Schmeck v. City of Shawnee

• Decision Date: 16 July 1982
• Docket Number: No. 52044,52044
• Citation: 647 P.2d 1263,231 Kan. 588
• Parties: Doris M. SCHMECK, Appellant, v. CITY OF SHAWNEE, Kansas, a municipal corporation; Secretary of Transportation; Kansas City Power & Light Company, a corporation; Marilyn I. Velasquez, Administratrix of the Estate of Linda S. Nepote, Deceased; and Larry J. Doyle, Appellees.
• Court: Kansas Supreme Court

Page 1263

647 P.2d 1263

231 Kan. 588

Doris M. SCHMECK, Appellant, v. CITY OF SHAWNEE, Kansas, a municipal corporation; Secretary of Transportation; Kansas City Power & Light Company, a corporation; Marilyn I. Velasquez, Administratrix of the Estate of Linda S. Nepote, Deceased; and Larry J. Doyle, Appellees.

No. 52044.

Supreme Court of Kansas.

July 16, 1982.

Syllabus by the Court

A parent has no cause of action for his or her emotional, physical, or other injuries against one who negligently causes injury to an adult child, when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child.

Victor A. Bergman, of Schnider, Shamberg & May, Chartered, Kansas City, argued the cause, and John E. Shamberg and Mark A. Johnson, Kansas City, were with him on the brief, for appellant.

Thomas R. Buchanan, of Balloun & Bodinson, Chartered, Olathe, argued the cause, and J. Eugene Balloun and Ron Bodinson, Olathe, were on the brief, for appellee City of Shawnee.

J. Roy Holliday, Jr., of Speer, Austin, Holliday, Lane & Ruddick, Chartered, Olathe, argued the cause and Peter V. Ruddick, Olathe, of the same firm, was with him on the brief, for appellee Kansas City Power & Light Co.

Gerald L. Rushfelt, of Rushfelt, Mueller, Druten & Moran, Overland Park, argued the cause, and William P. Coates, Jr., Overland Park, of the same firm, was on the brief, for appellee Larry J. Doyle.

Jannell D. Senn, of Boddington & Brown, Kansas City, argued the cause, and N. Jack Brown, Kansas City, of the same firm, was on the brief, for appellee Marilyn I. Velasquez Administratrix of the Estate of Linda S. Nepote, Deceased.

Mark A. Buck, of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, was on the brief, for amicus curiae, Kansas Association of Defense Counsel.

MILLER, Justice:

This is an appeal in a negligence action by the plaintiff, Doris M. Schmeck, from summary judgment entered against her and in favor of the defendants by the Wyandotte District Court. Defendants are the City of Shawnee, Kansas; the Secretary of Transportation of the State of Kansas; Kansas City Power and Light Company; Marilyn I. Velasquez, administratrix of the estate of Linda S. Nepote, deceased; and Larry J. Doyle.

The issue presented is whether a mother has a cause of action for damages she has sustained-mental and emotional distress, physical injuries, loss of time, and economic loss-following injury to her adult daughter caused by the negligence of the defendants.

The amended petition summarizes the facts. It alleges in substance that on July 11, 1976, plaintiff's daughter, Teresa L. Schmeck, was a passenger on a motorcycle being operated by Linda S. Nepote in an easterly direction on K-10 Highway in Shawnee, Kansas. When the motorcycle reached the intersection of K-10 Highway and Quivira Road, it collided with a vehicle being driven by defendant Larry J. Doyle as he was making a left turn from K-10 Highway preparing to go south on Quivira Road. As a result of the collision plaintiff's daughter was hurled from the motorcycle onto the pavement surface and sustained permanent, painful and disabling injuries which have rendered her totally incapacitated.

Prior to the collision Teresa L. Schmeck was a healthy, able-bodied young woman, twenty-three years of age, in possession of all of her faculties; as a result of the injuries sustained in the collision, Teresa has been rendered totally disabled.

As a consequence of the collision in which Teresa was injured, the plaintiff has sustained great emotional, psychic and physical injuries, and she has further sustained the loss of the services, companionship, advice and counsel of her daughter, Teresa.

The collision was directly and proximately caused by the negligence and carelessness of the several defendants, whose negligence joined and concurred to cause the collision.

