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January 21 and January 28, 2020 Digests

Posted By Administration, Tuesday, January 28, 2020

Kansas Supreme Court

 

Civil

INSURANCE
WILLIAMS V. GEICO GENERAL INSURANCE COMPANY
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED
NO. 117,149—JANUARY 21, 2020

FACTS: Williams was insured by GEICO at the time he was injured in an automobile accident. His injuries required surgery and physical rehabilitation. While he recovered, Williams's treating physicians specified that Williams would be unable to perform household tasks such as lawn care, shoveling, cooking or cleaning. Williams was married, but he and his wife, Mary, had separate schedules and finances, and Williams generally took care of his own meals, laundry, and cleaning. Williams and Mary agreed that, for $25 per day, she would cook, do laundry, administer medication, drive, and assist Williams with hygiene needs. Williams wanted his insurance to pay for this expense, and he filed a claim for personal injury protection (PIP) substitution benefits available to him under his policy. GEICO refused to pay, arguing that Mary had a legal duty to care for her spouse and provide replacement services. Williams filed suit and the district court agreed with him, ruling that the law does not exclude an injured person's spouse from being compensated for substitution services. GEICO appealed and the Court of Appeals reversed the district court, agreeing with GEICO that married persons cannot be compensated for substitution services. The Supreme Court granted Williams's petition for review.

ISSUE: (1) Ability of a spouse to be compensated for substitution services

HELD: K.S.A. 40-3103(w) does not specifically preclude a spouse from providing substitution services, so the only relevant inquiry is whether Williams incurred an obligation to pay Mary for the substitution services that she provided. The facts specific to this case show that Williams incurred an obligation to pay Mary by entering into a contract with her to perform specific services for him that she would not have otherwise performed. The district court correctly ruled that GEICO must pay for Mary's expenses.

STATUTE: K.S.A. 40-3103(w)

 

criminal

appeals—criminal law—evidence—statutes
state v. downing
reno district court—reversed; court of appeals—affirmed
No. 116,629—january 24, 2020

FACTS: Downing appealed his burglary conviction that was based for taking items from a rural farmhouse. Court of appeals reversed in unpublished opinion, based on building owner’s testimony that no one lived there when the crime occurred, and owner had no plans to live there or rent it out. Downing’s petition for review granted.

ISSUE: (1) Burglary—proof of a dwelling

HELD: Kansas Supreme Court has not previously considered whether the farmhouse qualified as a dwelling as defined by K.S.A. 2018 Supp. 21-5111(k) when facts indicate it was not being used for such purposes when the crime occurred, and owner had no current plans to use or rent it out even if he preferred to do so. Circumstances identified in court of appeals cases on this issue were examined, finding definition and burglary statutes support a present-intent requirement to distinguish between a dwelling and a non-dwelling structure. Absent proof the place burgled was used as a human habitation, home or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. Here, State failed to prove the farmhouse was a dwelling. District court is reversed and court of appeals is affirmed. State’s backup position that panel should have remanded for resentencing on lesser included crime of burglary of a structure is not considered because this alternative argument was not presented below.

STATUTES: K.S.A. 2018 Supp. 21-5111(k), -5807(a)(1), -5807(a)(2); K.S.A. 20-3018(b), 60-2101(b)

 

criminal procedure—sentences—statutes
state v willliams
sedgwick district court—affirmed in part, reversed in part, remanded
court of appeals—affirmed in part, reversed in part
no. 115,119—january 24, 2020

FACTS: Williams convicted of unintentional second-degree murder in 2011. Court of appeals reversed and remanded for a new trail. On remand Williams again convicted of unintentional  second-degree murder. He appealed, arguing in part his statutory speedy trial rights were violated at his first trial which invalidated all proceedings thereafter. In unpublished opinion Court of appeals found the doctrine of res judicata barred the speedy trial claim. After Williams’ petition for review was granted he raised supplemental claim that under State v. Wetrich, 307 Kan. 552 (2018), district court erroneously compared Williams’ 1980 Mississippi felony conviction for unnatural intercourse to Kansas’ crime of aggravated criminal sodomy, erroneously scoring the out-of-state crime as person felony.

