Opinion
No. 111,360.
2015-03-27
Giuseppinna Lidia ROGERS, Appellant, v. The BOARD OF COMMISSIONERS OF SHAWNEE COUNTY, Kansas for SHAWNEE COUNTY, Kansas, a governmental entity, d/b/a The Shawnee County Department of Corrections, et al., Appellees.
Appeal from Shawnee District Court; Rebecca W, Crotty, Judge.Eric Kjorlie, of Topeka, for appellant.James M. Crawl and Richard V. Eckert, of Office of the County Counselor, for appellees.
Appeal from Shawnee District Court; Rebecca W, Crotty, Judge.
Eric Kjorlie, of Topeka, for appellant. James M. Crawl and Richard V. Eckert, of Office of the County Counselor, for appellees.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
STANDRIDGE, J.
This case arises from injuries sustained by Giusepinna Lidia Rogers while an inmate of the Shawnee County Adult Detention Center after she fell while trying to get down from the top bunk of the bed in her cell. Rogers filed a lawsuit grounded in negligence against six employees, naming them as defendants in both their individual and official capacities: Director Richard Kline, Deputy Director Brian Cole, Division Manager Todd Rogers, Division Manager Shawn King, Adult Corrections Specialist Angelica Hutting, and Adult Corrections Specialist Kelvin Wiley. Rogers also named the Board of Shawnee County Commissioners (Board), doing business as the Shawnee County Department of Corrections (DOC), which is the entity responsible for operation of the Shawnee County Detention Center. The Board was named as a defendant based on the negligence of its employees.
The defendants ultimately filed a motion for summary judgment, arguing the undisputed facts gleaned from the discovery process established that the defendants did not breach their duty to protect Rogers against an unreasonable risk of harm. Alternatively, the defendants argued that even if the facts did establish an actionable claim of negligence, they were immune from suit under an exception to liability for discretionary acts under the Kansas Tort Claims Act (KTCA).
Although not persuaded by the State's argument on discretionary immunity, the district court found the argument moot based on its determination that there was no factual basis to support a finding that the defendants breached their duty of reasonable care to Rogers. Upon review of the evidence presented by the parties in a light most favorable to Rogers, however, we find that there exist several disputes of material fact bearing on the issue of the defendants' liability for negligence that require resolution at trial. Because we also find the discretionary function exception under the KTCA is not applicable to immunize the defendants from liability for any potential negligence here, we reverse the court's order granting summary judgment in favor of the defendants and remand for further proceedings.
Standard of Review
In our de novo review of the defendants' motion for summary judgment, we apply the same summary judgment standards as those applied by the district court. Those standards dictate that summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and, in this case, the verified notice of claim attached and incorporated by reference to the amended petition, 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. We resolve all facts and inferences that may reasonably be drawn from the evidence in favor of Rogers, the party against whom the summary judgment was sought. We must deny the defendants' summary judgment motions if reasonable minds could differ as to the conclusions drawn from the evidence. See Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013).
Facts
The following facts are either undisputed or, where disputed, construed in the light most favorable to Rogers.
On July 2, 2010, at approximately 9 p.m., Corporal Green of the Topeka Police Department conducted a traffic stop of a vehicle being driven by Rogers. When instructed to perform field sobriety tests, Rogers said that she would not be able to attempt or perform the walk-and-turn test and the one-leg stand test because she was diabetic and had “severe neuropathy in her legs.” Green then arrested Rogers for driving under the influence of alcohol and transported her to the Topeka Police Headquarters to administer an evidentiary breath test, which measured Rogers' blood alcohol content at .205. Rogers ultimately was booked into the Shawnee County Detention Center at 11:05 p.m. on July 2, 2010.
Officer Vaughn was the booking officer who processed Rogers into the facility. As part of that process, Officer Vaughn asked Rogers a series of 29 initial classification questions and documented her answers in an “Initial Classification Listing.” The booking process was finished by 12:51 a.m. on July 3, 2010. At that point, Rogers was sent to be screened by Lori Aubey, a registered nurse working at the Shawnee County Detention Center but employed by Corizon Health, Inc. pursuant to a contract with the Board. Aubey recorded the results of Rogers' screening in a preprinted “Intake Receiving and Screening” form that included boxes to be checked based on Aubey's observations of Rogers' appearance, Rogers' vital signs, and a series of predetermined medical questions to be asked by Aubey and answered by Rogers.
After her screening with Aubey, Rogers was “dressed into” the facility by Officer Keegan, who gave her a copy of the Inmate Handbook. At approximately 4:20 a.m., Rogers was escorted to the Y Module, where she was “dressed into” cell 1Y4 by Officer Angelica Hutting. Cell 1Y4 housed two inmates and contained bunk beds; Rogers was assigned bed lb, the top bunk.
After being told she was assigned to the top bunk, Rogers advised Officer Hutting that it would be impossible for her to safely climb up to or get down from the upper bunk because she suffered from diabetes and neuropathy in both of her feet. After telling Hutting that she was afraid of falling, Rogers requested permission to move the mattress to the floor and sleep there. Hutting denied the request, telling Rogers that her cellmate was assigned to the bottom bunk because the cellmate was pregnant. Rogers then asked if a bottom bunk was available in another cell. Hutting responded that she did not know if a bottom bunk was available in another cell and then reiterated that Rogers was assigned to the top bunk and that, based on protocol, Rogers would stay assigned to the top bunk.
