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.
Nos. 114,705, 114,707
Court of Appeals of Kansas
January 27, 2017
388 P.3d 923
Before Malone, C.J., Standridge, J., and Hebert, S.J.
Charles E. Millsap and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee Cowley County, Kansas.
Edward L. Keeley, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee Bolton Township.
Donald A. McKinney, of Wichita, for appellee Elaine Selenke.
Opinion
Standridge, J.: This interlocutory appeal arises out of wrongful death actions brought by the heirs (the plaintiffs) of two individuals who were killed in a single-vehicle accident on a road that dead ends at the banks of the Arkansas River. The plaintiffs filed wrongful death claims against Cowley County, Bolton Township, and the Kansas Department of Wildlife, Parks and Tourism for failure to provide adequate warnings, signs, or barriers on certain portions of the road where the fatal accident occurred. The district court granted partial summary judgment to the County and granted summary judgment in full to the Township and the Kansas Department of Wildlife. We granted applications for interlocutory appeal by one of the plaintiffs and by the County on issues of duty and jurisdiction. As set forth more specifically below, we find the County had no duty to initiate an engineering study, the County is immune from liability under the discretionary judgment exception of the Kansas Tort Claims Act (KTCA) for any failure to place
FACTS
The facts relevant to this appeal are generally undisputed. An east-west road known as 322nd Road runs just north of the Kansas-Oklahoma border in southern Cowley County, Kansas. The majority of 322nd Road is a paved county road maintained by the County, while the remaining approximately 1/4-mile east portion of the road is not paved and is located within the Township. The only regulatory or warning sign posted on the relevant portion of 322nd Road under the County‘s jurisdiction is a Pavement Ends sign located approximately 600 feet prior to the end of the pavement. The County has never maintained the unpaved portion of 322nd Road. The Township, believing that the entire road belonged to the County, has never maintained any portion of the road, paved or unpaved. Approximately 1/4-mile east of where the pavement ends, 322nd Road comes to a dead end at the banks of the Arkansas River. The spot where the road ends is located in the Kaw Wildlife Area. The Kaw Wildlife Area is operated by the Kansas Department of Wildlife, which leases the land from the United States Department of the Army. The Kaw Wildlife Area is open to the public for use as a recreation area.
On November 19, 2010, a sport utility vehicle (SUV) occupied by Jason Patterson and Cortney Brewer traveled east on 322nd Road. There is some dispute over who was driving the SUV but that issue is not relevant to this appeal. Both Jason and Cortney had a blood-alcohol content over the legal driving limit of .08%. The SUV drove into the Kaw Wildlife Area while traveling at a speed of 10-12 miles per hour and began to brake just prior to reaching the river. The
On June 12, 2012, Rochelle Patterson (Patterson), on behalf of two of Jason‘s surviving minor children, filed a wrongful death action against the County, the Township, and the Kansas Department of Wildlife. The petition alleged that the defendants had been negligent by failing to provide adequate warnings, signs, or barriers indicating that 322nd Road ended at the river and that this alleged negligence resulted in Jason‘s death.
On November 19, 2012, Elaine Selenke, Cortney‘s mother and representative of her estate, filed a wrongful death action against the County, the Township, and the Kansas Department of Wildlife, alleging that the defendants had negligently failed to place warnings, signs, or barriers to warn motorists that 322nd Road ended at the river, which caused or contributed to Cortney‘s death. Selenke later brought an essentially identical action against only the County and the Township.
The district court consolidated all three cases for purposes of discovery but deferred making a decision about whether the cases would be consolidated for trial. All the parties filed motions seeking total or partial summary judgment and extensive briefs in response. For purposes of this appeal, it is only necessary to discuss specific issues that are related to each individual defendant. The County sought summary judgment on grounds that (1) it had no duty to erect warning signs on the portion of 322nd Road under the Township‘s jurisdiction and (2) it was immune from suit for failing to erect warning signs based on exceptions to liability in the KTCA for discretionary functions, recreational use, and failure to inspect property as set forth in
After hearing argument on the motions, the district court filed a lengthy journal entry (1) granting summary judgment in part to the County because it was immune from liability under the discretionary judgment exception to the KTCA; (2) granting summary judgment in full to the Township because it had no duty to place traffic control devices on 322nd Road; and (3) granting summary judgment in full to the Kansas Department of Wildlife because it had no duty to place traffic control devices on 322nd Road, it was immune from liability under the recreational exception to the KTCA, and the plaintiffs’ claims were barred by
After the district court issued its opinion, Patterson and the County each filed an application for interlocutory appeal with this court, which we accepted. The district court entered an order staying the proceedings below pending this court‘s review. We consolidated the cases for purposes of this appeal. Patterson was designated as the appellant, the County was designated as an appellee and the cross-appellant, and the Township and the Kansas Department of Wildlife were designated as appellees. Because Selenke did not appeal from any of the district court‘s rulings, she was designated
STANDARD OF REVIEW
The standard of review on summary judgment is well established:
“‘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. [Citations omitted.]‘” Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan. 350, 358-59, 352 P.3d 1032 (2015) (quoting Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 [2009]).
When there is no factual dispute, appellate review of an order granting summary judgment is de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). To the extent we are required to interpret statutes in resolving this appeal, it involves a question of law over which we also have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).
ANALYSIS
The parties present four points of error on appeal. First, Patterson asserts the district court erred in finding the County did not have a duty to initiate an engineering study to determine if the Manual on Uniform Traffic Control Devices (MUTCD) required the County to place any additional traffic control devices on the County‘s portion of 322nd Road. Second, Patterson asserts the district court erred in finding the County was immune from liability under the discretionary judgment exception to the KTCA for its failure put an advisory speed plaque on its portion of 322nd Road. Third, Patterson asserts the district court erred in finding
I. The County
The KTCA allows individuals to bring claims against governmental entities for the negligent or wrongful acts of their employees.
