Opinion
111,130.
12-12-2014
The Estate of William Harrison VAUGHN, Jr., Sharon A. Vaughan, Administratrix; Sharon A. Vaughn, Survivor of William Harrison Vaughn, Jr.; and, Sharon A. Vaughn, Guardian of K.L.A., Survivor of William Harrison Vaughn, Jr., Appellants, v. COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas, and Samuel D. Turf-in, Donavin Rhone, and Betsy Gillespie, as Individuals and as Officials of Shawnee County, Kansas, Appellees.
Robert R. Laing, Jr., of Kansas City, for appellants. Jonathan C. Brzon and Richard V. Eckert, of Office of the Shawnee County Counselor, of Topeka, for appellees.
Robert R. Laing, Jr., of Kansas City, for appellants.
Jonathan C. Brzon and Richard V. Eckert, of Office of the Shawnee County Counselor, of Topeka, for appellees.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
William Harrison Vaughn, Jr., committed suicide while incarcerated at the Shawnee County Department of Corrections. Sharon A. Vaughn, as survivor and the administrator of Vaughn's estate, and also K.L.A., Vaughn's survivor, (collectively Estate), filed suit in Kansas federal district court against the County and also the guards/staff (collectively the DOC). In federal court, the Estate raised violations of Vaughn's rights under the Eighth and Fourteenth Amendments to the United States Constitution under 42 U.S .C. § 1983 (2000) and also negligence claims under Kansas law. The federal court granted summary judgment to all the defendants except Donavin Rhone on the federal constitutional claims. See Vaughn v. County Com'rs of Shawnee County, Kan., No. 04–4083–JAR 2005 WL 3087842 (D.Kan.2005) (unpublished opinion). The Estate had filed a separate case in federal court against Rhone and that case was dismissed without prejudice. The federal court declined to exercise supplemental jurisdiction over the state law negligence claims. The Estate filed the Kansas negligence claims against the DOC in the district court. The court granted summary judgment to the DOC finding all claims were barred by res judicata based on the judgment granted in the federal case. Regarding Rhone, the court held the Rhone owed no duty to Vaughn because Rhone did not know or have any reason to know that Vaughn was likely to do harm to himself.
Our appellate court's have frequently upheld trial court decisions to deem the movant's facts uncontroverted for the respondent's failure to properly challenge the facts. For instance, in Ruebke v. Globe Communications Corp., 241 Kan. 595, 738 P.2d 1246 (1987), the plaintiff's response to a motion for summary judgment contained only general references to the entire trial transcript. The court upheld the trial court's ruling that the opposing party was deemed to have admitted the uncontroverted facts, saying that the rule vests discretion on the trial judge
“whose sound discretion will not be disturbed on appeal without a clear showing of abuse. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion.”241 Kan. at 604.
Here, the district court that found all but three of the DOC's facts listed in its summary judgment motion were uncontroverted by the Estate and the remaining three were not satisfactorily controverted by the Estate in its response.
Facts
Vaughn was arrested on October 3, 2003, and brought to the Shawnee County Adult Detention Center (Center) at approximately 3:45 a.m. Officers had stopped Vaughn for a traffic violation and arrested him on an outstanding limited actions warrant. Prior to being processed, Vaughn exhibited agitated behavior such as pacing and doing pushups in his holding cell. Later in the morning, Edna Stamps processed Vaughn's booking paperwork. Pursuant to DOC protocol, Stamps was required to notify a supervisor that a suicide risk screening was in order if a detainee had been incarcerated in the Center within the prior 12 months and the detainee's last release from the Center was from the suicide watch or close observation status.
Vaughn's last incarceration in the Center had been in May 2002. At that time, he was placed in the module that housed inmates who had been placed on suicide watch. He was placed there in 2002 because he had failed to follow the rules of the close observation module. Betsy Gillespie, director of the DOC, testified Vaughn was not placed in the suicide watch out of a belief that he was imminently suicidal, but rather because he did not follow the rules in the close observation unit. Because 12 months had passed since Vaughn's last incarceration, under the DOC's policies and procedures, no additional screening was required.
During his initial booking, Stamps asked Vaughn if he had a history of psychiatric problems and if he had ever attempted suicide or was contemplating suicide. Vaughn answered in the negative to both questions. There was no further suicide screening done on Vaughn. He also refused an initial medical screening by the nursing staff. At the time of his booking, Vaughn had the cash necessary to bond himself out, but he chose not to. He said he wanted to see a judge and save his money for a taxi ride after his release. After processing, Vaughn was assigned to a cell in the K Module with the rest of the jail's general population. K Module is a minimum security area with six cells, each with the capacity to house eight inmates.
During his first night in jail, October 3, Vaughn complained to prison staff that too many people were in his cell. He told the staff that he wanted to be moved to the Special Housing Module (SHM). A sergeant told Vaughn that the SHM was a maximum security module with two levels of cells. Each level contained 20 one person cells. The inmates assigned to SHM spend the majority of time confined to their cells, and the officers conduct headcounts every 30 minutes. Vaughn requested a transfer to SHM because he wanted to sleep. Officers put Vaughn on administrative segregation until his status could be reclassified so he could be transferred. Gillespie testified it was not unusual for inmates to request a transfer and it happened two or three times a week for various reasons.
