United States District Court, D. Kansas
MARK FUNK, as Administrator of the Estate of Dorothy Funk, deceased; MARK FUNK as heir at law of his mother, Dorothy Funk; and ALAN FUNK, as heir at law of his mother, Dorothy Funk, Plaintiffs,
PINNACLE HEALTH FACILITIES XXXII, LP, d/b/a CLEARWATER NURSING & REHABILITATION CENTER, Defendant.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Mark Funk and Alan Funk, filed the present negligence and
wrongful death suit against defendant, Pinnacle Health
Facilities, based on Dorothy Funk's fall at the
Clearwater Nursing and Rehabilitation Center in Clearwater,
Kansas. From September 29, 2014, to December 1, 2014, Dorothy
was a resident at the Clearwater Nursing facility.
allege that on October 1, 2014, Clearwater's records
indicate that Dorothy suffered a non-injury fall on the
premises and her Care Plan was updated to say,
“[p]rovide Dorothy with grabber to alleviate her
reaching forward from her wheelchair…. and endangering
[her] safety.” Nine days later on October 10, the Care
Plan added or initiated this goal: “Dorothy will remain
free from significant injuries resulting from falls.”
Plaintiffs additionally allege that this non-fall was not
reported to Mark Funk, holder of Dorothy's durable power
of attorney. Knowledge of the non-injury fall was not made
known to Mark or Alan Funk until the medical records were
provided after Dorothy's death.
further allege that on December 1, 2014, Dorothy fell out of
her wheelchair while reaching forward, fracturing her hip.
According to the Clearwater EMS Report, the fall was
unwitnessed, but a Clearwater staff member heard Dorothy
screaming after the fall. December 1, 2014, was the last time
that Clearwater Nursing provided care to Dorothy.
January 7, 2017, plaintiffs filed their first petition in the
Sedgwick County District Court. In the Plaintiffs's Count
I, it is alleged that defendant was negligent in their care
and treatment of Dorothy, including, but not limited to:
“(a) failing to adequately comply with their own care
plan designed specifically for Dorothy Funk to prevent the
very type of fall contemplated in the care plan; (b) failing
to ensure that Dorothy Funk received adequate supervision,
assistance, and devices to prevent such accidents and her
resulting injuries; (c) failing to seek, obtain, and order,
timely, necessary qualified health care consultations and
treatment; (d) failing to provide timely, prompt, and
adequate medical care and treatment as required Mrs.
Funk's physical condition; and (e) failing to comply with
standards and duties applicable to nursing homes, including
those which required the nursing home to maintain adequate
staff to appropriately monitor the resident and to render
proper care to all patients at all times.”
Count II, the plaintiffs present a claim against Life Care
Center of Andover for negligence, and a third claim against
both Pinnacle and Life Care Center of Andover for the
allegedly wrongful death of Dorothy due to an infection.
Pinnacle's motion to dismiss only addresses Count I. The
wrongful death claim in Count III has its own statute of
limitation which appears to be timely and is not affected by
defendan't motion to dismiss.
statute of limitations bar may be presented as an affirmative
defense under Rule 12(b)(6). Herrera v. Las Cruces Pub.
Sch., No. 16-2179, 2017 U.S. App. LEXIS 10466, at *10
(10th Cir. 2017). For a plaintiff to survive a Rule 12(b)(6)
motion, a plaintiff must plead sufficient factual allegations
“to state a claim to relief that is plausible on its
face.” Brokers' Choice of Am., Inc. v.
NBC Universal, Inc., No. 15-1386, 2017 U.S. App. LEXIS
11490, at *32 (10th Cir. 2017) . For a claim to be facially
plausible, the plaintiff must plead facts that would allow
the court to draw reasonable inferences that the defendant is
liable for the misconduct. Id. The question to ask
for a motion to dismiss is: did the plaintiff provide
evidence to support its claim? Scheuer v. Rhodes,
416 U.S. 232, 236 (1974).
motion to dismiss is disfavored and therefore should not be
dismissed for failure to state a claim, unless it appears
beyond a reasonable doubt that the plaintiff cannot prove any
set of facts which support his claim entitling the plaintiff
to relief. Hospital Bldg. Co. v. Trustees of Rex
Hosp., 425 U.S. 738, 746 (1976). When considering a
motion to dismiss, “all well-pleaded facts, as
distinguished from conclusory allegations, must be taken as
true” and all reasonable inferences must be afforded to
the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813
(10th Cir. 1984).
