Patterson v. Cowley Cnty.

• Decision Date: 16 March 2018
• Docket Number: 114,705,114,707
• Citation: 413 P.3d 432,307 Kan. 616
• 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 Supreme Court

307 Kan. 616

413 P.3d 432

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

Supreme Court of Kansas.

Opinion filed March 16, 2018.

Jeffery L. Carmichael, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause and was on the briefs for appellant.

Charles E. Millsap, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and Lyndon W. Vix, of the same firm, was with him on the briefs for appellee Cowley County, Kansas.

Edward L. Keeley, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and was on the briefs for appellee Bolton Township.

Donald A. McKinney, of Wichita, was on the brief for appellee Elaine Selenke.

The opinion of the court was delivered by Biles, J.:

This interlocutory appeal arises from wrongful death lawsuits alleging Bolton Township, Cowley County, and the Kansas Department of Wildlife, Parks and Tourism (KDWPT) negligently failed to provide adequate traffic-control devices—warnings, signs, or barriers—on a rural road that abruptly ends at a riverbank. Two people drowned when their vehicle drove off the road and flipped end-over-end into the river. Our focus is on three discrete aspects: (1) the Township's legal duty regarding traffic-control devices; (2) the County's failure to conduct an engineering study to assess the need for such devices; and (3) the County's assertion of statutory immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA), for the claims. The claim against KDWPT is not before us.

We hold the Township had no legal duty to place traffic-control devices along the road where the accident occurred. State law specifies the entities authorized to install traffic-control devices, and the Township is not among them. The district court correctly entered summary judgment for the Township. We further determine the County had no duty to perform an engineering study as claimed.

Finally, we hold the County is immune from liability for the signage claims under the KTCA's discretionary function exceptions. See K.S.A. 2017 Supp. 75-6104(e), (h). Our holding is founded on the Manual on Uniform Traffic Control Devices (MUTCD), adopted by the Secretary of the Kansas Department of Transportation. See K.S.A. 8-2003 (mandating the transportation secretary adopt a manual). This manual has the force and effect of law. K.S.A. 2017 Supp. 8-2005(a) ("All such traffic-control devices hereafter erected shall conform to the state manual and specifications.").

The district court's summary judgment order regarding the County is affirmed in part and reversed in part as to the issues subject to our review. These rulings make it unnecessary to decide other statutory immunity defenses asserted by the County.

FACTUAL AND PROCEDURAL BACKGROUND

Jason Patterson and Cortney Brewer drowned when their vehicle drove off a rural roadway into the Arkansas River. The road they were on ran east to west in Bolton Township, which is in Cowley County. At its easternmost point, the road ends at or near the river.

The County opened the road in 1873. In 1917, it was reclassified as a township road. In 1955, the County designated a portion, now known as 322nd Road, as a county road. It intersects with 111th Road about one mile west of the river and continues east for about three quarters of a mile. The remaining quarter mile to the river is a township road. The portion known as 322nd Road is paved, while the quarter-mile township road is not. The unpaved township road runs through the Kaw Wildlife Area, which is owned by the federal government and operated as a wildlife area by KDWPT. There is evidence the township road actually ends about 300 feet before the river.

The County had posted a "Pavement Ends" warning sign displayed to drivers headed toward the unpaved portion of the roadway about 600 feet before the transition. There were markers in the vicinity warning motorists of culvert headwalls. No traffic-control barricades or warning signs existed on the unpaved township portion of the road to the river.

After the accident, Rochelle Patterson filed suit on behalf of two of Jason's surviving minor children. Cortney's mother, Elaine Selenke, filed two actions—one on her own behalf and one on behalf of herself and Cortney's estate. The consolidated lawsuits alleged the Township, County, and KDWPT negligently failed to provide adequate warnings, signs, barriers, or other indications the road ended at the river. The parties filed motions for summary judgment after completing discovery.

