre-trial order the trial court held that under Kansas law a county was immune from liability for negligence and on this basis count 2 was stricken from the complaint. In this general regard the trial court held that the only suit which Aubertin could bring against the county was that permitted by K.S.A. § 68-301, the "defect" and "notice" statute set forth above. The trial court additionally held, by pre-trial order, that the absence of a guard rail or advance warning signs did not constitute a violation of any "legislative command," and hence was not, in and of itself, a "defect" within the meaning of K.S.A. § 68-301. Finally, the trial court in its pre-trial order struck count 3 of the complaint, which sought punitive damages, on the ground that K.S.A. § 68-301 only permitted the recovery of compensatory damages, and did not authorize the recovery of punitive damages against a county.

Trial of this case was to a jury, with count 1 being the only matter presented to the jury. A transcript of the testimony given at trial is not a part of the record on appeal. It would appear from the statements of counsel, however, that all of the facts and circumstances surrounding the accident were fully explored, including the absence of a guard rail and advance warning signs. The jury returned a verdict in favor of the county. Aubertin now appeals, and assigns as grounds for reversal the trial court's pre-trial order, alleging that such was erroneous in several particulars. The principal ground urged for reversal is the allegedly erroneous holding by the trial court that the Kansas law granting immunity to a county from liability for negligence was constitutional and not violative of the equal protection clause of the Fourteenth Amendment.

Aubertin's equal protection argument is based on the fact that under Kansas judicial pronouncements a municipality is liable for its negligent construction or maintenance of city streets, whereas under the Kansas statutory scheme a county is not liable for its negligent construction or maintenance of county roads, though it may be held liable under the "defect" and "notice" remedy provided by K.S.A. § 68-301. Brief background will place this argument in focus.

At one point in time in Kansas a judicially created doctrine of governmental immunity rendered both the state and counties immune from liability for negligence. At the same time judicial precedent made a municipality liable for its negligent construction or maintenance of city streets. See, for example, Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). After indicating in several of its opinions that the doctrine of governmental immunity no longer was viable, the Kansas Supreme Court in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969) abrogated the doctrine by holding the state and its governmental agencies liable for its negligence when engaged in proprietary functions. The Kansas legislature, which had ignored earlier warnings, promptly thereafter enacted a statute which reestablished for the state and its agencies the doctrine of governmental immunity from liability for negligence, "except as is otherwise specifically provided by statute." K.S.A. § 46-901. Another statutory provision enacted in response to Carroll provided that the liability of local governments, including cities and counties, was to remain unchanged. K.S.A. § 46-902.

As above indicated, another statute had for some time provided that a person who without contributing negligence sustained damages by reason of any defective bridge or highway could recover from a county if responsible officials of the county had notice of the defect at least five days prior to the time when such damage was sustained. K.S.A. § 68-301. However, this "defect" and "notice" statute, according to Aubertin, imposes a greater burden on a party than merely proving simple negligence, which brings us to the core of Aubertin's equal protection argument: the Kansas statutory scheme which renders a county immune from liability for its negligence is unconstitutional since a municipality is liable for its negligent construction or maintenance of city streets. In other words, Aubertin argues that to permit an injured party to recover from a municipality for damages sustained by reason of a negligently constructed or maintained city street, and at the same time deny recovery to one injured by reason of a negligently constructed or maintained county roadway is disparate treatment which is...