Hauptman v. Wmc, Inc.

• Citation: 224 P.3d 1175
• Decision Date: 29 January 2010
• Docket Number: No. 101,855.,101,855.
• Parties: Ethan HAUPTMAN, As Surviving Spouse and Personal Representative of The Estate of Jennifer Hauptman, Deceased, Appellant, v. WMC, INC., d/b/a Wesley Medical Center, Appellee, and John F. and Wynema M. Dye, As Surviving Parents and Personal Representatives of The Estate of Jonathan Dye, Deceased, Appellants, v. WMC, INC., d/b/a Wesley Medical Center, Appellee.
• Court: Court of Appeals of Kansas

224 P.3d 1175

Ethan HAUPTMAN, As Surviving Spouse and Personal Representative of The Estate of Jennifer Hauptman, Deceased, Appellant, v. WMC, INC., d/b/a Wesley Medical Center, Appellee, and John F. and Wynema M. Dye, As Surviving Parents and Personal Representatives of The Estate of Jonathan Dye, Deceased, Appellants, v. WMC, INC., d/b/a Wesley Medical Center, Appellee.

No. 101,855.

Court of Appeals of Kansas.

January 29, 2010.

Scott J. Gunderson, of Nelson Gunderson & Lacey, of Wichita, and Jerome L. Skinner and Jonathan C. Bennie, of Barron, Peck, Bennie & Schlemmer, of Cincinnati, Ohio, for appellants.

Robert W. Cotter and Patrick J. Kaine, of Dysart Taylor Lay Cotter & McMonigle, P.C., of Kansas City, Missouri, for appellee.

Before MALONE, P.J., GREEN and MARQUARDT, JJ.

GREEN, J.:

These consolidated wrongful death actions are before this court for the second time. The actions stem from an air ambulance crash that occurred in February 2004 outside of the Dodge City Regional Airport. Medical crew members Jonathan Dye and Jennifer Hauptman were killed in the air ambulance accident. Both Dye and Hauptman were employees of Ballard Aviation, Inc. (Ballard), the operator of the air ambulance services. The families of Dye and Hauptman (plaintiffs/appellants) brought wrongful death actions against WMC, Inc. (defendant/appellee), doing business as Wesley Medical Center (Wesley), alleging that Wesley had failed to perform adequate oversight of Ballard's operations. In its first decision, this court reversed the trial court's judgment dismissing the appellants' petitions for failure to state a claim upon which relief may be granted and remanded the cases to the trial court.

On remand, the trial court granted summary judgment to Wesley. The trial court determined that under the principles articulated in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), and this court's previous decision in Dye v. WMC, Inc., 38 Kan.App.2d 655, 172 P.3d 49 (2007), the appellants' claims were not viable under Kansas law because a principal owes no duty to provide a safe working environment for the employees of an independent contractor. On appeal, the appellants argue that the trial court improperly granted summary judgment to Wesley on their negligence claims. We disagree with the appellants' argument. We determine that the appellants' negligent hiring claim is barred under the policy reasons advanced in Dillard. Moreover, based on the uncontroverted facts in this case, the appellants cannot prevail on their negligent supervision and negligent undertaking claims because they cannot show that Wesley maintained control over Ballard's flight operations or assumed an obligation with respect to Ballard's air ambulance services for the benefit of the decedents. As a result, we determine that the trial court properly granted summary judgment to Wesley.

The instant case is a consolidation of two wrongful death actions arising out of an air ambulance crash that occurred on February 17, 2004. The air ambulance was a Beech B90 operated by Ballard as EagleMed 4. Wesley contracted for air ambulance services with Ballard. The accident occurred en route to Dodge City Regional Airport after the delivery of a patient from Mercy Hospital of Independence, Kansas (Mercy), to Wesley. The pilot and medical crew members, Jonathan Dye, who was a medical technician, and Jennifer Hauptman, who was a registered nurse, were killed in the air ambulance accident. No patient was on board the air ambulance when the accident occurred.

In February 2006, Jonathan's parents, John F. Dye and Wynema M. Dye, and Jennifer's husband, Ethan Hauptman, brought separate wrongful death actions against Wesley and Mercy. Mercy was later dismissed from both lawsuits after the appellants and Mercy filed stipulated entries of dismissal.

The appellants' negligence claims against Wesley were identical. The appellants alleged that as a result of Wesley's contract with Ballard and on the basis of custom and usage, Wesley failed to perform adequate oversight of Ballard's operations when it knew or should have known of the following:

"a. [Ballard] maintained a pilot base and pilot employee pool that utilized pilots up to the full amount of hours permitted for flight duty time for 14 CFR Part 91 and Part 135 air operations.

