Rochelle Patterson, Mother and Next Best Friend of Nicolette Patterson, a Minor,
Cowley County, Kansas, Kansas Department of Wildlife, Parks and Tourism, and Bolton Township, (Elaine Selenke as Heir-at-Law of Cortney Brewer, Deceased), Appellees. and Gavin Patterson, a Minor, Appellant,
BY THE COURT
use a statute to establish a duty of care, a plaintiff must
fully satisfy the duty requirements of a negligence action,
including the requirement that the defendant owed the duty to
Whether a legal duty exists is a question of law.
a statute is plain and unambiguous, a court must give effect
to its express language, rather than determine what the law
should or should not be. A court determines legislative
intent by first applying the meaning of the statute's
text to the specific situation in controversy.
Uniform Act Regulating Traffic provides at K.S.A. 2017 Supp.
8-2005(a) that local authorities in their respective
jurisdictions must place and maintain such traffic-control
devices upon highways as they may deem necessary to carry out
the Act or local traffic ordinances or to regulate, warn, or
guide traffic. All such traffic-control devices erected must
conform to the state manual and specifications.
term "local authorities" in K.S.A. 2017 Supp.
8-2005(a) means "the Kansas turnpike authority and every
city, county and other local board or body having authority
to adopt ordinances or regulations relating to vehicular
traffic under the constitution and laws of this state."
Manual on Uniform Traffic Control Devices does not create a
general obligation to initially or periodically survey a
county's entire roadway system to decide whether to
install a traffic-control device or add new ones.
all material facts are uncontroverted, whether an exception
to the Kansas Tort Claims Act applies to grant immunity to a
governmental entity is a question of law.
Kansas Tort Claims Act contains a signing exception at K.S.A.
2017 Supp. 75-6104(h), which bifurcates governmental
liability for traffic signs into two areas: (i) maintenance;
and (ii) placement or removal of signs.
making a signage decision, the Manual on Uniform Traffic
Control Devices controls whether a local authority is
entitled to discretionary function immunity.
of the judgment of the Court of Appeals in 53 Kan.App.2d 442,
388 P.3d 923 (2017).
Appeal from Cowley District Court; Nicholas M. St. Peter,
Jeffery L. Carmichael, of Morris, Laing, Evans, Brock &
Kennedy, Chartered, of Wichita, argued the cause and was on
the briefs for appellant.
Charles E. Millsap, of Fleeson, Gooing, Coulson & Kitch,
L.L.C., of Wichita, argued the cause, and Lyndon W. Vix, of
the same firm, was with him on the briefs for appellee Cowley
L. Keeley, of McDonald, Tinker, Skaer, Quinn &
Herrington, P.A., of Wichita, argued the cause and was on the
briefs for appellee Bolton Township.
A. McKinney, of Wichita, was on the brief for appellee Elaine
interlocutory appeal arises from wrongful death lawsuits
alleging Bolton Township, Cowley County, and the Kansas
Department of Wildlife, Parks and Tourism (KDWPT) negligently
failed to provide adequate traffic-control devices- warnings,
signs, or barriers-on a rural road that abruptly ends at a
riverbank. Two people drowned when their vehicle drove off
the road and flipped end-over-end into the river. Our focus
is on three discrete aspects: (1) the Township's legal
duty regarding traffic-control devices; (2) the County's
failure to conduct an engineering study to assess the need
for such devices; and (3) the County's assertion of
statutory immunity under the Kansas Tort Claims Act, K.S.A.
75-6101 et seq. (KTCA), for the claims. The claim against
KDWPT is not before us.
the Township had no legal duty to place traffic-control
devices along the road where the accident occurred. State law
specifies the entities authorized to install traffic-control
devices, and the Township is not among them. The district
court correctly entered summary judgment for the Township. We
further determine the County had no duty to perform an
engineering study as claimed.
we hold the County is immune from liability for the signage
claims under the KTCA's discretionary function
exceptions. See K.S.A. 2017 Supp. 75-6104(e), (h). Our
holding is founded on the Manual on Uniform Traffic Control
Devices (MUTCD), adopted by the Secretary of the Kansas
Department of Transportation. See K.S.A. 8-2003 (mandating
the transportation secretary adopt a manual). This manual has
the force and effect of law. K.S.A. 2017 Supp. 8-2005(a)
("All such traffic-control devices hereafter erected
shall conform to the state manual and specifications.").
district court's summary judgment order regarding the
County is affirmed in part and reversed in part as to the
issues subject to our review. These rulings make it
unnecessary to decide other statutory immunity defenses
asserted by the County.
AND PROCEDURAL BACKGROUND
Patterson and Cortney Brewer drowned when their vehicle drove
off a rural roadway into the Arkansas River. The road they
were on ran east to west in Bolton Township, which is in
Cowley County. At its easternmost point, the road ends at or
near the river.
County opened the road in 1873. In 1917, it was reclassified
as a township road. In 1955, the County designated a portion,
now known as 322nd Road, as a county road. It intersects with
111th Road about one mile west of the river and continues
east for about three quarters of a mile. The remaining
quarter mile to the river is a township road. The portion
known as 322nd Road is paved, while the quarter-mile township
road is not. The unpaved township road runs through the Kaw
Wildlife Area, which is owned by the federal government and
operated as a wildlife area by KDWPT. There is evidence the
township road actually ends about 300 feet before the river.
