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Sayre v. City of Lawrence

United States District Court, Tenth Circuit

August 21, 2013

MARY SAYRE, Plaintiff,
v.
CITY OF LAWRENCE, KANSAS, and LAWRENCE ARTS CENTER Defendants.

MEMORANDUM AND ORDER

RICHARD D. ROGERS UNITED STATES DISTRICT JUDGE

This matter is presently before the court upon the motion of defendant City of Lawrence, Kansas to dismiss. The defendant seeks to dismiss plaintiff Larry Sayre's loss of consortium claim.[1] The defendant contends that plaintiff has failed to comply with the notice requirements of K.S.A. 12-105b(d). Having carefully reviewed the arguments of the parties, the court is now prepared to rule.

I.

This is an action based upon diversity of citizenship jurisdiction. Plaintiff Mary Sayre asserts a claim for damages against the City of Lawrence pursuant to the Kansas Tort Claims Act (KTCA). She asserts claims of negligence, premise liability and loss of consortium for injuries she suffered at the Lawrence Arts Center when she fell into an orchestra pit. Prior to filing this action, plaintiff and her husband prepared a notice of claim pursuant to K.S.A. 12-105b(d) and submitted it to the clerk of the City of Lawrence. The relevant portions of the claim stated the following:

3. Concise statement of the factual basis of the claim is as follows: On or about June 24, 2012, claimant was injured as a result of the negligent conduct of employees of the City of Lawrence, including the failure to ensure the safety of individuals at the Lawrence Arts Center which caused or contributed to cause the claimant to fall into the unprotected and unmarked orchestra pit. It was or should have been known that failure to safely secure the orchestra pit, and the corresponding failure to warn, could result in reckless disregard to the safety of individuals at the Lawrence Art Center.
5. A statement of the nature and extent of the injury is as follows: Claimant was severely injured as a result of the wrongful conduct of the defendant and received a permanent injury as a result of the wrongful conduct of defendant and its employees.
6. Statement of the amount of monetary damages requested is as follows: Claimant would request a jury to determine the amount of the value of the losses. Claimant's monetary claim as to the defendant is $500, 000.

II.

In the instant motion, the defendant City of Lawrence contends that plaintiff's husband's claim for loss of consortium should be dismissed because he failed to comply with the notice requirements of K.S.A. 12-105b(d). The City argues that plaintiff's husband failed to (1) concisely identify or otherwise state the basis of this claim; and (2) describe the damages/injuries which give rise to this claim.

Plaintiff points out that Kansas law does not recognize a separate cause of action for a spouse for loss of consortium. Plaintiff notes that the right to recover for loss of consortium vests with the spouse who files an action for personal injuries. Plaintiff contends that the notice provided to the City substantially complied with K.S.A. 12-105b(d) because she notified the City of the character and extent of the injuries she sustained.

III.

Under the KTCA, a party may not commence a tort action against a municipality without first filing a proper notice of claim. K.S.A. 12-105b(d). The claimant is required to include Aa concise statement of the factual basis of the claim" as well as a Aconcise statement of the nature and extent of the injury claimed to have been suffered." Id. A notice is effective if it is within Asubstantial compliance" of the statutory requirements. Id.

ASubstantial compliance" is not defined in K.S.A. 12-105b(d), but it has been defined by the Kansas courts as follows:

Substantial compliance means compliance in respect to the essential matters necessary to assure every reasonable objective of the statute. The statutory objectives are to advise the municipality of the time and place of the injury and to give the municipality an ...

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