GLORIA BEYERS, ) Plaintiff,) ) vs. ) Case No. 99C 1804 ) STATE OF KANSAS, ) KANSAS NEUROLOGICAL INSTITUTE, ) Defendants.) _______________________________)
The above captioned matter comes before the court on Defendants=, State of Kansas and Kansas Neurological Institute (KNI), motion for summary judgment which was filed on March 20, 2001. Plaintiffs filed their response on May 14, 2001 and defendants filed a reply on May 24, 2001. The motion is now ready for ruling. After careful consideration, this court grants defendants= motion for summary judgment.
Sandra Byers is a nonverbal, wheelchair bound individual who has been a resident of Kansas Neurological Institute since 1971. KNI is a residential treatment/care facility operated by the State of Kansas, Department of Social and Rehabilitation Services, which cares for the neurologically impaired. On March 26, 1998, while Sandra Byers was on an outing to Lake Shawnee in a KNI van with Peter M. Furst and Susan Langr-Fredrickson, (both employees of KNI at the time) an incident occurred which subsequently resulted in Gloria Byers, the natural mother of Sandra Byers, filing the instant lawsuit individually and for and on behalf of Sandra Byers. Ms. Byers brought suit against the State of Kansas and Kansas Neurological Institute on a claim of negligent employment, retention, and supervision and outrageous conduct, claiming that plaintiffs have been damaged both emotionally and physically.
The standards for summary judgment were set out in Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 955 P.2d 1189 (1998):
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. A defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiff=s case. [citations omitted].
When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. [citations omitted]. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.
To have evidentiary value, the particular document or testimony relied upon by the party opposing summary judgment must be probative of that party=s position on a material issue of fact. [citation omitted]. Probative evidence is that which Afurnishes, establishes or contributes toward proof.@ Akins v. Estate of Hill, 201 Kan. 306, 311, 440 P.2d 585 (1968).
Saliba, 264 Kan. at 131.
"The burden on the party seeking summary judgment is a strict one." Sharples v. Roberts, 249 Kan. 286, 291, 816 P.2d 390 (1991). The trial court is "required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought." Gregory v. Carey, 246 Kan. 504, 509-10, 791 P.2d 1329 (1990). Summary judgment is inappropriate where general factual issues exist that can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The plaintiff is not required to prove his case in order to defeat a summary judgment motion. Sharples, 249 Kan. at 291.
1. KNI is a residential treatment/care facility operated by the State of Kansas, Department of Social and Rehabilitation Services, which cares for the neurologically impaired.
2. Peter Furst was an employee of KNI from 1991 to 1998.
3. Susan Langr-Fredrickson was an employee of KNI from 1994 to 1998.
4. On March 26, 1998, Langr-Fredrickson and Furst accompanied two patients from KNI (one of whom was Sandra Byers) on an outing to Lake Shawnee to watch the ducks.
5. The transportation utilized for this outing was a KNI van.
6. During the course of this Lake (sic) outing Furst and Langr-Fredrickson stopped so the two patients could look at the ducks and birds.
7. While stopped at the Lake (sic), there was contact between Furst and Langr-Fredrickson which Furst describes as a Apassionate kiss@ wherein Langr-Fredrickson Agrabbed my groin area,@ and Langr-Fredrickson describes as a Ahug just like I would give anybody that I=m saying good-bye to.@
8. According to both Furst and Langr-Fredrickson, the result of this contact was Furst became sexually aroused.
9. After the contact and before returning to KNI, Furst and Langr-Fredrickson stopped at Long John Silver=s because Langr-Fredrickson was hungry and wanted to get something to eat.
10. While the van was stopped at Long John Silvers, Langr-Fredrickson went inside for a few minutes to get her food.
11. While Langr-Fredrickson was inside the restaurant, Furst experienced what he called a Arelease@ of semen in his sweat pants.
12. In an attempt to clean up this Arelease@ of semen, Furst cleaned out his pants on Langr-Fredrickson=s lift belt which was in the van.
13. After First cleaned his pants out with the belt, he wiped the belt on the floor of the van.
14. While parked at Long John Silvers= parking lot, the only people in the van were Furst, Sandra Byers, and the other KNI patient who was on the outing.
