Estate of Belden v. Brown County (Updated August 30, 2011)

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No. 104,246

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

THE ESTATE OF JEFFREY RAY BELDEN, MARIE GASTON, ADMINISTRATRIX, AND MARIE
GASTON, SURVIVOR AND HEIR OF JEFFREY RAY BELDEN,
Appellants,

v.

BROWN COUNTY, KANSAS; THE COUNTY COMMISSIONERS OF BROWN COUNTY,
KANSAS; LAMAR SHOEMAKER, INDIVIDUALLY AND AS SHERIFF OF BROWN
COUNTY, KANSAS; BRETT HOLLISTER; AND BRANDON ROBERTS,
Appellees.


SYLLABUS BY THE COURT

1.
Res judicata is an affirmative defense that must be pled in a defendant's answer. A
defendant failing to assert an affirmative defense waives it.

2.
A district court raising an affirmative defense on its own initiative commits error
by doing so.

3.
Judicial estoppel precludes a party from taking one position in a case to induce the
court to act in a certain way and then taking a contrary or conflicting position in a related
proceeding involving the same opposing parties. The doctrine generally prevents a party
from prevailing in one phase of a case on an argument and then relying on a contradictory
argument to prevail in another phase.


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4.
Judicial estoppel operates not only within a single suit; it applies to positions taken
in related proceedings.

5.
Collateral estoppel or issue preclusion binds a party to a factual determination
made in a case as an integral part of a judgment when the same issue comes up in a
successive suit involving the same litigants. Collateral estoppel essentially recognizes
that once a court has determined a material factual issue, a party may not secure a new
determination contrary to that finding in later litigation.

6.
When a party argues or offers evidence on an affirmative defense without
objection from the opposing party that the defense had not been pled, the court may
consider the defense.

7.
Actionable negligence requires a duty owed by the defendant to the plaintiff, a
breach of that duty, harm to the plaintiff, and a causal connection between the breach and
the harm.

8.
A county maintaining a jail owes a duty of care to the inmates housed there. The
Restatement (Second) of Torts § 314A (1964) provides a sound, measured duty
appropriate to that legal relationship.

9.
Jails and other penal institutions stand in a special relationship with the persons
they detain as outlined in Restatement (Second) of Torts § 314A. And having taken legal
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custody of those prisoners in a manner that deprives them of normal opportunities for
protection, such an institution is under a duty to take reasonable action to protect them
against unreasonable risk of physical harm.

10.
The duty a penal facility owes inmates includes taking steps to protect a self-
destructive inmate from acting on those impulses. Facility employees are obligated to
intervene if they know or have reason to know an inmate is endangered. Their actions
need not exceed what is reasonable under the circumstances.

11.
Under the reasonableness standard, penal institutions are not guarantors of their
charges' safety or wellbeing. Liability is not strictly imposed for harm.

12.
The contours of a duty, especially one shaped by reasonableness, must be cast to
the particular circumstances of the case. But various considerations may inform that
determination. There may be applicable statutes or regulations establishing a duty of care.
Common practices or standards within an industry often bear on the scope of a duty
owed. An entity's own policies and procedures may help measure compliance with a
duty.

13.
Whether a duty has been breached presents a question of fact and, therefore,
typically is unsuited for summary disposition rather than submission to a jury.
Causation—the connection between the breach and the injury—similarly is a question of
fact usually reserved for the jury. Nonetheless in the absence of evidence establishing any
basis for a reasonable jury to find for a plaintiff on breach of duty or causation, a court
may grant summary judgment for a defendant.
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14.
Negligent hiring and retention derive from the same sort of employer conduct:
either hiring an individual knowing he or she has characteristics that present an undue
risk of harm to others given the nature of the job duties or retaining such an individual
after learning of such characteristics.

15.
Negligent supervision entails either inadequate oversight and review of an
employee in the performance of his or her job duties or failing to control an employee
with propensities that might pose a danger.

16.
A claim based on negligent training depends upon establishing facts showing that
more or better training would have prevented the harm.

17.
While experts may offer opinions on ultimate issues in a case, they cannot
properly provide legal conclusions. An expert witness may not express opinions in terms
of the legal standard of care. Expert testimony in that form invades the province of the
court to discern the governing law and to instruct the jury accordingly.

18.
Affidavits submitted in support of or in opposition to summary judgment must set
forth evidence in a form that would be admissible at trial. It would be both contrary to
statutory summary judgment procedures and nonsensical to suggest an affidavit could be
used to defeat summary judgment by presenting opinion evidence that would be
inadmissible in the trial of the case.

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19.
Immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., for the
provision of police and fire protection is considered and applied.

