Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc.

• Decision Date: 25 October 1991
• Docket Number: No. 65083,A,No. 259,259,65083
• Citation: 819 P.2d 587,249 Kan. 348
• Parties: , 70 Ed. Law Rep. 1238 KANSAS STATE BANK & TRUST COMPANY, Appellee, v. SPECIALIZED TRANSPORTATION SERVICES, INC., and Unified School Districtppellants, and H. Ardon Davidson, Defendant.
• Court: Kansas Supreme Court

Page 587

819 P.2d 587

249 Kan. 348, 70 Ed. Law Rep. 1238

KANSAS STATE BANK & TRUST COMPANY, Appellee, v. SPECIALIZED TRANSPORTATION SERVICES, INC., and Unified School District No. 259, Appellants and H. Ardon Davidson, Defendant.

No. 65083.

Supreme Court of Kansas.

Oct. 25, 1991.

Syllabus by the Court

1. When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer.

2. Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law.

3. Rules to be considered on appeal as to summary judgment and directed verdict are stated and applied.

4. The discretionary function exception to the Kansas Tort Claims Act, K.S.A. 75-6104(e), is discussed and applied, and it is held that, under the facts of this case, the defendant school district was not immune from liability for damages sustained by plaintiff's conservatee.

5. K.S.A.1990 Supp. 38-1522, which establishes a duty for school teachers and school administrators to report all suspicions of child abuse, does not provide a private right of action.

6. Intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it is to protect the plaintiff from the intentional acts committed by the third party.

7. Under the facts of this case, the act of negligence was the failure of the defendant school district and the defendant employer of an intentional tortfeasor to prevent the tortfeasor from committing the intentional act. The negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.

8. The $500,000 limit on liability under K.S.A. 75-6105 of the Kansas Tort Claims Act is not applicable where a contract of insurance provides coverage in excess of such limitation. K.S.A. 75-6111.

9. Ordinarily, the assessment of damages in a personal injury action is exclusively the province of the jury. If the evidence with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party below, will support the verdict, the verdict should be affirmed.

10. In an action for personal injuries the trial court should instruct the jury only on those items of damages upon which there is some evidence to base an award.

11. Under the facts of this action for unliquidated damages, the use of an itemized verdict form negated the traditional requirement that a plaintiff must either consent to a reduced judgment or receive a new trial when a portion of the judgment has been set aside.

John E. Cowles, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause and was on the briefs, for appellants.

Steven R. Smith, of Render, Kamas & Hammond, Wichita, argued the cause, and Albert L. Kamas, of the same firm, was on the brief, for appellee.

Michelle V. Hostetler, Wichita, was on the brief, for amicus curiae Kansas Child Abuse Prevention Council.

Donald W. Vasos, of Vasos, Kugler & Dickerson, Kansas City, was on the brief, for amicus curiae Kansas Trial Lawyers Ass'n.

Bruce Keplinger, of Payne & Jones, Chartered, of Overland Park, was on the brief, for amicus curiae Kansas Ass'n of Defense Counsel.

Cynthia Lutz Kelly and Kerry M. Gasper, Topeka, were on the brief, for amicus curiae Kansas Ass'n of School Boards.

SIX, Justice:

This is a tort action arising out of the alleged sexual molestation of H.R. by her school bus driver, H. Ardon Davidson. H.R. is a six-year-old girl afflicted with Down's syndrome.

The case presents issues involving: (1) the sufficiency of the evidence to prove that the school district and Davidson's employer knew or should have known that an undue risk of harm would exist because of Davidson's employment; (2) school district immunity and the discretionary function exception under K.S.A. 75-6104(e) of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.; (3) existence of a private right of action under the mandatory child abuse reporting statute, K.S.A.1990 Supp. 38-1522; (4) apportionment of fault of negligent tortfeasors with the fault of an intentional tortfeasor; (5) the application of the KTCA K.S.A. 75-6105 $500,000 maximum liability provision; and (6) the amount of the damage verdict.

Our jurisdiction is under K.S.A. 20-3017 (transfer from the Court of Appeals to this court by motion).

The action is being prosecuted in the name of Kansas State Bank & Trust Company (Kansas State Bank), as conservator and next friend of H.R., a minor.

