Lovitt v. Board of Shawnee County Comm'rs

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No. 101,159

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

AMY LOVITT, on behalf of and as next friend of
CASON "CASEY" BAHR, a minor child,
Appellants,

v.

BOARD OF COUNTY COMMISSIONERS
OF SHAWNEE COUNTY, KANSAS,
Appellee.

SYLLABUS BY THE COURT

1.
An appellate court stands in the shoes of the district court and examines a
summary judgment motion de novo using the same standards that apply to the district
court's consideration of such matters.

2.
The public duty doctrine provides that absent a special duty to the injured party, a
governmental agency and its agents owe a duty to the public at large but not to an
individual. Circumstances creating exceptions to this doctrine are enumerated in Potts v.
Board of Leavenworth County Comm'rs, 39 Kan. App. 2d 71, 81, 176 P.3d 988 (2008).

2
One such exception is when the government, through its agent, makes a specific
representation upon which the injured person is entitled to rely.

3.
In promoting 911 as its emergency response system, a governmental
agency's representation to the public at large that it will send help in response to a
911 call does not impose on the governmental agency a special duty to an
individual member of the public so as to avoid application of the public duty
doctrine.

4.
The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., imposes tort liability "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. 2008 Supp. 75-6103(a). The discretionary function exception found in K.S.A.
2008 Supp. 75-6104(e) is an exception to liability under the Act.


5.
For a defendant to successfully assert the discretionary function exception in a

3
motion for summary judgment, the movant must adhere to the protocol established in
K.S.A. 60-256 and Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225). Thus, the
fact and extent of a government employee's discretion must be set forth in separately
numbered paragraphs as uncontroverted contentions of fact with precise references to
where in the record they can be found as required by Rule 141(a). This rule is not mere
fluff; it serves a necessary purpose, and it means what it says.

6.
Under Kansas law a plaintiff claiming damages for the negligent infliction of
emotional distress must demonstrate a physical injury or a physical impact which causes
an actual injury.

7.
The tort of outrage is also known as intentional infliction of emotional distress.
Unlike in claims of negligent infliction of emotional distress, bodily harm is not a
prerequisite. To establish the tort of outrage, a plaintiff must prove that the defendant
committed intentional or reckless conduct which was so extreme and outrageous as to be
regarded as utterly atrocious or intolerable in a civilized society and which caused the
plaintiff extreme and severe mental distress.

8.

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Before submitting a claim of outrage to a jury, the district court must make a
threshold determination that the defendant's conduct may be regarded as sufficiently
extreme and outrageous to permit recovery under the law and that the plaintiff's mental
distress was of such a nature that no reasonable person should have been expected to
endure it under the circumstances.

Appeal from Shawnee District Court, DAVID E. BRUNS, judge. Opinion filed
December 18, 2009. Affirmed.

Pantaleon Florez, Jr., and Wayne French, of Topeka, for appellants.

Jonathan C. Brzon, assistant county counselor, for appellee.

Before GREENE, P.J., McANANY, J., and LARSON, S.J.

McANANY J.: In this appeal we consider whether plaintiff's claims for negligent
and intentional infliction of emotional distress by a Shawnee County 911 operator can
withstand a motion for summary judgment so as to permit plaintiff to proceed to trial.

The plaintiff is Amy Lovitt, mother and next friend of 13-year-old Cason Bahr.
She brings this action on Bahr's behalf. Bahr was riding in his mother's automobile when

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ort
she suffered a seizure, causing her car to leave the road and strike a street sign. Bahr
called 911, seeking emergency assistance. The 911 dispatcher told Bahr she did not
believe him and stated, "That is the worst fake cry I've ever heard." The dispatcher then
asked, "Do you know what you're doing? 'Cause it's a crime . . . filing a false report is a
crime." The dispatcher hung up without sending assistance. The call lasted less than a
minute. Shortly thereafter, Bahr flagged down a passerby, who called 911. This second
911 call was made about 30 seconds after the first call ended. This time a dispatcher sent
help for Lovitt.

Lovitt commenced this action against the Board of County Commissioners of
Shawnee County (County) based upon theories of outrageous conduct and negligent
infliction of emotional distress. She claims damages for Bahr's mental and emotional
injuries and distress, including "symptoms of both Post Traumatic Stress Disorder and
also Adjustment Disorder with Anxious Mood." Bahr suffered no physical injury from
the incident.

