Opinion
110,547.
02-06-2015
Christi L. DEAVER and Ronald L. Deaver, heirs-at-law of Hannah S. Deaver, deceased, Appellants/Cross–Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF LYON COUNTY, Kansas, Appellee/Cross–Appellant, and The Lyon County Fairboard, Appellee, and Marvin Jenkins, Defendant.
Dennis M. Clyde, of Clyde & Wood, LLC, of Overland Park, for appellants/cross-appellees. Stanford J. Smith and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee The Lyon County Fairboard. Amy S. Lemley and Shannon L. Bell, of Foulston Siefkin LLP, of Wichita, for appellee/cross-appellant The Board of County Commissioners of the County of Lyon, Kansas.
Dennis M. Clyde, of Clyde & Wood, LLC, of Overland Park, for appellants/cross-appellees.
Stanford J. Smith and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee The Lyon County Fairboard.
Amy S. Lemley and Shannon L. Bell, of Foulston Siefkin LLP, of Wichita, for appellee/cross-appellant The Board of County Commissioners of the County of Lyon, Kansas.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
POWELL, J.
Christi L. Deaver and Ronald L. Deaver, parents of Hannah S. Deaver, filed a wrongful death claim against The Board of County Commissioners of Lyon County, Kansas (County Commissioners) and The Lyon County Fairboard (Fairboard) over the death of their daughter, who was killed at the Lyon County Mud–A–Thon when a racing vehicle left the track and landed on her, causing fatal injuries. The district court granted the County Commissioners and the Fairboard summary judgment, and the Deavers now appeal. The Deavers argue summary judgment was inappropriate because (1) reasonable minds could differ as to whether the defendants' conduct was gross and wanton under the recreational use exception to the Kansas Tort Claims Act (KTCA), K.S.A. 75–6101 et seq. , and (2) the discretionary function exception did not apply. The County Commissioners cross-appeal, arguing we lack jurisdiction to consider this appeal because the district court improperly certified the summary judgment order as a final order while there were still outstanding claims against another defendant. Because we find we do have jurisdiction to consider this appeal, and because we find there are genuine issues of material fact which preclude summary judgment in favor of the County Commissioners and the Fairboard, we reverse and remand.
Factual and Procedural History
On July 31, 2010, Hannah attended the Lyon County Mud–A–Thon event with her friends Matt Moore, Tyler “Rook” Sommers, and Victoria Williams. Sommers drove them to the event in a white Ford Ranger pickup owned by Williams and parked the pickup on the east side of the track, behind a white pipe rail which ran south to north along the east side of the track, and north of the finish line. The racers ran their vehicles by entering the mud pit from the south and racing north. During the Mud–A–Thon, a racing vehicle driven by Marvin Jenkins lost control and landed in the spectator area, hitting and injuring Hannah, who was seated in the bed of the pickup. Hannah later died from her injuries.
The Fairboard had planned and operated a Mud–A–Thon every year from 1987 or 1988 through 2010. Fred Kurzen was a member of the Fairboard in 2010 and chairman of the Mud–A–Thon committee from 1990 through 2010. He had worked the Mud–A–Thon as a board member every year since the event started. As chairman of the Mud–A–Thon committee, Kurzen planned the event and set up the mud pit. From 1990 through 1994, Kurzen hired a construction company to excavate the mud pit just as the original chairman of the Mud–A–Thon committee had done. From 1995 through 2010, Kurzen prepared the mud pit and track himself. Kurzen admitted he knew racing vehicles had become more powerful over the years.
In the late 1990s, a racing vehicle in the hot rod class lost control halfway through the mud pit, came out of the mud pit, and turned upside down. The vehicle landed and hit the white railing along the east side of the track. Drivers in the hot rod class often complained about the ruts in the mud made from the heavier and slower classes of vehicles that raced before the hot rod class, claiming the ruts caused them to have trouble maintaining control of their vehicles during the race. Due to that accident and related safety concerns, the Fairboard changed the order of the class races, requiring the hot rod class to race before the bigger and slower vehicles could form ruts in the mud pit. Additionally, after the late–1990s accident, Kurzen filled the mud pit with less mud than previously used, exposing 8–12 inches of the mud pit's side walls. This added lip helped prevent racing vehicles from prematurely jumping out of the mud pit.