The Trial Court Rulings

Plaintiff filed suit against Davidson for intentional battery and against Unified School District No. 259 (U.S.D.) and Specialized Transportation Services, Inc., (S.T.S.) on theories of respondeat superior, negligent hiring, and negligent retention and supervision of Davidson.

U.S.D. cross-claimed against S.T.S. asserting, in part, that S.T.S. had agreed to indemnify U.S.D. for any claims arising out of or in connection with the U.S.D.-S.T.S. transportation contract. Judgment was entered for U.S.D. against S.T.S. on the indemnification agreement cross-claim.

U.S.D. and S.T.S. were granted summary judgment on the respondeat superior and negligent hiring claims. The trial court held that the intentional criminal act of Davidson was outside the scope of his employment and the uncontroverted facts show that Davidson was otherwise a competent and qualified person suitable for employment as a school bus driver. Summary judgment for U.S.D. was denied as to negligent retention and supervision of Davidson (genuine issues of material fact existed). The trial court further ruled U.S.D. was not immune from liability under the Kansas Tort Claims Act (KTCA) because the actions alleged by plaintiff to be wrongful were not discretionary functions.

After the plaintiff rested its case, U.S.D. and S.T.S. moved for a directed verdict, arguing that neither U.S.D. nor S.T.S. knew or should have known that Davidson had a propensity to sexually molest children. U.S.D. again argued that it should be granted immunity under the discretionary function provision of the KTCA.

The trial court denied the motion, finding that there was sufficient evidence to send the case to the jury and that the jury should determine whether it was foreseeable that Davidson would commit a battery on one of the students he transported to and from school.

The jury returned a verdict for $1,800,000. The verdict was assessed against Davidson, the intentional tortfeasor. Fault was apportioned under K.S.A.1990 Supp. 60-258a between U.S.D. (70%) and S.T.S. (30%). The trial court ruled that liability as between Davidson and the negligent tortfeasors would be joint and several. Judgment was entered for the plaintiff against U.S.D. for $1,260,000 and against S.T.S. for $540,000. U.S.D. prevailed on its cross-claim for indemnification against S.T.S. No appeal was taken on the cross-claim.

U.S.D. and S.T.S. appeal the judgments in favor of plaintiff. Davidson has not appealed. We affirm in part, reverse in part, and remand.

Facts

H.R.'s parents were determined to maximize her potential. H.R. attended Starkey Developmental Center (Starkey) from June 1984 until September 1985 when she was enrolled at Bryant Elementary School (Bryant). In September 1984, Starkey prepared H.R.'s social history report. The report observed that H.R. had occasional urination accidents. The report also stated: "One problem behavior that the [parents] have with [H.R.] is her dislike of seat belts. [H.R.] can release them in a second. Mrs. [R., the mother,] puts masking tape on the release button to avoid this problem. She requests that this be done on the van." Starkey records also indicated incidents of H.R. taking her clothes off.

H.R. entered Bryant at the age of five. She was placed in the trainable mentally handicapped level one class (TMH-1). A TMH-1 class is designed for students between five and eight years old with IQ's between 45 and 60.

H.R. was transported to and from school in a nine-passenger van operated by S.T.S. S.T.S. provided this transportation for U.S.D.'s special education children under a contract with U.S.D. S.T.S. had a "very good" record in performing its transportation duties and was considered superior to its predecessor.

Davidson was H.R.'s van driver from the fall of 1985 until December 1986. Davidson began driving for S.T.S. in 1984. S.T.S. requires its drivers to attend 24 hours of training, consisting of 10 hours of first aid, 8 hours of defensive driving, 2 hours behind the wheel (to go over the routes), and 4 hours of training in dealing with special students. The manager of S.T.S. testified that Davidson complained, as did all of the S.T.S. drivers, about behavior problems of the special education students. Davidson was instructed to fill out "school bus incident reports," turn them in, and speak with the principal.

H.R.'s mother testified of an encounter she had with Davidson in November 1985. Davidson was sometimes a few minutes early or late picking H.R. up. Mrs. R. asked Davidson to park 5 or 10 feet forward so that she could see the van from her kitchen window. Davidson became angry,...