McCleary v. Boss

• Decision Date: 19 December 1997
• Docket Number: No. 77287,77287
• Parties: Mary McCLEARY, individually and as Special Administratrix for the Estate of Christopher Leech, deceased, Appellant, v. Jeremy L. BOSS, Board of County Commissioners of Labette County, and Ray and Gladys Chastain, Appellees. 1
• Court: Kansas Court of Appeals

Page 127

955 P.2d 127

24 Kan.App.2d 791

Mary McCLEARY, individually and as Special Administratrix for the Estate of Christopher Leech, deceased, Appellant, v. Jeremy L. BOSS, Board of County Commissioners of Labette County, and Ray and Gladys Chastain, Appellees.

No. 77287. ¹

Court of Appeals of Kansas.

Dec. 19, 1997.

Syllabus by the Court

1. In a negligence case, plaintiff must establish a duty, breach of the duty, damages, and a causal connection between the duty breached and the damages.

2. The presence or absence of negligence and causation are questions of fact. These issues may be resolved by summary judgment where the facts of the case will support only one conclusion and reasonable minds could not differ as to that conclusion.

3. A county has no duty to clear unusual obstructions which lie off the traveled portion of a roadway.

4. K.S.A. 8-2011(a) is construed and applied.

Patrick C. Smith, of Spigarelli, McLane & Short, Pittsburg, for appellant.

M. Doug Bell, of Hall, Levy, DeVore, Bell & Ott, Coffeyville, for appellee Jeremy L. Boss.

Lynn D. Preheim and Stephanie N. Scheck, of Morrison & Hecker, L.L.P., Wichita, for appellee Board of County Commissioners of Labette County.

Zachery E. Reynolds and Patricia A. Miklos, of The Reynolds Law Firm, Fort Scott, for appellees Ray and Gladys Chastain.

Before BRAZIL, C.J., and ELLIOTT and LEWIS, JJ.

ELLIOTT, Judge:

Mary McCleary filed this wrongful death suit for the death of her son, Christopher Leech, who was killed when the all-terrain vehicle (ATV) he was riding struck a pickup truck at a county road intersection.

McCleary sued Jeremy L. Boss, driver of the truck; adjoining landowners Ray and Gladys Chastain; and the Labette County Commissioners. McCleary appeals the trial court's order granting summary judgment in favor of all defendants.

We affirm.

On the afternoon of the accident, Christopher and several other children were taking turns riding an ATV back and forth to a stop sign at the corner of a rural intersection. The children were traveling on a north/south road controlled by a stop sign. The east/west road was a through road without a stop sign. Eleven-year-old Angie Hammans was driving the ATV with Christopher as a passenger when the ATV struck the truck being driven westward by Boss.

In a negligence case, plaintiff must establish a duty, breach of the duty, damages, and a causal connection between the duty breached and the damages. The existence of a duty is a question of law, while whether a duty has been breached is a question of fact. C.J.W. v. State, 253 Kan. 1, Syl. p 1, 853 P.2d 4 (1993).

Normally, the presence or absence of negligence and causation are also questions of fact. However, these issues may be resolved by summary judgment where the facts of the case will support only one conclusion and reasonable minds could not differ as to that conclusion. Lay v. Kansas Dept. of Transportation, 23 Kan.App.2d 211, 215, 928 P.2d 920 (1996).

Jeremy L. Boss

Plaintiff's claim against Boss was based on evidence that Boss was driving partially left of center, although he was traveling in the normal worn path on the road. The trial court concluded the uncontroverted facts were that the ATV either failed to stop or failed to yield to Boss, who had control of the intersection, and that this was the sole cause of the accident.

The question here is whether a reasonable person could conclude the positioning of Boss' truck a few feet left of center was the cause of the accident.

Here, Christopher died because the driver of the ATV failed to stop or failed to yield the right of way to Boss' truck. If the ATV had stopped and proceeded with caution, the Boss truck should have been seen. Even if Boss were negligent in driving partially left of center, the negligence of the ATV driver was the intervening, proximate cause of the accident. Further, the accident was not a natural and probable consequence of any negligence on the part of Boss. No reasonable person could conclude that any negligence by Boss was the cause of the accident.

The trial court did not err in granting summary judgment for Boss.

Labette County

The County contended it complied with any statutory or common-law duty to maintain the intersection and that it was immune under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.

In the present case, plaintiff concedes that the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) governs when a stop sign must be placed, but contends that factors governing where a stop sign should be placed are governed by the American Association of State Highway and Transportation Officials (AASHTO). Regardless of whether the trial court was correct in ruling the County was immune under the KTCA, compare Toumberlin v. Haas, 236 Kan. 138, 143-44, 689 P.2d 808 (1984); Carpenter v. Johnson, 231 Kan. 783, 790, 649 P.2d 400 (1982); Force v. City of Lawrence, 17 Kan.App.2d 90, Syl. p 4, 838 P.2d 896, rev. denied 251 Kan. 937 (1992), the placement of the stop sign could not have been the proximate cause of the accident.

Regardless of the placement of the stop sign, the driver of the ATV had a duty to proceed cautiously to make sure the intersection was clear. K.S.A. 8-1528(b).

Plaintiff's argument that the ATV driver could have stopped at the stop sign where the view was obstructed and lawfully proceeded across the intersection without again checking for oncoming traffic flies in the face of the clear language of K.S.A. 8-1528(b). Here, it was the...