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Notice Requirement For Municipalities Under Kansas Tort Claims Act (KTCA) Does Not Apply to Suits Against Employees of Municipalities

February 3, 2015

A recent case from the Kansas Supreme Court styled Whaley v. Sharp addressed the issue of whether a plaintiff must provide the statutory notice required by K.S.A. 12-105b(d).

On May 15, 2008, Ann Krier sought treatment in the Emergency Department of Ashland Health Center (Ashland).  Dr. Chad Sharp, M.D. and Johnathan Bigler, a physician’s assistant, provided care to Ms. Krier.  The day after being admitted, Krier died in transit to Wichita for further treatment.  Jane Whaley (Whaley) was appointed executor for the estate.  On May 6, 2010, Whaley’s attorneys submitted a notice of claim to Ashland referencing K.S.A. 12-105b(d), asserting claims against the hospital for the alleged negligence of its employees, including nursing staff, Sharp and Bigler.  The notice alleged negligence by these hospital employees and claimed the hospital was negligent in hiring, credentialing, supervising and retaining Sharp.  Whaley demanded combined damages of $1,250,000.00.

On May 10, 2010, a mere four (4) days after submitting notice of the claim to the hospital, Whaley commenced two (2) lawsuits, each naming Sharp and Bigler as defendants.  The first was a wrongful death action filed in Whaley’s capacity as co-executor for Krier’s estate.  The second was a survivor action filed in her individual capacity.  The Hospital was not named as a defendant.  Both claims have a 2-year statute of limitation which was about to expire.

Sharp moved for summary judgment, arguing Whaley failed to comply with the notice requirements of K.S.A. 2013 Supp. 12-105b by not waiting to file the lawsuits until the statutorily required time had elapsed after submitting the written notice to the hospital.  Whaley responded that compliance with the 120-day rule was not necessary because the statute’s plain language did not require notice prior to suing a municipal employee, as distinguished from a municipality.  The District Court granted summary judgment to Sharp in both suits, ruling Whaley was required to comply with the notice requirements and the waiting period mandated by K.S.A. 2013 Supp. 12-105b(d).  In doing so, the District Court relied on King v. Pimental, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995).  In King, a Court of Appeals panel held that compliance with the statutory requirements was a prerequisite to filing suit against a municipal employee for acts within the scope of employment.  King, 20 Kan. App. 2d at 590.  Whaley appealed.

A divided Court of Appeals panel affirmed the District Court.  The panel majority agreed King resolved the case, and rejected Whaley’s bid to overrule King, reasoning (1) the legislature had not acted in response to King and because numerous subsequent cases in state and federal courts had relied on King in suits against municipal employees; (2) King’s statutory interpretation served all litigants well because it gave litigants the benefit of the statute of limitations tolling provisions, as well as allowing municipalities an opportunity to review and investigate claims against their employees before being entangled in litigation; and (3) reversing King could require some plaintiffs to bring separate tort claims actions – one against the municipal employee and the other against the municipality.  Whaley, 2013 WL 1149750, at *4-5.  Chief Judge Malone dissented, arguing the plain language of K.S.A. 2013 Supp. 12-105b does not require notice before filing suit against a municipal employee.

In reversing the panel majority, the Kansas Supreme Court stated:

“We hold the jurisdictional bar in K.S.A. 2013 Supp. 12-105b(d) unambiguously applies only to lawsuits against municipalities.  Failure to comply with the statute does not deprive a district court of jurisdiction over a lawsuit against a municipal employee.”

“What is obvious about King is that is started out on the right path, following the rules of statutory interpretation.  The panel admitted the statute’s literal language exempts municipal employees from the notice requirement.  It then went astray by adopting a ‘broader interpretation’ of the statute based on the panel’s perceived public policy considerations.  20 Kan. App. 2d at 589.  But the plain language chose by the legislature governs unless there is an ambiguity, and we leave policy determinations to the legislature.  Appellate courts do ‘not decide nor weigh the beneficial results flowing from any particular legislative policy.’  Manzanares v. Bell, 214 Kan. 589, 603, 522 P.2d 1291 (1974).”

The Court in Whaley stated “[o]ur decision necessarily overrules King…” and the panel majority in this case “erred by continuing to follow King’s public policy-driven path.”

The take away from Whaley is that prior reliance on the holding in King was misplaced, and King is no longer good law.  The holding in Whaley conclusively establishes that the notice requirements found in K.S.A. 2013 Supp. 12-105b are not applicable to suits against employees of municipalities.

For a complete copy of the Whaley opinion, click here.

— Lawrence E. Nordling

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