At this point, Rogers' cellmate held a chair steady in place so that Rogers could step up on the chair and then climb up into the top bunk. Although Rogers was unable to sleep and felt sick based on what she believed to be an interaction between the alcohol in her system and the medication she took for diabetes, she was afraid to climb down from the upper bunk for fear of getting injured. When it was time to leave the cell for breakfast, however, Rogers attempted to get down from the top bunk by using the chair again. After she put one leg on the chair, however, the chair wobbled and she fell onto the toilet. Rogers stated that she experienced pain on the left side of her back as a result of the fall. When the cellmate attempted to call for help, Rogers indicated that she did not want to report the fall because she did not want to cause herself trouble.
At 6:38 a.m., Rogers was sent to the medical module so that her blood sugar levels could be taken in order to monitor her diabetes. Although the medical records from this visit are not included in the record on summary judgment, Timothy Phelps, Deputy Director for the DOC, stated in the affidavit he prepared in support of summary judgment that Rogers did not advise medical staff about falling from the upper bunk or otherwise report that she was having trouble climbing up to or getting down from the top bunk of the bed. After breakfast, Rogers returned to her cell and stood on the chair in order to access the upper bunk. Although it was difficult and took quite a bit of effort, she finally was able to pull herself into the upper bunk of the bed.
Rogers stayed in her bed until it was time to leave the cell for lunch. This time, Rogers attempted to get down from the top bunk by using the metal frame of the lower bed instead of using the chair. As she was lowering herself down, however, Rogers' neuropathy prevented her from being able to feel whether her foot had made contact with the metal frame of the bed below. Rogers dangled from the upper bunk in this manner until she eventually lost her balance and fell off the bed. During the fall, the left side of Rogers' body bounced off the edge of the toilet bowl and then she landed face first onto the concrete floor. Although Rogers does not remember whether she lost consciousness, she does remember screaming out in pain and lots of people showing up to see what happened.
Rogers was taken by wheelchair to the medical module where she remained until released on bail at 3:32 p.m. on July 3, 2010. Rogers stayed at home the rest of the day. Rogers' daughter drove her to the emergency room the next day. After an examination and x-rays, medical staff at the hospital placed Rogers' right arm in a cast and advised Rogers that she had sustained fractures to her nose and to her left lower rib. Rogers ultimately was referred by her primary care doctor to a therapist because she was experiencing stress, anxiety, anger, and fear as a result of her fall and the injuries she sustained.
In June 2012, Rogers filed a lawsuit alleging that the defendants were negligent by breaching their duty to protect her from an unreasonable risk of harm while she was in custody. She further alleged that the DOC was negligent by breaching its duty to adequately train staff to protect inmates from an unreasonable risk of harm. The defendants filed an answer generally denying Rogers' claims of negligence and affirmatively arguing that they were entitled to immunity from liability under KTCA. Discovery began and on May 14, 2013, the defendants served requests for admissions on Rogers, which were not answered in a timely manner.
On September 6, 2013, the defendants filed a motion for summary judgment. In its first argument, the defendants asked the court to deem the outstanding discovery requests to be admissions pursuant to K.S.A.2014 Supp. 60–236(a), which necessarily would render Rogers' negligence claims to be unsupported by any evidence. Alternatively, the defendants argued Rogers failed to provide any evidence to establish that the defendants breached their duty to protect her from an unreasonable risk of harm or their duty to adequately train its employees. Finally, the defendants argued that regardless of whether they were negligent, each of the defendants enjoyed immunity based on the discretionary function exception to liability set forth in the KTCA.
On October 3, 2013, the district court granted Rogers' untimely request for an extension of time to respond to the defendants' motion for summary judgment. When she ultimately filed her response, Rogers began by requesting the court permit her to answer the defendants' requests for admissions out of time. Rogers then responded to the arguments made by the defendants on summary judgment. In so doing, Rogers conceded that the district court should grant summary judgment in favor of the defendants other than Officer Hutting and the Board.
In a memorandum decision and order dated January 3, 2014, the district court noted Rogers' concession and dismissed defendants Kline, Cole, Todd Rogers, King, and Wiley from the lawsuit in both their individual and official capacities. The court then granted Rogers' motion to answer the request for admissions out of time. Finally, the court granted summary judgment in favor of both Hutting and the Board. Rogers appeals from the decision to grant summary judgment in favor of Hutting (in her individual and official capacities) and the Board. In addition, Hutting and the Board filed a cross-appeal challenging the court's decision to grant Rogers' motion to answer the requests for admissions out of time.
Analysis
A. Rogers' claim of negligence
In order to establish liability for negligence against a defendant, including a governmental agency, the plaintiff must establish: (1) The defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiffs injury; and (4) the plaintiff sustained damages. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220–21, 262 P.3d 336 (2011). Whether a duty exists is a question of law, and our review is unlimited. If a duty exists, breach and causation usually are questions for the factfinder. 293 Kan. at 221. 230.
