Carpenter v. Johnson

• Decision Date: 22 July 1982
• Docket Number: No. 54023,54023
• Citation: 649 P.2d 400,231 Kan. 783
• Parties: Daniel CARPENTER, Appellant, v. Damon V. JOHNSON; Shawnee County, Kansas; Jefferson County, Kansas; and State of Kansas, Appellees.
• Court: Kansas Supreme Court

Page 400

649 P.2d 400

231 Kan. 783

Daniel CARPENTER, Appellant, v. Damon V. JOHNSON; Shawnee County, Kansas; Jefferson County Kansas; and State of Kansas, Appellees.

No. 54023.

Supreme Court of Kansas.

July 22, 1982.

Syllabus by the Court

1. The Kansas Tort Claims Act contains a signing exception, K.S.A. 1981 Supp. 75-6104(g ), which bifurcates governmental liability for traffic signs into the areas of maintenance and placement or removal of signs.

2. An exception written into a tort claims act constitutes a jurisdictional bar, if established.

3. Under the facts of this case, as set forth with particularity herein, it cannot be said as a matter of law that the failure of state and local authorities to erect a warning sign on the curve in question constitutes an exercise of discretion within the meaning of the signing exception, K.S.A.1981 Supp. 75-6104(g), of the Kansas Tort Claims Act.

Jerry R. Palmer, Topeka, argued the cause and was on the brief for the appellant.

Russell K. Ash, Staff Atty. Kansas Dept. of Transp., Topeka, argued the cause and was on the brief for the appellee, State of Kansas.

Thomas E. Wright, of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, argued the cause and was on the brief for the appellee, Shawnee County, Kansas.

SCHROEDER, Chief Justice:

This is an appeal by Daniel Carpenter (plaintiff/appellant) from summary judgment entered against him and in favor of the Board of Commissioners of Shawnee County, Kansas, and the State of Kansas (defendants/appellees). The district court found the governmental entities immune from suit under provisions of the Kansas Tort Claims Act (KTCA). K.S.A.1981 Supp. 75-6101 et seq.

The facts are brief and undisputed. In the early morning hours of August 12, 1979, Daniel Carpenter was a passenger in an automobile being driven by Damon Johnson. The vehicle was proceeding in an easterly direction on Northeast 46th Street when, about one-tenth of a mile west of the intersection of Northeast 46th Street and Highway K-4, the vehicle left a curve and struck an embankment. It is undisputed that, at the time of the accident, the curve was not marked with any warning signs.

Carpenter, the passenger, sustained injuries and brought suit against Damon Johnson, the State of Kansas, Jefferson County, and Shawnee County. He later moved to dismiss his actions against Damon Johnson and Jefferson County. The court ordered dismissal of the actions against these defendants with prejudice. The cause of action against the State and Shawnee County alleged that these governmental entities failed to properly maintain the roadway or, in the alternative, failed to correct a defect in the roadway by failure to erect a warning sign in accordance with the Manual on Uniform Traffic Control Devices. The State and Shawnee County filed separate motions for summary judgment. The court sustained those motions, finding K.S.A.1981 Supp. 75-6104(g) of the Kansas Tort Claims Act prohibits this action against the governmental entities. The plaintiff duly perfected his appeal to the Court of Appeals. The case was transferred to the Supreme Court on motion of the appellant. K.S.A. 20-3017.

A single issue is presented on appeal: whether the trial court erred in finding the governmental entities immune from suit pursuant to K.S.A.1981 Supp. 75-6104(g), an exception to liability pertaining to warning signs.

The Kansas Tort Claims Act, K.S.A.1981 Supp. 75-6101 et seq., a so-called "open ended" tort claims act, makes liability the rule and immunity the exception. K.S.A.1981 Supp. 75-6103(a) states the general rule:

"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.)

See generally Note, Governmental Liability: The Kansas Tort Claims Act (or The King Can Do Wrong), 19 Washburn L.J. 260 (1980).

Although liability is the rule, as emphasized above, it is not a rule without limitations. Exceptions from liability enumerated in K.S.A.1981 Supp. 75-6104 indicate the legislature has not rejected the concept of immunity. Robertson v. City of Topeka, 231 Kan. 358, 360, 644 P.2d 458 (1982). The manner in which the Kansas Tort Claims Act changed prior law remains to be analyzed as specific factual situations come before this court.