In a negligence action, a plaintiff carries the burden of proving four elements: (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty, (3) causation between the breach of the duty and injury to the plaintiff, and (4) damages suffered by the plaintiff. Shirley v. Glass, 297 Kan. 888, Syl. ¶ 4, 308 P.3d 1 (2013). Whether a legal duty exists is a question of law for the court rather than a fact issue for the jury. Berry v. National Medical Services, Inc., 292 Kan. 917, 920, 257 P.3d 287 (2011).
A. Duty to conduct an engineering study
Patterson claims the County was negligent in failing to conduct an engineering study to determine whether any additional warning traffic control devices were necessary on the County‘s portion of 322nd Road. In response, the County argues it had no duty to conduct the engineering study referenced by Patterson. To resolve this issue, we begin with the relevant statutes.
“The secretary of transportation shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this act for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the manual on uniform traffic-control devices for streets and highways and other standards issued or endorsed by the federal highway administrator.”
K.S.A. 8-2003 .
Pursuant to this statute, the secretary adopted the MUTCD. The 2009 edition was in effect at the time of the 2010 accident in this case.
“(a) The secretary of transportation shall place and maintain such traffic-control devices, conforming to the manual and specifications adopted under
K.S.A. 8-2003 , and amendments thereto, upon all state highways as the secretary shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn or guide traffic.”
“(a) Local authorities in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this act or local traffic ordinances or to regulate, warn or guide traffic. All such traffic-control devices hereafter erected shall conform to the state manual and specifications.”
It is clear from the plain language of the statutes set forth above and from long-standing Kansas precedent that the MUTCD was adopted by the Kansas Department of Transportation to carry out the stated public policy as declared by the legislature to regulate, warn, or guide traffic; thus, the MUTCD has the force and effect of law. See Carpenter, 231 Kan. at 787. Accordingly, we now turn our attention to the MUTCD to decide whether the County had a duty to conduct the engineering study as alleged by Patterson. We
- A highway is “a general term for denoting a public way for purposes of vehicular travel, including the entire area within the right-of-way.” MUTCD § 1A.13.83
- An advisory speed is “a recommended speed for all vehicles operating on a section of highway and based on the highway design, operating characteristics, and conditions.” MUTCD § 1A.13.8
- A traffic control device is “a sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, private road open to public travel, pedestrian facility, or shared-use path by authority of a public agency or official having jurisdiction.” MUTCD § 1A.13.238
- A sign is “any traffic control device that is intended to communicate specific information to road users through a word, symbol, and/or arrow legend. Signs do not include highway traffic signals, pavement markings, delineators, or channelization devices.” MUTCD § 1A.13.193
- A plaque is “a traffic control device intended to communicate specific information to road users through a word, symbol, or arrow legend that is placed immediately adjacent to a sign to supplement the message on the sign. The difference between a plaque and a sign is that a plaque cannot be used alone.” MUTCD § 1A.13.147
Notably, Patterson has framed the County‘s duty under the MUTCD here as one specific to performing an engineering study to determine whether any additional warning traffic control devices were necessary on the County‘s portion of 322nd Road. A warning sign is defined in the MUTCD as a “sign that gives notice to road users of a situation that might not be readily apparent.” MUTCD § 1A.13.252. Patterson asserts the County‘s duty to perform an engineering study for placement of warning signs in this case arises out of MUTCD § 2C.02, which provides that “[t]he use of warning signs shall be based on an engineering study or on engineering
“[T]he comprehensive analysis and evaluation of available pertinent information, and the application of appropriate principles, provisions, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. An engineering study shall be performed by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. An engineering study shall be documented.” MUTCD § 1A.13.03.65.
Relying on this language, Patterson contends the MUTCD requires that an engineering study be conducted on each road in a given jurisdiction to make all decisions related to placement of warning signs as defined in the MUTCD. But we find no language in the MUTCD to support Patterson‘s contention that the County has an unlimited duty to conduct an engineering study on every road within its territorial borders for purposes of considering placement of a warning sign. To the contrary, the MUTCD repeatedly makes clear that responsibility for the placement and maintenance of traffic control devices—including signage—rests with the public agency having jurisdiction over the particular roadway. The following sections, set forth in relevant part, support the MUTCD‘s mandate in this regard:
“Section 1A.07 Responsibility for Traffic Control Devices
“Standard:
“01 The responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction . . . .
“Section 1A.08 Authority for Placement of Traffic Control Devices
“Standard:
“01 Traffic control devices, advertisements, announcements, and other signs or messages within the highway right-of-way shall be placed only as authorized by a public authority or the official having jurisdiction . . . for the purpose of regulating, warning, or guiding traffic.
“Section 1A.09 Engineering Study and Engineering Judgment
“Standard:
“02 This Manual describes the application of traffic control devices, but shall not be a legal requirement for their installation.” MUTCD §§ 1A.07, 1A.08, 1A.09.
“Section 2B.13 Speed Limit Sign (R2-1)
“Standard:
“01 Speed zones (other than statutory speed limits) shall only be established on the basis of an engineering study that has been performed in accordance with traffic engineering practices. The engineering study shall include an analysis of the current speed distribution of free-flowing vehicles.” MUTCD § 2B.13.
