McElhaney v. Thomas
| Decision Date | 17 July 2015 |
| Docket Number | 111,590. |
| Citation | 353 P.3d 470 (Table) |
| Parties | Emma McELHANEY, Appellant, v. Charles THOMAS, Larry Thomas, Susan Thomas, Appellees, and State Farm, Defendant. |
| Court | Kansas Court of Appeals |
Jeremiah Johnson, of Law Offices of Jeremiah Johnson, LLC, of Olathe, for appellant.
Dana M. Harris and Emily A. Yessen, of Harris and Hart, LLC, of Leawood, for appellees Charles Thomas, Larry Thomas, and Susan Thomas.
Stephen M. Kerwick and Craig W. West, of Foulston Siefkin LLP, of Wichita, for appellee State Farm.
Before MALONE, C.J., ARNOLD–BURGER and Gardner, JJ.
High school student Charles Thomas was driving his vehicle in the school parking lot when he ran over fellow student Emma McElhaney's feet, causing injury. McElhaney filed a civil lawsuit against Charles alleging negligence and the intentional tort of battery. In addition, she sued Charles' parents for negligent entrustment of the vehicle to Charles. This appeal follows a jury verdict awarding McElhaney $46,333 on the negligence claim. She appeals the district court's pretrial rulings dismissing her intentional tort claim, denying her request to seek punitive damages, dismissing State Farm as a defendant, granting summary judgment to Charles' parents on the negligent entrustment claim, and denying her motion to disqualify defense counsel. Finding no error, we affirm.
This appeal arises out of an automobile accident involving Charles, the driver of the vehicle, and McElhaney, the pedestrian. At the time of the incident, both were students attending Clay Center High School. Both individuals were preparing to leave with the baseball team from the school parking lot. McElhaney was walking in the school parking lot and Charles was driving his vehicle to park closer to the departing bus. As McElhaney was walking near some parking spots, Charles turned into the parking spot closest to her and ran over her feet, breaking one of them.
McElhaney filed a petition for damages in Douglas County, alleging a negligence claim and an intentional tort claim against Charles; a negligent entrustment claim against both Larry and Susan Thomas, Charles' parents; and a joint enterprise negligence claim against Adam Slagle, the passenger in Charles' vehicle at the time of the incident (McElhaney I ).
Both parties agreed to a change of venue from Douglas County to Riley County. After the district court denied McElhaney's leave to amend the petition to allow punitive damages, granted summary judgment to the defendants on the negligent entrustment claim, and denied her counterclaim for summary judgment on the negligent entrustment claim, McElhaney filed a motion to dismiss the case without prejudice, which was granted.
Three months later, McElhaney filed a petition for damages in Douglas County against Charles, Larry, Susan, and State Farm (McElhaney II ). In the petition, McElhaney asserted a negligence claim and an intentional tort claim against Charles; negligent entrustment claims against Larry and Susan; and an “uninsurance” claim against McElhaney's insurance company, State Farm. With the exception of removing the claim against Adam Slagle and adding an “uninsurance” claim against State Farm, the petitions in McElhaney I and McElhaney II are identical.
Charles, Larry, and Susan answered the petition and argued that McElhaney's petition was precluded through res judicata and that venue in Douglas County was improper. Charles, Larry, and Susan admitted that McElhaney's injuries were the result of Charles' negligence, but again denied McElhaney's intentional tort and negligent entrustment claims.
Charles, Larry, and Susan moved to dismiss McElhaney's petition or to at least have a venue change back to Riley County. In addition, they refiled a motion for summary judgment on McElhaney's negligent entrustment claims, relying on the doctrine of res judicata related to the prior Riley County lawsuit.
In addition, State Farm filed a motion to dismiss McElhaney's uninsured motorist claim for failure to state a claim. The district court granted State Farm's motion. Because State Farm was dismissed from the case, the district court found that a change of venue was appropriate. Although the proper venue would have been Clay County, the judge transferred the case back to Riley County, without objection from the parties.
Over a year later, McElhaney requested that her negligent entrustment claims against Larry and Susan be reinstated. In addition, McElhaney filed a motion for leave to add a punitive damages claim. Finally, McElhaney filed a motion to disqualify the defendants' attorney because of a conflict of interest between all three defendants and State Farm.
After a hearing on the numerous motions, the district court denied McElhaney's motion to disqualify the defendants' attorney because she lacked standing. In addition, the district court denied her request to add a punitive damages claim and her oral motion to add an intentional tort of battery claim. The district court also denied her motion to reinstate the negligent entrustment claims against Larry and Susan.
A jury trial was held. The jury awarded McElhaney $46,333. McElhaney filed a timely notice of appeal. Additional facts will be added as necessary.
McElhaney's first issue on appeal is whether the court erred in finding that she had not sufficiently pled the intentional tort of battery in order to send that claim to the jury.
McElhaney then attempted to orally amend her motion to add the “intent to injure” language. The district court denied this request because the trial was 3 days away.
Standard of review
“A motion for judgment on the pleadings is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves.” Koss Construction v. Caterpillar, Inc., 25 Kan.App.2d 200, 200, 960 P.2d 255, rev. denied 265 Kan. 885 (1998). When a defendant files a motion for judgment on the pleadings, “[t]he motion operates as an admission by movant of all fact allegations in the opposing party's pleadings.” Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 140, 519 P.2d 682 (1974). The district court accepts the factual allegations in the opposing party's pleadings as true and makes a determination whether there is a potentially valid claim based on the alleged facts. Ramcharan–Maharajh v. Gilliland, 48 Kan.App.2d 137, 139, 286 P.3d 216 (2012), rev. denied 297 Kan. 1247 (2013). This court's review of the district court's ruling on a motion for judgment on the pleadings is de novo. Wagner v. State, 46 Kan.App.2d 858, 860, 265 P.3d 577 (2011).
But if the court considers matters presented outside the pleadings, then the motion is treated as one for summary judgment. K.S.A. 60–212(c). “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Law v. Law Company Building Assocs., 295 Kan. 551, 561, 295 Kan. 551, 289 P.3d 1066 (2012). An appellate court reviewing a district court's ruling on a motion for summary judgment reviews the matter de novo as a question of law, granting no deference to the district court's judgment. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014).
Our review is hampered by a bit of procedural confusion. Although the district court noted that the pleadings do not allege an intent to injure, the court also mentioned reviewing other motions filed by McElhaney and refers to the fact that there is “no evidence” of intent to harm. But because the standard of review for both summary judgment and a judgment on the pleadings is unlimited, we will examine both.
But first, we review the necessary elements of the intentional tort of battery.
The intent to inflict injury is an essential element of civil battery.
Kansas caselaw has long held that the “gravamen of a civil assault and battery is grounded upon the actor's intention to inflict injury.” Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366, 388 P.2d 824 (1964) ; see also Murray v. Modoc State Bank, 181 Kan. 642, 646, 313 P.2d 304 (1957) ().
In Stricklin, a stockyard employee was known for playing pranks or practical jokes on customers. Stricklin was sitting on a board on top of a cattle pen when the employee grasped Stricklin's feet and lifted him into the air causing him to lose his balance and fall 6 feet to the concrete floor below. As a result, Stricklin suffered serious injuries. The defendants moved to dismiss the case arguing that Stricklin's claims sounded in tort for assault and battery, not negligence as pled, and they were filed outside the statute of limitations. The Kansas Supreme Court held that there was no allegation of malice or intent to do physical harm. The employee's actions were nothing more than horseplay, with no intent to injure Stricklin. Although “[h]is conduct was...
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