Samuel Turpin and Rhone were the corrections officers assigned to the SHM on October 4, 2003. Both guards had received training on suicide prevention through the DOC. They knew to notify a supervisor if they observed an inmate displaying suicidal tendencies. The DOC's policies and procedures set forth 25 risk factors for officers to monitor. Neither Turpin nor Rhone, nor any other officer, reported to a supervisor that Vaughn was displaying any of the risk factors or behaviors for suicide on October 3 or 4, 2003. Turpin and Rhone had orders to conduct inmate observations every 30 minutes. Rhone testified his entire inmate observation task for the SHM normally took between 2 and 3 minutes to complete.
Turpin was not informed when he went on duty on October 4, 2003, that Vaughn had previously been incarcerated by the DOC and had been placed under suicide watch status. Turpin's first contact with Vaughn occurred at 4 p.m. when he delivered the evening meal. He was not informed that Vaughn had requested a transfer from the K Module to the SHM. Eve Kendall, the DOC's Intelligence and Investigation Manager, interviewed Turpin, who said Vaughn was lying on his bed during most of his shift that day. Turpin said that at about 6:20 p.m., Vaughn asked him why he was in the SHM. Turpin replied he would try to find out and he would also check with a supervisor to approve a phone call for Vaughn. At approximately 7:04 p.m., Rhone found Vaughn hanging from a bed sheet that was fastened to the air intake grate in his cell. Vaughn was dead. Both Rhone and Turpin admitted to missing a number of 30–minute headcounts in the SHM on October 4 and that they falsified the observation logs to reflect they had conducted the regular 30–minute observations. Rhone and Turpin were disciplined for missing their scheduled observations and for falsifying log entries.
Gillespie had been the DOC's director since August 2000. The DOC had a zero tolerance for inmate suicides. When she began her tenure, she analyzed the suicide prevention policies at the jail and instituted a number of changes. She contacted Dr. Thomas White, a consultant in suicide prevention in January 2001, who made certain recommendations for the jail's suicide prevention policy. Changes included changing suicide watch checks from every 15 minutes to every 4 minutes, identifying and screening risk factors in inmates, creating the close observation status, and looking at the different methods by which inmates can commit suicide. Gillespie indicated the purpose of the 30–minute observation check was not to prevent suicide; rather it was to ensure a proper headcount and to address any needs of the inmates.
The DOC had inmate suicides in 2001, 2002, and then Vaughn in 2003. The inmate suicide in 2001 similarly used the air vent to assist in the suicide. Prior to Vaughn's suicide, Gillespie had decided that the greater priority for suicide prevention was proper screening and supervision of inmates rather than physical changes to the facility. The DOC changed the structure of the air vents after Vaughn's suicide.
Vaughn's mother, Sharon, testified she knew Vaughn was suicidal. He had talked about taking his life in front of her and had made such comments within a year prior to his death. Dr. Victor Lofgreen opined that Vaughn exhibited typical suicidal tendencies including being abusive, intoxication, and irrational behavior. He said Vaughn's behavior of not bailing himself out with the money in his pocket was quite irrational. He also said Vaughn's request to be placed in an isolated cell was a legitimate suicidal threat.
Paul Medlock, an inmate at the DOC, said Vaughn was very nervous and upset in the K Module. He said Vaughn was almost incoherent. Vaughn told Medlock that before his arrest he had eaten approximately ounce of pot, used other drugs, and drank a lot of alcohol. Medlock said Vaughn was bouncing around the cell and did not want to stay in jail. Vaughn told Medlock he was hearing voices.
Vaughn's estate began its legal battle in federal district court. On July 13, 2004, the Estate filed a lawsuit (See Vaughn, 205 WL 3087842) against all of the defendants, except Rhone, in the United States District Court for the District of Kansas. The Estate asserted violations of Eighth and Fourteenth Amendment rights under 42 U.S.C. § 1983 and negligence under Kansas law. Under the federal constitution claims, the Estate claimed the defendants exhibited deliberate indifference to Vaughn's health and safety, including the risk of suicide. On July 1, 2005, the Estate filed a separate federal lawsuit against Rhone. See Estate of Vaughn v. Rhone, No. 05–4076–JAR (D.Kan.2005).