Carpenter, the plaintiff-appellant in this action, argues the general law in Kansas before the Tort Claims Act recognized the right of a person to sue the government for damages sustained resulting from the negligent failure to post warning of a curve or turn. K.S.A.1978 Supp. 68-419 (repealed L.1979, ch. 186, § 33) imposed liability on the state for defects in a state highway. K.S.A. 68-301 (repealed L.1979, ch. 186, § 33) imposed liability for defects on county and township roads. See e.g., Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972); Carder v. Grandview Township, 2 Kan.App.2d 7, 573 P.2d 1121 (1978); Annot., 55 A.L.R.2d 1000. Municipalities had a common law liability for street defects. Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). Three specific circumstances convince us this prior law concerning highway defects should not be engrafted onto the Tort Claims Act. First, the legislature specifically repealed the highway defect statutes. Second, under the prior law, the alleged defect was the sole focus of the inquiry regardless of any discretion which might have been exercised. Hampton v. State Highway Commission, 209 Kan. at 577-78, 498 P.2d 236. Third, under the prior law, no essential distinction existed between defects resulting from maintenance or failure to place signs. Compare Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634, with Carder v. Grandview Township, 2 Kan.App.2d 7, 573 P.2d 1121. As discussed more fully herein, the Tort Claims Act distinguishes between sign maintenance and sign placement, with the exercise of discretion a significant inquiry with regard to liability for sign placement.

It is important, for purposes of background, to note the Kansas Tort Claims Act contains a discretionary function exception patterned after the discretionary function exception in the Federal Tort Claims Act. 28 U.S.C. § 2680(a ). The Kansas exception, at K.S.A.1981 Supp. 75-6104, provides:

"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."

The KTCA contains a further specific signing exception patterned after the Oklahoma Political Subdivision Tort Claims Act, Okla.Stat.Ann. tit. 51, § 151 et seq. (West 1981 Supp.), specifically at § 155(15). The Federal Tort Claims Act contains no parallel provision. K.S.A.1981 Supp. 75-6104(g ) provides exemption from liability resulting from:

"(T)he malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or removing any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity."

In addition, K.S.A.1981 Supp. 75-6104 contains a catch-all provision which provides:

"The enumeration of exceptions to liability in this section shall not be construed to be exclusive nor as legislative intent to waive immunity from liability in the performance or failure to perform any other act or function of a discretionary nature."

A fundamental rule of statutory construction, to which we adhere, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. E.g., Brinkmeyer v. City of Wichita, 223 Kan. 393, 396-97, 573 P.2d 1044 (1978). The most cursory reading of the provisions of the statute quoted above reveals the legislature has given special consideration to traffic signs. The signing exception, K.S.A.1981 Supp. 75-6104(g ), plainly and unambiguously bifurcates liability for traffic signs into the areas of maintenance and placement or removal of signs. This distinction has been recognized in other jurisdictions. See, e.g., Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979); Gallison v. City of Portland, 37 Or.App. 145, 586 P.2d 393 (1978); Bd. of Comm'rs. v. Briggs, 167 Ind.App. 96, 337 N.E.2d 852 (1975). We express no opinion as to the holdings in these cases.

The case before us raises a question of liability for sign placement or, more precisely, failure to place a sign. The discretionary element in that decision is crucial to resolution of the issue. An exception written into a tort claims act constitutes a jurisdictional bar, if established. See, e.g., Baird v. United States, 653 F.2d 437, 440 (10th Cir. 1981) cert. denied, --- U.S. ----, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982); In re Air Crash Disaster Near Silver Plume, Colo., 445 F.Supp. 384, 400 (D.Kan.1977). See also, Wheat v. Finney, 230 Kan. 217, 221, 630 P.2d 1160 (1981).

To determine whether or not the failure to place these signs is within the exercise of discretion which is excepted from liability, we first must examine the duty of the governmental entities. K.S.A. 8-2003 requires the secretary of transportation to adopt a manual and specifications for a uniform system of traffic-control devices within the state.

"The secretary of...