15. Furst never touched Sandra Byers with his penis on March 26, 1998.
16. Furst never touched Sandra Byers in any lewd or lascivious way on March 26, 1998.
17. Furst stated Sandra Byers could not have seen what he was doing in the van on March 16, 1998.
18. No evidence was found on Sandra Byers to indicate contact between Furst and Byers.
19. Furst did not even know what Sandra Byers was doing when he was cleaning out his pants.
20. Sandra Byers is a nonverbal, wheelchair bound individual who has been a resident of KNI since 1971.
21. Neither Sandra Byers nor the other KNI patient on the outing are able to communicate what happened on March 26, 1998.
22. Gloria Byers was not present during the incident on March 26, 1998.
23. Susan Langr-Fredrickson was not present during the incident in the van at Long John Silvers on March 26, 1998.
24. Gloria Byers has no personal knowledge about what happened in the KNI van on March 26, 1998.
25. Gloria Byers first became aware of the March 26th incident when she received a letter from KNI on April 3, 1998.
26. Gloria Byers stated she was angry, hurt and offended over the March 26, 1998 incident after she learned of it.
27. Gloria Byers is not aware of any facts which show Peter Furst performed a sexual battery on Sandra Byers.
28. Gloria Byers is not aware of any facts which show that Peter Furst touched Sandra Byers inappropriately on March 26, 1998.
29. Gloria Byers did not suspect Peter Furst would have done anything like he was accused of doing.
30. Peter Furst had never been accused of or investigated for any sexually inappropriate behavior, nor had he ever been arrested for any crime prior to March 26, 1998.
31. Peter Furst had received Asatisfactory@ ratings in his evaluations prior to the incident of March 26, 1998.
32. KNI trains its employees for dealing with mentally disabled persons after they are hired. Peter Furst received this training.
33. Sandra Byers was not affected or injured in any way from the events that transpired on March 26, 1998.
34. Gloria Byers cannot articulate specific detailed damages which she claims Sandra Byers suffered from the events that transpired on March 26, 1998.
35. Charges filed against Mr. Furst for lewd and lascivious behavior which arose out of this incident were dismissed by the court.
36. Susan Langr-Fredrickson first became involved with Sandy Byers in 1996 or 1997 at the Honeybee Unit.
37. Ms. Fredrickson=s duties regarding Sandy Byers included to help get her up in the morning, dress her, feed her, run programs for her, take her on outings, take her to church on Sunday mornings and everything that would entail taking care of her and teaching her.
38. Peter Furst was the Apersonal friend@ for Sandy Byers and would do more than take care of her in that he would write the programs for Sandy.
39. Mr. Furst and Ms. Fredrickson had the same shift from approximately 6:00 a.m. to 2:30 p.m. during the entire time Ms. Fredrickson was on the Honeybee Unit.
40. Fredrickson did have a relationship with Furst that began approximately in 1996 or 1997 when she first began working on the unit.
41. Fredrickson was never cautioned by her supervisor about the relationship.
42. Furst, Fredrickson, Sandy Byers and the other KNI patient were at the lake approximately an hour watching the ducks.
43. While at the lake, Fredrickson claims she gave Furst a hug which excited or aroused Furst because he told her and said words to the effect that he was Ahorny.@
44. Fredrickson saw that Furst had an erection.
45. Fredrickson feels that Furst getting aroused was inappropriate because of the residents in the van.
46. When Fredrickson came back from the restaurant and was getting back into the van, she noticed that Furst was coming back from the back of the van between the seats.
47. At that time, Fredrickson noticed that Furst was adjusting his pants.
48. Next, Fredrickson noticed that Furst had a creamy looking substance on his pants that looked like semen and at that point she noticed that her lifting belt was missing and it was in the back of the van.
49. Fredrickson then went back to the van and smelled the belt to identify what she suspected was semen on it.
50. Fredrickson also saw semen on the floor of the van by Sandy Byers right at her feet.
51. Fredrickson began questioning Furst about what happened and Furst replied that nothing happened and there was not semen on his pants or on his belt.
52. Fredrickson asked Furst if he used Sandy=s hand and Furst claimed that he preferred using his own hand in the privacy of his own home.
