Mt. Carmel Medical Center v. Board of County Com'rs of Labette County, 48317

• Decision Date: 03 June 1977
• Docket Number: No. 48317,48317
• Citation: 566 P.2d 384,1 Kan.App.2d 374
• Parties: MT. CARMEL MEDICAL CENTER, Appellee and Cross-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LABETTE COUNTY, Kansas, Appellant and Cross-Appellee.
• Court: Kansas Court of Appeals

Page 384

566 P.2d 384

1 Kan.App.2d 374

MT. CARMEL MEDICAL CENTER, Appellee and Cross-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LABETTE COUNTY, Kansas Appellant and Cross-Appellee.

No. 48317.

Court of Appeals of Kansas.

June 3, 1977.

Syllabus by the Court

1. A county is not liable for damages for negligence unless such liability is expressly authorized by statute or necessarily implied therefrom when the county is engaged in a "governmental" function as distinguished from a "proprietary" function.

2. The maintenance and operation of law enforcement departments and jails are "governmental" functions as distinguished from "proprietary" functions.

3. The judgment of a trial court will be upheld if it is correct, even though the trial court may have assigned an erroneous reason for its decision when the determinative facts are undisputed.

4. A sheriff has a duty to furnish medical attention to a prisoner in need thereof while in his custody, and at the county's expense if the prisoner is indigent and no other source of funds is available.

5. In an action to recover for hospital services furnished to a prisoner who received such services for the treatment of injuries sustained while in the status of an escaped prisoner, the record is examined and under the facts of this case it is held: (1) The sheriff's deputy reacquired custody of the prisoner as a matter of law when the deputy was present at the scene when the prisoner was found after incurring the injuries, and when the deputy, who had actual knowledge that the prisoner was serving a misdemeanor sentence and had not been lawfully discharged therefrom, later concurred in the doctor's decision to transport the prisoner to the hospital for treatment of a broken leg; and (2) the county is liable to pay for the medical services rendered to the injured prisoner.

William J. Daley, County Atty., and Daniel L. Brewster, former County Atty., for the appellant and cross-appellee.

Robert J. Fleming, of Weir, Angwin & Towner, Pittsburg, for appellee and cross-appellant.

Before ABBOTT, P. J., and FOTH and SPENCER, JJ.

ABBOTT, Judge:

This is an action brought by Mt. Carmel Medical Center of Pittsburg, Kansas, against the Board of County Commissioners of Labette County, Kansas, seeking recovery of money due on a hospital bill for medical services furnished an indigent prisoner who was injured when he jumped from the fourth floor of the Labette County Courthouse in Oswego, Kansas.

The trial court allowed recovery of the hospital bill on the theory that defendant was negligent in allowing the prisoner to escape from jail and that the prisoner's injuries and medical care were incurred as a result of his escape. The learned judge specifically denied recovery on a statutory duty theory holding as a matter of law that the prisoner was in the status of an escaped prisoner when the injuries occurred and "that the county was not liable for medical attention for indigent prisoners while the prisoner was in the status of an escaped prisoner from the custody of the sheriff."

The Board of County Commissioners of Labette County, Kansas, hereinafter referred to as the county commission or county commissioners, appealed from the judgment alleging the trial judge erred in (1) finding the sheriff negligent, (2) finding the prisoner's injuries were the direct and proximate result of the sheriff's negligence, (3) not applying the doctrine of governmental immunity, (4) finding Labette County liable for the sheriff's negligence, and (5) failing to find that Mt. Carmel Medical Center was not the real party in interest pursuant to K.S.A. 60-217(a ).

Mt. Carmel Medical Center, hereinafter referred to as the hospital, cross appealed alleging the trial judge erred in (1) finding the prisoner was an escaped prisoner when injured, (2) finding the county was not liable for medical treatment to an indigent prisoner in the status of an escaped prisoner, (3) not finding that the sheriff had a duty to recapture the escaped prisoner, and (4) its conclusion that the sheriff could have recaptured the prisoner either at the time he was injured or after his hospitalization was not determinative of the county commission's liability for the hospital bill.