On November 7, 2005, the federal district court granted summary judgment to the DOC. Vaughn, 205 WL 3087842, at *4–10. The court found there was no genuine issue of material fact concerning Turpin's subjective knowledge of a substantial suicide risk by Vaughn. The federal court also found there was no genuine issue concerning whether Gillespie provided adequate facilities, policies, and training to address suicidal tendencies and monitoring of inmates. The court held that because the Estate was unable to allege that the individual defendants caused a constitutional deprivation, there was no need to address the qualified immunity issue. The lack of any constitutional deprivation allowed summary judgment on the Estate's official capacity claims against the Shawnee County Commissioners/Shawnee County and also on any action by the County in hiring Gillespie that directly caused the deprivation of Vaughn's constitutional rights. The court commented on the Estate's Kansas negligence claims, finding it had discretion to exercise supplemental jurisdiction and stating:
“Here, the ‘compelling reasons' point in favor of state rather than federal court resolution of the state law claims. There is a dispute as to whether defendants are immune from suit under the KTCA. Determining whether these defendants are immune requires an analysis of not only the statutory exceptions to liability under the KTCA, but also whether any of these defendants owed a legal duty to Vaughn. In addition, the claims may require an analysis of whether the tort of negligent supervision may apply, which is an unsettled area of Kansas law. Where a state law cause of action is in a process of current evolution, it is particularly appropriate for the federal court to leave the continuing development and application of that cause of action to the state courts. Finally, there is a dispute over whether plaintiffs are able to show causation, which is strictly a state law issue.
“Further, plaintiffs are free to pursue their claims in a Kansas court because even if the statute of limitations would otherwise have run, 28 U.S.C. § 1367(d) tolls the statute of limitations during the time the claim is pending and affords them at least 30 days from a current federal court dismissal to commence a new action in the state court. In this case, because discovery is complete, the Court conditions dismissal on use of all discovery in any subsequently filed state court case.” Vaughn, 205 WL 3087842, at *9–10.
The federal court similarly dismissed the Estate's lawsuit against Rhone. On November 25, 2005, the court entered an order of dismissal without prejudice in Rhone's case, stating: “The Court finds that the parties are in agreement that the above-entitled case should be dismissed with prejudice in order to give the plaintiffs the option of refiling the case in State Court to address the state claims of the plaintiffs.”
On December 2, 2005, the Estate filed a petition in Shawnee County District Court. The Estate alleged negligence in the care, custody, and control of Vaughn by Turpin, Rhone, and Gillespie resulting in Vaughn's wrongful death. The Estate also alleged negligence against Ted Ensley, Marice Kane, and Victor Miller, Shawnee County Commissioners, for failing to provide properly trained personnel and procedures and to properly guard and supervise Vaughn. In its last claim, the Estate alleged the Shawnee County Commissioners were liable under master/servant vicarious liability for the negligent conduct of their employees. In its answer filed December 29, 2005, the DOC claimed the Kansas Comparative Negligence Act applied and the defendants were immune from liability pursuant to the Kansas Tort Claims Act.
On May 25, 2006, the DOC filed a motion for summary judgment. In July 2006, the Estate filed its response in opposition to the motion for summary judgment. However, on January 15, 2008, the district court issued a stay in the Estate's case pending the appeal of a similar Shawnee County prisoner suicide case in Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 262 P.3d 336 (2011). After the Kansas Supreme Court decided Thomas on September 23, 2011, the district court reinstated the Estate's case. The district court granted the DOC's motion to amend its answer to include the affirmative defense of res judicata based on Kansas cases decided during the pending stay, namely Thomas, 293 Kan. 208, Rhoten v.. Dickson, 290 Kan. 92, 223 P.3d 786 (2010), and Estate of Belden v. Brown County, 46 Kan.App.2d 247, 261 P.3d 943 (2011).
After considering the motions and responses for summary judgment, the district court granted summary judgment to the DOC. The court concluded that all of the Estate's claims, except against Rhone, were barred by res judicata based on the judgment granted to the DOC in the federal case. Regarding Rhone, the court held that Rhone owed no duty to Vaughn because Rhone did not know or have any reason to know that Vaughn was likely to do harm to himself.
The Estate appeals.
Our general standard of review for summary judgment is well known and often stated:
“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.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
Summary judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). In a negligence action, summary judgment is proper if the only questions presented are questions of law. In a negligence action, the plaintiff must prove the existence of a duty, breach of that duty, injury, and causation. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact. See Sail v. T's, Inc., 281 Kan. 1355, Syl. ¶ 2, 136 P.3d 471 (2006) ; see also Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 5585–86, 214 P.3d 1173 (2009) (citing Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 [1993] [existence of duty question of law] ).
Summary judgment is rarely appropriate in negligence cases. However, summary judgment is proper in a negligence case if the plaintiff fails to provide evidence of an element essential to the case. See Hammig v. Ford, 246 Kan. 70, 73, 785 P.2d 977 (1990) ; see also Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008) (“ ‘Only when the facts are such that reasonable men must draw the same conclusion from them does the question of negligence become one of law for the court.’ ”). On appeal, questions of law, including those at the heart of summary judgment decisions, are subject to de novo review. See Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278 (2010) (applicability of KTCA immunity); Adams, 289 Kan. at 586 (existence of duty).
The Estate first argues the district court erred in granting summary judgment to the DOC based on res judicata. In light of Kansas Supreme Court precedent, we disagree.