In addition to MUTCD standards that expressly require engineering studies, there also are MUTCD standards setting forth objective criteria which, if met, triggers a requirement for the governmental entity to seek input from an engineer to determine whether placement or use of a traffic signal might be justified. These criteria provide a nationally used, systematic method to evaluate the need for traffic signals. In the MUTCD, these criteria are called “warrants.” A warrant is defined in the MUTCD as “a threshold condition based upon average or normal conditions that, if found to be satisfied as part of an engineering study, shall result in analysis of other traffic conditions or factors to determine whether a traffic control device or other improvement is justified.” MUTCD § 1A.13.253. Given its broad application, the satisfaction of a traffic signal warrant in the MUTCD cannot—in and of itself—require placement and use of a traffic control signal; again, engineering judgment or an engineering study ultimately must provide the justification. MUTCD § 4C.01.
One example of a warrant can be found at MUTCD § 3B.01, Yellow Center Line Pavement Markings and Warrants. The section begins with a requirement that, when used, center line pavement markings must be yellow and must mark the separation of traffic lanes going in opposite directions. Although it appears from the words we placed in italics that marking the pavement with a center line is optional, the section also includes the following requirement:
“Center line markings shall be placed on all paved urban arterials and collectors that have a traveled way of 20 feet or more in width and an ADT of 6,000
vehicles per day or greater. Center line markings shall also be placed on all paved two-way streets or highways that have three or more lanes for moving motor vehicle traffic.” MUTCD § 3B.01, Standard 09.
The requirement quoted above qualifies as a warrant because it identifies a threshold condition that triggers the governmental entity to ask an engineer to verify the identified threshold condition and then to conduct further analysis of other traffic conditions or factors to determine whether a traffic control device or other improvement is justified.
Unlike the example above, there are no warrants in the MUTCD related to placement or use of warning signs. See MUTCD Chapter 2C, Warning Signs and Object Markers. And we already have rejected Patterson‘s argument that the MUTCD imposes upon the County an unlimited duty to conduct an engineering study on every road within its territorial borders for purposes of considering placement of a warning sign. See MUTCD § 1A.02., Principles of Traffic Control Devices (traffic control device should fulfill a stated need). In the absence of any other source of duty, we conclude Patterson has failed to establish that the MUTCD imposed a duty on the County to conduct an engineering study on its portion of 322nd Road for purposes of making a decision related to installation of warning traffic control devices described in the MUTCD. See Berry, 292 Kan. at 920 (whether legal duty exists is question of law for court rather than fact issue for jury). Because duty is the first element that must be proved to establish negligence, Patterson‘s assertion cannot serve as the basis for this particular claim against the County. See Woodworth v. Idaho Transportation Board, 154 Idaho 362, 367, 298 P.3d 1066 (2013) (affirming summary judgment in favor of state on plaintiff‘s claim that state was negligent in failing to conduct an engineering study because the MUTCD does not create any duty to conduct such study).
B. Discretionary function exception to liability under the KTCA
Patterson claims the County was negligent in failing to affix an advisory speed plaque of 5 miles per hour onto the existing Pavement Ends sign, failing to place a Dead End sign, and failing to place a No Outlet sign on its portion of 322nd Road. The County
The KTCA provides an exception to liability for governmental entities and employees engaged in “the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion is abused and regardless of the level of discretion involved.”
“the malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or removing any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity.”
K.S.A. 2015 Supp. 75-6104(h) .
Over the years, the Kansas Supreme Court has considered numerous cases under a variety of fact patterns in deciding whether a function or duty is discretionary—and thus excepted from liability—as provided in the KTCA. Many of these cases were collected and cited in Thomas v. Board of Shawnee County Comm‘rs, 293 Kan. 208, 262 P.3d 336 (2011), which is the last time our Supreme Court considered application of the KTCA‘s discretionary function exception to liability:
“‘Kansas courts look foremost to the nature and quality of the discretion exercised.’ Soto [v. City of Bonner Springs], 291 Kan. [73,] 79[, 238 P.3d 278 (2010)] (citing Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912 P.2d 729 [1996]; Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 [1996]). Further, ‘[t]he mere application of any judgment is not the hallmark of the exception.’ Soto,
291 Kan. at 79 (citing Allen v. Kansas Dept. of SRS, 240 Kan. 620, 623, 731 P.2d 314 [1987]). But ‘[t]he more a judgment involves the making of policy[,] the more it is of a “nature and quality” to be recognized as inappropriate for judicial review.’ Kansas State Bank & Tr. Co. [v. Specialized Transportation Services, Inc.], 249 Kan. [348,] 365[, 819 P.2d 587 (1991)]. The necessity that the actor employ expertise, whether educational or experiential, also is relevant to determining whether an action is discretionary or ministerial. See Allen, 240 Kan. at 623 (employee‘s action not discretionary when decision on how to clean vomit from floor did ‘not invol[ve] any particular skill or training‘). . . .
“This court also has repeatedly put emphasis on the mandatory versus permissive character of direction given to the defendant actor. ‘[W]here there is a “clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.” (Emphasis added.) Soto, 291 Kan. at 80 (quoting Nero [v. Kansas State University], 253 Kan. at 585[, 861 P.2d 768 (1993)]; and citing Barrett v. U.S.D. No. 259, 272 Kan. [250,] 263[, 32 P.3d 1156 (2001)]; Kansas State Bank & Tr. Co., 249 Kan. at 365. For purposes of the exception, ‘[a] mandatory guideline can arise from agency directives, case law, or statutes.’ (Emphasis added.) Soto, 291 Kan. at 80 (citing Barrett, 272 Kan. at 263; Bolyard, 259 Kan. at 452-54). Such a guideline leaves little to no room for individual decision making, exercise of judgment, or use of skill, and qualifies a defendant‘s actions as ministerial rather than discretionary. See Nero, 253 Kan. at 593-94 (citing Dougan [v. Rossville Drainage Dist.], 243 Kan. [315,] 322-23[, 757 P.2d 272 (1998)]) (ministerial act ‘performance of some duty involving no discretion’ where discretion defined as ‘capacity to distinguish between what is right and wrong, lawful and unlawful, or wise or foolish sufficiently to render one amenable and responsible for his acts‘).”