ISSUES: (1) Speedy trial; (2) sentencing—scoring out-of-state conviction

HELD: Court of appeals is affirmed as right for the wrong reason. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for first time an alleged statutory speedy trial violation that occurred during the first trial. Even if Williams’ speedy trial claim in his first trial is assumed correct, plain statutory language makes clear the statutory speedy trial clock in a case resets and starts over as soon as an appellate court issues a mandate to reverse the first conviction.

Williams’ is entitled to the benefit of a change in the law while his case is pending on direct appeal. Wetrich changed the law governing Williams’ sentence, but even though Wetrich did not render that sentence illegal, it did render Williams’ sentence erroneous. Williams’ sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 21-6811(e)(3)(B); K.S.A. 2018 Supp. 22-3504, -3504(1); K.S.A. 2015 Supp. 21-6811(e)(3); K.S.A. 2010 Supp. 21-3506; K.S.A. 22-3402(1), -3402(6)

 

Kansas Court of Appeals

Civil

IMMUNITY—KANSAS TORT CLAIMS ACT—NEGLIGENCE
ESTATE OF RANDOLPH V. CITY OF WICHITA
SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 118,842—JANUARY 21, 2020

FACTS: Icarus Randolph was 26 years old and had a history of significant mental illness. Randolph lived with his mother. As family members gathered at the home for a holiday cookout, Randolph was out of sorts to the extent that family members became concerned for his welfare. Concluding that he needed to be emergently admitted to a mental health facility, Randolph's family called the police. Officer Snyder was the lead officer who responded, and he was dismissive of the family's concerns. Randolph's agitation increased and he came into the yard, carrying a knife at his side. Officer Snyder Tasered Randolph, which had no effect on his movements. As Randolph continued to walk. Officer Snyder drew his weapon and shot Randolph four times. He did not survive. Randolph's estate and the relatives who witnessed the scene filed suit against Officer Snyder, the other officer, and the City of Wichita. After extensive litigation, the district court granted all defendants' motions for summary judgment. The Randolph estate appealed.

ISSUES: (1) Viability of pre-shooting negligence claims; (2) estate's claim for liability for conduct after Randolph came outside; (3) viability of negligent use of force claim; (4) family members' claims

HELD: Officer Snyder's refusal to call an ambulance or otherwise assist Randolph and his family was a discretionary function, which means his conduct is immune from liability under the Kansas Tort Claims Act. The officer's decision-making was reasonable, even if he was brusque or rude. Evidence shows that Randolph was unaware of what was happening in his front yard, even after Officer Snyder drew his gun. Randolph's inability to appreciate fear means Officer Snyder could not be liable for tortious assault. But there are disputed issues of material fact regarding whether Officer Snyder committed a tortious battery by both Tasing and shooting Randolph, calling in to question Officer Snyder's claim that he was entitled to self-defense privilege. There is no other immunity in the KTCA that warrants summary judgment at this stage of the estate's tortious battery claims. Although it is unclear, it appears that Kansas law does allow for the tort of negligent use of force. But that tort would not be appropriate here, where Officer Snyder's actions were very much intentional. There was no negligence to support a tort of negligent use of force. The district court erred by granting summary judgment on Randolph's mother's claim of tortious assault because there were disputed material facts. The district court also erred by granting summary judgment on family members' claims of tortious assault based on Officer Snyder's use of a handgun. Randolph's family must be given the chance to present evidence and allow the district court to determine whether Officer Snyder is entitled to a KTCA immunity or the privilege of self-defense.