In its case management order, the district court set a deadline for plaintiff to
disclose her expert witnesses and for the parties to complete discovery. The deadlines
expired without any expert witness disclosure by plaintiff. After the close of discovery,
the County moved for summary judgment on five alternative grounds: (1) the public
duty doctrine; (2) immunity under the discretionary function exception to the Kansas T

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Claims Act, K.S.A. 2008 Supp. 75-6104(e); (3) lack of evidence of damages or that any
claimed damages were proximately caused by the dispatcher's conduct; (4) no actionable
claim for intentional infliction of emotional distress; and (5) no physical injury to support
a claim for negligent infliction of emotional distress.

In her response to the County's motion, Lovitt set forth a statement of additional
claimed uncontroverted facts regarding the nature of, extent of, and treatment for Bahr's
mental and emotional state. In support, Lovitt attached her affidavit in which she
recounted the diagnosis made by Jeri Stonestreet, LSCSW, to whom Lovitt took Bahr for
a diagnosis. According to Lovitt, Stonestreet "related" Bahr's symptoms to the incident
involving the 911 dispatcher.

The district court entered summary judgment in favor of the County on three
alternative grounds: (1) the public duty doctrine, (2) immunity under the discretionary
function exception to the Kansas Tort Claims Act, and (3) the lack of admissible evidence
of causation. The court found that plaintiff had either abandoned her claim for negligent
infliction of emotional distress or chose not to vigorously pursue it because Bahr suffered
no physical injury in the incident.

Lovitt appeals, claiming error by the district court: (1) in applying the public duty
doctrine, (2) in applying the discretionary function exception, (3) in holding that plaintiff

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tled to
7).
abandoned the claim for negligent infliction of emotional distress, and (4) in granting
summary judgment on plaintiff's claim of outrage.

We need not recount the standards for the district court's consideration of a motion
for summary judgment. They are well known to the parties and can be found in U.S.D.
No. 232 v. CWD Investments, 288 Kan. 536, 555, 205 P.3d 1245 (2009), and Miller v.
Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). On appeal, we stand in the
shoes of the district court and examine the County's summary judgment motion de novo
using the same standards that apply to the district court's consideration of such matters.
See Roe v. Kansas Dept. of SRS, 278 Kan. 584, 591, 102 P.3d 396 (2004).

Public Duty Doctrine

The issue regarding the public duty doctrine centers on the question of whether the
County owed a duty to Bahr when he made his 911 call for assistance. Lovitt's tort
claims are predicated upon the County having breached a duty. The County is enti
summary judgment on these claims if Lovitt cannot establish the existence of a duty. See
Dozier v. Dozier, 252 Kan. 1035, 1041, 850 P.2d 789 (1993). Whether the County,
through its 911 dispatcher, had a legal duty to Bahr presents a question of law appropriate
for resolution by means of a motion for summary judgment. See Roe, 278 Kan. at
591-95; Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (200

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en:

The public duty doctrine provides that absent a special duty to the injured party, a
governmental agency and its agents owe a duty to the public at large but not to an
individual. Potts v. Board of Leavenworth County Comm'rs, 39 Kan. App. 2d 71, 81,
176 P.3d 988 (2008). A special duty to the injured party may arise wh

"(1) a special relationship existed between the governmental agency and the
wrongdoer (i.e., the wrongdoer was in the State's custody or care); (2) a
special relationship existed between the governmental agency and the
injured person (i.e., the injured person was in the State's custody or care); or
(3) the government agency performed an affirmative act that caused injury
or made a specific promise or representation that under the circumstances
created a justifiable reliance on the part of the person injured. [Citation
omitted.]" 39 Kan. App. 2d at 81.

Lovitt has not alleged the existence of any special relationship to establish an
exception to the doctrine and has alleged no promises by the dispatcher. The undisputed
evidence establishes that the dispatcher made no affirmative promise to Bahr that she
would send help. To the contrary, the dispatcher made it clear that she would not send
help for Bahr's mother.

However, Lovitt argues, for the first time on appeal, that a special duty arose by
reason of the County's affirmative representations, in promoting 911 as its emergency

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response system, that it would send help in response to a 911 call.