53. Fredrickson told the Risk Manager about the incident when she returned to KNI because she knew Furst had done something wrong.
54. Fredrickson and Furst would take Sandy on rides in the van once or twice a week.
55. Furst=s duties involving Sandy included getting her out of bed in the morning, bathing her, brushing her teeth, combing her hair, feeding her, changing her and taking her out on rides.
56. Fredrickson had come to work on March 26th and suggested that she and Furst get a couple of clients and go on a last outing as she put it because she was quitting and going to a different job.
57. Furst developed a romantic relationship with Fredrickson approximately six months or so after she started working the unit, which was about a year and a half before the event with Sandy Byers.
58. Furst and Fredrickson kissed while they were in the van and the kiss became passionate.
59. Supervisor, Schroeder, was aware of Furst=s relationship with Fredrickson and Schroeder talked to Furst about it.
60. The van was configured so that the person seated in one of the two front seats could get up and walk to the back of the van.
61. When Fredrickson felt that Furst was getting aroused during the kiss she grabbed his groin area.
62. Sandy was right behind the driver=s seat facing forward in the van.
63. Furst, prior to this, used to ask Sandy Byers for a kiss and she would giggle and laugh.
64. A warning or caution to the employees about a relationship could be oral and would not necessarily be contained in the employee=s file.
65. KNI requested that Furst resign as a result of this incident.
66. If employees are in a romantic relationship, then one of them is asked to move to another home on the campus.
67. Athey does recall an incident where the supervisor told her that he had walked in on Furst and Fredrickson where Furst was giving Furst (sic) a backrub and they were warned that was not appropriate behavior.
68. Personal relationships between employees can get in the way of good working relationships in the homes and can get in the way of how they do there (sic) jobs.
69. Sandy could communicate by laughing, jumping when she was happy or if she was mad she would bite your hand.
70. Sandy had the ability to communicate if she was happy, sad or upset.
Gloria Byers filed this lawsuit individually and on behalf of her adult daughter, Sandra. It is uncontroverted that Gloria Byers was not present in the van at the time of the alleged incident and that she did not witness nor perceive the events of March 26, 1998. In addition, Gloria Byers was not directly injured by the alleged incident.
In plaintiffs= response to the motion for summary judgment, plaintiffs concede that Gloria Byers has no cause of action for the alleged Tort of Outrageous Conduct as she was not present at the time of the alleged incident. Likewise, she has no cause of action for the alleged negligent retention and supervision based on similar rationale.
...a parent has no cause of action for his or her emotional, physical or other injuries against one who negligently causes injury to an adult child, when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child. Schmeck v. City of Shawnee, 231 Kan. 588, 594, 647 P.2d 1263 (1982).
Therefore, this court finds that Gloria Byers has no causes of action and that defendants= motion for summary judgment shall be granted as to the individual claims of Gloria Byers.
Plaintiffs stated in their response to the motion for summary judgment that they have no claim for negligent hiring. Likewise, plaintiffs also appear to have abandoned their allegations regarding battery or physical injury to Sandra.
A
Negligent supervision, hiring, or retention is a recognized cause of action under Kansas law; its focus is upon the actions of someone other than the person whose negligence caused the injury.@Marquis v. State Farm Fire and Casualty, Co., 265 Kan. 317, 329, 961 P.2d 1213 (1998).
The elements for negligence in hiring and retention are as follows:
1. Employer has a duty to use reasonable care in the hiring and retention of employees. 29 Am. Jur. Trials, Negligent Hiring of Employees, ' 2, p. 276, as cited in Plains Resources Inc. v. Gable, 235 Kan. 580, 590, 682 P.2d 653, 662 (1984).
The duty to exercise reasonable care in making a decision to hire a particular applicant includes the employers obligation to conduct a reasonable investigation into the employee=s work experience, background, character, and qualifications. 27 Am. Jur. 2d, Scope of Employer=s Duty to Investigate Employee=s Background, ' 474, p. 914.
2. Plaintiff must prove the defendants breached the duty owed to the plaintiff. To establish breach, a plaintiff must prove (1) that the employee in question was incompetent for the position for which he was hired and (2) that the defendant employer had knowledge of the employee=s incompetency but hired and retained the employee anyway. 29 Am. Jur. Trials, Negligent Hiring of Employees, ' 7, p. 286.