20.
Immunities under the Kansas Tort Claims Act for performance of discretionary
functions and for adoption or enforcement of policies protecting a person's health and
safety are considered and applied.

21.
Defense preclusion is a component of res judicata prohibiting a defendant from
asserting a defense that was or could have been raised in past litigation. Defense
preclusion is applicable in the same circumstances in which res judicata would prohibit a
plaintiff from asserting a claim that was or could have been presented in past litigation.

22.
Under the circumstances of this case and consistent with the doctrine of res
judicata as applied in Kansas, a defendant may not assert a statute of limitations defense
in this case because he raised the defense in an earlier federal court suit terminating in a
judgment on the merits on various federal claims involving the same factual
circumstances and the same litigants.

Appeal from Brown District Court; JOHN L. WEINGART; judge. Opinion filed August 26, 2011.
Affirmed in part, reversed in part, and remanded with directions.

Robert R. Laing, Jr., of Kansas City, for appellants.

Carolyn L. Matthews, of Foulston Siefkin LLP, of Wichita, and Wendell F. Cowan, of Foulston
Siefkin LLP, of Overland Park, for appellees.
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Before GREENE, C.J., HILL and ATCHESON, JJ.

ATCHESON, J.: On August 14, 2002, Jeffrey Ray Belden died by his own hand
while in custody at the Brown County jail. Belden had been held there for about 7 weeks
awaiting trial. He was 21 years old. Over the past decade, Belden's heirs and his estate,
suing through Belden's mother Marie Gaston, have pursued civil litigation against Brown
County, the county sheriff, and several jail employees on the basis they failed to take
legally required precautions that would have prevented the suicide. The litigation started
in federal court and asserted federal constitutional and state tort claims. After the
constitutional claims were thrown out, the federal court dismissed the state law claims
without prejudice for lack of jurisdiction. Belden's heirs and estate filed this case in
Brown County reasserting the state claims. They sued Brown County through its board of
commissioners, individual commissioners, Brown County Sheriff Lamar Shoemaker,
Sheriff's Sgt. Brett Hollister, and Deputy Brandon Roberts. They alleged: a breach of the
duty of care owed Belden as a pretrial detainee based on the events immediately
preceding his suicide; legally inadequate jail facilities and procedures; and negligent
hiring, training, and supervision of jail personnel.

On February 17, 2010, the Brown County District Court granted Defendants'
motion for summary judgment on all of those claims. Without a request from Defendants,
the district court found that res judicata, based on the federal suit, required dismissal. The
court erred. The district court also found that collateral estoppel applying particular
factual findings in the federal litigation barred the state claims. That ruling was correct as
to any liability theory dependent upon Defendants' actual knowledge that Belden was
suicidal but erroneous as to those theories premised on grounds that Defendants should
have known or were otherwise negligent. Finally, the district court alternatively ruled that
the undisputed facts failed to support any basis for imposing tort liability on Defendants.
The trial court erred in that determination on the breach of duty claim. The record
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contains disputed material facts that if resolved in favor of Belden's estate and heirs
would allow a jury to return a verdict for them on that theory against Sgt. Hollister and
Deputy Roberts. Brown County would be liable as a matter of law for a judgment entered
on such a verdict.

We, therefore, affirm in part, reverse in part, and remand for further proceedings.

Given the duration of this litigation in two forums, the paper trail is a long one.
The parties have walked that trail and know it well. In this opinion, we do not intend to
detail in full the facts surrounding Belden's death or the history of the resulting legal
proceedings. Rather, we will recite only those portions of the facts and the history salient
to the determination that summary judgment should not have been granted on all claims.
The parties will find the narrative of the underlying facts abbreviated. At the same time,
the legal proceedings in both federal and state court and their interplay figure
substantially in how the res judicata and collateral estoppel issues shake out. We devote
more attention to the history of the litigation than might be typical in an appellate
decision.

THE FACTS

Belden was booked into the Brown County jail on June 26, 2002, on a felony drug
possession charge. He could not post bail and remained in custody awaiting trial or some
other disposition of the criminal case. Nothing in the booking process or the intake
information Belden provided suggested he had suicidal tendencies or other mental health
issues. At some point, Belden was placed with several other inmates in a cell designed for
four persons.

After Belden had been in the Brown County jail for awhile, other inmates
observed him pacing while clenching his fists. Sometimes, Belden would sit, rock back
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and forth, and cry. One inmate in the same four-person cell with Belden for a week or so
before the suicide said he was "always" rocking and crying and that behavior became
"more noticeable" during the last several days of his life. Belden told at least a few other
inmates he was worried about going to prison and expressed distress at not being able to
communicate readily with his lawyer. Belden supposedly made comments to other
inmates suggesting at least a passing consideration of suicide. Several days before his
death, Belden had pretty much stopped eating and gave his food to the others in the cell.
None of those prisoners reported their observations to jail employees before Belden's
suicide. Afterwards, they recounted that information for agents from the Kansas Bureau
of Investigation reviewing the circumstances of Belden's death.