The decisive question in this case is whether the inevitable conclusion avoided by the court in Estate of Belden, 46 Kan.App.2d 247, comes to fruition and dictates an affirmance of the district court's holding of res judicata based on Rhoten, 290 Kan. 92, and Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997). There is no indication our Kansas Supreme Court is departing from its position in Rhoten as recognized in Belden; as such, we are is duty bound to follow its precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Belden is virtually the same set of facts and procedural history as the present case. In Belden, the heirs and estate of Jeffrey Ray Belden filed suit against Brown County, the Sheriff of Brown County, and two employees of the Brown County jail after Belden committed suicide while in custody at the jail. He had been incarcerated for approximately 2 months. The plaintiffs filed suit in the United States District Court for the District of Kansas, alleging various state law tort claims and federal constitutional claims under 42 U.S.C. § 1983 (2000). The defendants moved for summary judgment, which the district court denied except as to the constitutional claims against the Brown County commissioners. The district court ruled that the sheriff and two employees were not entitled to qualified immunity on the constitutional claims. Gaston v. Ploeger, 399 F.Supp.2d 1211, 1224–27 (D.Kan.2005), rev'd in part by 229 Fed. Appx. (10th Circ.2000) (unpublished opinion). The sheriff and one employee took an interlocutory appeal of the rulings on qualified immunity.
The United States Court of Appeals for the Tenth Circuit held the plaintiffs had failed to present sufficient evidence to preclude summary judgment on two facts required by the constitutional claims: that the offending government actors knew Belden was suicidal and did nothing or were deliberately indifferent. Gaston, 229 Fed. Appx. at 712–13 ; see Estate of Belden 46 Kan.App.2d at 256. On remand, the federal district court dismissed the constitutional claims against the remaining jail employee, which left only state law claims at issue. Gaston v. Ploeger, No. 04–2368 DJW, 2008 WL 169814, at *14 (D.Kan.2008) (unpublished opinion) The defendants filed a motion urging the district court to decline jurisdiction over the state law claims; the district court granted the motion and dismissed the state law claims without prejudice. On appeal, the Tenth Circuit affirmed the district court's finding of qualified immunity and the dismissal of the state law claims. Gaston v. Ploeger, 297 Fed. Appx. 738, 745–46 (10th Circ.2008) (unpublished opinion); See Estate of Belden, 46 Kan.App.2d at 257–58. The plaintiffs then filed suit in the state district court, reasserting their state law claims.
In this second lawsuit, the state district court granted summary judgment to the defendants under the doctrine of res judicata, even though the defendants refrained from asserting that affirmative defense in the case. The district court also granted summary judgment to the defendants based on the collateral estoppel effect of facts the Tenth Circuit found in deciding the interlocutory appeal and affording the jail employees qualified immunity on the federal constitutional claims. On appeal, the Belden court found the district court had properly applied collateral estoppel to give effect to the Tenth Circuit's factual finding that neither the sheriff nor any jail personnel had actual knowledge that Belden was suicidal or acted with deliberate indifference to Belden's situation. 46 Kan.App.2d at 266–67. However, the Belden court found the district court's decision to credit those findings was not a legally sufficient basis to enter judgment for the defendants because neither of those factual findings precluded the plaintiffs' success on a negligence claim. 46 Kan.App.2d at 267.
For purposes of this issue, the critical portion of the Belden opinion is this court's decision to reverse the district court's ruling on res judicata. The Belden court held that the defendants were judicially estopped from advocating for or benefiting from a res judicata defense in the lawsuit because of their representations to the federal court to secure a dismissal of the plaintiffs' state claims in that forum. 46 Kan.App.2d at 265. The court found judicial estoppel precluded a party from taking one position in a case to induce the court to act in a certain way and then take a contrary or conflicting position in a related proceeding involving the same opposing parties. 46 Kan.App.2d at 262. Absent the facts demonstrating judicial estoppel, the Belden court essentially found its hands were tied based on prior caselaw on res judicata. The distinguishing fact in Belden was that the district court injected res judicata into the case without the defendants raising it as an affirmative defense or objecting to the court's use of the doctrine in deciding the case. See 46 Kan.App.2d at 263–65. The Belden court discussed how res judicata jurisprudence would have otherwise dictated a harsh result for Belden based on Kansas' current position on the issue:
“More than 20 years ago, the Kansas Supreme Court embraced that well-accepted treatment of a dismissal without prejudice. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 691, 751 P.2d 122 (1988). The Kansas Supreme Court recognized that ‘res judicata is held not to apply to issues raised in the previous case which were not decided by the court or the jury.’ 242 Kan. at 691. The court explained: ‘[A] judgment is not res judicata as to any matters which a court expressly refused to determine, and which it reserved for future consideration, or which it directed to be litigated in another forum or in another action.’242 Kan. at 691 (citing American Home Assur. v. Pacific Indem. Co., Inc., 672 F.Supp. 495 [D. Kan.1987] ; 46 Am.Jur.2d, Judgments § 419, pp. 588–89 ). Under that authority, including Jackson Trak, res judicata would have no application here, since Plaintiffs' state law claims were dismissed in federal court without being decided on the merits. And everyone anticipated Plaintiffs would file a suit in state court reasserting those claims.