1. Duty
As a general rule, there is no duty to act for the protection of others. Restatement (Second) of Torts § 314 (1964). The Restatement, however, recognizes two exceptions to this general rule: There is an affirmative duty to aid or protect (1) when a special relationship exists between the actor and the third person and (2) when a special relationship exists between the actor and the other. Restatement (Second) of Torts § 315. The special relationships that qualify under those exceptions are set forth in Restatement (Second) of Torts §§ 314A, 316–319, and 320. Relevant here is the exception set forth in Restatement (Second) of Torts § 314A(4):
“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 [or her] normal opportunities for protection is under a similar duty to the other.”
In the comment section of this provision, the drafters explain that “[t]he duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not liable where he [or she] neither knows nor should know of the unreasonable risk.” Restatement (Second) of Torts § 314A, comment e. Based on this provision of the Restatement and the drafter's comments explaining how it should be applied, our Supreme Court has held that a custodian's duty of reasonable care to protect the health, welfare, and safety of those in custody is triggered when the custodian knows or should have known of an unreasonable risk to the prisoner's safety. Thomas, 293 Kan. at 224.
At the outset, the defendants contend it is improper to apply the duty of care analysis used by our Supreme Court in Thomas to a nonsuicide inmate case such as the one presented here. Instead, the defendants argue the facts of this case must be analyzed under the more general duty of care standard set forth in Estate of Belden v.. Brown County, 46 Kan.App.2d 247, 269–75, 261 P.3d 943 (2011), and Cupples v. State, 18 Kan.App.2d 864, 878–80, 861 P.2d 1360 (1993). Although we appreciate the factual distinction between a custodian's duty to protect an inmate from an unreasonable risk of self-inflicted physical injury and the duty to protect an inmate from an unreasonable risk of physical injury in general, we fail to understand why this distinction is relevant to the duty of care analysis.
The issue in Cupples was whether there was a factual basis upon which various prison officials could be held liable for negligence when the plaintiff was attacked and physically injured by a third-party inmate. The court acknowledged that a prison official owes a duty of reasonable care to safeguard a prisoner from physical injury by a third party. Nevertheless, the court held that a prison official cannot be found to have breached this duty in the absence of facts to establish that the risk of physical injury from that particular third party was known or, in the exercise of ordinary care, should have been known by the official. 18 Kan.App.2d at 877.
In Estate of Belden, the legal issue presented was; whether a custodian has a duty to protect an inmate not just from the risk of physical injury by a third party, but from the risk of self-inflicted physical injury as well. The court ultimately relied on the Restatement (Second) of Torts § 314A to find that such a duty exists. The court noted, however, that like the duty to protect a prisoner from injury by a third party, a prison official can only be found to have breached this duty if there are facts in the record to establish that the custodian knew or should have known there was a risk that the prisoner would inflict physical injury on himself or herself. 46 Kan.App.2d at 272.
Based on our review of the cases, the defendants' attempt to distinguish the legal standard in Thomas necessarily fails. As such, we hold that the duty of a jailer to exercise reasonable care to those in custody is triggered by actual or constructive knowledge of an unreasonable risk that the prisoner will be subjected to physical harm. See Thomas, 293 Kan. at 226. We now turn to the evidence in the record to determine whether the actual or constructive knowledge necessary to trigger the defendants' duty existed here. The question of whether DOC staff knew or should have known that Rogers was subject to unreasonable risk of physical harm is a question of fact. Nevertheless, if Rogers failed in the summary judgment pleadings to allege any material facts upon which a reasonable person could conclude that DOC staff knew or should have known of an unreasonable risk of physical harm, then there is no factual dispute and summary judgment in favor of the defendants is warranted. See Seitz v. Lawrence Bank, 36 Kan.App.2d 283, 288, 138 P.3d 388, rev. denied 282 Kan. 791 (2006).
In both her original petition and her amended petition, Rogers alleged the following facts to support her claim that the defendants had a duty to take reasonable action to protect Rogers against the risk of physical harm:
“Prior to her assignment to an upper cell bunk bed in Module Y, [Rogers] advised one or more male or female Correctional Specialists assigned to her placement that she suffered from a physical condition of diabetes and neuropathy in both her feet which made it impossible for her to safely climb up or down from the upper cell bunk bed. In addition, one or more male or female Correctional Specialists assigned to her restricted placement refused her request to have a mattress on the floor for her to sleep on; and further told [Rogers] that there was no other cell available for her to be assigned a lower cell bunk bed.”
As support in the record for these factual allegations, Rogers cites to the notice of claim attached and specifically incorporated by reference into her amended petition for damages. Because Rogers' signature attesting to the facts asserted in the notice of claim was properly verified by a notary public, Rogers' reliance on the verified notice of claim to oppose the defendants' motion for summary judgment is virtually indistinguishable from reliance on an affidavit as contemplated by the summary judgment statute. See K.S.A.2014 Supp. 60–256(e)(1).