Citing Professor William E. Westerbeke, the Thomas court observed that Kansas courts generally follow three guiding principles in deciding whether the discretionary function exception applies in a given case:
“(1) ‘[T]he discretionary function primarily involves policy-oriented decisions and decisions of such a nature that the legislature intended them to be beyond judicial review,’ (2) ‘the immunity does not depend upon the status of the individual exercising discretion and thus may apply to discretionary decisions made at the operational level as well as at the planning level,’ and (3) ‘the discretionary function does not encompass conduct that is deemed “ministerial,” i.e., conduct that involves no discretion.‘” 293 Kan. at 235 (quoting Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years, 52 Kan. L. Rev. 939, 960 [2004]).
Although not discussed by the court in Thomas, we find noteworthy some additional observations made by Professor Westerbeke
Conversely, other courts in Kansas have broadly construed the discretionary function exception to encompass all acts except those that are ministerial in nature. An act is ministerial in nature when the actor has no choice in how to proceed. Examples include duties or conduct required by statute, regulation, ordinance, internal guideline, common-law standard, or contractual obligation. For instance,
“obeying an ordinance that spells out the speed limit for fire trucks, [e.g., Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984) (involving an accident between two responding fire trucks),] or cleaning up vomit in a hallway leading toward business premises, [e.g., Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987) (involving a lessee‘s failure to clean a hallway when he had undertaken such cleaning in the past),] or the performance of routine maintenance of warnings painted on the highway[, e.g., Huseby v. Bd. of County Comm‘rs of Cowley County, 754 F. Supp. 844 (D. Kan. 1990) (involving a county‘s failure to maintain a warning sign)] are tasks that involve little, if any, choice and no element of policy formation.” Westerbeke, 52 Kan. L. Rev. at 962 & nn.123-25.
In addition to construing the discretionary function narrowly in some instances and broadly in others, Professor Westerbeke notes that some Kansas courts have applied a third standard that falls somewhere “between the strict discretionary function focusing on
“The clearest example of Kansas courts recognizing cases falling in the middle between discretionary and ministerial are the traffic signing immunity cases distinguishing between decision-making that is discretionary and immune and decision-making that is merely a matter of professional judgment and not immune. The traffic signing immunity protects governmental entities in cases involving the placement or removal of traffic signs, signals or warning devices, but only when such placement or removal is discretionary. [
K.S.A. 2003 Supp. 75-6104(h) .] Traffic signing decisions are guided by the Manual on Uniform Traffic Control Devices (MUTCD), [see Carpenter v. Johnson, 231 Kan. 783, 789-90, 649 P.2d 400 (1982) (discussing portions of the Maintenance Manual on Signs and Markers for Highways in Kansas, which is derived from the MUTCD),] which may provide relevant criteria to guide some, but not all, traffic signing decisions. In those situations in which the manual provides sufficient guidelines, the decision to place or remove a traffic sign, signal or warning device may be deemed a matter of professional judgment not protected as a discretionary function. [See, e.g., Kastendieck v. Bd. of County Comm‘rs, 934 F. Supp. 387, 390-91 (D. Kan. 1996) (holding that placement of reflective delineators to mark a curve is discretionary because of optional language in the MUTCD); Huseby v. Bd. of County Comm‘rs of Cowley County, 754 F. Supp. 844, 847 (D. Kan. 1990) (citing the MUTCD in determining whether the placement of a warning sign on a curve was mandatory or discretionary); Finkbiner v. Clay County, 238 Kan. 856, 860, 714 P.2d 1380 (1986) (same); Carpenter, 231 Kan. at 789-90 (same).] These decisions may be complex and involve balancing many factors, but they are not particularly distinguishable from the many professional judgments in engineering and other professions that are routinely litigated in the private sector.” 52 Kan. L. Rev. at 963-64 & nn.130-32.
One example of decisionmaking that may be merely a matter of professional judgment and not protected by the discretionary immunity function are the MUTCD standards for warrants. Again, warrants set forth objective criteria that trigger the need for engineering input to determine whether traffic signals are justified. The question at that point becomes whether those employees are exercising discretion within the meaning of the KTCA or merely exercising professional judgment within established guidelines.
Based on the discussion above, we agree with Professor Westerbeke that Kansas courts have used a range of standards to determine whether the discretionary function exception in the KTCA
In Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), the United States Supreme Court set forth a two-part test to determine whether the discretionary function exception applies to a given set of facts. See 486 U.S. at 536. In the first part of the test, the court determines whether the act or omission is discretionary in nature. An act is discretionary if it involves an element of judgment or choice. An act is not discretionary “when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” because “the employee has no rightful option but to adhere to the directive.” 486 U.S. at 536. This part of the test comports with the approach that some Kansas courts have taken that broadly construe limitations on the state‘s waiver of sovereign immunity.
If the conduct involves an element of judgment or choice and there is no mandatory regulation or policy requiring a particular course of action, the court moves to the second part of the test to determine if the conduct at issue was the kind of discretionary function that the exception was designed to cover. 486 U.S. at 536. The discretionary function exception is designed to prevent “‘judicial “second-guessing“‘” and therefore “protects only governmental actions and decisions based on considerations of public policy.” 486 U.S. at 536-37 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 81 L. Ed. 2d 660 [1984]); see also United States v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). This part of the test comports with the approach that other Kansas courts have taken that strictly construe limitations on the state‘s waiver of sovereign immunity.
