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Potts v. Board of County Commissioners of Leavenworth County

February 22, 2008

TAMARA (TAMMY) POTTS AND JAMES A. WILSON, JR., HEIRS OF LAW OF ELLA ALENE WILSON, DECEASED, AND ELLA ALENE WILSON, DECEASED, BY AND THROUGH TAMARA POTTS, SPECIAL ADMINISTRATOR OF THE ESTATE OF ELLA ALENE WILSON, APPELLANTS,
v.
THE BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, KANSAS, KARL HENDRY, AND MICHAEL BAXTER, APPELLEES.



Appeal from Leavenworth District Court; DAVID J. KING, judge.

SYLLABUS BY THE COURT

1. K.S.A. 2007 Supp. 75-6104(d) is an exception to the general rule under the Kansas Tort Claims Act (KTCA), K.S.A. 2007 Supp. 75-6103(a), that a governmental entity is liable for damages for the negligent acts or wrongful omissions 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 the state. The exception legislatively overruled Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), and provides immunity from liability for acts of government employees who fail to enforce a written personnel policy protecting a person's health or safety unless a duty of care independent of such policy is owed to the specific individual injured.

2. K.S.A. 2007 Supp. 75-6104(d) provided immunity to county and to county emergency medical technicians (EMTs) who allegedly failed to comply with county protocols, as the EMTs did not owe a duty of care to the patient independent of county protocols in place to protect the patient's health or safety.

3. Generally, a special duty may exist between a government agency and an injured person, rendering the public duty doctrine inapplicable to their encounter, when: (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 where it made a specific promise or representation that under the circumstances created a justifiable reliance on the part of the person injured.

4. No special duty was owed by EMTs and county to patient where evidence was undisputed that patient was never in custody of EMTs and EMTs did not restrain patient or prevent patient or patient's family members from securing outside care.

5. Under circumstances of this case, the district court did not err in finding as a matter of law that the defendant EMTs did not deprive a patient of any substantive right under the Due Process Clause by refusing to transport patient against her will to a hospital.

The opinion of the court was delivered by: Caplinger, J.

Affirmed.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

Plaintiffs, Tamara Potts (Potts) and James Wilson (James), as heirs at law, and Potts, as special administrator of the Estate of Ella Alene Wilson, deceased (Alene), appeal the district court's order granting summary judgment to the defendants, the Board of County Commissioners of Leavenworth County (Leavenworth County), and Leavenworth County emergency medical technicians (EMTs), Karl Hendry (Hendry), and Michael Baxter (Baxter) on plaintiffs' state law tort claims of negligence and wrongful death, as well as their claim under 42 U.S.C. § 1983 (2000).

This action resulted after Alene fell in her home and was injured but refused to be transported to a hospital by Leavenworth County EMTs. Alene eventually was transported to the hospital but died at home some 2 weeks later as a result of an infection acquired at the hospital. The plaintiffs alleged the defendants were negligent, indirectly causing Alene's death, when they refused to transport Alene to the hospital against her wishes and in violation of a durable power of attorney held by Potts. The plaintiffs also asserted the tort of outrage and claims under 42 U.S.C. § 1983.

In this appeal, the plaintiffs argue the district court erred in granting summary judgment on plaintiffs' state law claims of negligence and wrongful death by two exceptions to liability under the Kansas Tort Claims Act (KTCA), K.S.A. 2007 Supp. 75-6104(d) and (e), because written Leavenworth County protocols required the EMTs to find Alene incompetent based upon her response to certain questions asked by the EMTs. Further, the plaintiffs argue the protocols required that the EMTs transport Alene to the hospital against her wishes because Potts', as her mother's attorney-in-fact, requested that they do so. Finally, plaintiffs argue material issues of fact precluded summary judgment on their 42 U.S.C. § 1983 claim. The plaintiffs do not appeal summary judgment on their outrage claim.

Because we find the EMTs did not owe a special duty of care to Alene independent of written county protocols in place to protect her health and safety, we conclude the district court did not err in finding the defendants were shielded from liability by K.S.A. 2007 Supp. 75-6104(d) for their alleged failure to comply with written county protocols. Further, because Alene was never in the custody of the EMTs and the EMTs did not restrain her in any manner, the district court properly granted summary judgment on the plaintiffs' 42 U.S.C. § 1983 claim.

Factual and procedural background

On the morning of November 23, 2003, Alene, age 68, fell on her kitchen floor and was injured. Alene's son, James Wilson, was at home with her at the time. Upon learning of her mother's fall, Alene's daughter, Tamara Potts, drove to the home, and she and James carried Alene upstairs to her bedroom where they laid her on her bed.

Potts attempted to convince her mother to permit Potts to call an ambulance to take her to the hospital, but Alene refused, saying she did not need to go to the hospital. Nevertheless, Potts contacted 911 and a few minutes later, Josh Magaha and Chuck Magaha, Fairmont Township volunteer first responders, arrived at the residence.

Alene, who was agitated, refused the responders' requests to transport her to the hospital and insisted she did not want to be touched. Alene advised the responders she would not go to the hospital because the last time she was hospitalized, she had to pay $700 for a headache.

Leavenworth County EMTs Hendry and Baxter arrived a few minutes later. Potts advised them that her mother suffered from hallucinations, Alzheimer's, and paranoia and had previously suffered a stroke. Potts also told the EMTs that her mother was not competent and that Potts had a durable power of attorney over her mother giving Potts the right to insist that Alene be transported to a hospital if Alene refused to be transported. Potts attempted to give Hendry a document dated in 1994 and signed by Alene which Potts said would verify her durable power of attorney, but Hendry advised Potts he first needed to see the patient.

Josh and Chuck Magaha left the bedroom when Hendry and Baxter arrived. Alene would not permit Hendry or Baxter to touch her or take her blood pressure, but she did allow Hendry to perform a limited visual examination of her leg which did not detect any obvious shortening or rotation. In his patient care report, Hendry wrote that Alene experienced pain from her left hip and may have suffered a hip fracture, but she was without gross deformity to her leg.

In response to questioning from Hendry and Baxter, Alene advised the EMTs that she had slipped and fallen on the kitchen floor. Alene also correctly stated her name as well as the name of the President of the United States. However, Alene incorrectly stated the year as 2002 and then 2004 before correctly stating the year was 2003.

Baxter attempted to convince Alene to permit the EMTs to take her to a hospital, but Alene continued to refuse, insisting she did not want to be moved from her bed. At some point, Hendry attempted to contact Alene's physician, Dr. Peter Cristiano, but received no response at his office, which was closed that Sunday. Hendry then contacted the emergency room physician at St. Luke's Hospital, who advised Hendry that Alene could not be transported if she refused transport.

Sometime later, someone at the scene contacted the Basehor Police Department. Alene immediately recognized the responding officer, Jason Slaughter, from a prior contact. Alene advised Slaughter she would not go to the hospital because she was charged too much on her previous visit. Hendry requested that Slaughter take Alene into protective custody, but Slaughter refused, stating he did not believe Alene suffered from diminished capacity.

Hendry determined that Alene was alert, focused, and aware of her surroundings and that she understood the possible consequences of her refusal to be transported to the hospital. Accordingly, Hendry concluded that Alene did not appear to be of diminished mental capacity and the EMTs would not transport her to the hospital against her will. Nevertheless, the EMTs remained at Alene's home for approximately 1 hour, attempting to convince Alene to allow them to ...


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