On August 14, Sgt. Hollister, who served as the jail administrator, suspected
Belden had tampered with the window in the cell so he could receive notes and possibly
other contraband from his girlfriend. Around midday, Sgt. Hollister told Belden he would
be moved to another cell. Belden asked to be placed in a one-person cell, and Sgt.
Hollister accommodated that request. After complaining the television in the cell didn't
work and asking to be moved again, Belden stopped up the toilet, flooding the cell.
Belden was then moved to another one-person cell.

As he was leaving the jail for the day, Sgt. Hollister told Deputy Roberts that
Belden had been placed in the single cell for disciplinary reasons. Deputy Roberts
distributed the evening meal to the inmates. Belden threw his iced tea on the floor and
refused to return to his cell. Deputy Roberts called for assistance. Deputy Doug
Brammer, who had just come on duty, entered the jail with a mace canister prompting
Belden to return to his cell.

Deputy Roberts had received no formal training in dealing with inmates. He
received guidance from more experienced officers and characterized that as on-the-job
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training. During the evening of August 14, Deputy Roberts was the only law enforcement
officer stationed in the jail. The jail had 19 male inmates and 4 female inmates that day.

At about 6:40 p.m., according to the jail log, Deputy Roberts saw that Belden had
covered the observation window in his cell door with paper. The facility's procedures
prohibit inmates from obscuring the windows for obvious reasons—the jailers can't see
what's going on in the cell. At least one inmate recalled Belden had covered the window
by the time the meal trays were collected; the jail log records the tray pickup at 6:05 p.m.

Deputy Roberts at least twice ordered Belden to remove the paper. Belden
responded by cursing and threatening to violently resist any effort by Deputy Roberts to
clear the window. Deputy Roberts called Sgt. Hollister, his direct supervisor, at home for
guidance on how to handle the situation. According to Sgt. Hollister's report, he told
Deputy Roberts to wait until another officer became available to assist him and then to
enter the cell, take down the paper, "remove all items" from Belden, and move Belden to
Cell 14. Based on various records and other evidence, Deputy Roberts placed the call to
Sgt. Hollister between 6:40 and 6:45 p.m.

Cell 14 was used to house persons needing close monitoring. Inmates believed to
be suicidal were to be placed in Cell 14. Intoxicated arrestees were placed there, as were
others with acute health issues. Sgt. Hollister did not specifically tell Deputy Roberts why
Belden should be placed in Cell 14. Jail procedures required that persons in Cell 14 be
monitored every 15 minutes. The established jail procedures called for checking the
general inmate population on an hourly basis.

In his deposition, Deputy Roberts testified he walked by Belden's cell several
times and spoke to him. According to Deputy Roberts, Belden responded. In a report he
wrote on August 14, Deputy Roberts describes talking to Belden shortly before the call to
Sgt. Hollister and again about 7:45 p.m. But in the report, Deputy Roberts mentions no
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other contact with Belden. Deputy Roberts also testified that just before 7 p.m. he told the
dispatcher he needed another officer to come to the jail to assist with moving Belden to
Cell 14. The jail log does not include a record of that communication, although Sgt.
Hollister testified it should have been noted. Deputy Roberts did record other events from
that evening in the log, such as serving meals, writing a report on Belden's throwing his
iced tea, handling a family visit for another inmate, and writing a report on Belden's cell
window being covered.

About 8:15 p.m., Deputy Roberts got an inmate trusty out of his cell to do laundry.
Because the trusty knew Belden and no other sheriff's deputy had yet arrived at the jail,
Deputy Roberts and the trusty went to the cell to take the paper off the window. They had
trouble opening the door to the cell. After pushing the door about a foot, Deputy Roberts
saw Belden on the floor with a bed sheet tied around his neck and fastened to the door
handle.

Deputy Roberts called for an ambulance. Deputy Brammer, who was in the
adjacent Sheriff's Department, heard the dispatcher's radio request and went to the jail at
8:18 p.m., according to a report he prepared at the time. The two deputies cut the bed
sheet and attempted emergency resuscitation of Belden until the ambulance arrived.
Deputy Brammer is a trained EMT. In his report, he described Belden as blue and
without a pulse. In a later affidavit, Deputy Brammer stated that by the time he got to the
jail, Belden probably had been dead for half an hour because the body was cool and
clammy. Belden was taken to an area hospital where he was formally pronounced dead at
8:51 p.m.