“But in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997), and in Rhoten v. Dickson, 290 Kan. 92, 223 P.3d 786 (2010) (affirming Stanfield ), the Kansas Supreme Court redefined res judicata in a unique and narrow way. Those two decisions hold that res judicata bars a state court action reasserting state claims a federal court has dismissed without prejudice and solely for lack of jurisdiction under 28 U.S.C. § 1367. Even though the federal court never ruled on the merits of the state law claims in that circumstance, the court's dismissal of the federal claims on the merits, thereby removing the basis for federal jurisdiction, is sufficient to prevent any later consideration of the state claims in state court. Those decisions do not mention Jackson Trak's contrary determination of the issue or purport to overrule it. Nor do they discuss the more conventional treatment of res judicata we have outlined that would allow refiling of state claims dismissed in federal court for want of jurisdiction.
“Nonetheless, Stanfield and Rhoten do define the contemporary application of res judicata in Kansas. That definition, however, appears to enlist no other adherents. Comment, Kansas' Rationale Is Dust In The Wind, 50 Washburn L.J. 511 (2011) (A detailed analysis of current Kansas res judicata doctrine cites substantial contrary case authority from other jurisdictions but identifies no other jurisdiction recognizing a rule comparable to that set forth in Stanfield and Rhoten. ). And it has the effect of depriving a plaintiff bringing state and federal claims in a federal court action of any forum to adjudicate the state claims if the federal court declines to retain supplemental jurisdiction over them after dismissing only the federal claims on the merits.
“Accordingly, res judicata (at least in the way it must be applied in the Kansas state courts) would have barred Plaintiffs from relitigating their state claims if the Brown County District Court could have properly considered the doctrine. (Emphasis added .) 46 Kan.App.2d at 260–61. But the district court could not and should not have injected res judicata into the case. Doing so was plain error.”
The Estate argues the federal district court's decision addressed only the federal claims and did not rule on the merits of the state law claims. This is exactly what occurred in Belden except for the fact that the district court sua sponte decided the case on res judicata. The court in Rhoten accepted this harsh result. See 290 Kan. at 113–18 (examining whether a federal court's finding that there was no causation barred a future state law claim that required a showing of causation). Contrary to Belden, the DOC raised the issue of res judicata in the district court. Additionally, the Estate does not argue the district court did not properly have a claim of res judicata before it.
Instead, the Estate attempts to distinguish Rhoten where an injured motorist brought negligence and negligence per se claims against the city and one of its police officers after the motorist was struck by a vehicle the officer was pursuing. The Estate argues it was very logical that the state law negligence lawsuit was barred since the underlying fact of no fault or proximate cause on the part of the police would be the same regardless of the type of claim brought. The Estate argues that even though there were state law claims and not federal constitutional claims being litigated in Rhoten, the causation element would not have changed because the third-party driver of the automobile that crashed into the plaintiff would never change or recant his story that his driving was in no way impacted by the actions of the City of Topeka police automobile.
In Stanfield, an inventor brought a tort action against a corporation that used his name on an invention. He alleged misappropriation of his name or likeness and false light publicity. The Estate argues Stanfield can be distinguished from the present case since the federal courts there found the plaintiff did not have a legally protected interest in a trademark. The Estate contends that without a legally protected interest in the trademark it was logical for the Stanfield court to rule as it did since there can be no claim of slander, disparagement, or misrepresentation of a trademark in which the plaintiff did not have an interest.
Whether the doctrine of res judicata applied is a question of law over which an appellate court exercises unlimited review. In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012). Res judicata, or claim preclusion, is a common-law doctrine designed to prevent relitigation of a final judgment. In Kansas, four elements must be met to invoke the doctrine. Simply stated, “claim preclusion requires: (1) the same claim; (2) the same parties; (3) claims that were or could have been raised; and (4) a final judgment on the merits. [Citation omitted.]” Fleet, 293 Kan. at 777–78. In the case before us, there is no real question that these four elements are present. The same parties and claims are involved and the federal district court reached a final judgment on the merits.
To the extent we must determine whether the prior federal litigation bars the Estate's claims, we must apply federal law on claim preclusion. See Rhoten, 290 Kan. at 106. Generally, federal law of claim preclusion has been summarized by our Supreme Court as follows:
“Under federal law, the claim preclusion doctrine prevents a party from relitigating a claim that was, or could have been, the subject of a previously issued final judgment. [Citation omitted.] Claim preclusion applies if the following three elements exist: (1) There is a final judgment on the merits in an earlier action; (2) the same parties are involved in the two suits; and (3) there is the same cause of action in both suits. [Citation omitted.] The majority of federal courts, including the United States Supreme Court and the Tenth Circuit, recognize an exception if the party seeking to avoid preclusion did not have a full and fair opportunity to litigate the claim in the prior suit. Although some courts treat this exception as a fourth element, the Tenth Circuit agrees it is an exception that only needs to be addressed in limited circumstances. [Citation omitted.]” 290 Kan. at 106.