Reviewing the verified facts in a light most favorable to her, Rogers has alleged that the defendants' duty to exercise reasonable care was triggered both “[p]rior to her assignment to an upper cell bunk bed in Module Y” and after “assigned to her restricted placement.” In order to determine whether the defendants' duty to exercise reasonable care under the circumstances was triggered in each of these instances, we necessarily must determine (1) whether the DOC staff member who initially made the bunk assignment knew or should have known that the assignment would subject Rogers to an unreasonable risk of harm and (2) whether the DOC staff member who denied Rogers' request to have a mattress on the floor and her request for a lower bunk knew or should have known that the decision to refuse these requests would subject Rogers to an unreasonable risk of harm. a. The initial bunk assignment
Although it is clear that Officer Hutting was the DOC staff member who denied Rogers' request for a lower bunk or other accommodation, the record is ambiguous on the issue of who actually made the initial decision to assign Rogers to an upper bunk. In Phelps' affidavit, he provided quite a bit of information about cell and bunk assignments and the personnel typically responsible for making those decisions. As the excerpts from his affidavit below reflect, however, he never actually identified the name of the individual who actually assigned Rogers to an upper bunk in this case.
“6.... [T]he Booking officer will ask and log a series of Initial Classification' questions and answers to aid other staff when classifying and housing the inmate.
“7.... The information gathered by Corizon during the screening process is used by Classification staff at the DOC to determine where the inmate will be housed in the facility.
“8. After an inmate has been screened by Corizon staff for medical issues, a booking or classification officer will assign the inmate to a specific module, cell, and bunk. Corrections specialists who work in the modules arc not allowed to alter the module, cell, and/or bunk assignments that have been made for an inmate.
....
“14. Because medical staff had determined that [Rogers] had ‘no physical limitations' or other special issues and could be placed in general population, [Rogers] was assigned to Y Module, a women's module, in cell 1Y4, bed lb. When the assignment was made and because there were no special needs noted by medical staff, the Officer making the assignment would have sought out the next available open general population cell and bed in the computer system. Cell 1Y4 houses two inmates and contains bunk beds. [Rogers] was assigned to bed lb, the top bunk.
....
“17. Work assignments or posts at the DOC have specific duties and responsibilities that are established in ‘Post Orders.’ The Y Module Post Order is nine pages long, and provides details on most aspects of working as a Y Module Officer. The Y Module Post Order specifically provides that the Officer is to, ‘Assign a cell/bunk to each inmate new to the module.’ The Order also specifically states, ‘Assignments shall be based on those made by the booking unit or classification personnel.’ “
Although Phelps stated that it was the Y Module Post Officer who assigned a cell and bunk to each new inmate who arrived at the module, the Y Module Post Order made clear that Y Module Post Officer's decision in this regard shall be based on the assignment made by a DOC staff member in the booking or classification unit. Again, the defendants have not identified the name of the DOC staff member in the booking or classification who made the decision, and we have not discovered this information in our review of the record.
Although they do not acknowledge their failure to identify the DOC staff member who initially assigned Rogers to an upper bunk, it appears from the defendants' argument that they do not believe this failure precludes our ability to determine whether the defendants' duty to exercise reasonable care was triggered. The defendants assert that no DOC staff member should have known that assigning Rogers to an upper bunk would subject Rogers to an unreasonable risk of harm. As factual support for this assertion, the defendants cite to the following undisputed evidence in the record: (1) the Initial Classification Listing paperwork indicated by checkmark that Rogers answered “no” when Officer Vaughn asked her if she had any physical limitations; (2) the Corizon nurse did not attach to the Intake Receiving and Screening paperwork a “Special Needs Communication Form” noting that Rogers was medically restricted to a lower bunk; and (3) the Corizon nurse placed a checkmark next to a box in the Intake Receiving and Screening paperwork indicating she did not visually observe any signs that Rogers had a mobility restriction or the need for a physical aid.
If considered in isolation, the facts cited by the defendants could be construed to support a finding that no DOC staff member knew or should have known that assigning her to an upper bunk would subject Rogers to an unreasonable risk of harm. But on a motion for summary judgment, we are required to consider all of the facts in the record in a light most favorable to the nonmoving party to determine whether there is a dispute in material fact that precludes judgment as a matter of law. Applying this well-established standard for summary judgment here, we consider the facts presented by the defendants alongside the rest of the facts that are supported by the record.
Although Phelps did not identify precisely who made the decision, he stated in his affidavit that the initial assignment would have been made either by a booking officer or a classification officer. Thus, we begin our analysis by reviewing the evidence to see whether a booking or classification officer should have known that Rogers' medical condition was such that assigning her to an upper bunk would have created an unreasonable risk of harm. Phelps' affidavit stated that if an arrestee is to be dressed into the facility, the booking officer will ask and log the arrestee's answers to designated questions on the preprinted Initial Classification Listing form for purposes of classification and housing decisions. In asserting that a booking or classification officer would not have known that assigning Rogers an upper bunk would pose an unreasonable risk of harm, the defendants argue that this Initial Classification Listing form indicated by checkmark that Rogers answered “no” when the booking officer asked her if she had any physical limitations. But the defendants' argument fails to consider all of the other information in the Initial Classification Listing form relevant to Rogers' medical condition and made known to the booking officer for purposes of making classification and housing decisions here:
• Rogers was 62 years old;
• Rogers was under doctor's care;
• Rogers took medication;
• Rogers suffered from emphysema;
• Rogers had diabetes;
• Rogers was allergic to cinnamon;
• Rogers was allergic to multiple medications;
• Rogers had consumed drugs/alcohol in the last 24 hours; and
• Rogers had high blood pressure.