STATUTES: K.S.A. 2018 Supp. 21-5221(a), -5222, -5222(b), -5227, -5230, -5231(a), 60-1901(a); K.S.A. 60-514(b), 75-6103(a), -6104, -6104(d), -6104(e), -6104(i), -6104(n)

 

SALES TAX—UTILITIES
IN RE TAX APPEAL OF SOUTHWESTERN BELL TELEPHONE CO., L.L.C.
BOARD OF TAX APPEALS—AFFIRMED
NO. 120,167—JANUARY 24, 2020

FACTS: Southwestern Bell (Bell) operates transmission and switching equipment to create telecommunication signals. Because the equipment runs continuously, it generates a great deal of heat. If the equipment overheats, it quits working. In order to avoid this, Bell has a dedicated HVAC system in areas where the equipment is located as part of the effort to keep the equipment cool and operational. Electricity that is "consumed in" providing telecommunication services is exempt from sales tax under Kansas statute. Bell sought sales tax refunds for all electricity used. The Kansas Department of Revenue approved a sales tax refund for electricity used to directly power equipment but denied a refund for electricity which powered the HVAC units, reasoning that these units merely maintained the switching and transmission equipment. The Kansas Board of Tax Appeals disagreed, holding that the electricity which powered the HVAC units was essential to the production of telecommunication services. The Department of Revenue appeals.

ISSUE: (1) Tax liability on HVAC equipment

HELD: The HVAC units and the transmission and switching equipment form a system that makes Bell's telecommunication services possible. Under the plain language of the tax statutes, the HVAC system is "essential or necessary" to the production of telecommunication services. This essential nature makes the electricity used to power the HVAC units exempt from sales tax. The Department of Revenue's arguments to the contrary go to public policy rationales, and those must be raised with the Kansas Legislature.

STATUTE: K.S.A. 2018 Supp. 79-3602(dd)(2), -3602(dd)(B), -3602(pp), -3606(n)

Tags:  Appeals  Bd of Tax Appeals  Criminal Law  Criminal Procedure  Evidence  Immunity  Insurance  Kansas Tort Claims Act  Negligence  Reno District Court  Sales Tax  Sedgwick District Court  Sentences  Statutes  Utilities 

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October 11, 2019 Digests

Posted By Administration, Tuesday, October 15, 2019

Kansas Supreme Court

Civil

DUTY—IMMUNITY—LAW ENFORCEMENT
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 116,883—OCTOBER 11, 2019

FACTS: Agents from C-U-Out Bail Bonds came to the Williamses' home in search of the Williamses' daughter-in-law. Mrs. Williams told the agents that the woman they sought was not in her home. It was late at night, Williams was caring for her elderly and ill mother, and she denied the agents' request to enter the home. The agents attempted to enter the home by force, and Williams called the police. After the police arrived, agents forced their way into the home. The police officers on scene stood and watched and refused to assist Williams. The Williamses sued both C-U-Out and also the City of Overland Park, claiming the officers committed the tort of "negligent failure to protect." The district court granted the City's motion to dismiss, finding that the City was immune from liability under the Kansas Tort Claims Act and also finding that the City owed no duty to the Williamses. The Court of Appeals agreed that the City owed no duty to the Williamses. The panel also held that the City was immune under the discretionary function exception. The Kansas Supreme Court granted review.

ISSUES: (1) Sufficiency of facts to support illegal conduct, (2) existence of a duty, (3) discretionary function immunity

HELD:  The issue of whether C-U-Out's agents acted lawfully was, in part, a factual question. The Court of Appeals erred by disregarding factual allegations made in the Williamses' petition. Generally, law enforcement owes a duty only to the public at large. To succeed here, the Williamses had to prove that the City owed them a duty because of a special relationship or a specific circumstance. Although the existence of a duty is a question of law, where a duty is predicated on an affirmative act, there is a threshold factual question of whether the defendant's behavior could have triggered a duty. The district court erred by granting the motion to dismiss because of a lack of duty. The question of whether discretionary function immunity exists is high contextual. The district court erred by granting a motion to dismiss on these grounds.

