Reynolds v. Kansas Dept. of Transportation

• Decision Date: 31 August 2001
• Docket Number: No. 83,944.,83,944.
• Parties: ARNOLD LEE REYNOLDS, Administrator for the Estate of Connie Reynolds, Deceased; ARNOLD LEE REYNOLDS, Individually; and RHONDA REYNOLDS, Appellees, v. KANSAS DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: Kansas Court of Appeals

29 Kan. App.2d 695

30 P.3d 1041

ARNOLD LEE REYNOLDS, Administrator for the Estate of Connie Reynolds, Deceased; ARNOLD LEE REYNOLDS, Individually; and RHONDA REYNOLDS, Appellees, v. KANSAS DEPARTMENT OF TRANSPORTATION, Appellant.

No. 83,944.

Court of Appeals of Kansas.

Opinion filed August 31, 2001.

Vicky S. Johnson, staff attorney, and Michael B. Rees, chief counsel, of the Kansas Department of Transportation, for appellant.

Lon Walters, of The Walters Law Firm, LLC, of Kansas City, Missouri, and Julie Frickleton, of Leawood, for appellees.

Before PIERRON, P.J., MARQUARDT and BEIER, JJ.

MARQUARDT, J.:

The Kansas Department of Transportation (KDOT) appeals the trial court's refusal to grant its motion for summary judgment and motion for a directed verdict. We reverse.

Everett and Sylvia Jones leased approximately 40 acres on the west side of Highway 69 from the Van Kirks. Part of the property along Highway 69 contained a fence that was constructed by KDOT. The fence was built up and around the double box culvert on the Van Kirks' property.

Sylvia admitted that she and Everett had trouble keeping their cattle from going through the culvert to Lee Phillips' orchard on the east side of the highway. The Jones constructed a fence across the culvert on the west side of the highway, but found it difficult to keep it repaired when the weather was bad.

In response to a report in August 1997, Trooper Richard Lohse found 10 or 12 cows along the fence line on Highway 69. Officers cut the fence and herded the cows into their pasture; however, one escaped and got onto the highway.

While discussing a plan for locating the owner of the cows, Deputy Phillip Campbell heard a "thud." A car driven by Arnold Reynolds struck the escaped cow. The car went off the roadway and struck a rock embankment. Arnold's wife, Connie, did not survive the accident. Arnold's daughter, Rhonda, suffered severe injuries. In March 1998, Arnold filed a lawsuit against the Van Kirks, KDOT, and Everett, on behalf of himself, individually, and on Connie's behalf, claiming negligence for failing to repair, construct, and/or maintain a fence that would have prevented an escaped cow from entering the highway. Rhonda joined in the lawsuit.

The Van Kirks and KDOT filed separate motions for summary judgment. While the summary judgment motions were pending, Arnold and Rhonda settled their case against Everett. The Van Kirks' motion was granted. KDOT's motion was denied. Arnold and Rhonda proceeded to trial against KDOT.

After the close of evidence, KDOT moved for a directed verdict, claiming that the only issues raised were issues of law that should not be decided by a jury. The trial court denied KDOT's motion. The jury returned a verdict that found KDOT 35% at fault, Everett 45% at fault, and Arnold 20% at fault. The jury awarded Rhonda $705,521.65 and Arnold $473,774.70. KDOT timely appeals.

In ruling on motions for a directed verdict and summary judgment, the trial court is required to resolve all facts and inferences to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. The same rule applies when appellate review is sought. See Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000); Reeves v. Carlson, 266 Kan. 310, 313, 969 P.2d 252 (1998). Summary judgments are to be granted with caution in negligence actions. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998).

KDOT claims that it has no statutory duty to maintain its fence in a manner that would prevent an escaped cow from entering the highway and the duty for controlling an animal lies solely with the owner of the animal. The resolution of the issues in this case is not that simple.

Kansas fence law is contained at K.S.A. 29-101 et seq. Generally, all domestic animals, excluding cats and dogs, are required to be enclosed within a fence. The statute does not designate who is responsible for erecting and maintaining the fence. In 1986, the legislature moved away from strict liability and enacted the rule of ordinary negligence when dealing with domestic animal trespass. See K.S.A. 29-108. Common sense tells us that the owners of animals should be responsible for keeping them enclosed. However, in those instances where KDOT has constructed a fence, further analysis is required.

KDOT contends that there is no case law to support the notion that it must maintain a cattle-tight fence. Arnold and Rhonda agree that KDOT is not required to maintain a cattle-tight fence; however, their contention is that KDOT was negligent in not repairing a damaged fence designed to limit access to the highway.

David D. Arbogast, a maintenance supervisor for KDOT, testified that not all fences are repaired immediately when KDOT receives a damage report. KDOT makes a differentiation between fences that are erected to keep individuals and vehicles from entering or leaving the roadway in unauthorized areas, and fences that are erected where livestock is pastured. In places where livestock is pastured, the fence is repaired immediately, "day or night." There is no record that anyone reported to KDOT that this fence was damaged. There was no evidence that the cow had escaped where the fence was damaged.

Under K.S.A. 2000 Supp. 75-6103 of the Kansas Tort Claims Act, the State is liable for damages (1) caused by the negligent or wrongful act or omission of any of its employees; (2) while the employee was acting within the scope of the employment; and (3) under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. State ex rel. Franklin v. City of Topeka, 266 Kan. 385, 387, 969 P.2d 852 (1998).

Arnold and Rhonda claim that KDOT was negligent in failing to repair the fence. In order to establish liability for negligence, the plaintiff must establish: (1) the defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiffs injury; and (4) the plaintiff sustained damages. Kirk v. City of Shawnee, Kansas, 27 Kan. App.2d 946, 950, 10 P.3d 27 (2000). The threshold question here is whether, KDOT owed a duty to Arnold and Rhonda, which is a question of law. Whether the duty has been breached is a question of fact. Calwell v. Hassan, 260 Kan. 769, 777, 925 P.2d 422 (1996). Arnold and Rhonda claim that KDOT owed them a duty under § 324A of the Restatement (Second) of Torts (1977). The initial requirement for the application of § 324A is that the defendant undertook to render services to another. However, the services rendered must be those which the defendant recognizes as necessary for the protection of a third person. Moreover, in order to meet this threshold requirement, the evidence must show that the defendant did more than act but through affirmative action assumed an obligation or intended to render services for the benefit of another. Calwell, 260 Kan. at 784-85.

It is undisputed that KDOT did not fence the area across the mouth of the culvert on the Van Kirks' property. William Lackey, a retired KDOT employee, testified that KDOT would never put a fence across the mouth of a culvert. Lackey testified that it was up to the individual farmer to fence along the property line. Lackey noted that the...