We also note that, in addition to asking the designated questions on the preprinted Initial Classification Listing form, Phelps' affidavit stated that the booking officer may also use the arrest report to assist DOC staff in making classification and housing decisions for a given inmate. To that end, it is undisputed that Rogers told Officer Green she would not be able to perform or attempt to perform the walk-and-turn test and the one-leg stand test because she was diabetic and had severe neuropathy in her legs. It is also undisputed that just prior to being transported from Topeka Police Headquarters to the DOC, Rogers was administered an evidentiary breath test that measured her blood alcohol content at .205. Given the nature of the facts related to Rogers' arrest, we can reasonably infer that Rogers' claim of physical limitation resulting from diabetes and severe neuropathy, as well as documentation reflecting that Rogers' blood alcohol content measured .205 at some point in the 2 hours prior to the booking process, were included in Rogers' arrest report and, in turn, made known to the booking officer for purposes of classification and housing decisions.
The defendants argue that the record does not support our inference that the booking officer reviewed the arrest report and thus knew or had reason to know that Rogers had physical limitations, diabetes, or neuropathy. Specifically, the defendants claim Officer Vaughn would not have had access to the arrest report because the report was not drafted by Officer Green until July 3, 2010, after Rogers' cell and bed assignments were made. But the defendants' reliance on the July 3, 2010, report to support this argument is misplaced. As a preliminary matter, the document dated July 3, 2010, bears the title “Topeka Police Department Supplemental Offense Report.” (Emphasis added.) Moreover, this supplemental report specifically notes that although “J. Green” was the “Reporting Officer,” the report was actually “Typed By” an individual with the initials “JAM.”
In further support of their claim that a booking or classification officer would not have known that assigning Rogers an upper bunk would pose an unreasonable risk of harm, the defendants argue the Intake Receiving and Screening paperwork generated by a Corizon medical provider reflected Rogers did not have any physical limitations that would have prevented her from climbing up and down from an upper bunk. Again, however, the defendants' argument fails to consider all of the other information in this paperwork that would have been made known to the booking or classification officer for purposes of making classification and housing decisions here. Phelps explained in his affidavit that information gathered by Corizon during the screening process was used by classification staff at the DOC to determine where the inmate would be housed in the facility. Inmates with acute medical needs are housed in the medical module. If it is not necessary to house an inmate on the medical module, but an inmate has special needs, Corizon staff will complete a Special Needs Communication Form and send the form with the inmate to the unit where the inmate is to be housed. The form is used when a medical determination has been made that an inmate should have special medical restrictions.
In the “Critical Observation” section of the preprinted Intake Receiving and Screening form, the “yes” boxes were checked indicating that Nurse Aubey visually observed signs that Rogers was alert and oriented as to person, place, and time and the “no” boxes were checked indicating that Aubey did not visually observe any signs that Rogers had a mobility restriction or the need for a physical aid.
Unlike the “Critical Observation” section where Aubey answered the question based on her own observations without input from Rogers, the “History” section of the form listed specific questions by category that were to be asked by Aubey and answered by Rogers. In the allergy category, Aubey documented Rogers' affirmative response to having allergies. In a table set forth in that section for details if the patient answered “yes” to the question, Aubey indicated that Rogers was allergic to codeine, cinnamon, and morphine.
Within the category setting forth the specific questions to be asked and answered about chronic illnesses, Aubey documented Rogers' affirmative response to the following questions posed: Rogers had suffered a stroke in the past, Rogers had suffered from high blood sugar and diabetes for the previous 13 years, and Rogers currently was taking medication for the diabetes condition. Although Officer Vaughn had indicated a few hours earlier that Rogers responded affirmatively when asked about high blood pressure, Aubey indicated that Rogers responded in the negative to that same question. And, although Officer Vaughn had indicated a few hours earlier that Rogers responded to the question about current illnesses by stating that she had emphysema, Aubey indicated that Rogers responded in the negative to that same question. Notably, there was no question on the form asking whether Rogers had neuropathy, whether Rogers had a history of recurring pain, or whether Rogers believed she had any mobility restrictions or physical limitations specifically with respect to bending, climbing, hoisting, etc.
Based on her visual observation of Rogers as having no mobility restrictions and the answers provided by Rogers to the predetermined set of questions set forth in the preprinted Intake Receiving and Screening form, Aubey checked the box for placement in the general population. Aubey also checked the box for routine referral to the chronic care clinic, as well as the boxes next to “Consent for Treatment Signed,” “Access to Care Reviewed,” and “Grievance Process Explained.” In the “Additional Comments” section, Aubey noted that Rogers had a history of diabetes, was taking oral medication for that condition, and was using the drug Lyrica for fibromyalgia. Both Aubey and Rogers signed the Intake Receiving and Screening form on July 3, 2010, at approximately 3:30 a.m.
