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Ware v. ANW Special Educational Cooperative No. 603

April 11, 2008

DANIEL WARE, III, A MINOR, BY AND THROUGH HIS PARENTS AND GUARDIANS, DANIEL AND JENNI WARE, APPELLANTS,
v.
ANW SPECIAL EDUCATIONAL COOPERATIVE NO. 603, APPELLEE.



Appeal from Allen District Court; DANIEL D. CREITZ, judge.

SYLLABUS BY THE COURT

1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. 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. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, appellate courts apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. To succeed on a claim for negligent infliction of emotional distress, a plaintiff must first establish that he or she has a qualifying physical injury under Kansas law. Second, the qualifying physical injury must (1) directly result from the emotional distress allegedly caused by the defendant's negligence and (2) appear within a short span of time after the emotional disturbance. Generalized physical symptoms of emotional distress such as headaches, nightmares, insomnia, vomiting, anxiety, and nervousness are insufficient to state a cause of action.

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

Affirmed.

Before GREEN, P.J., GREENE and LEBEN, JJ.

Daniel Ware, Jr., and Jenni Ware, parents of Daniel Ware, III, a minor, appeal from a summary judgment granted in favor of ANW Special Educational Cooperative No. 603 (ANW) in Daniel Ware, III's negligent infliction of emotional distress claim.

When Daniel was 4 years old, he fell asleep on the bus on his way to school. The bus was operated for the purpose of transporting students to and from ANW's preschool. Daniel was inadvertently left on the bus by the driver. He woke up and began walking to his mother's place of employment. A relative saw him, picked him up, and returned him to his mother. Five months later, Daniel became ill when told he would have to start riding the bus again. He was later diagnosed with posttraumatic stress disorder (PTSD) approximately 9 months after the bus incident.

Daniel's parents brought suit against ANW alleging negligent infliction of emotional distress based on the incident in which Daniel was left sleeping on a school bus operated by ANW. ANW moved for summary judgment, arguing that Daniel did not suffer a compensable physical injury under Kansas law. The trial court, following well-established precedent, granted summary judgment for ANW on the basis that Daniel had suffered no immediate physical injury following the bus incident. On appeal, Daniel's parents contend that the manifestation of Daniel's PTSD meets the physical injury requirement in personal injury cases. In the alternative, Daniel's parents assert that the physical injury requirement of PTSD should be expanded to cover an injury suffered as a result of negligence. We disagree on both counts. Accordingly, we affirm.

On October 8, 2002, Daniel, then 4 years old, fell asleep while riding the bus to school. The bus transports students to and from ANW's school. At approximately 1 p.m., Daniel was left sleeping on the bus in the school district bus lot. Daniel awoke, left the bus, and began walking toward the downtown pharmacy where his mother was working. By chance, Daniel was seen by a relative while crossing a McDonald's parking lot. The relative returned Daniel to his mother at approximately 1:10 p.m.

Daniel's parents attempted to return Daniel to school that day, but Daniel became upset and began crying, saying he did not want to stay at school. They returned home with him. Daniel calmed down after he got home, approximately 1 to 2 hours following the incident.

Between the October 2002 bus incident and March 2003, Daniel expressed apprehensions about going to school. He told his mother either he needed a day off, he was sick, or he would rather help his father at work. Nevertheless, Daniel did not cry, tremble, or beg his mother not to take him to school. When ANW suggested that Daniel get on the bus and ride it again, Daniel stated that he would ride the bus if Neka Hall, his grandmother's foster daughter, rode with him and if his grandmother followed in her own car. Daniel rode the bus with Neka on more than one occasion without incident approximately 2 weeks following the initial incident. Yet, on one occasion Daniel began to cry when he realized his grandmother was not behind the bus. Daniel's mother rode the bus with him on another occasion when Neka could not; Daniel cried the whole way to school, held his mother's hand, and trembled.

Sometime in March 2003, Daniel became upset and vomited at school when he was told that he would be going on a bus field trip the next day. Daniel begged his mother not to let him go; he cried; he vomited on the floor.

In June 2003, Dr. Doug Wright, Daniel's initial treating therapist, diagnosed Daniel with PTSD. Wright based this conclusion on various symptoms: namely, vomiting, anxiety, nervousness, physically shaking, acting out, hypervigilance, sleep difficulties, bedwetting, a significant increase in weight, and a refusal to attend school. Wright stated that PTSD cannot be diagnosed for at least 1 month after an incident. He stated that the nature of the disorder was a physical reenactment of feelings associated with the initial trauma. Wright agreed that Daniel's vomiting was a physical manifestation of anxiety. He further believed that the anxiety was triggered or caused by events contemporaneous to the vomiting rather than the October 2002 incident. The trial court acknowledged that Daniel controverted this fact by pointing out that Wright also testified that while triggers were contemporaneous, the anxiety or stress was from the bus incident.

Daniel's second treating psychologist, Dr. Shawna Wright, agreed that Daniel did not sustain a physical injury and that the vomiting and other symptoms were physical manifestations of emotional distress and anxiety. She agreed with the diagnosis of PTSD as a result of the bus incident. She further acknowledged that Daniel had vomited as a result of the bus incident.

Daniel's expert, Dr. James Hunter, also diagnosed Daniel with PTSD and believed that there was nothing else to attribute the onset of Daniel's problems other than the bus incident. Hunter testified that Daniel did not sustain a physical injury when he was left on the bus.

