Christopher v. Juvenile Justice Authority, No. 95,077.

• Decision Date: 06 October 2006
• Docket Number: No. 95,077.
• Citation: 143 P.3d 685
• Parties: Michael Shane CHRISTOPHER, Appellant, v. STATE of Kansas, ex rel., and KANSAS JUVENILE JUSTICE AUTHORITY, Appellees.
• Court: Kansas Court of Appeals

143 P.3d 685

Michael Shane CHRISTOPHER, Appellant, v. STATE of Kansas, ex rel., and KANSAS JUVENILE JUSTICE AUTHORITY, Appellees.

No. 95,077.

Court of Appeals of Kansas.

October 6, 2006.

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Mark Beam-Ward, of Hill Beam-Ward, Kruse, & Wilson, LLC, of Overland Park, for appellant.

Eliehue Brunson, assistant attorney general, Phill Kline, attorney general, Teresa L. Watson and Vincent Cox, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.

Before MALONE P.J., CAPLINGER, J., and LARSON, S.J.

CAPLINGER, J.

Michael Christopher was injured while participating in an educational activity as a resident at the Juvenile Justice Facility in Topeka. Christopher brought this negligence action against the State of Kansas and the Juvenile Justice Authority, which was operated by the Southeast Kansas Education Service Center (SKESC), Unified School District 609.

The district court dismissed Christopher's claims against SKESC based upon Christopher's failure to file a notice of claim pursuant to K.S.A. 12-105b(d). The court further dismissed Christopher's claims against the State, finding the State entitled to immunity under K.S.A.2005 Supp. 75-6104(u).

We affirm the district court's dismissal of Christopher's claims against SKESC. K.S.A. 12-105b(d) is a prerequisite to commencement of suit, and the failure to give notice deprived the district court of subject matter jurisdiction over Christopher's claim. Further, we agree with the district court that the savings statute, K.S.A. 60-518, did not permit Christopher to refile after the limitation period had run.

We also affirm the district court's grant of summary judgment to the State based upon the State's specific grant of immunity under the juvenile justice program exception to the Kansas Tort Claims Act (KTCA), K.S.A.2005 Supp. 75-6104(u). Applying the rational basis test, we find the State had a rational basis, i.e., the promotion of the education of juvenile offenders, in enacting K.S.A.2005 Supp. 75-6104(u), and the statute survives Christopher's equal protection challenge.

Factual and procedural background

The district court found the following facts, all of which are accepted by the parties on appeal:

"1. At all times relevant to this case, the plaintiff ... Christopher, was a juvenile who had been placed under the control and supervision of the Juvenile Justice Authority.

"2. At the time of his injury, [Christopher] was a resident at the Juvenile Justice Facility in Topeka, Shawnee County, Kansas.

"3. The defendant, State of Kansas, ex rel. Kansas Juvenile Justice Authority, operated the Topeka Juvenile Justice Facility.

"4. The defendant contracted with Southeast Kansas Education Service Center (`SKESC'), Unified School District 609, in Girard, Kansas, to provide educational services at the Topeka Juvenile Justice Facility.

"5. Pursuant to the terms of the contract, SKESC was responsible for hiring instructors to provide the educational services at the Topeka Juvenile Justice Facility.

"6. The [State] had no direct involvement in the educational activities but was responsible for safely transporting the juveniles to and from the classrooms at the Topeka Juvenile Justice Facility.

"7. It was the responsibility of SKESC to provide for the safety of the students in the classrooms.

"8. On or about May 20, 2002, [Christopher] was operating a table saw in the shop class at the Topeka Juvenile Justice Facility and he sustained an injury to his left hand.

"9. Kirk Easton, a teacher employed by SKESC, was aware that the saw in question lacked a necessary safety guard.

"10. Despite knowing that the table saw lacked the necessary safety guard, Mr. Easton allowed students to use the equipment.

"11. Mr. Easton witnessed [Christopher] using the table saw in question prior to the accident but he did not stop him from using the equipment.

"12. It was the responsibility of SKESC to provide advice on the safe operation of the equipment used in the classrooms.

"13. Although the State ... agreed to pay for the upkeep of the equipment used in the classrooms, it was the responsibility of SKESC to notify the [State] if any equipment required maintenance or was in disrepair."