Notwithstanding all of the information gleaned by Aubey, the defendants contend the lack of a Special Needs Communication Form and the passing observation that Rogers did not appear to have physical restrictions necessarily supports a conclusion that a DOC intake or classification officer would not have had reason to know that an upper bunk assignment would pose an unreasonable risk of physical harm to Rogers. Resolving all facts and inferences that may reasonably be drawn from the evidence in favor of Rogers, however, we are not persuaded by the defendants' argument. First, the placement section of the paperwork at issue here calls for the nurse to put a checkmark next to placement in “medical population” or placement in “general population”; the paperwork does not call for the nurse to designate bunk placement. Moreover, although the defendants are correct in noting the absence of a Special Needs Communication Form indicating that a lower bunk was medically necessary for Rogers, the Intake Receiving and Screening paperwork did not state that Rogers was medically capable of climbing up and down from an upper bunk. In fact, a reasonable inference could be drawn from the information set forth in the Intake Receiving and Screening paperwork that Rogers was not physically capable of accessing an upper bunk. This paperwork reflects that Rogers was taking a variety of medications for different health conditions, that she had suffered a stroke in the past, that she had high blood pressure, that she had diabetes and high blood sugar, and that she had emphysema.
Resolving all facts and inferences that may reasonably be drawn from the evidence in favor of Rogers, a jury could find from this evidence that the booking or classification officer who assigned Rogers to an upper bunk should have known that Rogers' medical condition was such that assigning her to an upper bunk would create an unreasonable risk of harm. For this reason, a jury must resolve the issue of whether the defendants' duty to exercise reasonable care was triggered when initially assigning Rogers to an upper bunk. b. Rogers' requests for accommodation
As noted above, there is no dispute that Officer Hutting was the DOC staff member who denied Rogers' request for a place to sleep that would accommodate her physical restrictions. In their motion for summary judgment, the defendants did not dispute that Rogers told Hutting she suffered from diabetes and neuropathy making it impossible for her to safely climb up or down from the upper cell bunk, that Hutting denied Rogers' request to place a mattress on the floor, or that Hutting denied Rogers' request to be assigned to a cell that had an open lower bunk bed. Instead, the defendants argued that regardless of this knowledge, they took reasonable measures to ensure Rogers' safety under the existing circumstances and thus satisfied their duty to protect her from unreasonable risk of harm. The defendants' argument, however, goes to the reasonableness of the care they exercised to protect Rogers from harm, which is an issue we address only if we find the duty to exercise reasonable care is triggered. Based on the manner in which the defendants have framed their argument, as well as the undisputed fact that Rogers told Hutting she could not safely get in and out of an upper bunk because she suffered from diabetes and neuropathy in both of her feet, we conclude a jury could find that Hutting knew or should have known that keeping Rogers assigned to an upper bunk would create an unreasonable risk of harm.
2. Breach
The issue of breach in a negligence case is rarely amenable to a decision on summary judgment, primarily because the reasonableness of a defendant's conduct is inherently a factual question for the jury. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 230, 262 P.3d 336 (2011).
The defendants argue the fact that they fully complied with DOC policies necessarily establishes that they satisfied their duty to exercise reasonable care to protect Rogers from physical harm. But to accept the defendants' argument requires us to find—as a matter of law—that the policies a custodian puts in place can completely absolve the custodian of liability for negligence. The legal finding proposed by the defendants is too broad and inconsistent with the law in Kansas, which makes clear that a custodian's duty of reasonable care to protect the health, welfare, and safety of those in custody is triggered when the custodian knows or should have known of an unreasonable risk to the prisoner's safety. Thomas, 293 Kan. at 224. Our finding in this regard does not, however, mean that the policies instituted by the DOC to protect the safety of their inmates are immaterial in making a decision on the issue of reasonableness of the defendants' actions. The reasonableness of those policies certainly can, and should, inform a decision on whether an individual's behavior is reasonable. See Estate of Belden, 46 Kan.App.2d at 275; see also K.S.A.2014 Supp. 75–6104(d) (A governmental entity's policies protecting a person's health or safety do not create a legal duty to that person, but the failure to follow such a policy may be considered in determining if the entity has been negligent with regard to an independent legal duty.). Thus, we move on to examine the reasonableness of the defendants' actions in view of the policies instituted by the DOC that are relevant to the circumstances presented here.
In arguing that their actions were reasonable under the circumstances, the defendants begin by citing to DOC policy as stated in the Y Module Post Order, which prohibits a module officer from changing a bunk assignment without authorization from a supervisory employee. But even if true, the fact that Officer Hutting may not have had the authority to reassign Rogers to a lower bunk does not negate the fact that Hutting actually knew that requiring Rogers to climb up and down from an upper bunk posed an unreasonable risk to her safety. To the contrary, a jury could find from the evidence that Hutting breached the duty of reasonable care jail employees owed to Rogers by failing to contact a supervisor for approval to reassign Rogers to a lower bunk or by failing to take some other interim action to abate the risk of physical injury that the upper bunk assignment posed to Rogers.
In addition to her failure to contact a supervisor for approval, a finding that Hutting breached the duty of reasonable care owed to prisoners would be also consistent with DOC policy that not only provided, but required, DOC security staff to refer an inmate to the medical department upon becoming aware that the inmate had special needs or a medical condition that could affect the inmate's housing. See DOC Policy No. IS–E–03. The policy specifically contemplates special needs or conditions that are identified after the initial screening and booking process has been conducted and includes within the definition of special needs an individual who, like Rogers, suffers from a chronic illness and/or a physical disability. Had Hutting complied with this policy and referred Rogers to the medical department upon becoming aware that Rogers could not safely climb up or down from the upper bunk because she suffered from diabetes and neuropathy in both of her feet, a reasonable person could conclude the nurse would have formally issued a medical restriction to a lower bunk.