Kansas statute of limitation for tort claims, which includes
negligence, is two years. Kan. Stat. §
60-513(a); Doe v. Popravak, No. 115, 282,
2017 WL 2494958, at *1 (Kan.Ct.App. 2017). The purpose behind
having a statute of limitation is to “secure the peace
of society and to protect the individual from being
prosecuted upon stale claims” and to “give prompt
notice before memories fade and evidence is lost.”
Castro v. Am. Insulated Wire, No. 92, 200, 2004
LEXIS 105, at *9 (Kan.Ct.App. 2004); Youren v. Tintic
Sch. Dist., 343 F.3d 1296, 1301 (10th Cir. 2003). The
limitation period begins when the action first causes
“substantial injury” K.S.A. §
60-513(b). Kansas courts interpret
“substantial injury” to be an “actionable
injury.” Michaelis v. Farrell, 48 Kan.App.2d
624, 630, 296 P.3d 439, 444 (2013). An actionable injury is
one sufficiently ascertainable to justify an action for a
recovery of damages. Id.
Kansas law, an action accrues at the time the negligent act
causes an injury if “both the act and the resulting
injury are reasonably ascertainable by the injured
person.” Moon v. City of Lawrence, 267 Kan.
720, 727, 982 P.2d 388, 394 (1999). The “reasonably
ascertainable” language is an objective standard
suggesting an examination of the surrounding circumstances.
Id. “Inherent in ‘to ascertain' is
‘to investigate.'” Davidson v.
Denning, 259 Kan. 659, 675, 914 P.2d 936, 946 (1996);
Berndt v. Kramer, 249 Fed.Appx. 45, 51 (10th Cir.
2007). The time the plaintiff could have first filed and
prosecuted an action to a successful conclusion determines
when an action accrues. Michaelis, 296 P.3d at
444-45. The statute of limitations may start to run even when
the plaintiff does not know of the negligent act.
Berndt, 249 Fed.Appx. at 50. Were a plaintiff able
to wait to file an action until directly confronted with
evidence of a negligent act, the statute of limitations may
never begin. Kelley v. Barnett, 23 Kan.App.2d 564,
571, 932 P.2d 471, 477 (1997). If an injury is reasonably
ascertainable, the plaintiff has the duty to investigate any
possible negligence, unless “the information necessary
to determine negligence is concealed or otherwise
alleges that the injury in question was clear and
ascertainable on December 1, 2014, and therefore the statute
of limitations should bar this claim that was brought on
January 7, 2017. To rebut this, plaintiffs contend that
defendant's negligence became discernable only when
Dorothy's prior fall was reported to Mark Funk.
Additionally, plaintiffs contend that a fall does not
indicate negligence by anyone because “people
frequently fall without actionable negligence, ” and,
“[e]lderly persons, including those in nursing homes,
often fall and sustain serious injury.” (Dkt. 16, at
the injury and the fall were both reasonably ascertainable at
the time of the December fall. Whether or not defendant had
an obligation to inform plaintiffs of the non-injury fall
that occurred in October has no bearing on whether or not
plaintiffs could have investigated the December fall. Because
the December fall and injury were both ascertainable at the
time, plaintiffs had a duty to investigate possible
is an exception to the general rule that “nothing can
interrupt the running of the statute of limitations.”
Friends Univ. v. W. R. Grace & Co., 227 Kan.
559, 563-64, 608 P.2d 936, 941 (1980). Estoppel may be
invoked when a defendant's own deception prevented the
plaintiff from being able to timely bring its claim.
Barnes v. United States, 776 F.3d 1134, 1149 (10th
Cir. 2015). This deception requires an intentional or
fraudulent concealment, in the absence of a confidential or
fiduciary duty, that is an affirmative act designed to
prevent, and does prevent, the discovery of the cause of
action. Doe v. Popravak, 2017 WL 2494958 at *1.
Further, there must be some actual deception used to prevent
knowledge, affirmative concealment, or some misrepresentation
to exclude suspicion and prevent injury. Friends
Univ., 227 ...