Christopher brought suit against the State on December 5, 2003, and on March 17, 2004, he amended the petition to add SKESC as a defendant. Christopher claimed the defendants' negligence caused him severe, permanent, and disabling injury and resulted in medical expenses and lost earning capacity. Both defendants answered by denying negligence, and both raised the Kansas Tort Claims Act, K.S.A. 75-6101, et seq. (KTCA), as an affirmative defense.

Dismissal of SKESC

On June 2, 2004, SKESC moved to dismiss, arguing Christopher failed to plead compliance with the notice of claim statute, K.S.A. 12-105b(d). SKESC maintained such notice is a prerequisite to commencement of suit, and that by failing to give notice, the district court was without subject matter jurisdiction over Christopher's claim. SKESC contended the statute of limitations under K.S.A. 60-513 had expired and that Christopher's amended petition must be dismissed with prejudice.

In response, Christopher argued the notice of claim statute is an affirmative defense which must be raised in the first responsive pleading. Christopher contended SKESC intentionally failed to plead a known defense in order to raise the issue of the statute of limitations and that SKESC should not be allowed to benefit from this intentional failure.

The district court dismissed Christopher's claims against SKESC, reserving determination on whether Christopher could refile after having complied with K.S.A. 12-105b(d). Christopher subsequently moved to file a second amended petition, stating he had now provided proper notice of claim. SKESC opposed the motion, arguing the savings statute, K.S.A. 60-518, did not permit Christopher to refile after the limitation period had run.

The district court denied Christopher's motion to refile against SKESC. With regard to SKESC's failure to raise the notice of claim statute as an affirmative defense, the district court held failure to comply with the statute was a question of subject matter jurisdiction which could be raised at any time. The district court also held the savings statute did not apply, and Christopher could not refile outside the limitation period.

Summary judgment in favor of State

The State moved for summary judgment based on the KTCA, which provides a "governmental entity ... shall not be liable for damages resulting from ... any claim arising from providing a juvenile justice program to juvenile offenders, if such juvenile justice program has contracted with the commissioner of juvenile justice." K.S.A.2005 Supp. 75-6104(u). The State also argued separately that SKESC had assumed liability under the contract with the State and that the State did not bear liability as a landowner.

Christopher contended that arguments over contractual and landowner liability were premature given discovery had not been conducted. Christopher further suggested the State had a nondelegable duty to provide for the safety of juveniles within its custody. He argued K.S.A.2005 Supp. 75-6104(u) is unconstitutional because it selectively grants immunity for injuries caused to children in the custody of the State, but not for adults in custody of the State.

Christopher also contended "that the protection of children by the State is a fundamental interest." Without directly claiming children are a suspect class or that recovery against governmental entities is a fundamental right, Christopher suggested the State's interest in the welfare of children forbade it from claiming sovereign immunity from liability for injuries caused to them by governmental agencies.

Christopher finally argued the KTCA is unconstitutional "[e]ven if you only applied a rational basis test." He noted "[e]qual protection still requires that all persons similarly situated should be treated alike," and he asserted "[a]ny person, whether a child or an adult, who has lost their freedom of choice while in the custody of the State should be treated alike."

The district court, after finding the facts quoted above, held the State had immunity under the "plain language of the juvenile justice program exception to the KTCA." On the equal protection challenge, the district court refused to apply strict scrutiny based on United States Supreme Court authority holding that age is not a suspect classification. Applying the rational basis test, the district court reasoned "one of the primary objectives" of K.S.A.2005 Supp. 75-6104(u) "is to enable the State . . . to contract with other agencies so that juvenile offenders will be able to continue to receive an education while they are in state custody." The district court also held the KTCA does not eliminate the State's liability for its own negligence, but rather "simply provides that the State ... is not liable for the negligent acts of independent contractors who provide juvenile justice programs."

The district court further held the State does not have a general and/or a nondelegable duty to provide for the safety of minors. Finding it undisputed that the State had no direct role in providing the educational services to the juvenile offenders, the district court held "any risk of loss associated with [Christopher's] injury would fall upon SKESC rather than the State." Christopher appeals both the dismissal of SKESC and the grant of summary judgment to the State.

Christopher states he "is going to argue this appeal in reverse order, and address the constitutional claim first." Christopher reasons that "both defendants are governmental entities" under the KTCA and that "[t]herefore, both defendant governmental entities can claim immunity from liability in connection with providing a juvenile justice program to juvenile offenders."...