Next, the defendants argue their actions were reasonable under the circumstances because Rogers could have, but failed to, take advantage of DOC policies providing her the opportunity to seek relief. Specifically, the defendants claim that when Rogers learned from Hutting that she had been assigned to an upper bunk, Rogers could have, but failed to, submit an “Inmate Request to Staff Form” form or a “Medical Request” form to inform staff that she suffered from a medical condition that would make it impossible for her to climb up to or get down from the top bunk bed. But the defendants readily concede that Rogers did, indeed, submit a request to staff (Officer Hutting) for accommodation based on a medical condition that would make it impossible for her to safely climb up and down from the top bunk and that this request was denied. Although the request was verbal and not written down on the Inmate Request to Staff Form, this distinction makes no difference here, where the purpose of the policy is to apprise the defendants of circumstances that may create a risk of physical injury to an inmate. And with regard to the defendants' assertion that Rogers failed to take advantage of the DOC policy giving her an opportunity to seek relief by submitting a Medical Request form, we note neither that policy nor any other identified by the defendants provide the inmate with an opportunity to seek immediate relief when that inmate believes he or she is faced with an imminent risk of physical harm that requires immediate attention, like the circumstances presented here.
Resolving all facts and inferences that may reasonably be drawn from the evidence in favor of Rogers, a jury could find from the evidence that the defendants breached the duty of care jail employees owed Rogers. As such, the issue of breach is not amenable to summary judgment.
3. Causation
Next, the defendants argue that Rogers cannot recover against them for negligence because her injuries were caused as a direct result of her own conduct. More specifically, the defendants allege that regardless of any act or failure to act by a DOC staff member, the proximate cause of Rogers' injuries were (1) her failure to report the first fall to DOC security staff and (2) her failure to report the first fall to DOC medical staff even though she was sent to the medical module to have her blood sugar checked due to her diabetes. We construe the defendants' argument to be asserting comparative negligence. Under the Kansas comparative negligence statute, Rogers cannot recover against the defendants for negligence if she is found to be 50 percent or more at fault for her injuries. See K.S.A.2014 Supp. 60–258a(a); Martell v. Driscoll, 297 Kan. 524, 535, 302 P.3d 375 (2013). Although determining the amount of comparative fault attributable to negligent parties is generally a question of fact in Kansas, “there is an exception to treating comparative fault as a fact question.” 297 Kan. at 540. Where “ “ ‘the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court's determination.” ‘ “ 297 Kan. at 540.
But reasonable persons considering the undisputed facts in this case could very well draw differing inferences and arrive at opposing conclusions with regard to whether Rogers' failure to report her first fall to DOC security and medical staff caused her to be 50 percent or more at fault for her injuries. Accordingly, the issue of the parties' comparative fault remains a fact issue that cannot be resolved as a matter of law on a motion for summary judgment. See 297 Kan. at 540–41. B. Discretionary function immunity
Although we have determined that there are disputed issues of material fact precluding summary judgment on the issues of whether the defendants' duty was triggered, whether the defendants breached that duty, and whether the doctrine of comparative negligence precludes recovery, the defendants argue in their cross-appeal that they are nonetheless entitled to summary judgment because they are immune from suit under the discretionary function exception to liability set forth in the KTCA.
The KTCA provides:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A.2014 Supp. 75–6103(a).
Under the KTCA, liability is the rule and immunity from liability is the exception. The defendants bear the burden of demonstrating entitlement to immunity under an exception. Thomas, 293 Kan. at 233.
In this case, the defendants originally claimed immunity under two different KTCA exceptions, the discretionary function exception of K.S.A.2014 Supp. 75–6104(e) and the police and fire protection exception of K.S.A.2014 Supp. 75–6104(n). On appeal, however, they have abandoned the argument claiming application of the police and fire protection exception. See State v. Gomez, 290 Kan. 858, 866, 235 P.3d 1203 (2010) (argument not raised or supported by pertinent authority abandoned). We therefore turn to their claim of immunity under the discretionary function exception. This statutory exception provides:
“A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
...
“(e) 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).
In the argument they presented to the district court on summary judgment, the defendants generally asserted that they were entitled to immunity for
“the various decisions that were made by staff at the DOC before [Rogers'] fall. Both DOC and Corizon medical staff attempted to determine whether [Rogers] had any special needs or limitations that would affect her placement in the DOC. [Rogers] twice reported no limitations or restrictions. There is no evidence that DOC staff violated any applicable policies. In fact, Officer Hutting correctly followed her Y Module Post Orders which require that cell and bunk assignments can only be changed by supervisory staff.... Upon arriving at her cell, [Rogers] had numerous options available to her for seeking a change in her bunk, but she refused to seek out that change because she did not want to ‘make trouble.’ All claims of negligence based upon the discretion decisions of DOC staff should be dismissed pursuant to K.S.A.2012 [Supp.] 75–6104(e).”