The County argues that Lovitt cannot raise this argument on appeal because it was
never presented to the trial court. The County's argument ignores our de novo review of
the County's summary judgment motion. Whether the public duty doctrine applies was
raised and argued before the district court. In these de novo proceedings, we examine
anew whether there remain genuine issues of material fact requiring a trial and, if not,
whether the movant is entitled to judgment as a matter of law. This appeal provides the
parties with the opportunity to raise new arguments insofar as they are confined to the
factual record and to the issues addressed in the motion. Accordingly, we will consider
this argument which arises from an issue raised in the motion. See South v. McCarter,
280 Kan. 85, 94-95, 119 P.3d 1 (2005).


In the brief supporting its summary judgment motion, the County argued that no
special relationship existed to bar application of the public duty doctrine. It also argued
that "the Plaintiff cannot prove that he was entitled to specific protection due to his
justifiable reliance on promises or representations of law enforcement officers." In
response to the motion, Lovitt addressed the public duty doctrine but failed to direct the
court to any fact in the record relating to any detrimental reliance by Bahr, a necessary
fact to create an exception to the doctrine. While Lovitt set forth additional claimed

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uncontroverted facts in her brief opposing the motion, none of those additional facts
relates to any claimed detrimental reliance.

Once the County sought refuge in the public duty doctrine, it was incumbent upon
Lovitt to direct the court to facts in the record which support the application of an
exception to the doctrine if she contends the exception applied. See Hurlbut v. Conoco,
Inc., 253 Kan. 515, 520, 856 P.2d 1313 (1993). Lovitt argued against application of the
doctrine, but she did not assert facts which would create an exception to it.

Further, though this issue has not been directly addressed previously in Kansas,
Lovitt's argument against application of the public duty doctrine has been rejected by
courts in other states under their own versions of the doctrine.

In Cummins v. Lewis County, 124 Wash. App. 247, 98 P.3d 822 (2004), aff'd 156
Wash. 2d 844, 133 P.3d 458 (2006), a wrongful death action based upon failure to
respond to a 911 call, the Washington Court of Appeals and then the Washington
Supreme Court affirmed the entry of summary judgment against plaintiff based on her
failure to demonstrate the existence of facts to support application of the special
relationship exception to the public duty doctrine. The Supreme Court declared that a
special relationship arises when "'"(1) there is a direct contact or privity between the
public official and the injured plaintiff which sets the latter apart from the general public,

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and (2) there are express assurances given by a public official, which (3) gives rise to
justifiable reliance on the part of the plaintiff."' [Citations omitted.]" 156 Wash. 2d at
854. "Express assurance" means "an affirmative promise or agreement to provide
assistance." 156 Wash. 2d at 855. The Washington Court of Appeals, affirmed by the
Washington Supreme Court, observed:

"Cummins argues that the special relationship exception's second
element, requiring express assurance from a public official, is satisfied
'hundreds of times by government entities on a daily basis' that describe the
911 system through yellow pages, billboards, and radio and TV public
service announcements. . . . This overbroad argument fails to cite to the
record, contradicts the public duty doctrine's central requirement that
liability not attach to a government entity's duty to the public at large, and
conflicts with all four of the doctrine's exceptions that require a reasonable
degree of specificity." Cummins, 124 Wash. App. at 254-55.

Similarly, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372
(2002), the court found that the duty of the 911 dispatcher was to the public at large and
not to a specific individual:

"By its terms, [Maryland's] statutory scheme [requiring all counties to
operate an enhanced 911 system] does not create an emergency system to
benefit a discrete group of persons. Rather, in providing for such broad
services, it recognizes that, at different times, any and all citizens of, or

12

visitors in, Maryland may find it necessary to utilize that system for
innumerable purposes. In our view, acting to protect or assist a 'specific
group of individuals,' sufficient to create a special relationship, involves
more than general actions taken to serve members of the public at large in
need of emergency telephone services." 370 Md. at 499.

The public duty doctrine was also found not to apply under District of Columbia
law in Wanzer v. District of Columbia, 580 A.2d 127, 132 (D.C. 1990), a similar action
for failure to respond to a 911 call.

Lovitt's argument, unsupported in the record, that the County made representations
to the public through widespread advertising of the 911 system is directed to the notion of
a duty to the public at large rather than a duty to specific individuals.

