Bradley v. Board of County Com'rs of Butler County, 71128
| Decision Date | 03 March 1995 |
| Docket Number | No. 71128,71128 |
| Parties | Christine BRADLEY, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BUTLER COUNTY, Appellee. Christine BRADLEY, Appellant, v. CITY OF ANDOVER, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Summary judgment is proper where the only question presented is one of law and the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
2. In ruling on the propriety of a trial court's entry of summary judgment, this court, like the trial court, must resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the nonmovant, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.
3. The immunity provided to governmental entities in K.S.A. 75-6104(j) for emergency preparedness activities is not conditioned upon that governmental entity having in place a state-approved emergency preparedness plan, and that entity is not liable for emergency preparedness activities unless liability is otherwise provided for in Article 9 of chapter 48 of Kansas Statutes Annotated.
4. When separate statutes relate to the same subject matter and class of things, they should be considered in pari materia. K.S.A. 75-6104(j) and K.S.A. 48-904 (Ensley) both relate to emergency preparedness, and the definition of that term in 48-904 provides guidance for what the legislature meant by that term in 75-6104(j), i.e., the preparation for and the carrying out of all emergency functions.
5. Neither a city nor a county in this state has a duty to warn its citizens of approaching severe weather, and a city or county's failure to so warn does not provide a basis for liability to a person injured as a result of that severe weather.
6. A statutory requirement that a city or county have in place a state-approved emergency preparedness plan creates a duty to the public at large but it does not create a duty upon that city or county to warn specific individuals of impending severe weather.
Jack Peggs, Wichita, for appellant.
Steven J. Rupp and Alan L. Rupe of Rupe & Girard Law Offices, P.A., Wichita, for appellees.
Before ELLIOTT, P.J., ROYSE, J., and JOHN J. BUKATY, Jr., District Judge, Assigned.
Christine Bradley appeals the district court's order granting summary judgment in favor of the Board of County Commissioners of Butler County (Butler County) and the City of Andover (Andover).
On April 26, 1991, a tornado struck Andover. Bradley subsequently filed suit in Sedgwick County against Butler County and Andover seeking damages for serious injuries she suffered when that tornado struck her home. She claimed that Butler County and Andover officials were negligent in failing to adequately warn her of the approaching storm.
Both Butler County and Andover filed motions challenging venue and requesting summary judgment. The trial court entered summary judgment for both defendants on grounds that the action arose out of emergency preparedness activities for which Butler County and Andover were immune pursuant to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. K.S.A. 75-6104(j). The trial court also construed the motion to dismiss on grounds of improper venue as a motion to transfer and ordered the case transferred to Butler County.
We affirm the trial court's order granting the motions for summary judgment and first find as a matter of law that the emergency preparedness exception to the Kansas Tort Claims Act contained in K.S.A. 75-6104(j) protects both defendants from liability to plaintiff under the facts present in this case. That statute reads:
"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable in damages resulting from:
....
(j) any claim based upon emergency preparedness activities, except that governmental entities shall be liable for claims to the extent provided in article 9 of chapter 48 of the Kansas Statutes Annotated."
"Summary judgment is proper where the only question or questions presented are questions of law." Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). It is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that there is no genuine issue as to any material fact and 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 be reasonably drawn from the evidence in favor of the nonmovant. On appeal, this court applies the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Here, there are no material facts in dispute, and the summary judgment motion presents a pure question of law.
Bradley first argues that this statute cannot cloak Butler County with immunity because Butler County did not have in place an approved emergency plan as required by the Kansas Emergency Preparedness Act, K.S.A. 48-904 et seq. (Ensley). She specifically refers to K.S.A. 48-929 (Ensley) which in relevant part reads:
"(d) In accordance with the standards and requirements for disaster emergency plans promulgated by the division of emergency preparedness, each county, city and interjurisdictional disaster agency shall prepare and keep current a disaster emergency plan for the area under its jurisdiction, which has been approved after examination and periodic review by the division of emergency preparedness."
At the time of the tornado, Butler County did not have an emergency preparedness plan that had been approved by the state division of emergency preparedness. In fact, it was the only Kansas county that did not. It had previously submitted one for approval, but the State sent it back for revision.
Butler County argues that the lack of this plan is of no moment here and that the immunity contained in K.S.A. 75-6104(j) does not depend upon the existence of such a plan. We agree. Nowhere in all of the statutes of this state is there any mention that having an approved emergency plan on file is a prerequisite to immunity for emergency preparedness activities. Nor has Bradley cited us to any case law to support her position.
K.S.A. 75-6104(j) does state that governmental entities are liable for emergency preparedness activities when such is provided for under article 9 of chapter 48 of the Kansas Statutes Annotated. There are provisions in that chapter providing for governmental liability to persons eligible for workers compensation or pensions, etc. See K.S.A. 48-915(a) (Ensley). Also, state employees, agents, and representatives may be liable to individual members of the public under K.S.A. 48-915(b) (Ensley) for willful misconduct, gross negligence, or bad faith in connection with emergency preparedness activities. But again, nowhere is there mention of liability for such activities if a governmental entity fails to have on file an...
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