Honeycutt By and Through Phillips v. City of Wichita

• Decision Date: 10 July 1992
• Docket Number: No. 66595,A,No. 259,259,66595
• Citation: 251 Kan. 451,836 P.2d 1128
• Parties: , 77 Ed. Law Rep. 526 Jeremy HONEYCUTT, a Minor, by and through his guardian, Daniel H. PHILLIPS, Appellant, v. CITY OF WICHITA, Defendant, and Wichita Public School System U.S.D.ppellee.
• Court: Kansas Supreme Court

Page 1128

836 P.2d 1128

251 Kan. 451, 77 Ed. Law Rep. 526

Jeremy HONEYCUTT, a Minor, by and through his guardian Daniel H. PHILLIPS, Appellant, v.CITY OF WICHITA, Defendant and Wichita Public School System U.S.D. No. 259, Appellee.

No. 66595.

Supreme Court of Kansas.

July 10, 1992.

Syllabus by the Court

1.A final decision is one that finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court.

2.A voluntary dismissal of a case with prejudice, based on a settlement agreement that is approved by the court and journalized, is a final judgment on the merits.

3.An outstanding court order that has not been journalized does not extend the time to appeal once a final judgment disposing of all issues has been journalized and filed.

4.The purpose of requiring a final decision prior to an appeal is to prevent intermediate and piecemeal appeals that extend and prolong litigation and add to the cost of litigation.

5.If the trial judge grants a judgment disposing of all claims against one party but claims remain against other parties and the trial judge does not direct a final judgment, pursuant to K.S.A.1991 Supp. 60-254(b), the judgment is subject to revision at any time before the entry of judgment adjudicating all of the claims and the rights and liabilities of all the parties.

6.If a judgment is entered disposing of all claims against one of multiple parties, and a premature notice of appeal is filed and has not been dismissed, then a final judgment disposing of all claims and all parties validates the premature notice of appeal concerning the matters from which the appellant appealed.

7.Syllabuspp 2 and 3 and the corresponding portion of the opinion of Miller v. Safeco Ins. Co. of America, 11 Kan.App.2d 91, 712 P.2d 1282, rev. denied, 238 Kan. 878(1986), are overruled.

8.In a negligence action, summary judgment is proper if the only questions presented are questions of law.To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered.Whether a duty exists is a question of law.Whether the duty has been breached is a question of fact.

9.The threshold requirement for the application of Restatement (Second) of Torts§ 324A(1964) is a showing that the defendant undertook, gratuitously or for consideration, to render services to another.In order to meet this requirement, the evidence must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another.A duty is owed to third persons by one who undertakes, by an affirmative act, to render aid or services to another and then is negligent in the performance of that undertaking.

10.One who does not assume an obligation to render services does not owe a duty to third persons.

11.A school district is under no duty to supervise or provide for the protection of its pupils who are off of the school grounds and on their way home from school unless it has undertaken to provide transportation for them.

Bradley J. Prochaska, of Prochaska & Associates, Wichita, argued the cause, and Gerard C. Scott, of the same firm, was with him on the brief, for appellant.

Debra J. Arnett, of Hartley, Nicholson & Hartley, P.A., Paola, argued the cause, and Timothy J. Finnerty, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, was with her on the brief, for appellee.

ABBOTT, Justice:

This is a personal injury action brought on behalf of Jeremy Honeycutt, a minor, who lost part of both legs when he was run over by a train as he walked home from kindergarten.The trial court granted summary judgment in favor of the Wichita Public School System, U.S.D. No. 259, and Jeremy appeals.

Two issues are presented on appeal: whether Jeremy filed a timely notice of appeal giving this court jurisdiction and, if so, whether the granting of summary judgment in favor of U.S.D. No. 259 was proper.

Jeremy Honeycutt attended morning kindergarten classes at Irving Elementary School.Railroad tracks ran on a diagonal between Jeremy's home and the school.If he walked to or from school, he had to cross the railroad tracks.Broadway Street runs north and south in front of the school.Sixteenth Street, where the accident happened, runs east from in front of the school and forms a "T" intersection with Broadway.The railroad tracks cross Broadway south of the school at Fifteenth Street and cross Sixteenth Street a little over one-half block east of the school.The track apparently does not have a regularly scheduled train running on it during the day, but a train uses the track at some times during a three-hour period each afternoon.