The material facts are not in dispute. William Love was a prisoner in the Labette County jail serving a one-year misdemeanor sentence. The prisoner was completing his eighth month as an inmate and had obtained trustee status. The jail, the jailer's quarters, and other facilities used by the sheriff are located on the fourth floor of the courthouse. Some nights a jailer occupied the jailer's quarters, but on three nights a week the jailer was off duty and no one other than the prisoners was on the fourth floor. The sheriff did not know whether or not a jailer was at the jail on the night of the escape. In any event, no one checked on the prisoner from 10:00 p. m. until the following morning.

On September 22, 1974, at approximately 2:00 a. m., Love removed a ceiling panel and some two-by-four's and crawled through an opening above a locked steel door into a storeroom. The prisoner walked down a hallway to an unlocked window and either jumped or dropped four stories to the ground. Among other injuries, the prisoner received a broken leg. A neighbor heard his screams and called the Oswego police. The police arrived and called an ambulance. The ambulance, a doctor and a sheriff's deputy arrived at the scene. The doctor recommended hospitalization where orthopedic care was available. The deputy sheriff concurred in the decision to send Love to the hospital. Love was then transported to the hospital.

Love was hospitalized until October 11, 1974. Upon his discharge from the hospital, Love was picked up by the Labette County sheriff and transported to the home of Love's parents. Love's leg was still in a cast, and medical personnel had advised the sheriff that Love should be kept under observation. The sheriff did not have the personnel to stay around the clock with Love, so Love was taken to the home of his parents who agreed to take care of him. No guards were posted at either the hospital or the home of Love's parents. Love was never picked up and put back in jail to serve any remaining sentence. Love, however, was back in jail on two other separate and unrelated offenses, and while he was in jail the sheriff's staff transported him to his doctor for treatment of his leg. No charge of escape or attempted escape was ever filed against Love.

Appellant is correct that the trial court erred in not applying the doctrine of governmental immunity. From statement of counsel on oral argument, it is apparent the trial judge was under the impression Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, had declared the doctrine of governmental immunity unconstitutional and void and no longer applicable in Kansas. After this case was tried and judgment rendered, a rehearing was granted in Brown, supra, and the original decision is modified in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015.

Prior to 1969, the law in Kansas was that a county was not liable for damages for negligence unless such liability was expressly authorized by statute or necessarily implied therefrom, even when the negligence arose at a time when the county was engaged in a "proprietary" function as opposed to a "governmental" function. (Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P.2d 561.) In 1969, the Supreme Court abolished the doctrine of governmental immunity as to all governmental bodies of the state when engaged in proprietary activities as distinguished from governmental activities. (Carrol v. Kittle, 203 Kan. 841, 457 P.2d 21.) In Carrol, the court stated each case must be governed by its own particular facts and gave broad guidelines that "(a) governmental agency is engaged in a proprietary activity when it embarks on an enterprise which is commercial in character or is usually carried on by private individuals, or is for the profit, benefit or advantage of the governmental unit conducting the activity." (Syl. 7).

The court in Carrol went on to recognize the authority of the legislature to control governmental immunity and in effect invited the legislature to adopt a comprehensive tort claims act. Rather than adopt a tort claims act, the next session of the legislature adopted K.S.A. 46-901, et seq. in 1970, and the two Brown cases, supra, followed.

Plaintiff cannot recover against the county for negligence in the absence of statutory authority (express or implied) unless it can show the county's negligence arose out of a "proprietary" function as distinguished from a governmental function. Kansas has long held that the maintenance and operation of law enforcement departments and jails are governmental functions as distinguished from proprietary. (Pfefferle v. Comm'rs of Lyon Co., 39 Kan. 432, 18 P. 506; Daniels v. Kansas Highway Patrol, 206 Kan. 710, 482 P.2d 46.) No statutes are cited by appellee granting either express or implied authority to sue, nor does appellee claim waiver of immunity by purchase of liability insurance pursuant to statute.

Appellee argues that the county did not affirmatively plead governmental immunity as a defense and thereby waived that defense. The trial court, in considering the county's motion to alter or amend judgment, noted that the county was adequately advised of the hospital's theories, that the hospital was advised of the county's affirmative defenses, and that the parties had consented to the court's considering all theories advanced and all affirmative defenses. The judge then made a specific finding: "The Court finds that defendant cannot hide behind the doctrine of governmental immunity, and that ...