In granting ANW's motion for summary judgment, the trial court held that under Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983), Daniel's symptoms were not compensable physical injuries for purposes of a negligent infliction of emotional distress claim.

Did the Trial Court Err in Granting Summary Judgment to ANW by Deeming the Symptoms of PTSD Not a Physical Injury in a Negligent Infliction of Emotional Distress Claim?

The trial court granted summary judgment to ANW, concluding that under the undisputed facts Daniel has no compensable physical injury under Kansas law.

"'"'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. 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. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'"' [Citations omitted.]" Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).

Indeed, summary judgment is appropriate in this case because the parties dispute no material facts. The only statements controverted by Daniel involve those made by his doctors that reach the key questions of law at issue. Daniel does not controvert the factual basis for these statements, but instead sets forth additional statements to clarify and lend support to his position. The trial court correctly acknowledged these statements in reaching its decision. Thus, the only issue before this court is whether the trial court correctly found that Daniel has no legal basis for a negligent infliction of emotional distress claim under Kansas law.

To succeed on a claim for negligent infliction of emotional distress, a plaintiff must first establish that he or she has a qualifying physical injury under Kansas law. Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988); see also Grube v. Union Pacific R.R. Co., 256 Kan. 519, 522, 886 P.2d 845 (1994) (plaintiff must demonstrate a physical injury or a physical impact, which causes an actual injury, in order to recover for negligent infliction of emotional distress). Second, Hoard establishes that the qualifying physical injury must (1) directly result from the emotional distress allegedly caused by the defendant's negligence and (2) appear within a short span of time after the emotional disturbance. 233 Kan. at 279. Hence, Daniel must satisfy each of the requirements previously cited to succeed on his claim.

We will first determine whether Daniel's alleged symptoms qualify as physical injuries. Kansas courts have addressed various types of symptoms when determining whether they may be characterized as physical injuries for purposes of negligent infliction of emotional distress claims. See Anderson, 242 Kan. at 860 (holding shock, emotional pain, feelings of guilt, nightmares, and depression due to witnessing accident are not compensable physical injuries when there is no actual physical injury); Hopkins v. State, 237 Kan. 601, 612-13, 702 P.2d 311 (1985) (holding weight gain is not a compensable physical injury); Reynolds v. Highland Manor, Inc., 24 Kan. App. 2d 859, 861-62, 954 P.2d 11 (1998) (holding that plaintiff failed to meet physical injury requirement when she suffered headaches, diarrhea, nausea, crying, shaking, sexual problems, and feelings of stress, all caused by anxiety); Dill v. Barnett Funeral Home, Inc., No. 90,653, unpublished opinion filed February 13, 2004, rev. denied 278 Kan. 844 (2004), slip op. at 7-8 (holding that lack of sleep, recurring dreams, and general fatigue not a compensable physical injury).

In the present case, the symptoms experienced by Daniel included nightmares, vomiting, anxiety, nervousness, physically shaking, acting-out, hypervigilance, sleep difficulties, bedwetting, a significant increase in weight, and a refusal to attend school. Based on court precedents previously cited, Daniel's nightmares, anxiety, nervousness, trembling, weight gain, and sleep difficulties do not qualify as physical injuries.

The key symptom emphasized by the parties began in March 2003 when Daniel vomited after having been told he would be going on a bus field trip. Daniel relies heavily on Ely v. Hitchcock, 30 Kan. App. 2d 1276, 58 P.3d 116 (2002), which addresses vomiting, in arguing that vomiting is a physical injury. Although the plaintiff in Ely vomited at the scene of the disturbing incident, he was nevertheless denied relief. 30 Kan. App. 2d at 1289-90. The court stated: "Although vomiting may be the physical impact that a case requires, Ely did not seek counseling or any sort of help for his alleged trauma. As a result, Ely has not demonstrated a significant physical injury." 30 Kan. App. 2d at 1290.

In contrast, Daniel did receive counseling from Jeff Ready in November 2002 because of the initial incident and later symptoms. Nevertheless, this counseling was related to the other non-compensable symptoms Daniel was experiencing. Daniel did not begin to see Dr. Wright until June 2003, 3 months after the first vomiting incident. Furthermore, this first instance of vomiting occurred 5 months after the initial incident, far from the almost contemporaneous vomiting in Ely. Indeed, this factor is relevant. See Hoard, 233 Kan. at 275-76 (citing Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 268 Pac. 103 [1928]; Whitsel v. Watts, 98 Kan. 508, 159 Pac. 401 [1916]). ANW correctly points to Gilliam v. USD # 244 School Dist., 397 F. Supp. 2d 1282, 1291-92 (D. Kan. 2005), where the court rejected that vomiting is a compensable physical injury under Ely when the vomiting fails to occur contemporaneously or shortly after the initial incident.

Daniel urges the court to consider two federal district court cases, Freeman v. Kansas State Network, Inc., 719 F. Supp. 995 (D. Kan. 1989), and Payne v. General Motors Corp., 731 F. Supp. 1465 (D. Kan. 1990), aff'd 943 F.2d 57 (10th Cir. 1991). The trial court took note of these cases, but ruled that our Supreme Court decision in Hoard was controlling and took precedence over the federal court decisions. Indeed, "[f]ederal court decisions on issues of state law are not binding on and have limited ...


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