Lovitt v. Board of County Com'Rs of Shawnee

• Citation: 221 P.3d 107
• Decision Date: 18 December 2009
• Docket Number: No. 101,159.,101,159.
• Parties: Amy LOVITT, on behalf of and as next friend of Cason "Casey" BAHR, a minor child, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas, Appellee.
• Court: Court of Appeals of Kansas

221 P.3d 107

Amy LOVITT, on behalf of and as next friend of Cason "Casey" BAHR, a minor child, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas, Appellee.

No. 101,159.

Court of Appeals of Kansas.

December 18, 2009.

Pantaleon Florez, Jr., and Wayne French, of Topeka, for appellants.

Jonathan C. Brzon, assistant county counselor, for appellee.

Before GREENE, P.J., McANANY, J., and LARSON, S.J.

McANANY J.

In this appeal we consider whether plaintiff's claims for negligent and intentional infliction of emotional distress by a Shawnee County 911 operator can withstand a motion for summary judgment so as to permit plaintiff to proceed to trial.

The plaintiff is Amy Lovitt, mother and next friend of 13-year-old Cason Bahr. She brings this action on Bahr's behalf. Bahr was riding in his mother's automobile when she suffered a seizure, causing her car to leave the road and strike a street sign. Bahr called 911, seeking emergency assistance. The 911 dispatcher told Bahr she did not believe him and stated, "That is the worst fake cry I've ever heard." The dispatcher then asked, "Do you know what you're doing? `Cause it's a crime ... filing a false report is a crime." The dispatcher hung up without sending assistance. The call lasted less than a minute. Shortly thereafter, Bahr flagged down a passerby, who called 911. This second 911 call was made about 30 seconds after the first call ended. This time a dispatcher sent help for Lovitt.

Lovitt commenced this action against the Board of County Commissioners of Shawnee County (County) based upon theories of outrageous conduct and negligent infliction of emotional distress. She claims damages for Bahr's mental and emotional injuries and distress, including "symptoms of both Post Traumatic Stress Disorder and also Adjustment Disorder with Anxious Mood." Bahr suffered no physical injury from the incident.

In its case management order, the district court set a deadline for plaintiff to disclose her expert witnesses and for the parties to complete discovery. The deadlines expired without any expert witness disclosure by plaintiff. After the close of discovery, the County moved for summary judgment on five alternative grounds: (1) the public duty doctrine; (2) immunity under the discretionary function exception to the Kansas Tort Claims Act, K.S.A.2008 Supp. 75-6104(e); (3) lack of evidence of damages or that any claimed damages were proximately caused by the dispatcher's conduct; (4) no actionable claim for intentional infliction of emotional distress; and (5) no physical injury to support a claim for negligent infliction of emotional distress.

In her response to the County's motion, Lovitt set forth a statement of additional claimed uncontroverted facts regarding the nature of, extent of, and treatment for Bahr's mental and emotional state. In support, Lovitt attached her affidavit in which she recounted the diagnosis made by Jeri Stonestreet, LSCSW, to whom Lovitt took Bahr for a diagnosis. According to Lovitt, Stonestreet "related" Bahr's symptoms to the incident involving the 911 dispatcher.

The district court entered summary judgment in favor of the County on three alternative grounds: (1) the public duty doctrine, (2) immunity under the discretionary function exception to the Kansas Tort Claims Act, and (3) the lack of admissible evidence of causation. The court found that plaintiff had either abandoned her claim for negligent infliction of emotional distress or chose not to vigorously pursue it because Bahr suffered no physical injury in the incident.

Lovitt appeals, claiming error by the district court: (1) in applying the public duty doctrine, (2) in applying the discretionary function exception, (3) in holding that plaintiff abandoned the claim for negligent infliction of emotional distress, and (4) in granting summary judgment on plaintiff's claim of outrage.

We need not recount the standards for the district court's consideration of a motion for summary judgment. They are well known to the parties and can be found in U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 555, 205 P.3d 1245 (2009), and Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). On appeal, we stand in the shoes of the district court and examine the County's summary judgment motion de novo using the same standards that apply to the district court's consideration of such matters. See Roe v. Kansas Dept. of SRS, 278 Kan. 584, 591, 102 P.3d 396 (2004).