The district court ultimately determined that the defendants failed to satisfy their burden to demonstrate they were entitled to immunity under the discretionary function exception. Specifically, the district court found the defendants failed to designate which specific decisions made by DOC staff were discretionary for purposes of the KTCA exception. After making this finding, the district court noted that Officer Hutting seemingly complied with the Y Module Post Order, which we construe as dicta by the district court that Hutting's decision in this regard was ministerial and thus not subject to immunity. But as the district court thereafter found, the issue of discretionary immunity ultimately was rendered moot based on the court's finding that Rogers failed to provide sufficient evidence to present the issue of negligence to a jury.
On appeal, the argument asserted by the defendants on the issue of discretionary immunity is less than clear. At first blush, the defendants appear to clarify that the specific act they believe to be subject to the discretionary exception of the KTCA is Hutting's decision to follow policy by refusing to change Rogers' upper bunk assignment without approval by supervisory personnel. But after making that clarification, the defendants readily acknowledge that Hutting's decision to refuse Rogers' request for a new bunk assignment was based on the Y Module Post Order that prohibited her from doing so without approval by supervisory personnel; thus, Hutting's decision in this regard is not subject to immunity from liability under the discretionary function exception of the KTCA. Given the concession that Hutting's decision to refuse Rogers' request for a bottom bunk assignment is not protected from liability based on the discretionary immunity, the defendants then argue that the specific act they believe to be subject to the discretionary exception of the KTCA is promulgation of the Y Module Post Order prohibiting module officers from changing bunk assignments without approval by supervisory personnel. But Rogers does not claim the defendants negligently promulgated the Y Module Post Order prohibiting module officers from changing bunk assignment without approval by supervisory personnel.
Simply put, the defendants have failed to demonstrate that they are entitled to immunity under the discretionary function exception to liability for any of “the various decisions that were made by staff at the DOC before [Rogers'] fall.” C. Requests for admissions
As the second issue in their cross-appeal, the defendants argue the district court erred in granting Rogers' motion to answer their requests for admissions out of time. Rogers replies that the district court did not abuse its discretion in granting her motion because the untimely responses did not prejudice the defendants and because the verified notice of claim letter attached to her original and amended petitions sufficiently provided the defendants with the factual basis upon which her claims of negligence were based.
This court reviews for abuse of discretion a district court's decision to extend the time to respond to requests for admissions. See Yunghans v. O'Toole, 224 Kan. 553, 554, 581 P.2d 393 (1978); Underbill v. Thompson, 37 Kan.App.2d 870, 879, 158 P.3d 987, rev. denied 285 Kan. 1177 (2007). “A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. [Citation omitted.]” Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013).
K.S.A.2014 Supp. 60–236 governs requests for admissions and allows a defendant to serve a plaintiff with written requests to admit the truth of certain matters for purposes of the pending action. See K.S.A.2014 Supp. 60–236(a)(1). The statute provides that unless the party to whom the request is directed serves a written answer or objection to the matter within a set period of time, the matter is deemed admitted. See K.S.A.2014 Supp. 60–236(a)(3). Subject to an exception for final pretrial orders, however, the statute also provides that the court, on motion, may permit “the admission to be withdrawn or amended ... if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.” K.S.A.2014 Supp. 60–236(b).
Here, the district court took note that the defendants repeatedly requested Rogers to answer the admissions served and that, despite ample time to respond, Rogers failed to do so in a timely manner. Nevertheless, the court also noted that it had broad discretion to determine the reasonableness of an extension of time to answer requests for admissions. Using this discretion, the court decided to “grant the motion, and include for consideration, the admissions made in [Rogers'] response.”
In alleging the district court abused its discretion, the defendants claim the failure to provide timely answers prejudiced them because Rogers failed to provide a factual basis in her pleadings to support her claims of negligence against the individual defendants and Shawnee County; thus, the defendants could not tell what alleged acts or omissions by each defendant formed the basis for Rogers' claims of negligence. The defendants' frustrations are understandable; the discovery process appears to have been difficult, and Rogers' failure to timely respond to the requests likely made crafting a defense to the claims more difficult. But the defendants' claim that Rogers “failed and/or refused to provide any evidence supporting the claims of negligence against any of the individual Defendants or [Shawnee] County” appears to exaggerate the truth.
While there may not have been many facts in Rogers' petition to support the claims that she ultimately abandoned in her response to the defendants' motion for summary judgment, the verified notice of claim attached and incorporated by reference to the petition and the amended petition makes clear that she advised DOC staff, both before and after DOC staff assigned her to an upper bunk, that “she had a physical condition of diabetes and neuropathy in both of her feet which made it impossible for her to safely to [sic] climb up to the upper bunk bed or down from the upper bunk bed.” In her verified notice of claim attached to the petition and amended petition, Rogers also avers that, in addition to advising DOC staff about her various medical conditions and the impact those medical conditions had on her mobility, one or more correctional officers assigned to her restricted placement denied her request to place a mattress on the floor to sleep on and told her that there was “no other cell available for her to be assigned a lower cell bunk bed.”
In sum, the defendants have failed to demonstrate: that the district court's decision to grant Rogers' motion to answer the defendants' requests for admissions out of time was arbitrary, fanciful, unreasonable, based on an error of law, or based on an error of fact. Accordingly, we find no abuse of discretion.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.