In 2010, the mud pit was 190 feet long, 22 feet wide, and about 3 feet deep in the center. The pit was filled with only 2 feet of mud in order to allow for a 12–inch lip on the side of the pit. Jenkins testified there were no regulations on mud pit dimensions, though they were typically 160–250 feet long. He thought the Lyon County mud pit was within the range of “typical” pits in Kansas. The racers would enter the track from the south and race north through the mud pit, with the finish line at the north end. Spectators watched from both the east and west sides of the track.
Along the east side, between the track and the spectator stands, was a 2–inch white pipe railing that stood 30–36 inches high and was 21–22 feet away from the edge of the pit. The pipe was installed years before the Fairboard started holding the Mud–A–Thon. Spectators were seated east of the rail, meaning Hannah was more than 21 feet away from the mud pit. Jenkins testified that some mud racing venues in Kansas did not have anything between the spectators and the mud pit track while others had barbed-wire fences, concrete barricades, guardrails, or fences.
On the day of the Mud–A–Thon, Jenkins and his family arrived around 4 p.m. Racing officials inspected Jenkins' vehicle to verify its safety features and tire size. The vehicle tire size determined the race category. Jenkins was placed in the category scheduled to compete first. Before the event started, Jenkins inspected the track and mud pit. He did not see anything wrong with the track.
Harry Groh was a Fairboard member in 2010 and had worked at the Mud–A–Thon since its inception. He testified spectators were generally located north of the finish line on the east side of the track. At the 2010 Mud–A–Thon, Groh worked as a timer at the north end of the mud pit. He remembered looking across to the east side and seeing spectators sitting north of the finish line. He did not see any rope north of the finish line on the east side where the spectators were seated. Groh knew spectators were not supposed to sit close to the east rail but did not know of a policy or rule specifying an exact distance. He also testified the event announcer would ask spectators to move back from the white rail.
Other Fairboard members and spectators confirmed the event announcer made several announcements telling spectators to stay back from the white rail, but no one remembered the announcer telling spectators not to be north of the finish line. Sommers, Hannah's friend who had attended the Mud–A–Thon for many years, thought spectators were supposed to be at least a foot behind the rail. The security personnel hired for the event testified they were asked to keep people back from the rail but were never instructed as to how far. Kurzen claimed the “rule of thumb [was] to try to keep [spectators] back away from the rail approximately 25 feet.” The videos show the spectators on the east side sitting closer than 25 feet from the rail.
The Fairboard hired Silverson Security to provide four private security guards to work the Mud–A–Thon because it submitted the lowest bid. Silverson Security was one of only two bids placed to provide security at the Mud–A–Thon. The Fairboard secretary, Sheila Price, verbally instructed the security personnel to keep people back from the rail, make sure there was no drinking in the pit area behind the east side bleachers, and ensure everyone in the pit had a wrist band. She told them to “use common sense,” and if something was not right to either take care of it or talk to a Fairboard member. Both the Fairboard members and Silverson Security were responsible for general crowd control.
Moore, another of Hannah's friends watching the Mud–A–Thon with her, testified that a spectator vehicle pulled in on the east side of the mud pit but north of where he and Hannah were sitting in a truck. The security guard instructed the spectator not to park there because it was outside the guardrail. The spectator moved the vehicle, and Moore asked the security guard if he and his friends were ok to park where they were. The guard said they were fine. Sommers estimated the truck where Hannah was sitting was about 8–15 feet from the white rail. Sommers testified he and his family had parked on the east side by the finish line or north of the finish line for as long as he could remember attending the Mud–A–Thon.
All spectators were allowed around the east side bleachers, but only spectators who had purchased a pit pass and received a wristband were allowed into the pit area behind the east side seats where the racers parked their racing vehicles. Hannah and her friends had obtained wristbands granting them “backstage” access to the pit area. Anyone who purchased a pit pass was asked to sign a hold harmless waiver form. However, neither Hannah nor her friends signed the waiver in 2010.