Public Duty Doctrine

The issue regarding the public duty doctrine centers on the question of whether the County owed a duty to Bahr when he made his 911 call for assistance. Lovitt's tort claims are predicated upon the County having breached a duty. The County is entitled to summary judgment on these claims if Lovitt cannot establish the existence of a duty. See Dozier v. Dozier, 252 Kan. 1035, 1041, 850 P.2d 789 (1993). Whether the County, through its 911 dispatcher, had a legal duty to Bahr presents a question of law appropriate for resolution by means of a motion for summary judgment. See Roe, 278 Kan. at 591-95, 102 P.3d 396; Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).

The public duty doctrine provides that absent a special duty to the injured party, a governmental agency and its agents owe a duty to the public at large but not to an individual. Potts v. Board of Leavenworth County Comm'rs, 39 Kan.App.2d 71, 81, 176 P.3d 988 (2008). A special duty to the injured party may arise when:

"(1) a special relationship existed between the governmental agency and the wrongdoer (i.e., the wrongdoer was in the State's custody or care); (2) a special relationship existed between the governmental agency and the injured person (i.e., the injured person was in the State's custody or care); or (3) the government agency performed an affirmative act that caused injury or made a specific promise or representation that under the circumstances created a justifiable reliance on the part of the person injured. [Citation omitted.]" 39 Kan. App.2d at 81, 176 P.3d 988.

Lovitt has not alleged the existence of any special relationship to establish an exception to the doctrine and has alleged no promises by the dispatcher. The undisputed evidence establishes that the dispatcher made no affirmative promise to Bahr that she would send help. To the contrary, the dispatcher made it clear that she would not send help for Bahr's mother.

However, Lovitt argues, for the first time on appeal, that a special duty arose by reason of the County's affirmative representations, in promoting 911 as its emergency response system, that it would send help in response to a 911 call.

The County argues that Lovitt cannot raise this argument on appeal because it was never presented to the trial court. The County's argument ignores our de novo review of the County's summary judgment motion. Whether the public duty doctrine applies was raised and argued before the district court. In these de novo proceedings, we examine anew whether there remain genuine issues of material fact requiring a trial and, if not, whether the movant is entitled to judgment as a matter of law. This appeal provides the parties with the opportunity to raise new arguments insofar as they are confined to the factual record and to the issues addressed in the motion. Accordingly, we will consider this argument which arises from an issue raised in the motion. See South v. McCarter, 280 Kan. 85, 94-95, 119 P.3d 1 (2005).

In the brief supporting its summary judgment motion, the County argued that no special relationship existed to bar application of the public duty doctrine. It also argued that "the Plaintiff cannot prove that he was entitled to specific protection due to his justifiable reliance on promises or representations of law enforcement officers." In response to the motion, Lovitt addressed the public duty doctrine but failed to direct the court to any fact in the record relating to any detrimental reliance by Bahr, a necessary fact to create an exception to the doctrine. While Lovitt set forth additional claimed uncontroverted facts in her brief opposing the motion, none of those additional facts relates to any claimed detrimental reliance.

Once the County sought refuge in the public duty doctrine, it was incumbent upon Lovitt to direct the court to facts in the record which support the application of an exception to the doctrine if she contends the exception applied. See Hurlbut v. Conoco, Inc., 253 Kan. 515, 520, 856 P.2d 1313 (1993). Lovitt argued against application of the doctrine, but she did not assert facts which would create an exception to it.

Further, though this issue has not been directly addressed previously in Kansas, Lovitt's argument against application of the public duty doctrine has been rejected by courts in other states under their own versions of the doctrine.

In Cummins v. Lewis County, 124 Wash. App. 247, 98 P.3d 822 (2004), aff'd 156 Wash.2d 844, 133 P.3d 458 (2006), a wrongful death action based upon failure to respond to a 911 call, the Washington Court of Appeals and then the Washington Supreme Court affirmed the entry of summary judgment against plaintiff based on her failure to demonstrate the existence of facts to support application of the special relationship exception to the public duty doctrine. The Supreme Court declared that a special relationship arises when "`"(1) there is a direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff."' [Citations omitted.]" 156 Wash.2d at 854, 133 P.3d 458. "Express assurance" means "an affirmative promise or agreement to provide assistance." 156 Wash.2d at 855, 133 P.3d 458. The Washington Court of Appeals, affirmed by the Washington Supreme Court,...