Lopez v. Unified Gov't of Wyandotte County

• Decision Date: 14 May 2004
• Docket Number: No. 89,213.,89,213.
• Citation: 89 P.3d 588,277 Kan. 682
• 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 Supreme Court

277 Kan. 682

89 P.3d 588

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.

Supreme Court of Kansas.

Opinion filed May 14, 2004.

Robert D. Kingsland, Dempsey & Kingsland, P.C., of Kansas City, Missouri, argued the cause, and Jason P. Osteen, of the same firm, was on the brief for appellant.

Robert J. McCully, of Shook, Hardy & Bacon, L.L.P., of Overland Park, argued the cause, and Michael T. Jilka, of the same firm, and Marc Conklin, of Kansas City, were with him on the brief for appellees.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Shirley Lopez was injured in a one-vehicle accident on a Kansas City, Kansas, street, which had become icy after a water main break. In her personal injury action against the Unified Government of Wyandotte County, Kansas, (Unified Government) and the Board of Public Utilities of the Unified Government of Wyandotte County, Kansas, (BPU), the district court granted summary judgment in favor of defendants on the ground that the "snow and ice" exception, K.S.A. 2003 Supp. 75-6104(l), to the general liability provisions of the Kansas Tort Claims Act (KTCA) applied. The Court of Appeals affirmed. Lopez v. Unified Gov't of Wyandotte County, 31 Kan. App. 2d 923, 75 P.3d 1234 (2003). The court granted Lopez' petition for review.

In the Court of Appeals, Lopez argued that Kansas courts traditionally have limited application of the snow and ice exception to naturally occurring weather conditions. In Lopez' view, both the presence of water and the low temperature to freeze it must be produced by nature in order for the statutory exception to apply. Because the water main break was not a natural weather condition, according to Lopez' argument, the exception is inapplicable. Lopez would have the court read "due exclusively to natural elements" into the phrase "snow or ice conditions" in the statute.

The Court of Appeals rejected Lopez' argument, concluding that "once a naturally occurring weather condition has a role in developing a roadway hazard, courts must apply the snow and ice exception `unless the condition is affirmatively caused by the negligent act of the governmental entity.' K.S.A. 2002 Supp. 75-6104(l)." 31 Kan. App. 2d at 927. The Court of Appeals stated that its conclusion was compelled by its synthesis of the holdings of Taylor v. Reno County, 242 Kan. 307, 747 P.2d 100 (1987), and Draskowich v. City of Kansas City, 242 Kan. 734, 750 P.2d 411 (1988), cases that directly address the snow and ice exception.

As the Court of Appeals noted, the circumstances of this case fall between the naturally occurring icy conditions in Taylor and the defendants flooding the street in cold weather in Draskowich. Accordingly, the Court of Appeals held that the snow and ice exception applies when a naturally occurring weather condition has some role in creating a roadway hazard unless the condition is affirmatively caused by defendant's negligent act.

The Court of Appeals agreed with the district court that there was no evidence of such a negligent act in this case. As to the negligent omissions that comprised Lopez' allegations—failure to warn, barricade, or treat with sand or salt—the Court of Appeals found such failure was not equivalent to affirmative negligent acts.

Lopez also contends that the Court of Appeals failed to recognize a city's obligation to keep its streets reasonably safe. However, the language of 75-6104(l) undermines Lopez' reliance on the general obligation to keep public roadways reasonably safe because it addresses specific conditions rather than general circumstances. The plain language of the exception—"snow or ice conditions or other temporary or natural conditions on any public way or other public place due to weather conditions"—tends to support the Court of Appeals' construction rather than that advocated by Lopez in that natural conditions are stated in the disjunctive to snow or ice conditions. The "or's" in the exception indicate that any one of the enumerated conditions would support immunity, and the inclusion of "natural conditions" suggests that conditions not entirely due to natural sources may have been contemplated in the legislature's phrasing. In addition, the meaningful scope of the statute's proviso, which would impose liability if ice conditions are affirmatively caused by the negligent act of a governmental entity, would be substantially narrowed if the statute were construed also to impose liability on a governmental entity if an icy condition were not from entirely natural sources, including some negligent omission on the entity's part. Lopez contends that limiting icy conditions to entirely natural ones does not "read" the proviso out of the statute because she can hypothesize occasions when a governmental entity might act affirmatively to exacerbate the danger of a natural accumulation of snow or ice. What we are concerned with, however, is the intent of the legislature. It seems unlikely that the legislature intended for governmental entities to be liable for negligent omissions relating to icy conditions when it expressed its intention to hold governmental entities...