Patterson v. Cowley Cnty.

• Decision Date: 27 January 2017
• Docket Number: 114,707,114,705
• Citation: 388 P.3d 923
• Parties: Rochelle PATTERSON, Mother and Next Best Friend of Nicolette Patterson, a Minor, and Gavin Patterson, a Minor, Appellant, v. COWLEY COUNTY, Kansas, Kansas Department of Wildlife, Parks and Tourism, and Bolton Township, (Elaine Selenke as Heir-at-Law of Cortney Brewer, Deceased), Appellees.
• Court: Kansas Court of Appeals

388 P.3d 923

Rochelle PATTERSON, Mother and Next Best Friend of Nicolette Patterson, a Minor, and Gavin Patterson, a Minor, Appellant,

v.COWLEY COUNTY, Kansas, Kansas Department of Wildlife, Parks and Tourism, and Bolton Township, (Elaine Selenke as Heir-at-Law of Cortney Brewer, Deceased), Appellees.

114,705

114,707

Court of Appeals of Kansas.

Opinion filed January 27, 2017

Jeffery L. Carmichael, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, for appellant.

Charles E. Millsap and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee Cowley County, Kansas.

Edward L. Keeley, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee Bolton Township.

Donald A. McKinney, of Wichita, for appellee Elaine Selenke.

Before Malone, C.J., Standridge, J., and Hebert, S.J.

Standridge, J.:

This interlocutory appeal arises out of wrongful death actions brought by the heirs (the plaintiffs) of two individuals who were killed in a single-vehicle accident on a road that dead ends at the banks of the Arkansas River. The plaintiffs filed wrongful death claims against Cowley County, Bolton Township, and the Kansas Department of Wildlife, Parks and Tourism for failure to provide adequate warnings, signs, or barriers on certain portions of the road where the fatal accident occurred. The district court granted partial summary judgment to the County and granted summary judgment in full to the Township and the Kansas Department of Wildlife. We granted applications for interlocutory appeal by one of the plaintiffs and by the County on issues of duty and jurisdiction. As set forth more specifically below, we find the County had no duty to initiate an engineering study, the County is immune from liability under the discretionary judgment exception of the Kansas Tort Claims Act (KTCA) for any failure to place an advisory speed plaque or warning signs on its portion of 322nd Road, the County is not immune from liability under the recreational exception of the KTCA for any failure to place an advisory speed plaque, a Dead End sign, or a No Outlet sign on its portion of 322nd Road, the Township had no duty to place traffic control devices or other warning signs on its portion of 322nd Road, and the failure to inspect property of another exception to liability set forth in the KTCA does not apply to the facts presented in this case.

FACTS

The facts relevant to this appeal are generally undisputed. An east-west road known as 322nd Road runs just north of the Kansas–Oklahoma border in southern Cowley County, Kansas. The majority of 322nd Road is a paved county road maintained by the County, while the remaining approximately 1/4–mile east portion of the road is not paved and is located within the Township. The only regulatory or warning sign posted on the relevant portion of 322nd Road under the County's jurisdiction is a Pavement Ends sign located approximately 600 feet prior to the end of the pavement. The County has never maintained the unpaved portion of 322nd Road. The Township, believing that the entire road belonged to the County, has never maintained any portion of the road, paved or unpaved. Approximately 1/4–mile east of where the pavement ends, 322nd Road comes to a dead end at the banks of the Arkansas River. The spot where the road ends is located in the Kaw Wildlife Area. The Kaw Wildlife Area is operated by the Kansas Department of Wildlife, which leases the land from the United States Department of the Army. The Kaw Wildlife Area is open to the public for use as a recreation area.

On November 19, 2010, a sport utility vehicle (SUV) occupied by Jason Patterson and Cortney Brewer traveled east on 322nd Road. There is some dispute over who was driving the SUV but that issue is not relevant to this appeal. Both Jason and Cortney had a blood-alcohol content over the legal driving limit of .08%. The SUV drove into the Kaw Wildlife Area while traveling at a speed of 10–12 miles per hour and began to brake just prior to reaching the river. The SUV's right front tire went over the edge of the river bank, causing the SUV to flip end-over-end and drop approximately 12 feet into the river. Both Jason and Cortney drowned as a result.