For their part, plaintiffs submitted evidence to show the Township and County were negligent in failing to: (1) place an advisory speed plaque under the "Pavement Ends" sign suggesting a speed of 5 miles per hour; (2) place a "Dead End" sign at the intersection of 322nd Road and 111th Road for drivers headed toward the river; (3) place a barricade and "object marker" where the roadway ends, with a "Dead End" sign 100 feet before that point; and (4) conduct an engineering study to determine what warnings or signs were necessary.

As a foundational matter, the district court ruled the County had jurisdiction over the paved portion of the roadway and the Township had jurisdiction over the unpaved portion. The court entered summary judgment in the Township's favor on all claims, ruling the Township had no legal duty under the applicable statutes to place traffic-control devices, guidance, or other warnings on the township road.

As to the County, the district court granted summary judgment in part and denied it in part. It ruled the County was immune under the KTCA for failing to post an advisory speed plaque on 322nd Road because the decision whether to post that sign was within the County's discretion and because speed was not a causative factor in the accident. But the court found a jury question existed as to whether the County was statutorily immune for failing to post a "Dead End" or "No Outlet" sign on 322nd Road, because it could not conclude as a matter of law the accident would not have occurred if such a sign had been present. In other words, it believed there was a factual question whether that omission caused the accident, so it could not determine whether the KTCA's discretionary function exception would apply. The court ruled the "Dead End" or "No Outlet" signage claim could proceed to trial.

The court further found the County was not entitled to judgment under the KTCA's recreational use immunity because there was no evidence the County participated in the road's plan, design, or integration into the wildlife area, so it had done nothing to warrant that statutory protection. Finally, it ruled the County was not entitled to immunity for failing to inspect the unpaved township road since the need for an inspection was a disputed issue of fact. The court did not specifically address Patterson's claim that the County was liable for its road signage decisions, allegedly resulting from a negligent failure to conduct an engineering study.

The district court certified its summary judgment order for interlocutory appeal under K.S.A. 2015 Supp. 60-2102(c) (authorizing district court to make certain findings to permit appeal in civil actions for orders not otherwise appealable). It found substantial grounds existed for differences of opinion on the duties, if any, the Township and County owed regarding traffic-control devices. The Court of Appeals granted requests from both Patterson and the County to take interlocutory appeals on the district court's adverse rulings affecting them. See K.S.A. 2017 Supp. 60-2102(c) (upon district court certification for interlocutory appeal, Court of Appeals may permit an appeal in its discretion). Selenke did not appeal and was designated as an appellee and a cross-appellee. The interlocutory appeals were consolidated. No one appealed the district court's ruling granting summary judgment in KDWPT's favor.

In a published decision, a Court of Appeals panel affirmed in part and reversed in part. See Patterson v. Cowley County, Kansas , 53 Kan.App. 2d 442, 388 P.3d 923 (2017). The panel agreed with the district court's conclusion that the Township did not owe a duty with respect to traffic-control devices or warning signs. 53 Kan.App.2d at 484, 388 P.3d 923. It also held the County had no duty to conduct an engineering study. 53 Kan.App.2d at 469–70, 484, 388 P.3d 923. As to the County's KTCA immunity defense, the panel agreed the County had discretionary function immunity for its failure to install an advisory speed plaque. But the panel reversed the district court's ruling on the County's discretionary function immunity for the "Dead End" or "No Outlet" signs, ruling the County was immune for those claims. 53 Kan.App.2d at 469–70, 388 P.3d 923. Finally, and without considering whether it was necessary to reach the remaining issues since it already ruled against Patterson on all her claims, the panel agreed with the district court that the County was not entitled to recreational use or inspection immunity. 53 Kan.App.2d at 471–72, 388 P.3d 923.

Patterson petitioned for this court's review of the panel's decisions regarding: (1) the Township's duty to place traffic-control devices and warning signs; (2) the County's duty to conduct an engineering study; and (3) the County's discretionary function immunity. The County cross-petitioned for review of the panel's recreational use and inspection immunity rulings. We granted both petitions.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court jurisdiction to review of Court of Appeals decisions upon petition for review).

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