"b. [Wesley] was aware that the dispatch procedures utilized by [Ballard] were new as of January 1, 2004 and the technology was new while the dispatch personnel were not qualified to act as dispatchers or trained to adequately use the equipment.

"c. [Wesley] knew or should have known that the lack of experience, training and qualification of the [Ballard] dispatchers and [Ballard] dispatch department would result in the dispatch of aircraft with pilots who were fatigued and near the limit of their permissible legal duty time.

"d. [Wesley] knew or should have known that the aircraft utilized by [Ballard], including EagleMed 4, on February 17, 2004, a Beech B90 registered as N777KU, did not utilize terrain avoidance system technology because their flight operations were a combination of Part 91 and Part 135 medical service operations.

"e. [Wesley] knew or should have known that fatigue and pilot duty hour considerations were so severe at [Ballard] that medical personnel onboard aircraft flights were known to handle aircraft flight duties and responsibilities in order to provide relief for fatigued pilots.

"f. On February 17, 2004, [Wesley's] employees, agents and representatives witnessed the fatigue of EagleMed 4's pilot and negligently failed to warn the pilot and his passengers of the known risks of piloting an aircraft without adequate rest in a fatigued condition, a duty assumed by the defendant as a user of air ambulance services and as a party familiar with [Ballard's] operational standards."

The appellants alleged that as a result of Wesley's knowledge, contractual responsibilities, and custom and usage, Wesley owed a duty to the passengers, patients, and medical personnel onboard its air ambulance flights, including EagleMed 4 on February 17, 2004, to "exercise reasonable and thorough oversight of its business operations that related to air ambulance services and to cease air ambulance services" with Ballard "until such practices that were indicative of pilot fatigue issues were stopped." The appellants contended that as a result of Wesley's negligence and breach of duty, the decedents suffered fatal injuries.

Motion to Dismiss

In May 2006, Wesley moved to dismiss both lawsuits. Wesley argued that the appellants' allegations of negligence in the two lawsuits failed to state a claim because they failed to show that Wesley owed any duty to the decedents as employees of Ballard, which was an independent contractor hired by Wesley to perform air ambulance services.

In August 2006, the two lawsuits were consolidated for discovery purposes. In October 2006, the trial court granted Wesley's motions to dismiss. The trial court adopted Wesley's arguments in support of its motions to dismiss. The trial court determined that as a matter of law, the appellants had failed to state a claim for which relief could be granted.

Court of Appeals' Decision

The appellants appealed the trial court's decision to this court. The appellants argued that the trial court had prematurely dismissed their petitions. This court agreed with the appellants' argument. Although the appellants had suggested three possible negligence theories, this court discussed in depth only the appellants' negligent hiring theory under Restatement (Second) of Torts § 411 (1964). Determining that the appellants might be able to produce a set of facts that would entitle them to relief on their negligent hiring theory under Restatement § 411, this court reversed and remanded the case to the trial court. See Dye, 38 Kan.App.2d at 662-66, 172 P.3d 49.

Remand to the Trial Court

On remand, the trial court entered a scheduling order requiring discovery to close on issues of employment on September 1, 2008. The trial court further ordered discovery on the remaining issues to close on May 29, 2009, and scheduled a formal pretrial order conference on June 11, 2009.

Wesley's Motion for Summary Judgment

In September 2008, Wesley moved for summary judgment on all of the appellants' claims. Wesley stated that this court had concluded in Dye that if the decedents were in fact Ballard's employees, the appellants' claims would not be viable. In its uncontroverted statement of facts, Wesley set out 66 separate paragraphs of facts relating to the decedents' employment status with Ballard and Ballard's practices and procedures in running its air ambulance business. Wesley maintained that based on the facts and evidence, it was clear that the appellants were employees of Ballard and, therefore, summary judgment should be entered in favor of Wesley.

Plaintiffs' Response to Wesley's Motion for Summary Judgment

In responding to Wesley's motion for summary judgment, the appellants contested many of Wesley's proposed uncontroverted facts and also set forth their own statement of facts supported by affidavits, documents, and deposition testimony. The appellants argued that Wesley had mischaracterized this court's ruling in Dye and the fact that the decedents were employees of Ballard was not dispositive of their claims. Moreover, the appellants contended that Wesley, in its motion for summary judgment, had addressed only their negligent hiring claim under Restatement § 411. The appellants maintained, however, that they had advanced several theories of liability, including Wesley's breach of federal aviation rules, negligent supervision of Ballard, failure to warn, breach of a duty of reasonable care under Restatement (Second) of Torts § 324A (1964), and negligent hiring of an independent contractor.

Trial Court's Decision Granting Summary Judgment to Wesley

In a written journal entry, the trial court...