3. If a plaintiff has established that a defendant owed a duty and that the duty was breached, the plaintiff must then establish an injury in fact. Honeycutt v. City of Wichita, 251 Kan. 451, Syl. & 8, 836 P.2d 1128 (1992).
4. A causal connection must exist between the duty breached and the injury suffered. There must be foreseeability of some injury from an act or omission in order for the act or omission to be the proximate cause of the injury. George v. Breising, 206 Kan. 221, 477 P.2d 983 (1970). If an incident is not reasonably foreseeable by the exercise of reasonable care and prudence, there is not sufficient grounds for a negligence action. Calwell v. Hassan, 260 Kan. 777, 925 P.2d 422 (1996).
The elements of negligent supervision are included in the elements of negligence listed above. Negligent supervision includes not only the failure to supervise but also includes the failure to control persons with whom the defendant has a special relationship, including the defendant=s employees or persons with dangerous propensities. Marquis, 265 Kan. at 317, Syl. 8
Certainly a duty was owed by KNI and the State of Kansas to Sandra Byers to use reasonable care in the hiring, retention, and supervision of their employees. Whether the duty was breached or not depends on KNI=s knowledge regarding Furst and whether or not his alleged actions on that day were foreseeable. This court believes the later two issues are fact questions for the jury. The remaining element, however, is that the plaintiff must establish that an injury in fact occurred. To recover on a negligence claim, the plaintiff must show causal connection between the duty breached and the injury received, and must show that she was damaged by the negligence. Bick v. Peat Marwick and Main, 14 Kan. App. 2d 699, 799 P.2d 94 (1990), petition for review denied, 247 Kan. 703 (1990). Negligence which does not result in injury forms no basis for damage action. Id.
Although plaintiffs attempt to controvert that Sandra Byers was not affected or injured in any way from the events that transpired on March 26, 1998, (defendants uncontroverted fact number 36 now listed in this decision as number 33), the plaintiffs do not provide any evidence to establish a dispute to this material fact. Instead, they argue that the law as it relates to the Tort of Outrage is that the extreme and outrageous character of the conduct itself showed that the plaintiff was injured. The court will address below plaintiffs= argument about why an injury does not need to be shown in their cause of action relating to the Tort of Outrage. However, in the context of a negligent hiring, retention, or supervision claim, this court does not find such an exception. Plaintiffs have failed to produce any evidence to establish that Sandra Byers was injured either emotionally or physically due to this incident.
Although Ms. Sandy Byers is nonverbal she apparently is able to show emotion. Plaintiffs include in their uncontroverted facts that ASandy could communicate by laughing, jumping when she was happy or if she was mad she would bite your hand@ and that ASandy had the ability to communicate if she was happy, sad, or upset.@ (Plaintiff=s statements of uncontroverted facts Number 38 and 39; court=s uncontroverted facts, Numbers 69 and 70). However, plaintiffs fail to provide any evidence that Sandy communicated any anger, sadness, or that she was upset following this incident. The court finds that plaintiffs have failed to produce evidence to establish a dispute as to the issue of damages of Sandra Byers.
The tort of Outrage has been defined by Kansas Courts as follows:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. [Citations omitted.] Proof of four elements is required to establish the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be causal connection between defendant=s conduct and plaintiff=s mental distress; and (4) plaintiff=s mental distress must be extreme and severe.
Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant=s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.
Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981).
Defendants argue that plaintiffs cannot meet the elements of the Tort of Outrage. They argue that acts of the State of Kansas and KNI would have to be intentional or in reckless disregard of the plaintiffs. Although what KNI knew or should have known regarding Furst=s relationship with Langr-Fredrickson and the potential physical contact between the two of them certainly may be a question for the jury, it is unlikely that KNI (or the State of Kansas) recklessly disregarded any potential for a high degree of risk of harm to Sandy Byers or was indifferent to what harm might result. While the alleged act of Furst may have been extreme and outrageous, there is no evidence of any extreme or outrageous act by KNI or the State of Kansas, only allegations of negligence in retention or supervision of Furst.
