Thomas v. the County Commissioners of Shawnee County

Decision Date23 September 2011
Docket NumberNo. 98,586.,98,586.
Citation262 P.3d 336,293 Kan. 208
PartiesCathy THOMAS, Administratrix of the Estate of Anthony D. Stapleton, et al., Appellants,v.The COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas, et al., Appellees.
CourtKansas Supreme Court
Syllabus by the Court

1. 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.

2. On appeal, questions of law, including those at the heart of summary judgment decisions, are subject to de novo review.

3. In Kansas, under both K.S.A. 19–1919 and Restatement (Second) of Torts § 314A(4) (1964), jailers owe a duty of reasonable care to those in custody, including the duty to take reasonable steps to prevent prisoners from harming themselves. This duty is triggered by actual or constructive knowledge of a prisoner's unreasonable risk of suicide.

4. On the facts before the court in this case, plaintiffs came forward with evidence to support the existence of a genuine issue of material fact preventing summary judgment in favor of defendants on breach of their duty to protect a prisoner from suicide.

5. In order to determine whether a function or duty is discretionary for purposes of application of the discretionary function exception under the Kansas Tort Claims Act, K.S.A. 2010 Supp. 75–6104(e), courts must look foremost to the nature and quality of the discretion exercised. The more a judgment involves the making of policy, the more it possesses the nature and quality to be recognized as inappropriate for judicial review. The status of the actor is not determinative; but the necessity that the actor employ expertise, whether educational or experiential, is relevant to determining whether an action is discretionary or ministerial. The existence of mandatory controls over a defendant's conduct—whether those controls arise from agency directives, caselaw, or statutes—makes the discretionary function exception inapplicable. The existence of a general legal duty of care is distinct from a mandatory duty or guideline that eliminates the possibility of immunity under the exception.

6. Jail guard and shift supervisor defendants are not entitled to immunity from liability under the discretionary function exception of the Kansas Tort Claims Act, K.S.A. 2010 Supp. 75–6104(e), when the detention center's mandatory written and unwritten policies strictly circumscribed or eliminated defendants' exercise of judgment regarding treatment of a prisoner who committed suicide on their watch.

Robert R. Laing, Jr., of Kansas City, argued the cause and was on the briefs for appellants. William A. Larson, of Larson & Blumreich, Chartered, of Topeka, argued the cause and was on the briefs for appellees.Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, was on the brief for amicus curiae Kansas Association of Counties.

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

This case arises on petition for review filed by Defendants David Tipton, Matthew Biltoft, and Shawnee County (County) from the Court of Appeals' partial reversal of summary judgment in their favor. Plaintiffs allege defendants' negligence led to the suicide of Anthony D. Stapleton while he was incarcerated in the Shawnee County Adult Detention Center. Defendants argue that they are entitled to summary judgment on duty and breach and that they are immune from suit under the Kansas Tort Claims Act (KTCA).

Factual and Procedural Background

Stapleton committed suicide on November 29, 2002, while housed in the Close Observation unit of the Detention Center. The unit was created for inmates who possessed one or more suicide risk factors.

Plaintiffs originally filed suit in federal court, alleging both federal constitutional violations and state law negligence claims. District Judge Julie A. Robinson granted defendants' motion for summary judgment on plaintiffs' federal constitutional claims and declined to exercise supplemental jurisdiction over plaintiffs' state law claims.

Plaintiffs then filed this suit in state court. They claimed that Tipton, the guard on duty, was negligent in guarding, supervising, and observing Stapleton before his suicide. Plaintiffs claimed that Biltoft, the assistant shift supervisor on duty, was negligent in guarding, supervising, and observing Stapleton before his suicide and that he was negligent in the supervision of jail employees. Plaintiffs also claimed that Director of the Shawnee County Department of Corrections, Betsy Gillespie, was negligent in training, monitoring, and supervising her employees, and that County Commissioners Ted Ensley, Marice Kane, and Victor Miller were negligent in hiring and retaining Gillespie as director. Finally, plaintiffs alleged that Shawnee County was vicariously liable for the negligence of the other defendants.

Defendants filed a motion for summary judgment, and Judge Larry D. Hendricks granted it. The judge concluded that defendants owed Stapleton a duty of reasonable care if they knew or should have known that Stapleton was a suicide risk, but he further determined that there was no genuine issue of material fact on whether defendants breached that duty of care. In the alternative, the judge ruled that, even if defendants breached their duty of care, defendants were immune from suit under the KTCA.

On appeal, a panel of our Court of Appeals reversed in part and affirmed in part. Thomas v. Board of Shawnee County Comm'rs, 40 Kan.App.2d 946, 198 P.3d 182 (2008). It held that the district court erred in granting summary judgment to Tipton. It also reversed the summary judgment in favor of Biltoft on plaintiffs' negligence theory, but it affirmed the summary judgment on the negligent supervision claim against him. The panel affirmed the district court's summary judgment in favor of Gillespie, Ensley, Kane, and Miller. It reversed the district court on KTCA immunity.

Tipton, Biltoft, and the County are the only defendants who remain in the case as it arrives here. Plaintiffs did not petition for review of the Court of Appeals' holdings regarding the other defendants. They also did not petition for review on the negligent supervision claim against Biltoft. See Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 244, 49 P.3d 511 (2002) (court lacks jurisdiction to consider argument for which cross-appeal not filed).

The record on appeal demonstrates that the following facts are undisputed, at least for purposes of summary judgment.

Detention Center Operation and Suicide Prevention Policy

Tipton was the guard on duty in the Close Observation unit where Stapleton was housed. Tipton had received initial training in suicide prevention and had undergone further training every 6 months. Biltoft, the assistant shift supervisor in charge of the Detention Center on the day of Stapleton's suicide, also had received initial and in-service training in suicide prevention.

During Gillespie's tenure as Director, which began in August 2000, before Stapleton's suicide, there had been three suicides at the center. Gillespie did not receive any formal job performance evaluations from the commissioners or anyone else, although she testified that she received informal evaluations. After each suicide occurred at the center, Gillespie spoke to the commissioners.

At the time of Stapleton's suicide, the Detention Center had in place policies and procedures regarding the health care of inmates, including a suicide prevention policy. The policy [t]o prevent inmates from self-harm and death while in the custody of the Adult Detention Center” instructs staff “to be alert to indicators of potentially suicidal behaviors and make immediate, appropriate referral(s) to determine degree of risk for self-harm and/or suicide when the indicators occur. Appropriate action shall be taken to protect the inmate.” The policy's definitional section labeled “ Suicide Watch ” stated in pertinent part:

“Continuous supervision provided to an inmate who is considered to be at imminent risk for suicide. When the inmate is assigned to a cell that is protrusion-free, the officer assigned to suicide watch duties shall observe the inmate(s) frequently, at least every 4 minutes, and document the observations as they are completed.”

The definitional section for “ Close Observation ” stated in pertinent part:

“Close monitoring and supervision of an inmate who is not imminently suicidal but who possesses one or more suicide risk factors.... Staff shall observe these inmates with greater frequency than general population, but at a minimum, shall conduct 15–minute health and well-being checks of inmates placed on this status.”

The relevant segments of Section I of the “PROCEDURES” section of the policy on Observation of Suicide Risk Factors provided:

“B. Staff who work directly with inmates shall consistently monitor inmates under their supervision for any of the following risk factors or behaviors:


6. weight loss or loss of appetite,


13. crying frequently,


19. expressing suicidal thoughts or plans,

20. composing a suicide note,

21. talking of death and/or afterlife,


23. highly agitated, afraid, or angry,


“C. Staff who observe any of the risk factors or...

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