Mitzner By and Through Bishop v. State

Decision Date10 March 1995
Docket NumberNo. 71491,71491
Citation257 Kan. 258,891 P.2d 435
PartiesEnid Dyann MITZNER and Crystal Mitzner, by and through her guardian ad litem Patrick S. BISHOP, Appellees, v. The STATE of Kansas, Kansas Department of Social and Rehabilitation Services, and Phillip Jamison and Shirley Jamison, Appellants.
CourtKansas Supreme Court

Syllabus by the Court

1. Rules relative to summary judgment are stated.

2. An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of his or her work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.

3. Where facts are undisputed or evidence is susceptible of only a single conclusion, it is a question of law for courts whether an individual has the status of an employee or independent contractor.

4. In an action brought on behalf of a child injured while in foster care, seeking damages from the Kansas Department of Social and Rehabilitation Services (SRS), the record is examined and it is held that the district court did not err in concluding: (1) the foster parents were independent contractors rather than employees of SRS; (2) SRS had no vicarious liability for the negligence of the foster parents; and (3) SRS was entitled to summary judgment on plaintiffs' claims against it.

Daniel F. Meara, Fort Scott, argued the cause and was on the brief for appellants.

Michael George, Associate General Counsel, of Kansas Dept. of Social and Rehabilitation Services, argued the cause, and Richard Shaw, of the same dept., was with him on the brief for appellees.

McFARLAND, Justice:

This is a personal injury action wherein damages are sought from the Kansas Department of Social and Rehabilitation Services (SRS) for injuries received by a minor child during her placement in foster care. Summary judgment was entered by the district court in favor of SRS, and plaintiffs appeal therefrom.

The uncontroverted facts may be summarized as follows:

On December 1, 1986, defendants Shirley and Phillip Jamison submitted an application to the Kansas Department of Health and Environment for a license to conduct a family foster home. The application was investigated by an employee of SRS, and upon completion of the investigation the Jamisons were issued a license on December 15, 1986, by the Department of Health and Environment to operate a family foster home.

In July of 1987, the Jamisons received their first foster child, Mary Kastl. On August 21, 1987, pursuant to a district court protective custody order, SRS received custody of the four children of Enid DyAnn Mitzner and Larry Mitzner. All four children were temporarily placed in the Jamison foster home that same day. Several days later, the two older Mitzner children were removed from the Jamison home and placed with a different foster family, but the two youngest children, Crystal and Henry Mitzner remained in the Jamisons' care until October 16, 1987. In October of 1987, the Jamisons had three foster children residing with them: Mary Kastl, 16 years old; Crystal Mitzner, 2 years old; and Henry Mitzner, 9 months old.

On the afternoon of October 15, 1987, Mary Kastl was cleaning the bathroom in the Jamison home. Crystal Mitzner was also in the bathroom sitting on a potty chair. Mary was cleaning the toilet bowl with Sno Bol, an over-the-counter bathroom cleaner. The telephone rang, and Mary placed the bottle of Sno Bol on the ledge behind the toilet and went into the hall to answer the phone. When Mary returned to the bathroom very shortly thereafter, she discovered Crystal holding the Sno Bol. It appeared to Mary that Crystal had drunk some of the Sno Bol, because the liquid was running down Crystal's chin. Mary then took Crystal into the kitchen and gave Crystal a drink of water and some milk. Phillip Jamison then entered the house, and Crystal was taken to the hospital. As a result of this incident, Crystal suffered severe permanent injuries to her mouth, throat, esophagus, trachea, and lungs.

On October 13, 1989, Enid DyAnn Mitzner, Crystal Mitzner's natural mother, and Crystal Mitzner, by and through her guardian ad litem, Patrick S. Bishop, filed suit against the Jamisons and SRS. Summary judgment was entered in favor of SRS on April 1, 1991. The basis for that determination was the district court's determination that the Jamisons were independent contractors rather than employees of SRS. On February 15, 1994, on a friendly suit basis, judgment was entered against the Jamisons for $1,250,000. Thereafter, the plaintiffs duly appealed from the earlier entry of summary judgment on behalf of SRS.

The single issue herein is whether the district court erred in holding that the foster parents (the Jamisons) were independent contractors with SRS. No claim is made herein seeking liability against SRS on any basis other than vicarious liability through the alleged employer-employee relationship with the Jamisons.

The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994); Hurlbut v. Conoco, Inc., 253 Kan. 515, 519-20, 856 P.2d 1313 (1993).

In Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991), we defined an independent contractor and stated how the determination is to be made. We held:

"An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, Syl. pp 3, 5, 689 P.2d 787 (1984).

"Where the facts are undisputed or the evidence is susceptible of only a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor. However, generally speaking, the question of whether an individual is an employee or an independent contractor is considered a question of fact for the jury or trier of facts. Baker v. Petroleum Co., 111 Kan. 555, 561, 207 Pac. 789 (1922); 41 Am.Jur.2d, Independent Contractors § 53." 249 Kan. at 64, 815 P.2d 1104.

In the case before us, no material facts are in dispute as to how and when the Jamisons became foster parents, SRS's role in supervising foster care homes and in placing children therein, the rules and guidelines under which the foster care program operates, or as to how the tragic accident giving rise to this case occurred. The question then before the district court was, under these undisputed facts, what was the legal relationship between the foster parents and SRS. The district court held the foster parents to be independent contractors.

Ordinarily an employer is...

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