STATUTES: K.S.A. 2018 Supp. 60-212(b)(6), 75-6104, -6104(e); K.S.A. 22-2809

 

Kansas Court of Appeals

CIVIL

JURY MISCONDUCT
KING V. CASEY'S GENERAL STORES, INC.
RICE DISTRICT COURT—AFFIRMED
NO. 120,241—OCTOBER 11, 2019

FACTS: King was injured after he slipped on some ice in a Casey's parking lot. He filed suit and the parties attempted to settle; when that was unsuccessful, the case proceeded to trial. During voir dire, panel member J.W. was asked whether he had any personal knowledge that would cause a problem for him if he was seated on the jury. J.W. said that he knew one of the witnesses—a Casey's employee—but said that wouldn't make him unable to be impartial when deciding the case. Another potential juror, R.W., was removed from the jury panel via peremptory strike because he knew King's family. The day after voir dire concluded, R.W. contacted King's attorney to tell her that one of the potential jurors told the panel that Casey's had offered to settle and that King should have accepted the offer. Further questioning revealed that the juror who brought up the settlement was J.W. King moved for a mistrial based on juror misconduct. After J.W. was questioned, the district court denied the motion but it did remove J.W. from the jury panel. The jury continued with 11 members and ultimately returned a verdict finding no fault by either party. King moved for a new trial based on juror misconduct, which was denied. King appealed.

ISSUE: (1) Whether J.W. tainted the jury

HELD: In most civil cases, a person asserting juror misconduct has the burden to prove that the misconduct occurred and that prejudice resulted. In this case, there was a factual dispute regarding how much J.W. knew about settlement proceedings and how extensively he shared that knowledge with other jurors. J.W.'s failure to volunteer information did not amount to prejudicial misconduct.

STATUTE: K.S.A. 2018 Supp. 60-259(a)

 

DUTY—NEGLIGENCE
MORGAN V. HEALING HANDS HOME HEALTH CARE, LLC
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 119,147—OCTOBER 11, 2019

FACTS: Morgan's son, Robert Cook, had "chronic, severe" paranoid schizophrenia and diabetes. His schizophrenia made him forgetful, which meant he had trouble remembering to take his medication. His doctors prescribed twice-daily home healthcare visits. Cook's health aides were supposed to evaluate his status, set up medications and remind Cook to take his pills, monitor his blood sugar, and draw labs as needed. Beginning in May of 2013, nurses noted that Cook's apartment was very warm. Some of Cook's medications made him unable to tolerate heat. The nurses counseled Cook on the temperature in his apartment and on his personal hygiene. Cook was unable or unwilling to follow their requests, and he continued to live in his apartment with no temperature control, resulting in him sweating and being warm. Medical logs noted that Cook's pulse was very rapid. In June 2013, Cook died of hyperthermia. Morgan brought a wrongful death and survival action against Healing Hands, claiming its negligence caused Cook's death. Healing Hands sought and received partial summary judgment on two issues: that it legally had no duty to alert Morgan to Cook's condition, and that Kansas' mandatory reporter statute did not require Healing Hands or its employees to report Cook's condition to law enforcement or state authorities. The remaining issues were tried to a jury, which found in Healing Hands's favor. Morgan appeals.

ISSUES: (1) Duty to warn and mandated reporter, (2) disputed issues of material fact, (3) jury instructions

HELD: The district court read the mandatory reporter statute too broadly. The statute did not require that Cook had previously been adjudicated incompetent or appointed a guardian or conservator before its obligations were triggered. There were fact questions on this issue that should have been heard by a jury. Evidence showed that while Cook lived independently, he required twice-daily nursing care to manage his physical and mental health. The mandatory reporter statutes created a duty of care, and the violation of these statutes may be used to establish a breach of that duty. The district court did not err when instructing the jury.

CONCURRENCE: (Malone, J.) Concurs in the result.

STATUTE: K.S.A. 39-1430(a), -1430(g), -1431, -1431(a), -1431(e), -1432(b)

Tags:  Author: Patti Van Slyke  duty  immunity  Johnson District Court  jury misconduct  law enforcement  negligence  Rice District Court  Sedgwick District Court 

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