Finally, Lovitt's claim of detrimental reliance is not based on any claimed
representations by the 911 dispatcher. The 911 dispatcher's response to Bahr's call was
that no help would be forthcoming. Bahr did not detrimentally rely on this message. He
sought out someone else to make a 911 call for him. When that happened, help was
forthcoming. Thus, independent of Lovitt's failure to show a "special relationship" to
invoke an exception to the public duty doctrine, she fails to present facts to establish a
triable issue on the element of detrimental reliance.


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In Cuffy v. City of New York, 69 N.Y.2d 255, 260, 505 N.E.2d 937 (1987), a case
involving a claim that the police failed to provide promised protection, the court
considered the application of the special duty exception to the general rule that "a
municipality may not be held liable for injuries resulting from a simple failure to provide
police protection." The court concluded that "when the reliance element is either not
present at all or, if present, is not causally related to the ultimate harm, this underlying
concern is inapplicable, and the invocation of the 'special duty' exception is then no
longer justified." 69 N.Y.2d at 261.

Our de novo review of the County's motion satisfies us that there is no genuine
issue of material fact with respect to application of the public duty doctrine which bars
Lovitt's claims, and the County is entitled to judgment as a matter of law. The district
court did not err in so ruling.

Discretionary Function

Lovitt's claims are subject to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.,
which, with certain exceptions, imposes tort liability "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. 2008 Supp.

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75-6103(a).

The district court found that the discretionary function exception in K.S.A. 2008
Supp. 75-6104(e) applied to insulate the County from liability for Bahr's claimed
damages. That statute 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. 2008 Supp.
75-6104(e).

Our Supreme Court has held that "the proper test for applying the discretionary
function exception look[s] to the nature and quality of the discretion exercised. Under
this test, the court focuses on whether the act in question is one the legislature intended to
shield from liability." McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627,
645-46, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).


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ere
Without any factual basis in the record, the County argues that its 911 operators
exercise discretion when dispatching officers and ambulances. It claims, again without
authority in the record, that its dispatchers' duties include distinguishing between
legitimate and prank calls.

It seems reasonable that the County should authorize its 911 dispatchers to
exercise a degree of discretion in the handling of 911 calls. We do not know the actual
nature and extent of that discretion. The County would have us conclude that since the
exercise of discretion is reasonable, it is a fact.

K.S.A. 60-256 and Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225) set
forth a detailed protocol for proceedings on motions for summary judgment. If the fact
that 911 dispatchers exercise discretion is a fact the County wishes to rely upon in support
of its motion, that fact must be addressed in the manner described in Rule 141(a). It
must be set forth in a separately numbered paragraph as an uncontroverted contention of
fact with a precise reference to where in the record it can be found. This rule is not m
"fluff"; it serves a necessary purpose, and it means what it says. See McCullough v.
Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984).

The County has failed to comply with Rule 141 in this regard. Consequently, the
factual predicate for the County's argument, that the discretionary function exception

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applies, is not available given the present state of the record. Based on the record
presently before us, the County has failed to demonstrate that it is entitled to judgment as
a matter of law on the discretionary function exception to tort liability under the Kansas
Tort Claims Act, K.S.A. 2008 Supp. 75-6104(e).

Negligent Infliction of Emotional Distress

The County argued to the district court that Lovitt may not proceed on Bahr's
claim for negligent infliction of emotional distress because he suffered no physical injury
in the incident. The district court observed that

"from a review of the Response to the Defendant's Motion for Summary
Judgment, it appears that the Plaintiff abandoned (or at least decided not to
vigorously pursue) any negligence claim in this case because of the lack of
any physical injury."

Ware v. ANW Special Educational Coop. No. 603, 39 Kan. App. 2d 397, 401, 180
P.3d 610 (2008), presents an extensive and recent discussion of the issue which we need
not recount here. The current state of Kansas law is that a plaintiff claiming damages for
the negligent infliction of emotional distress must demonstrate a physical injury or a
physical impact which causes an actual injury. See Grube v. Union Pacific R.R. Co., 256
Kan. 519, 522, 886 P.2d 845 (1994).

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In paragraphs 10 and 11 of its statement of uncontroverted facts, the County
asserts that plaintiff does not allege any physical injury as a result of this incident. Lovitt
concedes that this statement is true. Thus, there is no genuine issue of material fact that
impedes granting the County judgment as a matter of law on plaintiff's claim of negligent
infliction of emotional distress.