Jeremy usually was taken to school and picked up by his grandfather, who sometimes walked and sometimes used a vehicle.When his grandfather was not available, Jeremy's mother either provided transportation or arranged to have a friend provide transportation.

It appears Jeremy was walking home, unsupervised by an adult, for the first time on March 5, 1987.He was walking with another student after kindergarten was dismissed.

How the accident occurred is disputed, but how it occurred has no significance to this opinion.While a train was proceeding northeast, Jeremy ran alongside the train and either attempted to touch the train or attempted to pull himself up on a ladder when a following car struck him, causing him to fall under the wheels of the car.As a result, Jeremy lost one leg above the knee and the other below the knee.

On behalf of Jeremy, a negligence suit was filed against Union Pacific Railroad Corporation and Missouri Pacific Railroad Company(Railroads), the City of Wichita(City), and U.S.D. No. 259.

The case previously has been before this court on an interlocutory appeal.The four defendants appealed the trial court's order that Jeremy was incapable of negligence, as a matter of law, because of his age.Jeremy was six years and four months of age at the time of the accident.This court held that "the negligence of a particular child in particular circumstances should be determined by the factfinder in each case, based upon that degree of care exercised by children of the same age, intelligence, capacity, and experience."Honeycutt v. City of Wichita, 247 Kan. 250, 264, 796 P.2d 549(1990).

On remand, the claims were disposed of against all of the defendants.The manner and timeliness of the disposals have raised a jurisdictional issue.

U.S.D. No. 259 argues that Jeremy's appeal should be dismissed for lack of jurisdiction because Jeremy's first notice of appeal was filed prematurely and because Jeremy's second notice of appeal was filed too late.

The chronological order of events upon which the jurisdictional issue is based is as follows.

A hearing was held to consider summary judgment motions filed by the City and U.S.D. No. 259.On April 12, 1991, the trial court's order granting summary judgment in favor of U.S.D. No. 259 and the City was journalized and filed.This action involved multiple parties, and the summary judgment order disposed of all of the claims against two of the four parties, leaving claims pending against both railroad companies.The trial court did not issue a K.S.A.1991 Supp. 60-254(b) certificate.Thus, the summary judgments were not final judgments and could not be appealed until final judgments were granted on the remaining claims.Fredricks v. Foltz, 221 Kan. 28, 29-31, 557 P.2d 1252(1976).

On April 24, 1991, Jeremy and the Railroads reached an oral agreement on all of the remaining claims.Part of the settlement agreement was that the parties would proceed with the Railroads' motion for summary judgment.This was done because of Jeremy's impression that if the court granted the Railroads' motion for summary judgment, then no comparative fault could be assessed against the Railroads in a later trial of the case.A later trial of this case could occur only if Jeremy won his appeal against the grant of summary judgment to the City or to U.S.D. No. 259.Although not an issue in this case, the general rule is that parties who are dismissed from a suit are not bound by a judgment in that suit.In re Estate of Beason, 248 Kan. 803, Syl. p 4, 811 P.2d 848(1991).

The Railroads' motion for summary judgment was heard on April 25, 1991, and the trial court orally announced it was granting summary judgment in favor of the Railroads.No journal entry was filed until May 8, 1991.

On May 1, 1991, Jeremy filed a notice of appeal from the April 12, 1991, order granting summary judgment to U.S.D. No. 259.He did not appeal the grant of summary judgment to the City.On May 1, there was not a final judgment against the Railroads because the oral judgment had not been journalized.

On May 3, 1991, the trial court conducted a settlement hearing and approved the settlement between Jeremy and the Railroads.The trial court also granted Jeremy's motion to dismiss the case with prejudice because "all matters at issue" between Jeremy and the Railroads had been settled.Jeremy's attorney, his guardian ad litem, and counsel for the Railroads approved the journal entry that dismissed with prejudice the case against the Railroads.The trial judge also approved the journal entry, which was filed that same day.

On May 8, 1991, a journal entry was filed covering the April 25, 1991, hearing, which had granted summary judgment to the Railroads.

On June 4, 1991, the Court of Appeals issued an order to show cause why the appeal should not be dismissed as interlocutory.Jeremy responded by sending copies of the April 12 order granting summary judgment to U.S.D. No. 259 and the City and the May 3 order dismissing the Railroads.Jeremy also filed a second notice of appeal on June 5, 1991, which Jeremy insisted was...