Collins v. Douglas County
| Decision Date | 06 December 1991 |
| Docket Number | No. 65906,65906 |
| Citation | 822 P.2d 1042,249 Kan. 712 |
| Parties | Russell Howard COLLINS, Appellant, v. DOUGLAS COUNTY, Kansas, Board of County Commissioners for Douglas County, Kansas, and Wakarusa Township, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The construction and maintenance of county bridges are governed by the plain language of K.S.A. 68-1104, which is discussed and applied herein.
2. A township is responsible for township culverts and the approaches to bridges and culverts, while the county is responsible for the construction and maintenance of bridges, including those located on township roads.
3. Under the facts of this case, the failure of a county to post "no diving" or "shallow depth" warning signs or to install a depth gauge or depth indicator at a bridge over a rural creek was within the discretionary function and signing exceptions of the Kansas Tort Claims Act, K.S.A. 75-6104(e) and (h), and summary judgment for the defendant county was proper.
Bryson R. Cloon, of Cloon & Bennett, Overland Park, was on the brief for appellant.
David R. Erickson, Kristopher A. Kuehn, and Jana V. Richards of Blackwell Sanders Matheny Weary & Lombardi, of Overland Park, were on the brief for appellees Douglas County, Kansas, and Bd. of County Commissioners for Douglas County, Kansas.
Robert W. Fairchild of Riling, Burkhead, Fairchild & Nitcher, Chartered, Lawrence, was on the brief for appellee Wakarusa Township.
This is a tort claims act "failure to warn" personal injury case. The result in the trial court was summary judgment for both defendants.
Russell Howard Collins sued the Board of Douglas County Commissioners (the Board) and Douglas County (County) and Wakarusa Township (Township) for personal injuries resulting from his dive off a low-water bridge.
The issues for resolution require our interpretation of a bridge maintenance statute K.S.A. 68-1104, and our analysis of the discretionary function and signing exceptions to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6104(e), (h).
We ground our summary judgment affirmance (1) for the Township upon K.S.A. 68-1104 as the Township had no bridge maintenance responsibility, and (2) for the County upon K.S.A. 75-6104(e) and (h), as the posting of either "no diving" or "shallow depth" signs or the installation of a depth gauge indicator was discretionary.
Our jurisdiction is under a K.S.A. 20-3018(c) transfer to this court.
Collins dove into a rural creek from a low-water bridge located on a Wakarusa Township road in Douglas County. He broke his neck, resulting in quadriplegia. Collins alleged in his petition that the Township and the County had knowledge that the creek was used by local residents as a swimming area. He also asserted that the Township and County had altered the depth of the creek bed by dumping rock into the creek at the location of his dive. Collins contended that the Township and County were negligent in failing to warn of the dangerous condition of the "swimming area" by not posting either a "no diving" or a "shallow depth" sign, or by not installing a depth gauge or indicator. Collins filed an amended petition asserting gross and wanton conduct.
Collins asserted that on prior occasions he had been swimming in the creek and that the water had been over his head. Collins further asserted that the Township and the County: (1) knew that the creek area where he was injured had been used frequently as a "swimming hole" and (2) dumped rocks and/or other debris in the creek, changing the depth to approximately three feet. To support his assertions, Collins attached an affidavit of Dave Hill, an insurance adjuster assigned to investigate the accident. Hill stated that he was told by Roger Barnes, the Township foreman, that people swam in the creek and that the County dumped rocks in the creek where the accident occurred.
Collins advanced the additional contention that there are manuals and written guidelines for construction, maintenance, and repair of low-water bridges and waterways and for control of waterway erosion. Collins referenced his supplement to his designation of expert witnesses in support of his written guideline assertion. In his expert witness supplement, Collins stated that Dr. David Parr was expected to testify that such manuals and guidelines exist and that failure to follow the manuals and guidelines was gross and wanton negligence.
Collins reasons that (1) the act of placing signs at the bridge was not discretionary; consequently, there is no immunity under the KTCA; (2) K.S.A. 8-2003 adopts the Manual on Uniform Traffic Control Devices (MUTCD), thus establishing a statutory duty and written guidelines for the placement of warning signs; and (3) once the Township and the County voluntarily undertook the inspection, repair, and maintenance of the creek area, the tasks were ministerial and consequently unprotected by the KTCA discretionary function exception.
The County filed a motion for summary judgment, contending that the decision to place either a warning sign or a depth indicator is discretionary; therefore, it is immune from liability under the KTCA, K.S.A. 75-6104(e) and (h).
The County asserts that there are no manuals, written guidelines, or objective standards to assist the decisionmaker in determining whether to place a warning sign or indicator at the bridge. The County supported its reasoning with affidavits of two county officials: Frank Hempen, Director of Public Works/County Engineer, and Pamela Madl, Director of Personnel and Risk Management.
The County also emphasizes that Collins presented no specific manuals or guidelines regarding the posting of warning signs. The MUTCD, the County contends, does not address the placement of warning signs under the circumstances of the case at bar. The County submitted an additional affidavit of Hill stating that Barnes did not specifically indicate where rocks were dumped but that Hill had assumed rocks were dumped in the creek where Collins dove. The County also referenced the deposition of Hempen, who testified that he had no knowledge of the county dumping rocks in the creek at the low-water bridge and, if the County had dumped there, he would have known about it.
The County also relied upon the deposition testimony of Dean Harvey and Barnes, who are primarily responsible for road and bridge maintenance in the Township. According to Harvey, the Township dumped rocks and dirt 500 feet away from the low-water bridge on the edge of the creek along the road to prevent the road from eroding. Harvey was not aware of the County dumping rocks in the creek. Barnes testified that he did not know anything about the County or the Township dumping rocks in the creek. Barnes denied telling Hill that the County had dumped rocks and debris in the creek.
The County also argued that (1) it had no duty to warn Collins not to dive or swim; (2) it was unaware that anyone would dive or swim in the creek; and (3) Collins was a trespasser or, in the alternative, a licensee. Consequently, the County only owed Collins a duty to refrain from willfully or wantonly injuring him. The County claimed that there is no evidence of willful and wanton conduct.
The County attempted to refute the allegation that it had knowledge of people swimming in the creek at the low-water bridge site. The County referenced the depositions of Hempen, Harvey, and Barnes. Hempen testified that he had never seen anyone swim or fish at the area in question. Harvey denied knowledge that people were using the area for swimming. Barnes stated that he had seen people fishing and wading around the bridge area. He denied ever having told anyone that he knew people were swimming in the area.
The Township contended, with reference to the creek bed where Collins was injured, that it had knowledge of neither swimming nor the dumping of rocks or debris. The Township admitted placing large rocks along the road at a spot 500 feet away from the low-water bridge.
The Township argues: (1) It did not exert any control over the bridge (all control over county bridges, including signage, is delegated to the County); (2) it is immune from liability under the recreational use exception to the KTCA, K.S.A. 75-6104(o); (3) it is immune from liability because the decision to place a warning sign is discretionary; (4) it had no duty to place a warning sign because Collins was a trespasser, or in the alternative, a licensee; and (5) K.S.A. 8-2003 and the MUTCD relate to traffic control, not to individuals diving off a low-water bridge.
The trial court granted summary judgment to defendants, observing that our Rule 141(b) (1990 Kan.Ct.R.Annot. 110) "requires that a party opposing a motion for summary judgment present evidence setting forth the facts and conditions upon which it relies with specific reference to the discovery documents." Because no transcripts were furnished, the trial court had to rely on documents in the record and attachments to the motions and responses in making its findings.
The trial court stated the following facts were either uncontroverted or interpreted in the light most favorable to Collins:
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