In addition to the facts pleaded, it is agreed, at least for the purposes of this appeal, that plaintiff was not present at the scene of the collision; she was at her home, several miles away. She learned of her daughter's injuries about an hour later, and went immediately to the hospital. Her husband, Teresa's father, suffered a heart attack four days later and died on August 2, 1976. Plaintiff visited Teresa once or twice daily until her release from the hospital on October 29, 1976; since then, Teresa has been living with plaintiff. Teresa requires constant care. Plaintiff has had to give up her career as an organist and music teacher, and devotes her waking hours to her daughter. The demands of caring for Teresa have caused plaintiff to be nervous, tired, and exhausted, and led to a case of hepatitis which required four months' bed rest. Caring for her daughter has cost plaintiff time, travel, and out-of-pocket expense.

Teresa filed suit against these defendants, seeking damages for her injuries. She recovered a substantial verdict. That case, Schmeck v. City of Shawnee, Kansas, et al., No. 53,097, is now pending on appeal in this court.

The case we now consider is an entirely separate action commenced by Doris M. Schmeck, who contends that as a result of the damages she has sustained due to Teresa's injuries, she (Doris) has a cause of action for negligence in her own right. The trial judge granted motions for summary judgment leveled by each of the defendants, holding as a matter of law that plaintiff has no cause of action for her claimed injuries and damages, which occurred as a result of the injuries sustained by her emancipated adult daughter. Plaintiff appeals.

Plaintiff argues that she sustained cognizable damages, enumerated above, as a result of defendants' negligence, and that the trial court erred in misconstruing plaintiff's claim and in considering only the issue of mental and emotional distress. Granted, the trial court did not specifically enumerate all of the items of damage claimed, but it appears to us that the trial court accepted as true, for the purpose of ruling upon the motions for summary judgment, all of plaintiff's claims.

Damages alone, however, do not create a right or a cause of action. In Foster v. Humburg, 180 Kan. 64, 67-68, 299 P.2d 46 (1956), we said:

"(D)amages ... do not constitute the 'cause of action.' The 'cause of action' is the wrong done, not the measure of compensation for it, or the character of relief sought. A 'cause of action' arises from a manifestation of a right or violation of an obligation or duty. (Friederichsen v. Renard, 247 U.S. 207, 38 S.Ct. 450, 62 L.Ed. 1075; Travelers Fire Ins. Co. v. Ranney-Davis Mercantile Co. (10th Circuit), 173 F.2d 844; Wright v. Brush, 115 F.2d 265.) Damage is not the cause of action. It is merely a part of the remedy which the law allows for the injury resulting from a breach or wrong. The 'right of action' is merely the right to pursue a remedy, and the 'cause of action' is the concurrence of the facts giving rise to an enforceable claim."

All of the items claimed-physical injuries, mental and emotional distress, loss of time, and economic loss-may be elements of recoverable damages; but the cause of action is based not upon the existence of damages alone, but must be based upon the existence of actionable negligence, the breach by the defendants of some duty owed to the plaintiff, resulting in plaintiff's injury.

In her reply brief, plaintiff appears to contend that her action is based upon willful and wanton conduct, and upon intentional acts or omissions, as well as negligence. Both the initial and the amended petitions, however, state only claims based upon negligence. We find no assertion of recklessness, of wanton conduct, or of willful or intentional acts by the defendants directed toward the plaintiff in any of the prior pleadings or proceedings below, and no indication of any factual basis for any such claims. We will limit our discussion, therefore, to whether or not plaintiff has a claim for negligence against the defendants.

The elements of actionable negligence are set forth in George v. Breising, 206 Kan. 221, Syl. P 1, 477 P.2d 983 (1970):

"The elements necessary for actionable negligence are: (a ) A duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (b ) the defendant's failure to perform that duty; and (c ) an injury to plaintiff which proximately results from such failure."

In a later discussion of actionable negligence, Justice (now Chief Justice) Schroeder, speaking for a unanimous court in Cooper v. Eberly, 211 Kan. 657, 664, 508 P.2d 943 (1973), said:

"Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance before an act is said to be negligent, there must exist a duty to the individual complaining, and the observance of which would have averted or avoided the injury. The plaintiff who sues his fellowman sues for a breach of duty owing to himself. The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another."

The primary question is whether the defendants had a duty to protect the plaintiff from the injuries of which she now complains. It is clear, and we need cite no authority to support the rule, that the driver of a motor vehicle upon a public street or highway has a duty to keep his vehicle under proper control,...