Wicina, By and Through Wicina v. Strecker
| Decision Date | 11 December 1987 |
| Docket Number | No. 60447,60447 |
| Citation | 747 P.2d 167,242 Kan. 278 |
| Parties | , 43 Ed. Law Rep. 1149 Jeffrey C. WICINA, By and Through his natural guardian and next friend, Robert C. WICINA; and Robert C. Wicina and Sandra A. Wicina, Appellants, v. Archbishop Ignatius J. STRECKER, Archbishop Ignatius J. Strecker d/b/a Bishop Miege High School, Archbishop Ignatius J. Strecker d/b/a the Catholic Archdiocese of Kansas City in Kansas, Bishop Miege High School, the Catholic Archdiocese of Kansas City in Kansas, Sister Michelle Faultus, Mary Ann Lucas, Gary Lammers, and Leonard Mohlman, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Actionable negligence must be based on a breach of duty.
2. If recovery is to be had for actionable negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received and (2) that he or she was damaged by the negligence.
3. Under the Kansas Constitution the primary law-making body is the legislature. Courts must respect legislative expressions when determining or when forming public policy. Given the right to form public policy by the legislature, courts are faced with three different situations: (1) The legislature has clearly declared the public policy of the state; (2) the legislature, though not directly declaring public policy, has enacted statutory provisions from which public policy may reasonably be implied; or (3) the legislature has neither made a clear statement of public policy nor can it be reasonably implied.
4. When it enacted K.S.A. 72-8416, the legislature granted discretion to the boards of education of public school districts to determine whether or not they should expend public money to purchase insurance for students against loss resulting from sickness, bodily injury, or accidental death. We find that, when enacting K.S.A. 72-8416, the legislature stated the policy for public schools and also implied that the same public policy be extended to private schools.
5. Under the factual circumstances set forth in the opinion, it is held that where the plaintiff, an injured student athlete, brought an action against a private school, its teachers, and its administrators to recover for financial loss sustained when defendants failed to purchase disability insurance, the district court did not err in sustaining defendants' motion to dismiss on the basis that no duty existed to purchase disability insurance or to inform the plaintiff about insurance coverage.
Gregory A. Dean, of Herron and Lewis, Overland Park, argued the cause and was on the brief, for appellants.
Robert S. Lannin, of Boddington and Brown, Kansas City, argued the cause and Kenneth J. Reilly, of the same firm, was with him on the brief, for appellees.
Plaintiff, Jeffrey C. Wicina, a student athlete attending a private high school, was injured during a football game. Wicina filed a negligence action against his high school and various other defendants alleging a breach of duty for (1) failure to provide disability insurance and (2) failure to advise and inform the plaintiff of the extent of the insurance coverage provided. The district court sustained the defendants' motion to dismiss, K.S.A. 60-212(b)(6), finding that there was no duty of the high school or any of the named defendants to provide disability insurance or to inform plaintiff of the extent of insurance coverage provided. We agree. In addition, we find that the legislature's public policy expressed in K.S.A. 72-8416, making discretionary the purchase of insurance for students against loss resulting from sickness, bodily injury, or death by accident, also applies to private schools.
Jeffrey C. Wicina was a student at Bishop Miege High School. While competing in a sophomore football game, he received severe injuries rendering him permanently quadriplegic. The defendants' student medical insurance policy did not provide lifetime disability coverage for student athletes.
Plaintiff alleges that, prior to 1973, an insurance policy was made available to Bishop Miege through the State High School Activities Association which would have covered lifetime care expenses for catastrophically injured student athletes. This policy was discussed and recommended to area athletic programs in the summer meetings of the Kansas State High School Activities Administrators. Having knowledge of this coverage, defendants affirmatively elected not to purchase it.
After his injury, Wicina filed a negligence suit against the high school, the Catholic Archbishop, the school superintendent, the co-principals of the school, and the insurance agent responsible for advising the school. The petition alleged that:
The petition further alleged that defendants' failure to purchase disability insurance caused plaintiff financial loss.
The defendants filed a motion to dismiss, K.S.A. 60-212(b)(6), claiming that the petition stated no claim for which relief could be granted. The motion to dismiss was sustained by the district court and plaintiff appeals.
When a district judge sustains a motion to dismiss a plaintiff's petition, we are under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. It is not necessary for the petition to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. Beck v. Kansas Adult Authority, 241 Kan. 13, 25, 735 P.2d 222 (1987).
In Kansas, negligence is never presumed. Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received and (2) that he or she was damaged by the negligence. An accident which is not to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Actionable negligence must be based on a breach of duty. Whether duty exists is a question of law. Whether the duty has been breached is a question of fact. Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
In order to determine if Wicina's petition states a negligence claim, the initial inquiry is whether, as a matter of law, the defendants owe a duty to plaintiff. The district judge sustained defendants' motion to dismiss finding that the defendants had no duty to purchase or to advise the plaintiff about disability insurance. The district court's decision was based in part on Friederich v. Bd. of Educ., 59 Ill.App.3d 79, 16 Ill.Dec. 510, 375 N.E.2d 141 (1978), which determined the duty of a public school under an Illinois statute.
In Friederich, the Illinois Court of Appeals rejected arguments similar to those presented in this appeal. The plaintiff, a public school student athlete, was seriously injured in a football game and suffered permanent disability. He filed a tort action against the Board of Education alleging (1) that when he was required to pay a fee for an insurance premium to cover the expense of medical treatment for injury sustained through participation in the athletic program, it then became the duty of the defendant to provide "adequate" insurance; (2) that defendant was negligent in failing to advise plaintiff what the limits of coverage were; and (3) that defendant was negligent in failing to foresee that plaintiff might sustain permanent injuries. 59 Ill.App.3d at 84, 16 Ill.Dec. 510, 375 N.E.2d 141.
The relevant Illinois statute provided that a school board "may, in its discretion, provide medical or hospital service, or both, through accident and health insurance." Ill.Rev.Stat. ch. 122, p 22-15 (1975). The court held that, because there was no statutory authority to provide disability insurance, no duty existed since any duty to insure could not exceed the scope of the statute. 59 Ill.App.3d at 81, 16 Ill.Dec. 510, 375 N.E.2d 141.
The court further held that, even if the Board were liable in tort under the common law, the Illinois Tort Immunity Act, Ill.Rev.Stat. ch. 85, p 1-101 et seq. (1975), exempted the board from liability under the discretionary function exception. 59 Ill.App.3d at 83-84, 16 Ill.Dec. 510, 375 N.E.2d 141.
Friederich, however, is not dispositive of our issues because: (1) Friederich attended a public school, (2) he paid a fee to obtain medical coverage, and (3) the Illinois statute did not allow the school discretion to purchase disability insurance. It is instructive to examine our statute regarding a public school's purchase of insurance, K.S.A. 72-8416, which provides:
"The board of education of any school district may purchase insurance contracts to insure against loss resulting from sickness or bodily injury or death by accident, on the part of students who are injured on school premises, or during school sponsored activities." (Emphasis supplied.)
The statute permits but does not require the board...
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