The Estate argues that while the federal lawsuit may have proceeded to a final judgment on the merits of the federal or constitutional claims, the federal case did not proceed to a final judgment on the state law negligence claims. Consequently, the Estate argues it did not have a full and fair opportunity to litigate the Kansas negligence claims and therefore it meets the exception to disallow res judicata.
The Estate essentially asks us to reject Stanfield and Rhoten because no other jurisdiction recognizes a comparable rule. The Estate also argues that the burdens of proof are different in the constitutional claims than in the state law negligence claims. For a constitutional violation, the prison official must act with “deliberate indifference” to an inmate's health or safety. However, for the state law negligence claims, the burden is much lower and creates liability if the official had knowledge or constructive knowledge of the risk of harm. The Estate argues these two differing standards preclude a finding of res judicata. The Estate contends the DOC's arguments in the federal case on these differing standards shows the DOC completely understood the standards.
The Estate analogizes the defendants' claim of res judicata to a situation where a defendant is charged with first-degree murder and a court rules as a matter of law that the allegations made against the defendant do not support a finding of premeditation or first-degree murder. The Estate claims it would be ridiculous to think the defendant could argue that he or she could not be tried for manslaughter since the court already ruled that the defendant was not guilty of the crime that it considered.
The question at issue is whether the Estate can avail itself of the exception to res judicata if it did not have an opportunity to fully and fairly litigate the claim. See Rhoten, 290 Kan. at 110 (citing Mactec, Inc. v. Gorelick, 427 F.3d 826 831 [10th Circ.2005], cert. denied 547 U.S. 1040 [2006 ] ). When determining whether a claim was fully and fairly litigated, federal courts consider the following factors: (1) whether there were significant procedural limitations in the prior proceeding; (2) whether the party had the incentive to fully litigate the issue; and (3) whether effective litigation was limited by the parties' nature or relationship. Burrell v. Armijo, 456 F.3d 1159, 1172 (10th Cir.2006). As was the case in Rhoten, the Estate does not satisfy these three factors. See 290 Kan. at 110–11.
In the present case, the district court held:
“It appears from the record that all of the evidence available now in the state case was obtained and available in the federal case. The parties fully briefed the issues and no further discovery was necessary for the state case. The discovery documents were all dated before the federal court decision. The Plaintiffs do not argue otherwise. The Plaintiffs had the incentive to fully litigate the federal claim because the existing law regarding claim preclusion would have barred the same theory underlying the state law claims. The Stanfield holding has been upheld in full by the Rhoten court and is good Kansas law. Finally, there had been no reason given that the parties' relationship had any undermining effect on the federal litigation.”
Of the three factors listed above, the Estate only challenges the first factor, namely that significant procedural limitations existed in the prior proceeding. The Estate contends the procedural limitation is evident by the federal court's intent that the state law claims would not be barred by res judicata or collateral estoppel. The federal court stated: “[The Estate is] free to pursue [its] claims in a Kansas court because even if the statute of limitations would have otherwise run, 28 U.S.C. § 1367(d) tolls the statute of limitations during the time the claims [are] pending and affords at least 30 days from a current federal court dismissal to commence a new action in state court.”Vaughn v. County Com'rs of Shawnee County, Kan., No. 04–4083–JAR, 2005 WL 3087842 (D.Kan.2005) (unpublished opinion). The Estate maintains the federal district court would have explicitly conditioned its dismissal if it would have thought for one instant that the Kansas negligence claims would have been barred from being heard in a state court action.
The Estate appears to be confusing significant procedural limitations in the federal case with a subsequent legal conclusion based on res judicata. The Rhoten court found no procedural limitations in the federal proceeding because the federal court had considered all the evidence in the case, discovery was complete, depositions were submitted in support of summary judgment, all the issues were fully briefed, and the court even entertained a motion for reconsideration. 290 Kan. at 111. The lack of any significant procedural limitations is equally apparent in the present case as well.
The harsh result of the summary judgment ruling in this case was acknowledged by the court in Rhoten, 290 Kan. at 11–12 (“To be sure, this outcome does seem counterintuitive, but this court recognized long ago that preclusion doctrines sometimes present difficult questions.”). The Estate is asking us to enter an opinion that would be contrary to Rhoten and Stanfield and recognized under nearly identical circumstances in Belden. Again, we are duty bound to follow Kansas Supreme Court precedent. We affirm the district court decision that res judicata barred the Estate from renewing its state law negligence claims against all defendants except Rhone after they were dismissed without prejudice in federal court.
The Estate next argues the district court erred in granting summary judgment to Rhone by finding he had no duty to Vaughn.
The Kansas Supreme Court's decision in Thomas, 293 Kan. 208, squarely answers the nature of the duty of prison officials in a case virtually identical to those in the present case. In discussing the jailer's duty to a prisoner who committed suicide, the Thomas court looked to K.S.A. 19–1919 and also the Restatement (Second) of Torts § 314A(4) (1964) :
“All prisoners shall be treated with humanity, and in a manner which promotes their reform.” K.S.A. 19–1919.