The second threshold requirement which must be met and which the court must first determine as present is that the plaintiff=s emotional distress is sufficiently severe, genuine and extreme that no reasonable person should be expected to endure it.
Emotional distress passes under various names such as mental suffering, mental anguish, nervous shock, and includes all highly unpleasant mental reactions such as frights, horror, grief, shame, embarrassment, anger, chagrin, disappointment, and worry. However, it is only when emotional distress is extreme that possible liability arises.
...The emotional distress must in fact exist, and it must be severe. Prosser, Law of Torts (4th ed. 1971) at 59.
Roberts v. Saylor, 230 Kan. 289, 293-94, 637 P.2d 1175 (1981).
There is no evidence that Sandy Byers suffered distress, let alone evidence that it was extreme distress. Plaintiffs argue in their response to defendant=s summary judgment motion that Kansas has adopted comments j and k of the Restatement (second) of Torts which states A...Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant=s conduct is in itself important evidence that the distress has existed...@ Taiwo vs. Yu, 249 Kan. 585, 594, 822 P.2d 1024 (1991). While the above standard may be applicable in some situations, this court does not find it applicable given the facts of this case. As stated in the section on negligent hiring, retention, and supervision, no evidence has been produced by the plaintiffs that Sandy Byers was affected in any way either physically or emotionally by this incident. The plaintiffs fail to show any evidence of change in behavior, change in demeanor, or any other communicated emotion that occurred in Sandra Byers due to the alleged incident. In addition, no evidence has been presented that Sandy Byers even saw the alleged activities of Furst. The most that can be said is that Sandy Byers could have seen the incident. Reviewing the facts in a light favorable to the plaintiffs, this court does not find that the plaintiffs have met the threshold requirements to establish the Tort of Outrage.
Defendants set forth in their brief the applicable rule under the Kansas Tort Claims Act, K.S.A. 75-6103 provides:
Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the wrongful act or omission of any of its employees while acting within the scope of their employment under the circumstances where the governmental entity, if a private person, would be liable under the laws of the state.
Defendants also quote the Kansas Court of Appeals case, Hollinger v. Stormont Hospital and Training School as follows:
An employee is acting within the scope of his authority when he is performing services for which he has been employed or when he is doing anything which is reasonably incidental to his employment. The test is not necessarily whether the conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it. The liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was willful and intentional or was unintentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer=s business and within the scope of his authority or had stepped aside from that business and had done an individual wrong. The now generally recognized rule is that the employer is liable for the reckless, willful, intentional, wanton, or malicious acts of his employee as well as for his heedless and careless acts if they are committed while the employee is acting in the execution of his authority and within the course of his employment, or with a view to the furtherance of his employer=s business, and not for a purpose personal to the employee.
Hollinger, 2 Kan. App. 2d at 311.
The alleged act by employee Furst occurred when Furst and Langr-Fredrickson stopped at Long John Silver=s to get something to eat. While the detour on the way back from Lake Shawnee to get something to eat may well have been foreseen by KNI, it is not conceivable to this court that Furst=s alleged masturbation or spontaneous release of semen (as he characterized it) was within the scope of his authority for performing the services for which he was employed. In Hollinger, the Kansas Court of Appeals found that Stormont Vail employee=s act of injuring plaintiff newspaper carrier by teasing and playfully pulling a newspaper out of her bag was not within the scope of his authority or reasonably incidental to his employment. Hollinger, 2 Kan. App. 2d at 312. If a practical joke by an employee is an act personal to that employee, and not within the employee=s scope of authority, certainly masturbation on the job would be in the same category.
For the reasons set out above, this court grants defendants= motion for summary judgment as to all of plaintiff=s claims. The above findings of fact and conclusions of law constitutes the court=s ruling on this motion and no further journal entry is required.
IT IS SO ORDERED.
Dated this day of June, 2001.
____________
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 20th day of June , 2001, to the following:
Eugene B. Ralston
2913 SW Maupin Lane
Topeka, Kansas 66614
C. William Ossmann
Room 530 - Docking Bldg.
915 SW Harrison St.
Topeka, Kansas 66612
______________
Norma J. Dunnaway
Administrative Assistant