County had posted a "Pavement Ends" warning sign
displayed to drivers headed toward the unpaved portion of the
roadway about 600 feet before the transition. There were
markers in the vicinity warning motorists of culvert
headwalls. No traffic-control barricades or warning signs
existed on the unpaved township portion of the road to the
the accident, Rochelle Patterson filed suit on behalf of two
of Jason's surviving minor children. Cortney's
mother, Elaine Selenke, filed two actions-one on her own
behalf and one on behalf of herself and Cortney's estate.
The consolidated lawsuits alleged the Township, County, and
KDWPT negligently failed to provide adequate warnings, signs,
barriers, or other indications the road ended at the river.
The parties filed motions for summary judgment after
their part, plaintiffs submitted evidence to show the
Township and County were negligent in failing to: (1) place
an advisory speed plaque under the "Pavement Ends"
sign suggesting a speed of 5 miles per hour; (2) place a
"Dead End" sign at the intersection of 322nd Road
and 111th Road for drivers headed toward the river; (3) place
a barricade and "object marker" where the roadway
ends, with a "Dead End" sign 100 feet before that
point; and (4) conduct an engineering study to determine what
warnings or signs were necessary.
foundational matter, the district court ruled the County had
jurisdiction over the paved portion of the roadway and the
Township had jurisdiction over the unpaved portion. The court
entered summary judgment in the Township's favor on all
claims, ruling the Township had no legal duty under the
applicable statutes to place traffic-control devices,
guidance, or other warnings on the township road.
the County, the district court granted summary judgment in
part and denied it in part. It ruled the County was immune
under the KTCA for failing to post an advisory speed plaque
on 322nd Road because the decision whether to post that sign
was within the County's discretion and because speed was
not a causative factor in the accident. But the court found a
jury question existed as to whether the County was
statutorily immune for failing to post a "Dead End"
or "No Outlet" sign on 322nd Road, because it could
not conclude as a matter of law the accident would not have
occurred if such a sign had been present. In other words, it
believed there was a factual question whether that omission
caused the accident, so it could not determine whether the
KTCA's discretionary function exception would apply. The
court ruled the "Dead End" or "No Outlet"
signage claim could proceed to trial.
court further found the County was not entitled to judgment
under the KTCA's recreational use immunity because there
was no evidence the County participated in the road's
plan, design, or integration into the wildlife area, so it
had done nothing to warrant that statutory protection.
Finally, it ruled the County was not entitled to immunity for
failing to inspect the unpaved township road since the need
for an inspection was a disputed issue of fact. The court did
not specifically address Patterson's claim that the
County was liable for its road signage decisions, allegedly
resulting from a negligent failure to conduct an engineering
district court certified its summary judgment order for
interlocutory appeal under K.S.A. 2015 Supp. 60-2102(c)
(authorizing district court to make certain findings to
permit appeal in civil actions for orders not otherwise
appealable). It found substantial grounds existed for
differences of opinion on the duties, if any, the Township
and County owed regarding traffic-control devices. The Court
of Appeals granted requests from both Patterson and the
County to take interlocutory appeals on the district
court's adverse rulings affecting them. See K.S.A. 2017
Supp. 60-2102(c) (upon district court certification for
interlocutory appeal, Court of Appeals may permit an appeal
in its discretion). Selenke did not appeal and was designated
as an appellee and a cross-appellee. The interlocutory
appeals were consolidated. No one appealed the district
court's ruling granting summary judgment in KDWPT's
published decision, a Court of Appeals panel affirmed in part
and reversed in part. See Patterson v. Cowley County,
Kansas, 53 Kan.App.2d 442, 388 P.3d 923 (2017). The
panel agreed with the district court's conclusion that
the Township did not owe a duty with respect to
traffic-control devices or warning signs. 53 Kan.App.2d at
484. It also held the County had no duty to conduct an
engineering study. 53 Kan.App.2d at 469-70, 484. As to the
County's KTCA immunity defense, the panel agreed the
County had discretionary function immunity for its failure to
install an advisory speed plaque. But the panel reversed the
district court's ruling on the County's discretionary
function immunity for the "Dead End" or "No
Outlet" signs, ruling the County was immune for those
claims. 53 Kan.App.2d at 469-70. Finally, and without
considering whether it was necessary to reach the remaining
issues since it already ruled against Patterson on all her
claims, the panel agreed with the district court that the
County was not entitled to recreational use or inspection
immunity. 53 Kan.App.2d at 471-72.
petitioned for this court's review of the panel's
decisions regarding: (1) the Township's duty to place
traffic-control devices and warning signs; (2) the
County's duty to conduct an engineering study; and (3)
the County's discretionary function immunity. The County
cross-petitioned for review of the panel's recreational
use and inspection immunity rulings. We granted both
is proper. See K.S.A. 20-3018(b) (providing for petitions for
review of Court of Appeals decisions); K.S.A. 60-2101(b)
(Supreme Court jurisdiction to review of Court of Appeals
decisions upon petition for review).
standard for reviewing summary judgment is well-known:
"'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 when we find ...