Outrage

The tort of outrage is also known as intentional infliction of emotional distress.
Hallam v. Mercy Health Center of Manhattan, Inc., 278 Kan. 339, 340, 97 P.3d 492
(2004). To establish the tort of outrage, a plaintiff must present evidence which
establishes that the defendant committed intentional or reckless conduct which was so
extreme and outrageous as to be regarded as utterly atrocious or intolerable in a civilized
society and which caused the plaintiff extreme and severe mental distress. See Miller v.
Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999);
Smith v. Welch, 265 Kan. 868, 876, 967 P.2d 727 (1998); PIK Civ. 4th 127.70.

Before submitting a claim of outrage to a jury, the district court must make a
threshold determination that (1) the defendant's conduct may be regarded as sufficiently

18
extreme and outrageous to permit recovery under the law and that (2) the plaintiff's
mental distress was of such a nature that no reasonable person should have been expected
to endure it under the circumstances. See Smith, 265 Kan. at 876.

Here, the district court concluded that Lovitt failed to meet the threshold
requirements necessary to submit Bahr’s outrage claim to the jury. The district court
stated:

"Although the 911 dispatcher in the present case clearly made a
mistake when viewed in 20-20 hindsight, and her response could be viewed
by a reasonable person to have been unprofessional, the record does not
reflect that the conduct was 'so extreme and outrageous as to permit
recovery.' Likewise, the Court does not find sufficient evidence in the
record to establish that the 911 dispatcher caused emotional distress which
was [']so severe and extreme that no reasonable person should be expected
to endure it.'"

Unlike in claims of negligent infliction of emotional distress, bodily harm is not a
prerequisite to a claim of intentional infliction of emotional distress. See Roberts v.
Saylor, 230 Kan. 289, 292, 637 P.2d 1175 (1981). However, plaintiff must establish
evidence of mental distress which is extreme and severe and causally connected to the
defendant's outrageous conduct. As noted earlier, Bahr's 911 call took about a minute
and was followed by a second 911 call about 30 seconds later which brought help to

19
other.
y
tatements.
Bahr's m

The only evidence of extreme and severe mental distress came from Lovitt's
hearsay affidavit in which she reported that (1) she observed after this incident that her
son was "extremely anxious and watchful of anyone with whom he would ride"; (2) as a
result, she took him to a social worker for an evaluation; (3) the social worker opined that
Bahr suffered from, "posttraumatic stress disorder symptoms and adjustment disorder
with anxious mood," which the social worker related to the 911 incident; and (4) since the
social worker's evaluation, Bahr has continued to exhibit these symptoms.

The district court correctly found that "posttraumatic stress disorder symptoms and
adjustment disorder with anxious mood" are not conditions which would be apparent to
the average lay person. Accordingly, expert testimony would be necessary to establish
the existence of these conditions in Bahr and to determine their cause. See Singh v.
Krueger, 39 Kan. App. 2d 637, Syl. & 2, 183 P.3d 1, rev. denied 286 Kan. 1180 (2008).
In the course of discovery, Lovitt failed to identify an expert to address these issues.
Instead, she attempted to introduce into the record the social worker's opinion through her
own affidavit. The district court, on the County's motion, struck these hearsay
statements in Lovitt's affidavit. Lovitt does not challenge the district court's hearsa
ruling on appeal. In any event, applying the de novo standard of review, we concur with
the district court's action in striking the hearsay s

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ion.

With no testimony from the social worker, assuming for the moment that the social
worker would have been competent to render an opinion on these matters, Lovitt is left
with no evidence of her son's emotional distress and no evidence of causation other than
her own observations in her affidavit that Bahr has been extremely anxious and watchful
after this incident. Such evidence does not satisfy the threshold of extreme and severe
mental distress of such a nature that no reasonable person should have been expected to
endure it under the circumstances. See Smith, 265 Kan. at 876. Further, Lovitt's post
hoc, propter hoc observations do not establish causat

We conclude from our independent examination that there remains no genuine
issue of material fact on Lovitt's claim on behalf of her son for intentional infliction of
emotional distress, and the County is entitled to judgment as a matter of law on this claim.

Affirmed.