On June 12, 2012, Rochelle Patterson (Patterson), on behalf of two of Jason's surviving minor children, filed a wrongful death action against the County, the Township, and the Kansas Department of Wildlife. The petition alleged that the defendants had been negligent by failing to provide adequate warnings, signs, or barriers indicating that 322nd Road ended at the river and that this alleged negligence resulted in Jason's death.

On November 19, 2012, Elaine Selenke, Cortney's mother and representative of her estate, filed a wrongful death action against the County, the Township, and the Kansas Department of Wildlife, alleging that the defendants had negligently failed to place warnings, signs, or barriers to warn motorists that 322nd Road ended at the river, which caused or contributed to Cortney's death. Selenke later brought an essentially identical action against only the County and the Township.

The district court consolidated all three cases for purposes of discovery but deferred making a decision about whether the cases would be consolidated for trial. All the parties filed motions seeking total or partial summary judgment and extensive briefs in response. For purposes of this appeal, it is only necessary to discuss specific issues that are related to each individual defendant. The County sought summary judgment on grounds that (1) it had no duty to erect warning signs on the portion of 322nd Road under the Township's jurisdiction and (2) it was immune from suit for failing to erect warning signs based on exceptions to liability in the KTCA for discretionary functions, recreational use, and failure to inspect property as set forth in K.S.A. 2015 Supp. 75–6104(e), (h), (k) and (o). The Township sought summary judgment on grounds that (1) it had no duty to place traffic control devices or other warning signs on any portion of 322nd Road and (2) it was immune from suit for failing to erect warning signs based on the exception to liability for recreational use under the KTCA, K.S.A. 2015 Supp. 75–6104(o), and the Recreational Use Act, K.S.A. 58–3201 et seq . The Kansas Department of Wildlife sought summary judgment on grounds that (1) it had no duty to place traffic control devices or other warning signs on any portion of 322nd Road, (2) it was immune from suit for failing to erect warning signs based on the exception to liability for recreational use under the KTCA, K.S.A. 2015 Supp. 75–6104(o), and the Recreational Use Act, K.S.A. 58–3201 et seq ., and (3) the plaintiffs' claims were barred by K.S.A. 60–513(b), the 10–year statute of repose.

After hearing argument on the motions, the district court filed a lengthy journal entry (1) granting summary judgment in part to the County because it was immune from liability under the discretionary judgment exception to the KTCA; (2) granting summary judgment in full to the Township because it had no duty to place traffic control devices on 322nd Road; and (3) granting summary judgment in full to the Kansas Department of Wildlife because it had no duty to place traffic control devices on 322nd Road, it was immune from liability under the recreational exception to the KTCA, and the plaintiffs' claims were barred by K.S.A. 60–513(b). In its ruling, the district court identified several material facts in dispute, including whether 322nd Road physically exists all the way to the edge of the river and whether an obvious hazard exists at the location where 322nd Road enters the river that would not be evident to a motorist, especially at night. The court concluded its opinion by acknowledging there existed a "substantial ground for difference of opinion on the issue of duty and jurisdiction. ... Therefore, the Court finds that this court's decision on the issue of jurisdiction and duty of 322nd Road, as well as other rulings as the court deems necessary to the resolution of these issues, should be determined by the Appellate Court, pending further disposition of the case."

After the district court issued its opinion, Patterson and the County each filed an application for interlocutory appeal with this court, which we accepted. The district court entered an order staying the proceedings below pending this court's review. We consolidated the cases for purposes of this appeal. Patterson was designated as the appellant, the County was designated as an appellee and the cross-appellant, and the Township and the Kansas Department of Wildlife were designated as appellees. Because Selenke did not appeal from any of the district court's rulings, she was designated only as an appellee and a cross-appellee. Finally, we note Patterson did not appeal from the district court's decision to grant summary judgment in favor of the Kansas Department of Wildlife.

STANDARD OF REVIEW

The standard of review on summary judgment is well established:

" ‘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. 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. 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 rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]’ " Fawcett v.

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