In Gaubert, 499 U.S. at 322, the Supreme Court elaborated on the discretionary function exception. First, courts are not to consider the subjective intent of the particular actor or whether he or she was motivated by a concern for public policy; rather, courts
As applied, the federal test differentiates between discretionary acts reflecting true policy decisions that are immune from liability and other acts that may involve choice or judgment but are not related to any plausible policy objective and therefore are not immune from liability. Significantly, the factors utilized in the federal test are not new to Kansas; the test is simply a clearer and more consistent characterization of the analytical framework currently being used by Kansas courts to decide these issues. In fact, some of the earlier KTCA cases discussing application of the discretionary function exception to the KTCA specifically refer to federal caselaw construing the FTCA generally and under similar factual scenarios. See Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982) (“Our review of the federal cases convinces us that it is the nature and quality of the discretion exercised which should be our focus rather than the status of the employee exercising that discretion.“); Beck, 241 Kan. at 34 (discussing federal cases construing discretionary function exception to FTCA in applying discretionary function exception to KTCA); Nero v. Kansas State University, 253
1. An element of individual judgment or choice
To determine whether the County‘s decision to place (or not place) warning signs involves individual judgment or choice, we again turn our attention to the MUTCD. The guidelines and recommendations set forth in MUTCD are divided into three relevant categories: (1) “Standard,” which refers to signs that are required, mandatory, or specifically prohibited; (2) “Guidance,” which refers to recommended, but not mandatory, practice; and (3) “Option,” which refers to “a permissive condition and carries no requirement or recommendation.” MUTCD § 1A.13A-C. Which guidelines and recommendations apply to a certain road is dependent on the type
Here, the district court found it was uncontroverted that “322nd Road east of the pavement is a low volume road.” The County asserts that the district court‘s finding is too narrow, claiming that its portion of 322nd Road east of 111th Road is also a low volume road. Although the County‘s statement in this regard was not controverted by Patterson below, she now argues that it is not supported by the record. The designation of the County‘s portion of 322nd Road as nonlow volume or low volume is irrelevant for our purposes, however, because both sections of the
For nonlow volume roads, the
For low volume roads, the
Regardless of the designation of the County‘s portion of 322nd
Because the
2. Susceptible to public policy analysis
In this second part of the Berkovitz-Gaubert test, we must decide whether the County‘s decision to place (or not place) the warning signs at issue is the kind of function susceptible to public policy analysis. This test is meant to draw a line of distinction between a discretionary function the exception was designed to shield and an ordinary tort that is only tangentially related to regulatory policy. Berkovitz, 486 U.S. at 536. Significantly, the facts presented in this case provide the County with the benefit of a presumption that the decisions at issue are based on public policy concerns. See Gaubert, 499 U.S. at 324 (when statute, regulation, or policy expressly or impliedly permits government agent to exercise discretion, a presumption arises that the agent‘s acts are grounded in policy when exercising that discretion). The presumption applies based on the
In an effort to do so, Patterson argues long-standing legal precedent in Kansas requires courts to engage in a “totality of the circumstances” analysis to decide whether discretionary function immunity applies and that this line of cases takes priority over any presumption of discretion created by the
The first in this line of cases is Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982). Daniel Carpenter was a passenger in an automobile being driven by Damon Johnson. As it was proceeding in an easterly direction, the vehicle left a curve and struck an embankment. Carpenter sustained injuries. It is undisputed that, at the time of the accident, the curve was not marked with any warning signs. Relevant here, Carpenter sued the State of Kansas and Shawnee County, alleging failure to erect a warning sign in accordance with the
Carpenter appealed. The Supreme Court reversed, holding “professional judgment rather than governmental discretion is at issue in the case at bar.” 231 Kan. at 789. In support of its holding, the court cited to the standards for signing on turns and curves set forth in the 1962 edition of the
“The Curve sign . . . is intended for use where engineering investigations of roadway, geometric, and operating conditions show the recommended speed on
the curve to be in the range between 30 and 60 miles per hour and equal to or less than the speed limit established by law or by regulation for that section of highway. Additional protection may be provided by use of the Advisory Speed plate.” 231 Kan. at 788. W1-1 “30” X 30”
“The Turn sign showing an arrow bent at a right angle . . . shall be used to mark curves on which a ball-bank indicator shows banks of 10 degrees or more at a speed of 30 miles per hour. Where a Turn sign is warranted, a Large Arrow sign shall be used on the outside of the turn. Additional protection shall be provided by use of the Advisory Speed plate. . . .
W1-2 “30” X 30”
“The Curve sign, showing a curved arrow . . . shall be used to mark a curve where a test with a ball-bank indicator gives readings of 10 degrees or more at speeds between 21 and 66 miles per hour.
“Additional protection shall be provided by the use of the Advisory Speed plate.” 231 Kan. at 790.
Noting that these standards represent “rather detailed recommendations in placement of warning signs” to guide engineers employed by state and local governments, the court indicated the question presented was “whether those employees are exercising discretion within the meaning of the KTCA or merely exercising professional judgment within established guidelines.” 231 Kan. at 788. Based on the facts presented in the case and the mandatory language (“shall“) used in the
The Carpenter court framed its holding as follows: “Whether or
Our conclusion in this regard is supported by the analysis in Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984). The plaintiffs were injured when two vehicles collided at the intersection of two low volume county roads. Plaintiffs sued Franklin County, alleging negligence by the county for failing to place proper warning signs at the intersection. The county raised discretionary function immunity as an affirmative defense. Consistent with analysis conducted by the court in Carpenter, the court in Toumberlin held that whether the placement of a sign is discretionary or mandatory turns on whether the applicable provisions of the
“In the present case, the trial court‘s ruling against the plaintiffs on the discretionary nature of the duty of Franklin County came after the conclusion of all the evidence. Plaintiffs had presented absolutely no engineering testimony that the placement of any type of sign at the intersection was warranted or required under the terms of the Manual on Uniform Traffic Control Devices. Plaintiffs presented no engineering studies or accident history regarding the intersection which would have justified any type of sign. The only engineer who did testify stated that no sign was required or justified at the intersection due to the low volume of traffic. Based on the total lack of evidence presented by the plaintiffs to support the proposition that some type of sign was mandated at this intersection, the trial court was clearly correct in ruling that there was insufficient evidence for the case to go to the jury on the issue of whether the placement of a sign was mandatory or discretionary. The only testimony heard by the court supported the proposition that signing at this particular intersection was discretionary.” Toumberlin, 236 Kan. at 142.