The security personnel testified there was no rope or markings around the area where Hannah and her friends were parked on the east side until after the accident. After the accident, Silverson testified the Fairboard strung a rope along the east side bleachers in order to keep the crowd away from the accident area. Kurzen claimed the rope between the bleachers and Hannah's truck was there before the accident.
Montie Ross, a spectator at the Mud–A–Thon, testified that before the races started, he talked to a man who appeared to be in charge of lining up the racing vehicles to prepare to race and told him the spectators along the white rail past the finish line were in danger and needed to move. The unidentified man told Ross it was not his concern and asked him to leave the track area.
Gregory Gasche, president of the Fairboard in 2010, testified he did not know if spectators were prohibited from sitting north of the finish line, nor did he believe there were any written policies or procedures concerning spectator safety at the Mud–A–Thon. Gasche did not recall discussing spectator safety or safety barriers for the Mud–A–Thon at Fairboard meetings.
Looking at a picture of the 2010 Mud–A–Thon, Kurzen admitted spectators were sitting along the east side north of the finish line but claimed he did not know whether people had sat in that area in years past. To the contrary, Fairboard member Eugene Jackson, who worked as a flagman at the finish line of the mud pit, claimed spectators had sat north of the finish line on the east side in years past. In fact, he testified he knew people were sitting north of the finish line at the 2010 race but had never been instructed that spectators were not allowed in that area. Kurzen did not remember when he discussed the issue with members of the Fairboard but claimed they generally tried to keep spectators from sitting north of the finish line along that east side.
The Fairboard did have two typed pages of Mud–A–Thon rules, but the rules governed the driver requirements, entry fee, competition, points, and payoff. In the 1990s, Kurzen obtained a copy of the Kansas Mud Boggers Association rules and regulations, but those rules had no instructions regarding the proper construction or layout of a mud racing track or spectator safety.
Plaintiffs' expert, Robert McKinzie, explained the only published mud racing guidelines that addressed spectator safety were from the Central Mudracing Association. The Lyon County Mud–A–Thon was not associated with the Central Mudracing Association, but, according to McKinzie, based on those guidelines, the Mud–A–Thon track had two design deficiencies. First, the shutdown area for the racing vehicles after the finish line was too short, although McKinzie opined that the length of the shutdown area did not contribute to the 2010 accident. Second, the lateral distance from the edge of the mud pit to the spectators was insufficient. The Central Mudracing Association guidelines mandated a minimum of 25 feet between the mud pit and spectators but recommended 50 feet. The guidelines did not reference whether spectators should or should not sit around or beyond the finish line. McKinzie estimated the westernmost portion of Jenkins
1. Knowledge of risk or dangerous condition
First, as we have explained, the evidence must show the defendants had or should have had knowledge of the risk of injury to spectators sitting on the east side of the track and north of the finish line. Such knowledge may be shown through direct evidence such as a similar prior incident. See Gruhin, 17 Kan.App.2d at 392, 836 P.2d 1222.
The Deavers assert this case is comparable to Gruhin, where Gruhin brought a negligence action against the city for injuries he sustained while on a city-owned golf course. While playing golf, the cart in which Gruhin was riding was driven into a hole several feet deep located in the rough. Golf personnel knew of the hole and knew another person had been injured in the same location several weeks before Gruhin's accident. Similarly, the Deavers argue the late–1990s accident where a racing vehicle lost control and hit the white rail on the east side close to where Hannah later sat in 2010 is sufficient to show the Fairboard knew racing vehicles might lose control and injure spectators sitting north of the finish line. However, this prior accident did not result in the racing vehicle crossing the east side railing or causing injury to any spectator. While the accident showed some sort of incident may occur during the Mud–A–Thon, it did not show the Fairboard had direct knowledge that such an accident would result in spectators being injured. Racing accidents were generally rare at the Mud–A–Thon. The late–1990s accident was the only accident in the over 20–year history of the event.