“One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.” Restatement (Second) of Torts § 314A(4).
See Thomas, 293 Kan. at 222–26.
The Thomas court also relied on several comments to § 314A. Comment d to this subsection explains that “[t]he duty to protect the other against unreasonable risk of harm extends to risks arising out of the actor's own conduct” and that “[t]he duty to give aid to one who is ill or injured extends to cases where the illness or injury is due to ... the negligence of the plaintiff....” Comment e to § 314A further explains the duty owed “is only ... to exercise reasonable care under the circumstances” and that “[f]he defendant is not liable where [the defendant] neither knows nor should know of the unreasonable risk, or of the illness or injury.” See Thomas, 293 Kan. at 224.
A combination of K.S.A. 19–1919 and Restatement (Second) of Torts § 314A(4) provided the foundation for the court's ruling that “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.”293 Kan. 208, Syl. ¶ 3. The Thomas court explained the duty did not make the defendant jailers guarantors of the prisoner's safety; but it imposed the obligation to exercise reasonable care under the circumstances, a duty triggered if the jailers knew or should have known of an unreasonable risk to the prisoner's safety. 293 Kan. at 226. With this backdrop, we examine the evidence to determine whether actual or constructive knowledge existed to support a trigger of Rhone's duty to protect Vaughn against the unreasonable risk of suicide.
The Estate argues there are several factors demonstrating Rhone knew or should have known Vaughn was a suicide risk. First, the Estate argues the DOC policies for the SHM area where Rhone was working houses inmates at risk for committing suicide. The Estate argues Vaughn was in SHM and policies expressly stated that “segregation status is a risk factor for potential suicides.” Second, Vaughn's past incarcerations at the DOC—where he attempted suicide, was on suicide watch, and had psychological problems—all indicated a suicide risk. The Estate also argues the paper trail of his prior incarcerations and attempted suicides demonstrate the suicidal risk. The Estate states that he had been placed on suicide watch in 1997 and 2002 when he was confined at the DOC. Multiple intake sheets in 2002 indicated Vaughn had psychological problems. Third, guards and staff should have been on high alert anyway because multiple suicides had occurred at the DOC during Rhone's employment and protracted litigation was occurring from a previous suicide.
The Estate also argues there is no record Rhone received a verbal briefing from Turpin when Rhone assumed the observation duties on October 4. The Estate argues Rhone's and Turpin's failure to conduct the proper number of inmate observations and later falsifying observation logs after the fact is further evidence of Rhone's negligence. This is true. The Estate argues that without the proper observations, it is quite possible and probable Vaughn relied on the lack of observation and believed he would be undisturbed and able to commit suicide.
The Estate further argues the DOC is liable based on res ipsa loquitur. The Estate contends Rhone was in charge of monitoring Vaughn and Vaughn ended up committing suicide. The Estate contends there is a rebuttable presumption or inference of negligence under res ipsa loquitur where the plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of the defendant and the occurrence was such that in the ordinary course of things the occurrence would not have happened if reasonable care had been used. The Estate provides no supporting authority applying res ipsa loquitur in this context. The DOC does not even address this point.
In a res ipsa loquitur case, a plaintiff need only present evidence of the injury and is not required to prove a standard of care or a specific act or omission. Under the doctrine of res ipsa loquitur, the mere fact that the injury occurred raises an inference of negligence. See Hubbard v. Mellion, 48 Kan.App.2d 1005, Syl. ¶ 9, 302 P.3d 684, rev. denied 298 Kan. –––– (December 27, 2013); see also Restatement (Second) of Torts § 328D, comment b, p. 157 (1964) (“A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relation to it.”). This doctrine describes an evidentiary rule whereby the negligence of an alleged wrongdoer may be inferred from the mere fact that an accident happened. In order for the Estate to recover in this case, it must first prove that Rhone had a duty to protect Vaughn from the unreasonable risk of suicide. Consequently, we do not find the res ipsa loquitor doctrine applicable to the facts of this case.
In order to recover for negligence, the Estate needed to establish (1) the existence of a duty, (2) breach of that duty, (3) injury, and (4) a causal connection between the duty breached and the injury suffered. See Thomas, 293 Kan. at 220–21. Whether a duty exists presents a question of law, and determining whether the defendant breached that duty presents a question of fact. 293 Kan. at 221. However, we are mindful that courts should use caution when granting summary judgment in negligence actions because, in the majority of cases, negligence claims present factual determinations for the jury, not legal questions for the court. Hauptman v. WMC, Inc., 43 Kan.App.2d 276, 283, 224 P.3d 1175 (2010). Nevertheless, summary judgment is proper in a negligence action if the only questions presented are questions of law or the defendant shows there is no evidence indicating negligence, i.e., the plaintiff failed to provide evidence of an element essential to his or her case. See Martin v. Naik, 297 Kan. 241, 245–46, 300 P.3d 625 (2013).