As in Carpenter, the totality of the circumstances analysis
Next, Patterson cites Finkbiner v. Clay County, 238 Kan. 856, 861, 714 P.2d 1380 (1986). Alleging the facts in Finkbiner are nearly indistinguishable from those presented here, Patterson argues Finkbiner definitively overrides any presumption of immunity based on stated public policy set forth in the
The district court determined that both entities were immune based on the exception to liability for discretionary functions by government entities. Finkbiner appealed. The Supreme Court ultimately reversed the district court‘s decision as to the township. In so doing, the court specifically relied on the following language from the 1978 edition of the
Based on this language, the court concluded, as a matter of law, that it could not determine whether the county‘s failure to erect a warning sign was a discretionary act subject to immunity or a mandatory requirement subject to liability for breach. Specifically, the court found the record did not contain the facts necessary to
“Where a plaintiff claims both the county‘s and the township‘s failure to warn him, as required by the
MUTCD , of a hazard that was not self-evident caused his injuries, it is necessary to determine: (1) what governmental entities are responsible for the safety of travelers upon the road; (2) whether or not a hazard exists; [and] (3) whether or not the hazard is self-evident . . . .” Finkbiner, 238 Kan. at 860-61.
The court explained that if the facts and testimony on remand established that the hazard was not self-evident, the mandate under
Patterson urges us to conclude as a matter of law, like the court did in Finkbiner, that remand on the issue of discretionary immunity in this case is necessary so that a factfinder can determine whether the hazard presented here (322nd Road abruptly coming to a dead end at the banks of the Arkansas River) was self-evident. But the mandatory language in
The stated function of a warning sign is to alert road users to unexpected conditions on or adjacent to a highway and to situations that might not be readily apparent to road users, including conditions that may call for a reduced speed or other action to ensure safe and efficient traffic operations.
In this case, there has been no evidence that the need for a traffic control device came to the attention of the County. There is no evidence of a clearly defined mandatory duty, no evidence that there exists objective criteria which, if met, triggers an engineering study, no evidence of request from the public and, prior to this accident, no evidence of a particular safety concern. The
Having satisfied both the first and second parts of the Berkovitz-Gaubert test, we find the County is entitled to discretionary function immunity against Patterson‘s claims of negligence for failing to place an advisory speed plaque, a Dead End sign, and a No Outlet sign on its portion of 322nd Road.
C. Recreational use immunity exception to liability under the KTCA
The County also asserts that it is entitled to recreational use immunity under
“A government entity . . . shall not be liable for damages resulting from:
. . . .
“(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
K.S.A. 2015 Supp. 75-6104(o) .
The Kansas Supreme Court has extended coverage of the recreational use exception to places outside a park or other recreational area if those places are “integral” to its use. Poston v. U.S.D No. 387, 286 Kan. 809, 815-16, 189 P.3d 517 (2008)
There is no dispute that the Kaw Wildlife Area is a recreational area and that 322nd Road is not. But the County claims that it is entitled to recreational use immunity anyway because 322nd Road is an integral component to the Kaw Wildlife Area due to its physical proximity. We disagree. The evidence simply fails to establish the County is entitled to judgment as a matter of law on the theory that 322nd Road is essential to the use of the Kaw Wildlife Area as a recreational area. First of all, the County‘s portion of the road is separated from the Kaw Wildlife Area by the unpaved part of the road under the Township‘s jurisdiction. If we were to adopt the County‘s position, the government could be immune from liability for any accident that occurred on public roads that eventually lead to a recreational area. The legislature could not have intended for this provision to abrogate our government‘s duty to provide safe roads. The fact that the accidental death occurred on recreational property, after the decedents traversed the County‘s road, should not provide the County with recreational immunity. Additionally, there is no evidence that 322nd Road is integral to the functionality of the Kaw Wildlife Area. Indeed, 322nd Road apparently existed for over 100 years before the Kaw Wildlife Area was created and, more importantly, is not the only road from which the Kaw Wildlife Area is accessible. The record fails to show as a matter of law that the Kaw Wildlife Area would be unavailable for recreational use without 322nd Road. On summary judgment, the County is obligated to present undisputed facts establishing its claim for recreational use immunity on this basis. The evidentiary record, however, falls short on this issue. The purpose of
D. Immunity for failing to inspect property of another
In response to Patterson‘s claim that the County was negligent in failing to place various warning signs on its portion of 322nd Road to warn drivers about the road that dead ends at the banks of the Arkansas River, the County asserts it is entitled to immunity under the exception to government liability for damages resulting from a failure to inspect the property of others for hazards to public health or safety. See
But the legal issue to be resolved here is not whether the County was aware of the hazard or whether an inspection was necessary. Patterson‘s claim of negligence against the County presupposes that the County already knew about the hazard. Specifically, Patterson claims the County had a duty to place various warning signs on its portion of 322nd Road to warn drivers about the road that dead ends at the banks of the Arkansas River. In asserting this particular defense, the County does not dispute that it has a duty to place warning signs. Instead, the County claims that it is immune from suit for any alleged failure to make an inspection of any
II. The Township
Patterson argues the district court erred in granting summary judgment to the Township. Specifically, Patterson challenges the court‘s finding that the Township had no legal duty to place traffic control devices or other warnings on the unpaved portion of 322nd Road. Before addressing Patterson‘s claim of error, we pause to clarify what we are, and what we are not, deciding today. As framed by Patterson, the issue presented for decision is whether the district court erred in deciding that the Township had no legal duty to place traffic control devices or other warnings on the unpaved portion of 322nd Road. We have not been asked to decide, and thus do not undertake the task of deciding, whether any other private or public entity had a legal duty to place traffic control devices or other warnings on the unpaved portion of 322nd Road.