The County Commissioners rely on Lee v. City of Fort Scott, 238 Kan. 421, 424–25, 710 P.2d 689 (1985), in which the plaintiffs evidence failed to establish the city knew of the risk through circumstantial evidence. Lee was a wrongful death action in which an 18–year–old motorcyclist died as a result of injuries he sustained when he collided with steel cables strung between two trees at a public golf course. Seven years before the accident, the city strung the cables to curtail vandalism created by people driving onto the golf course's fairways and greens. It also enacted an ordinance prohibiting motor vehicles from driving off of regularly-traveled roadways, but it did not post the ordinance at the golf course.
The district court granted the city summary judgment under the KTCA's recreational use exception, finding Lee had failed to produce any evidence that the city was guilty of gross and wanton negligence. The sole issue on appeal was whether the trial court erred in finding as a matter of law that the city was not grossly and wantonly negligent. Lee argued there was evidence of gross and wanton negligence, specifically that the city did not post signs at the golf course warning of the cables or prohibiting the operation of motorcycles off the roadway. He also argued the city was aware that motorcycles were being operated off the roadway at the golf course because it wrote a number of traffic citations for driving off the roadway.
Our Supreme Court rejected Lee's arguments and affirmed the grant of summary judgment in favor of the city, reasoning that Lee's evidence failed to give rise to even an inference of gross and wanton negligence:
“The fact that the City had issued a number of traffic citations for driving off the roadway does not prove the City had notice of the potentially dangerous placement of the steel cables. Appellants failed to offer any evidence which would establish that the City realized the imminence of danger and exhibited a complete disregard of the consequences. Rather, the evidence showed that at the time the accident occurred, the steel cables had been in place for approximately seven years. The cables were erected to deter vandalism to the golf course and were located off the roadway. No other accidents involving the steel cables had been reported to the City. There is no evidence of a reckless disregard of a known danger and thus no gross and wanton negligence.” 238 Kan. at 424–25, 710 P.2d 689.
The undisputed evidence shows the Fairboard required spectators to stay back from the white railing. Though it is unclear how far spectators were to be from the railing, the existence of the rule demonstrates there was a need for the Fairboard to be concerned for spectator safety and the Fairboard knew it. But the evidence is conflicting regarding whether the Fairboard knew that specifically sitting on the east side of the track and north of the finish line was an unsafe location for spectators. Kurzen claimed spectators were not permitted to sit north of the finish line while other Fairboard members claimed spectators were allowed to sit in that area. Mud–A–Thon racer Coffman claimed “ ‘everybody” ‘ knew spectators should not sit past the finish line, but the Deavers' expert testified the only published professional mud racing rules that addressed spectator safety did not prohibit spectators from watching past the finish line. Additionally, the Fairboard never instructed the Silverson Security guards that the area north of the finish line was a spectator-free zone. The fact that the security guard told Hannah's friend Sommers that their group was ok to watch from where it was sitting shows the security guard actually thought spectators were allowed to sit north of the finish line as long as they were behind the white railing.
Viewing this evidence in the light most favorable to the Deavers, because there is conflicting evidence such that reasonable persons might disagree whether the Fairboard knew or should have known of any risk or danger created by spectators sitting north of the finish line, we must find there is a genuine issue of material fact and hold the district court erred in finding there was no evidence to support the conclusion that the Fairboard was gross and wantonly negligent as a matter of law.
2. Reckless disregard or indifference to risk or danger
Having found, when viewing the evidence in the light most favorable to the Deavers, that a reasonable person could find the Fairboard knew or should have known of the danger to spectators sitting on the east side of the race track and north of the finish line, the second prong of the analysis is whether the defendants then acted with reckless disregard or indifference to its probable consequences. See Reeves, 266 Kan. at 314, 969 P.2d 252. Because “ ‘[w]antonness' refers to the mental attitude of the wrongdoer ... [,] acts of omission as well as acts of commission can be wanton....” Gould v. Taco Bell, 239 Kan. 564, 572, 722 P.2d 511 (1986).
