P.W. v. Kansas Dept. of Social and Rehabilitation Services

• Decision Date: 15 July 1994
• Docket Number: No. 70357,70357
• Citation: 877 P.2d 430,255 Kan. 827
• Parties: P.W. and R.W., for and on behalf of themselves and for and on behalf of A.W. and R.W., Appellees, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, and Kansas Department of Health and Environment, Appellants.
• Court: Kansas Supreme Court

Page 430

877 P.2d 430

255 Kan. 827

P.W. and R.W., for and on behalf of themselves and for and on behalf of A.W. and R.W., Appellees, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES and Kansas Department of Health and Environment, Appellants.

No. 70357.

Supreme Court of Kansas.

July 15, 1994.

Syllabus by the Court

1. Unless a statutory exception to liability applies, a governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. K.S.A. 75-6103(a).

2. An actor has no duty to control the conduct of a third person to prevent that person from causing harm to others unless a special relationship exists between the actor and the third party or the actor and the injured party.

3. One who undertakes to render services either gratuitously or for consideration to another, which should be recognized as necessary for the protection of a third person, has a duty to act reasonably.

4. The doctrine of parens patriae empowers, but does not impose a duty on, the State to enact legislation regarding the welfare of those unable to care for themselves.

5. Under the public duty doctrine, a governmental entity is not liable for torts committed against a person in the absence of a special duty owed to the injured person.

Appeal from Shawnee County district court; CHARLES ANDREWS, JR., judge. Opinion filed July 15, 1994. Reversed and remanded.

Marvin G. Stottlemire, of Kansas Dept. of Health and Environment, argued the cause and was on the brief for appellant Kansas Dept. of Health and Environment.

Kenneth R. Smith, of Kansas Dept. of Social and Rehabilitation Services, argued the cause and was on the brief for appellant Kansas Dept. of Social and Rehabilitation Services.

Kevin L. Diehl, of Eugene B. Ralston & Associates, Topeka, argued the cause and was on the brief for appellees.

LOCKETT, Justice:

Defendant-appellant Kansas Department of Social and Rehabilitation Services (SRS) appeals the denial of its motions to dismiss and for summary judgment on the negligence claim asserted by plaintiffs P.W. and R.W. for themselves and on behalf of their children, A.W. and R.W. Defendant-appellant Kansas Department of Health and Environment (KDHE) appeals the denial of its motion for summary judgment in the same matter. The district court made the findings required by K.S.A. 60-2102(b) for an interlocutory appeal to the Court of Appeals, and we subsequently transferred the case to our docket under the authority granted by K.S.A. 20-3018(c).

We note that SRS is appealing from both the denial of its motion to dismiss and its motion for summary judgment while KDHE only challenges the denial of its motion for summary judgment. Although the district court and the parties have raised several issues, we find the issue of the existence of a duty dispositive of all issues.

Scope of Review

The scope of review on a motion for summary judgment includes any "pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits." Hollenbeck v. Household Bank, 250 Kan. 747, 750, 829 P.2d 903 (1992). The important distinction between the handling of a motion to dismiss on the one hand and a motion for summary judgment on the other is that in the former the trial court is limited to a review of the pleadings, while in the latter, the trial court takes into consideration all of the facts disclosed during the discovery process--affidavits, depositions, admissions, and answers to interrogatories. Beck v. Kansas Adult Authority, 241 Kan. 13, 26, 735 P.2d 222 (1987). Under the circumstances, we are only required to address the propriety of the district court's decision on the agencies' motions for summary judgment.

Standard of Review

This court, as does the trial court, must resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the party opposing the summary judgment motion, and if reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although the party is not required to prove its case. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988). Summary judgment is only appropriate if the record conclusively shows 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. C.J.W. v. State, 253 Kan. 1, 16, 853 P.2d 4 (1993).

Uncontroverted or Admitted Facts

A.W. and R.W. were children enrolled at the Munchkin Care Center, a day care center located in Topeka. The plaintiffs alleged a number of violations and abuses by the owner-operators of the day care center and alleged that KDHE and SRS were negligent in failing to revoke or suspend the license of the day care providers or take other corrective actions. KDHE is the state agency statutorily vested with the power to license and regulate day care centers in this state. SRS is the state agency that, in conjunction with law enforcement officers, has the duty to receive and investigate reports of child abuse for the purpose of determining whether a report is valid and whether state action is required to protect a child from further abuse. SRS at no time had legal or physical custody of A.W. and R.W. SRS did investigate and determine the reports of abuse filed by the plaintiffs. SRS had no contractual or business relationship with the day care center or the center's employees.

SRS, by statute, is required to investigate any report of child abuse. From December 1986 to March 1988, SRS investigated four claims of child abuse at the day care center. The claims all involved the same adult. In June 1987, SRS investigated but could not confirm a report that this adult may have "fondled" a child at the day care center. SRS did recommend that the adult "modify his behavior." Two other incidents of inappropriate touching by the adult were made in 1987 by two different parents, but those parents subsequently refused to cooperate with SRS's investigation of the reports. In 1988, SRS received a report that a child at the day care center had possible bruising around his anus, but a physician determined that no abuse was involved. Plaintiffs' expert witness agreed the SRS investigations were properly conducted.

KDHE, by statute, is responsible for the licensing and inspection of day care centers. It has the authority to suspend or revoke a day care center's license. KDHE investigated 30 complaints it received about the day care center during the years from 1985 to 1989. The problems reported included repeated instances of overenrollment, inadequate supervision of the children, and inappropriate disciplinary methods. Plaintiffs' expert opined that KDHE acted unreasonably in failing to correct the problems or to close down the day care center operation. Plaintiffs argued, however, that although their expert witness agreed the four unconfirmed reports of abuse were not sufficient to require corrective action or a license revocation by KDHE, the number and frequency of problems involving overenrollment and improper disciplinary methods, when coupled with the unconfirmed reports of abuse, should have resulted in suspension or revocation of the day care center's license.

Other facts were asserted by SRS and controverted by the plaintiffs, but the plaintiffs failed to cite to the record to support their disagreement with the facts stated. It is incumbent on a party opposing a motion for summary judgment to counter alleged uncontroverted facts with something of evidentiary value. Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990). Courts have discretion to treat a fact as uncontroverted when the party controverting the alleged uncontroverted fact fails to cite any factual authority for support. Danes v. St. David's Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988). Under the circumstances, the additional uncontroverted facts are: (1) SRS had no "knowledge, contact or relationship" with the plaintiffs at the time of the alleged abuse "other than as members of the public at large"; (2) KDHE, when exercising its discretion, determined it did not have any sufficient reason under K.S.A. 65-516 and K.S.A. 65- 521 to revoke the day care center's license; and (3) SRS had no ongoing regulatory responsibility for the day care center employees at the time the plaintiffs were customers of the center.

The District Court's Decision

The district court ruled SRS and KDHE had a duty to warn or protect the plaintiffs under Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), which involved § 324A of the Restatement (Second) of Torts (1964), and Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), which involved §§ 315 and 324A of the Restatement (Second) of Torts. The court also found K.S.A. 38-1524 imposed a statutory duty on SRS to protect the plaintiffs. The court then found KDHE and SRS had a duty to protect the welfare of children under the doctrine of parens patriae. The district court also ruled KDHE had a duty because it had a special relationship with the plaintiffs through its statutory duty to regulate day care centers, i.e., to license, receive and investigate complaints, supervise, and monitor day care centers. The district court found there were genuine issues of material fact and the agencies were not entitled to judgment as a matter of law.

The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that, unless a statutory exception applies, a "governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under...