With that clarification, we are ready to move on to our analysis. Deciding whether the Township had a legal duty to place traffic control devices or other warnings on the unpaved portion of 322nd Road necessarily involves a detailed review of certain relevant statutes and caselaw relating to regulation of county and township roads.
A. Background
1. Relevant statutory provisions
Kansas statutes distinguish between county roads and township roads.
According to the testimony of Randall Allen, Executive Director of the Kansas Association of Counties (KAC), which was given to the Senate Transportation Committee on March 18, 2003, there are 69 counties in Kansas that have adopted a county road unit system, leaving 36 counties that have not. It is undisputed that Cowley County has not adopted a county road unit system. Therefore, maintenance over township roads in the County still rests, in some degree, with the townships. There are several statutory provisions that are relevant to this issue.
As previously discussed,
“Local authorities in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this act or local traffic ordinances or to regulate, warn or guide traffic. All such traffic-control devices hereinafter erected shall conform to the state manual and specifications.”
Finally,
“In all counties not operating under the county road unit system the township board shall have the general charge and supervision of all township roads and
township culverts in their respective townships. The board shall procure machinery, implements, tools, drain tile, stone, gravel and any other material or equipment required, for the construction or repair of such roads and culverts. All work shall be done in accordance with plans and specifications and the general regulations to be prepared and furnished by the county engineer.”
2. Finkbiner v. Clay County
In 1986, the Kansas Supreme Court issued its decision in Finkbiner v. Clay County, 238 Kan. 856, 714 P.2d 1380 (1986). As discussed earlier in the context of discretionary function immunity, the facts in Finkbiner are remarkably similar to those in the present case. There, the plaintiff filed suit against a county and a township for failure to warn of a dead end on a township road after he drove his truck off the road into a dry creek bottom. The county and the township each moved for summary judgment based on discretionary function immunity under the KTCA, and the district court granted both motions.
Relevant to the issue of whether a township has authority to place and maintain traffic control devices, the Supreme Court held on review that the township alone, and not the county, was responsible for maintaining the safety of township roads:
“Since all parties agree that the Township alone was responsible for the township road, the County cannot be liable for failure to place signs warning of a dead end on the township road. A township, having the exclusive care and control of a street or road, has a duty to maintain that road or street for the safe passage of persons and property. Other governmental entities cannot be held liable for failure to maintain that road safely. [Citation omitted.]” 238 Kan. at 861.
3. Attorney General Opinion No. 97-25
In 1997, 11 years after the court issued its opinion in Finkbiner, the Kansas Attorney General‘s Office issued an opinion that identified a potential conflict between the statutes relating to a township‘s authority to place and maintain traffic control devices on township roads. This opinion expressed the Attorney General‘s belief, consistent with prior opinions of the Attorney General on this same issue, that a township is not a “local authority” as defined by
4. 2003 statutory amendments
In 2003, this conflict was brought before the Kansas Legislature in the form of House Bill 2150. The purpose of the bill was to “harmonize conflicting statutory provisions relating to traffic signs along township Roads.” See Minutes, House Transportation Committee, February 20, 2003, attach. 3. Evan H. Ice, Douglas County Counselor, testified on behalf of Douglas County in support of the bill. Ice stated that in Douglas County and other counties not operating under a county road unit system, the county generally installed and maintained regulatory signs (speed limits, no parking, and stop signs) along township roads, while the township installed and maintained warning signs (advising of upcoming travel hazards) and guidance signs (providing direction). Ice explained that counties were responsible for the regulatory signs because townships (1) do not have statutory or “home rule” authority to pass traffic regulations, (2) townships generally are not prepared to provide traffic studies that are often required before installing regulatory signs, and (3) townships do not have enforcement personnel. Ice stated that due to the statutory conflict pointed out by Attorney General Opinion 97-25, it was unclear who had the responsibility and authority to maintain traffic control devices along township roads in counties that have not adopted a county road unit system. Ice explained the problematic nature of this conflict: “If an accident occurs along a township road as a result of improper signage, plaintiffs can now sue both the township and the county. The township will point its finger at the county and the county will point its finger at the township.” According to Ice, House Bill 2150 would resolve any ambiguity and would provide that all townships had the responsibility and authority to post and maintain traffic control devices along township roads, with the exception of regulatory
Keith Browning, Douglas County Public Works Director and County Engineer, also testified in support of the bill. Browning noted that the KAC had included the issue in its platform for the previous 4 years. Browning indicated that in the 36 Kansas counties that do not operate under a county road unit system, the county typically installed and maintained signs on county roads while townships installed and maintained warning and guide signs on township roads, as well as regulatory signs that were authorized by the board of county commissioners.
Allen, Executive Director of the KAC, also testified that the full membership of the KAC had adopted the position set forth by House Bill 2150. Allen believed it was important for the legislature to clarify who had responsibility and authority to maintain traffic control devices along township roads.