Our Supreme Court has explained that “a token effort to prevent [harmful consequences] would not avoid liability under this [prong], while definite acts which materially lessen the chances of [those consequences] would avoid liability.” Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, 323, 524 P.2d 1141 (1974). This preventive-measures approach is still applied today. See Wagner, 586 F.3d at 1247.
In Wagner, the 10th Circuit Court of Appeals analyzed the risk of conducting a motorcycle race. 586 F.3d at 1246–47. Wagner competed as a racer and crashed during the race. Wagner and his motorcycle left the track, slid between 100 and 250 feet, collided with an unpadded moveable concrete barrier, and burst into flames. A review of the facts revealed it was undisputed the defendant engaged in multiple definite acts designed to make the race safer, such as
“opening the track for practice runs on both the day before and the morning of the race to permit racers to learn the track; stationing at least one corner worker at each corner, providing those workers with a radio communication system, a fire extinguisher, and colored flags for slowing or stopping the race in case of an accident, and training the workers for roughly an hour on each of the mornings of August 7 and August 8; having two ambulances and a fire-suppression vehicle onsite during the race; placing protective air fencing in certain areas and tires along certain portions of concrete barriers outside the track; and being prepared to call for a life-flight helicopter if the need arose.” 586 F.3d at 1247.
The Wagner court admitted the preventive measures may not have been perfect, but they certainly “ ‘materially lessen[ed]’ “ the chances of danger to the racers, and the court found the defendant was not liable for gross and wanton negligence. 586 F.3d at 1247.
In comparison, the Gruhin panel found summary judgment was inappropriate because reasonable minds could differ on whether the preventive measures taken by the city displayed reckless disregard for a known danger. 17 Kan.App.2d at 392–93, 836 P.2d 1222. The city knew the hole in the golf course was there and merely drew chalk lines to protect golfers. By the time Gruhin was injured several weeks after the initial golfer was injured by the hole, the protective chalk lines were nearly imperceptible.
In this case it is a close call whether the Fairboard's preventive measures materially lessened the chance of injury to spectators. After the late–1990s accident, the Fairboard put modifications in place such as changing the order in which the different classes of vehicles competed and reducing the amount of mud in the mud pit. It also took steps towards guarding against injury by ensuring spectators were at least 21 feet away from the pit on the east side behind the white railing. But there is conflicting evidence about whether the Fairboard roped off the area where Hannah was sitting before or after the accident. Both Fairboard members and hired security personnel were responsible for crowd control and monitoring spectator behavior. There was one ambulance and at least two paramedics at the event.
Preventive measures were taken, most significantly requiring spectators on the east side to be at least 21 feet away from the mud pit, but again, viewing the evidence in the light most favorable to the Deavers, we conclude reasonable minds could differ on whether such preventative measures materially lessened a spectator's chance of injury considering all that separated the racing vehicles from the spectators was a 2–inch white pipe. Accordingly, we must conclude the district court erred by finding that the Fairboard's actions did not constitute gross and wanton negligence as a matter of law.
Did the District Court Err By Finding the Discretionary Function Exception Applied?
The district court also found the discretionary function exception in K.S.A.2014 Supp. 75–6104(e) applied, providing the Fairboard and the County Commissioners immunity. A governmental entity shall not be liable for damages resulting from “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” K.S.A.2014 Supp. 75–6104(e). “To determine whether the function or duty is discretionary, 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).
“[T]he discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency must follow. [Citation omitted.] A governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violates a legal duty.” Barrett v. U.S.D. No. 259, 272 Kan. 250, 263, 32 P.3d 1156 (2001).
The Deavers have alleged both ordinary negligence and gross and wanton negligence. Because we have already held the recreational use exception applies, the defendants' liability for ordinary negligence is eliminated. The discretionary function exception provides a similar defense against only ordinary negligence and does not apply to allegations of willful, gross, or wanton negligence. See Beck v. Kansas Adult Authority, 241 Kan. 13, 33, 735 P.2d 222 (1987) ; Hopkins v. State, 237 Kan. 601, 611–12, 702 P.2d 311 (1985). Because the recreational use exception applies, we need not decide whether the discretionary function exception applies because the Deavers cannot recover for their claims of ordinary negligence.
We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.