In granting summary judgment, the district court held that Rhone owed no duty to Vaughn because he did not know or have any reason to know that Vaughn was likely to do harm to himself. The court found:
“Rhone did not know or have reason to know that Vaughn had been on suicide watch or close observation in the past. There was no policy that required a screening unless incarceration on suicide watch or close observation had occurred within twelve (12) months of Vaughn's most recent incarceration. Even if it had, Rhone was not responsible for [any] screening of Vaughn and the uncontested evidence shows that he had no information of any problems with Vaughn either actual or constructive. Rhone was to observe Vaughn every 30 minutes not for suicide watch but to insure he was in his cell. The undisputed facts show that Rhone left the module for dinner break at 5:30 p.m. and returned approximately at 6:30 p.m. Officer Turpin spoke to Vaughn at approximately 6:20 p.m., so Vaughn was alive when Rhone left at 5:30 p.m. When Officer Rhone went to observe Vaughn at 7:00 p.m. he discovered him hanging. There is no possible scenario that would provide Rhone with actual or constructive knowledge of Vaughn's likelihood to commit suicide. There is no conflicting testimony to provide such a scenario.”
The Estate relies on Thomas for authority that the district court erred in taking this case away from the jury. The district court in Thomas granted summary judgment to the DOC (the same DOC in the present case) finding the guards had no prior knowledge of the prisoner's (Stapleton) suicidal tendencies and also that the guards' transferring of Stapleton to the Close Observation Unit was not because of a suicide risk, but due to disciplinary problems. The Court of Appeals reversed the district court's summary judgment ruling by relying heavily, if not exclusively, on the fact that Stapleton was being housed in the Close Observation Unit and the purpose of that unit. See 293 Kan. at 226.
The Thomas court held the district court erred in granting summary judgment by deciding factual issues on conflicting evidence. 293 Kan. at 227. However, the Thomas court held the Court of Appeals should not have “put such heavy weight on the wording of a single passage in the Suicide Prevention policy and Stapleton's housing in the Close Observation unit.” 293 Kan. at 227. The Thomas court concluded the plaintiff's “came forward with plenty of evidence to survive a motion for summary judgment on this issue.” 293 Kan. at 227. The Thomas court held that genuine issues of material fact existed on whether the guards had enough actual or constructive knowledge of Stapleton's risk of self-harm to create a duty to prevent his suicide. The court relied on the following facts:
(1) The jail chaplain spoke with one of the guards and the chaplain understood that the guard believed Stapleton should have been moved to Suicide Watch because he was a danger to himself.
(2) After the suicide, a guard said he knew Stapleton should have gone to special housing.
(3) Another inmate heard Stapleton repeatedly announcing his intention to kill himself within earshot of one of the guards, who was, contrary to policy, watching television and missing 15–minute checks.
(4) Stapleton's continued housing on the Close Observation unit rather than in general population after repeated suicide screenings. Guards had received suicide prevention training and certainly were aware of this fact. The court found that the guard could not hide behind a statement that he was not generally informed about any inmate's particular mental health situation when the inmate arrived on the unit so he could be impartial to all inmates.
(5) Stapleton exhibited several risk factors listed in the Suicide Prevention policy during the days and hours leading up to his suicide, namely: he had not eaten regularly for several days, he had been crying, he almost started crying after an argument with another guard, his mother had voiced concerns to Detention Center personnel, and he repeatedly vocalized suicidal intentions.
See Thomas, 293 Kan. at 227–28.
Here, we are not presented with facts remotely close to those in Thomas that would trigger a finding that Rhone knew or had reason to know that Vaughn was likely to do harm to himself:
(1) Rhone did not know or have reason to know that Vaughn had been on suicide watch or close observation in the past. DOC policies only required screening if prisoner had been on Suicide Watch or Close Observation within the prior 12 months.
(2) When Vaughn was booked into jail on October 3, he answered “no” to questions of whether he had attempted suicide or was considering suicide now.
(3) Vaughn had been in jail for less than 2 days.
(4) Rhone was to observe Vaughn every 30 minutes.
(5) It is undisputed that Turpin spoke with Vaughn at approximately 6:20 p.m., while Rhone was on dinner break at 5:30 p.m. Rhone returned from break at 6:30 p.m. and found Vaughn dead at 7:00 p.m.
(6) Vaughn's mother testified that the night Vaughn was arrested, his appearance and mood were good and she did not sense anything out of the ordinary or unusual.
(7) No one, including the booking staff or the guards, ever reported that Vaughn exhibited any of the 25 risk factors or behaviors outlined in the DOC's suicide prevention policies and procedures.
(8) Vaughn had a reasonable and cognitive explanation for why he did not make bail with the money in his pocket. Vaughn told the booking staff he wanted to see a judge so he could get out on his own recognizance and still have enough cash for a cab ride. This statement also shows Vaughn's intention of being released from the jail.
(9) Vaughn voluntarily requested a transfer to the from the K Module to special housing because he could not sleep.
Based on this record, we find the district court did not err in finding Rhone had no duty to Vaughn to protect him from the unreasonable risk of suicide because Rhone did not know or have any reason to know that Vaughn was likely to do harm to himself.
Affirmed.