The House passed House Bill 2150 on February 26, 2003. The bill moved to the Senate Transportation Committee, who heard the same testimony outlined above. In addition, the Butler County Engineer noted his county‘s support for the legislation. At that time, there was some question as to why the only testimony in support of the bill came from county representatives and not from any townships. At a later meeting, legislators from Douglas, Sedgwick, and Shawnee counties expressed their support of the bill. Despite support from the KAC, the bill ultimately was amended to include only Douglas, Sedgwick, and Shawnee counties based on information that there were numerous counties throughout the state that lacked knowledge of the proposed legislation. The bill was later amended to also include Johnson and Riley counties. This final version of the bill was passed by the legislature, approved by the governor, and is now codified at
As previously discussed,
“(c) In townships located in Douglas, Johnson, Riley, Shawnee and Sedgwick
counties, the township board shall place and maintain traffic-control devices, other than regulatory signs, on township roads under the board‘s jurisdiction. In addition, such township board shall place and maintain regulatory signs on township roads under the board‘s jurisdiction consistent with resolutions of the board of county commissioners of the county in which the township road is located. For this purpose, a regulatory sign is a sign setting forth a regulation, the violation of which subjects the operator of the motor vehicle to fine, imprisonment, or both. “Nothing in this subsection shall be construed as precluding the board of county commissioners from placing and maintaining traffic-control devices on township roads, if the board determines that traffic-control devices or signs placed by a township are inadequate, but the board of county commissioners shall have no obligation to do so.”
5. District court‘s ruling
After reviewing all of the relevant history set forth above, the district court granted summary judgment to the Township, finding that it had no legal statutory duty to place traffic control devices, guidance, or other warnings on its roads. Specifically, the district court noted that the Supreme Court‘s ruling in Finkbiner was predicated upon township authority granted by
B. Discussion
As a preliminary matter, Patterson asserts that the district court erred in granting relief to the Township on grounds that it had no duty to place traffic control devices on 322nd Road because the Township did not move for summary judgment on this basis. Since this relief was not requested by the Township, Patterson claims that the issue was not properly before the court. The Township concedes it did not formally raise this issue in a motion for summary judgment. Indeed, the only basis for relief cited in the Township‘s summary judgment motions was recreational use immunity under the KTCA and the Recreational Use Act.
Contrary to Patterson‘s argument, however, this issue was properly before the district court. In a pretrial order dated February 20, 2015, the Township alleged, in part, that no part of 322nd Road constituted a township road. In the alternative, the Township alleged that even if the unpaved portion of the road was a township road, the Township was not a local authority as defined by
Patterson asserts that she did not have the opportunity to fully respond to the Township‘s argument on this issue because it was raised as a defense rather than as an affirmative request for summary judgment. But this issue was clearly presented to the district court and the parties and the court understood the Township‘s position. It appears that Patterson had ample opportunity to respond to the Township‘s argument, and she does not otherwise assert what additional information she would have presented or how she would have argued the issue differently had the Township affirmatively raised the issue in its motion for summary judgment. We find the issue was properly before the district court for decision.
Turning to the merits of Patterson‘s argument, she claims that the district court‘s decision is contrary to the Supreme Court‘s ruling in Finkbiner and to legislative intent with respect to counties not operating under the county road unit system. She contends that House Bill 2150 was introduced with the purpose and intent of clarifying that townships in counties not operating within a county road unit system would have the authority and responsibility to maintain traffic control devices on township roads. Patterson asserts that the district court‘s interpretation of the 2003 statutory amendments is illogical and contrary to this intent because it results in no local authority having the responsibility for maintaining traffic control devices on township roads in the 31 counties not operating under a county road unit system that are not referenced in the 2003 statutory amendments. Patterson argues that the legislature could not have intended this result.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). The most fundamental rule
Patterson‘s arguments fail for multiple reasons. First, a township is not a “local authority” under
Patterson‘s reliance on Finkbiner to refute this argument is misplaced. Although the Finkbiner court cited
Patterson also alleges that the district court‘s ruling improperly narrows the definition of local authority. Patterson attempts to separate the phrase “other local board” from the phrase “or body having authority to adopt ordinances or regulations relating to vehicular traffic” to argue that a township qualifies as a local board that is not required to have authority to adopt ordinances or regulations relating to vehicular traffic. But courts must construe statutes to avoid unreasonable or absurd results. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). Patterson‘s interpretation of the statute is both unreasonable and absurd because it would provide any local board with the power to place and maintain traffic control devices upon highways in their jurisdiction. There are countless local boards in existence that are completely unrelated to traffic regulation. It defies logic and reason to conclude that the legislature intended for any local board (school board, hospital board, board of realtors) to have the power to place and maintain traffic control devices on roads and highways. Instead, the language used in
This conclusion is further supported by the 2003 amendments to
The problem with Patterson‘s argument is that it presumes the townships in the unlisted counties had authority to place traffic control devices on their roads prior to the 2003 statutory amendments. As previously stated, this authority did not exist as established by the fact that a township did not constitute a local authority under
Finally, Patterson contends that the district court‘s ruling ignores Kansas’ adoption of the
The Township is not a local authority as defined in
Conclusion
On the legal issues presented by Patterson and the County for decision in this interlocutory appeal, we conclude that
- the County did not have a duty to initiate an engineering study to determine if the
MUTCD required the County to place any additional traffic control devices on the County‘s portion of 322nd Road; - the County is immune from liability under the discretionary judgment exception of the KTCA for any failure to place an advisory speed plaque, a Dead End sign, or a No Outlet sign on its portion of 322nd Road;
- the County is not immune from liability under the recreational exception of the KTCA for any failure to place an advisory speed plaque, a Dead End sign, or a No Outlet sign on its portion of 322nd Road;
- the KTCA exception to liability for failing to inspect the property of another does not apply to the facts presented in this case; and
- the Township did not have a duty to place traffic control devices or other warning signs on its portion of 322nd Road.
Affirmed in part, reversed in part, and remanded for proceedings consistent with the findings set forth in this opinion.