Eames v. Board of County Com'rs

• Decision Date: 12 March 1990
• Docket Number: Civ. A. No. 88-2446-O.
• Citation: 733 F. Supp. 322
• Parties: Dwight B. EAMES and Jenny Norvelle, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PHILLIPS, STATE OF KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

733 F. Supp. 322

Dwight B. EAMES and Jenny Norvelle, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PHILLIPS, STATE OF KANSAS, Defendant.

Civ. A. No. 88-2446-O.

United States District Court, D. Kansas.

March 12, 1990.

Gerald T. Elliott, Lenexa, Kan., for plaintiffs.

Patricia A. Wohlford and Hal D. Meltzer, Lead Counsel, Turner & Boisseau, Overland Park, Kan., for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is before the court on defendant's motion for summary judgment. For the reasons stated below, defendant's motion will be denied. In addition, the court has determined that oral argument would not materially assist the disposition of the motion, and therefore defendant's request for the same is hereby denied. D.Kan. Rule 206(d). Plaintiffs' motion for leave to file a surresponse to defendant's reply is hereby denied also.

Plaintiffs were injured on August 30, 1986, when their car struck certain cattle that wandered onto United States Highway 36, near Phillipsburg, Kansas. Plaintiffs claim that defendant, through the acts and omissions of Phillips county sheriff's dispatcher Nadine Keim, was negligent in failing to dispatch a law enforcement officer to the area where cattle were reported loose, prior to the accident involving plaintiffs. Defendant denies that it is responsible for the acts or omissions of the sheriff's office, denies that it owed any duty of care to plaintiffs, and claims that it is immune from liability under the so-called "discretionary" and "police protection" exceptions to liability under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq., "the KTCA").

In a motion for summary judgment, the movant need not negate the allegations of the nonmoving party. However, it must demonstrate that there is no genuine issue of material fact and is therefore entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). This initial burden entails "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

When faced with a motion for summary judgment, the nonmoving party may not simply rely upon its pleadings but rather must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Indeed, "the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The test is whether the facts, viewed in the light most favorable to the nonmoving party, are such that a court may conclude that a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Defendant is clearly liable for the negligent acts and omissions of the Phillips County sheriff's department under the KTCA. The KTCA states, in relevant part,

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.

K.S.A. 75-6103(a). Moreover, "`Governmental entity' means state or municipality," K.S.A. 75-6102(c), while "municipality" includes "any county," K.S.A. 75-6102(b). Finally, "employee" means,

any officer, employee, servant or member of a board, commission, committee, division, department, branch or council of a governmental entity, including elected or appointed officials and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation.

K.S.A. 75-6102(d). The sheriff and his deputies, including dispatchers, are employees of the county they serve, K.S.A. 19-801a et seq., and it is undisputed in this case that the dispatcher at issue acted within the scope of her employment at all relevant times. Furthermore, in Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), the Kansas Supreme Court assumed, without discussion, that the Leavenworth County Sheriff, the Sheriff's Department, and the Board of County Commissioners of Leavenworth County could be treated as a single entity for purposes of the KTCA. Accordingly, defendant's argument that it is not liable for any negligence of the sheriff or his deputies is without merit.

The court must also deny defendant's motion on the issue of whether defendant owed a duty to plaintiffs. Citing the Restatement (Second) of Torts § 324A (1965), the Kansas Supreme Court in Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), made clear that one who undertakes to render services to another may be liable for physical harm to a third person if one fails to exercise reasonable care to protect his undertaking and such failure increases the risk of such harm. 232 Kan. at 24, 651 P.2d at 596. See also Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984); ...