Lopez v. Unified Gov't of Wyandotte County, 89,213

• Decision Date: 12 September 2003
• Docket Number: No. 89,213,89,213
• Citation: 31 Kan.App.2d 923,75 P.3d 1234
• Parties: SHIRLEY LOPEZ, Appellant, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, KANSAS, and BOARD OF PUBLIC UTILITIES OF THE UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, KANSAS, Appellees.
• Court: Kansas Court of Appeals

31 Kan.App.2d 923

75 P.3d 1234

SHIRLEY LOPEZ, Appellant, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, KANSAS, and BOARD OF PUBLIC UTILITIES OF THE UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, KANSAS, Appellees.

No. 89,213

Court of Appeals of Kansas

Opinion filed September 12, 2003.

Jason P. Osteen and Kelly Sears, of Dempsey & Kingsland, P.C., of Kansas City, Missouri, for appellant.

Michael T. Jilka and Robert J. McCully, of Shook, Hardy & Bacon, L.L.P., of Overland Park, and Marc Conklin, of Kansas City, for appellees.

Before BEIER, P.J., JOHNSON, J., and TIMOTHY G. LAHEY, District Judge, assigned.

BEIER, J.:

Shirley Lopez was injured in a one-vehicle accident on a Kansas City road that had become icy when a watermain broke. Lopez appeals the district court's summary judgment in favor of the defendants, the Unified Government of Wyandotte County, Kansas (County), and the Board of Public Utilities of the Unified Government of Wyandotte County, Kansas (BPU).

Lopez was injured while driving to work on Parallel Parkway shortly after 6 a.m. She was staying within the posted speed limit, when she saw standing water in the roadway and applied her brakes. As her car slowed, it began to spin. While spinning, Lopez looked out her car window and noticed ice below the water in the road.

Lopez called 911 to report the accident and told the authorities that there was ice in the street and that a watermain was broken. BPU already knew of the watermain break. BPU employee William Gedminas had received information about the break shortly before 5 a.m., had gone to the scene, and had quickly spotted the water. He spent approximately 30 minutes determining the exact location of the break and the size of the ruptured pipe and alerting his duty supervisor. While investigating, Gedminas activated an emergency flasher on top of his truck, but he did not place any cones or barricades near the watermain break before leaving to return to the BPU shop. He said he did not see any ice at the scene and did not believe the situation presented any danger to the motoring public.

Lopez' lawsuit against the County and BPU alleged that the defendants were negligent in failing to warn drivers about the presence of water and ice in the street, failing to barricade the portion of the roadway near the ice, and failing to treat the ice with sand or salt.

The defendants' motion for summary judgment argued that they were immune from liability under K.S.A. 2002 Supp. 75-6104(l), the "snow and ice" exception to the Kansas Tort Claims Act (KTCA). The exception provides:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

. . . .

(l) snow or ice conditions or other temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of the governmental entity." K.S.A. 2002 Supp. 75-6104(l).

Specifically, the defendants argued that Lopez could not prove that any affirmative negligent act of defendants caused the icy street condition. The district court agreed and granted defendants' motion.

Lopez argues on appeal that Kansas courts have traditionally limited application of the snow and ice exception to naturally occurring weather conditions. In her view, the plain meaning of K.S.A. 2002 Supp. 75-6104(l) requires that both the offending ice and low temperature be present in or produced by nature for the exception to apply. Because the watermain break was not a natural weather condition, she argues, the exception does not govern.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a genuine dispute as to a material fact. On appeal, we apply the same rules, and, where we find reasonable minds could differ as to the conclusions drawn from the evidence, we will find that summary judgment should have been denied. See Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).

The outcome of this case rises and falls on an issue of law, in particular, the meaning of K.S.A. 2002 Supp. 75-6104(l) and its appropriate application to the largely undisputed facts. Our review of issues of law is unlimited; we are not bound by the district court's interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).

The KTCA establishes a general rule of liability, Moran v. State, 267 Kan. 583, 593, 985 P.2d 127 (1999); see K.S.A. 2002 Supp. 75-6103(a). Immunity is the exception, and the burden is on the governmental entity to establish its entitlement to one of the exceptions to liability set forth in K.S.A. 2002 Supp. 75-6104. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 624, 938 P.2d 1293 (1997).

There are two Kansas cases, filed 2 months apart, that directly address the snow and ice exception before us here.

In Taylor v. Reno County, 242 Kan. 307, 747 P.2d 100 (1987), the plaintiff was injured and her daughter was killed when the plaintiff lost control of her car on an icy bridge. The district court held the defendant county was immune from plaintiff's suit under the snow and ice exception. 242 Kan. at 312.

On appeal, the Kansas Supreme Court noted that counties did not have a common-law duty to keep their roads in a reasonably safe condition and they were not liable at common law for damages resulting from defective roads or bridges. 242 Kan. at 310. In Taylor, the court noted there was no allegation that the icy condition of the bridge was caused by any affirmative negligent act of the county. Instead, the lawsuit arose out of the county's failure to clear the bridge after ice accumulated. This omission was not enough to make the ice and snow exception inapplicable, and the Supreme Court affirmed the district court's grant of summary judgment to the county. 242 Kan. at 312.

In Draskowich v. City of Kansas City, 242 Kan. 734, 750 P.2d 411 (1988), BPU employees became aware of a watermain leak and turned off the water supply to that pipe. Later, they were forced to turn the water back on in...