Belden was the first inmate to commit suicide in Sheriff Shoemaker's 5-year
tenure. Sheriff Shoemaker estimated that in that time between 75 and 100 inmates had
either attempted suicide or made suicidal threats prompting jail personnel to seek
intervention by an area mental health care provider on call for that purpose.
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PROCEDURAL HISTORY

Belden's estate and heirs filed suit against Defendants in the United States District
Court for the District of Kansas on August 6, 2004, shortly before the statute of
limitations would have run. In addition to the state law tort claims at issue in this case,
Plaintiffs alleged that the county, the sheriff, and the deputies violated Belden's
constitutional rights under the Eighth Amendment to the United States Constitution,
prohibiting cruel and unusual punishment, and the Fourteenth Amendment, securing both
procedural and substantive due process. The statutory vehicle for asserting constitutional
claims is 42 U.S.C. § 1983 (2000). We have no occasion to consider independently the
merits of the constitutional claims or the disposition of those claims in federal court.
Rather, as we discuss, the way that suit progressed bears on the proper analysis of the res
judicata and collateral estoppel issues in this case.

Defendants moved for summary judgment in federal court. The district court
found disputed issues of material fact precluded judgment, except as to the constitutional
claims asserting individual liability against the Brown County commissioners. Gaston v.
Ploeger, 399 F. Supp. 2d 1211, 1227 (D. Kan. 2005), rev'd in part 229 Fed. Appx. 702
(10th Cir. 2007). The district court also ruled that Sheriff Shoemaker, Sgt. Hollister, and
Deputy Roberts were not entitled to qualified immunity on the constitutional claims. 399
F. Supp. 2d at 1224. For reasons we needn't get into here, government agents may take
immediate, interlocutory appeals of orders denying them qualified immunity. Howards v.
McLaughlin, 634 F.3d 1131, 1138-39 (10th Cir. 2011). Sheriff Shoemaker and Sgt.
Hollister exercised their procedural prerogative to do so.

In resolving qualified immunity defenses, the courts consider two connected
issues: whether the conduct alleged actually violates a protected constitutional right and,
if so, whether the right was sufficiently clearly established that the government agent
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should have known that his or her conduct amounted to a violation. Wilson v. Layne, 526
U.S. 603, 609, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999); Siegert v. Gilley, 500 U.S. 226,
231-32, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991). The constitutional violations alleged
in the federal suit required that the offending government actors knew Belden was
suicidal on August 14 and did nothing or were deliberately indifferent to his mental state.
Barrie v. Grand County Utah, 119 F.3d 862, 868-69 (10th Cir. 1997). In that context,
deliberate indifference includes "disregard[ing] a known or obvious risk that is very
likely to result in the violation of a prisoner's constitutional rights." 119 F.3d at 869. The
standard requires a degree of willfulness absent from negligence, gross negligence, or
recklessness resulting in common law tort liability. 119 F.3d at 869; see Canton v.
Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) (Deliberate
indifference entails an "obvious" need for government action to prevent a constitutional
injury and circumstances in which the failure to act is so likely to result in that injury as
to be apparent.).

Against that legal backdrop, the United States Court of Appeals for the Tenth
Circuit held that Belden's estate and heirs had failed to present sufficient evidence to
withstand summary judgment on whether Sheriff Shoemaker and Sgt. Hollister knew
Belden was suicidal or were deliberately indifferent to his status. Gaston, 229 Fed. Appx.
at 712-13. The federal Court of Appeals did not consider Deputy Roberts' qualified
immunity claim because he had been omitted from the notice of appeal. But the court
made clear that he could reassert his immunity claim at the trial level. 229 Fed. Appx. at
709 and n.5.

On remand, the federal district court held that, in light of the reasoning of the
appellate court, Deputy Roberts should be shielded by qualified immunity. Gaston v.
Ploeger, No. 04-2368-DJW, 2008 WL 169814, *14 (D. Kan. 2008) (unpublished
opinion). The dismissal of the constitutional claims against Deputy Robert left only state
law claims in the federal court action. Federal court jurisdiction had been based on the
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constitutional claims, as provided in 28 U.S.C. § 1331 (2000). There was no complete
diversity of citizenship to support federal jurisdiction under 28 U.S.C. § 1332.

Using the jurisdictional foundation the constitutional claims created, Belden's
estate and heirs properly included the state law claims when they filed the federal suit.
They relied on supplemental jurisdiction under 28 U.S.C. § 1367(a) (2000). The
supplemental jurisdiction statute essentially codifies the common-law doctrine of pendent
jurisdiction allowing a plaintiff to join closely related state and federal claims in a single
suit in federal court rather than filing separate actions in each forum. See Mine Workers
v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) (defining pendant
jurisdiction); Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260,
1266 (D.C. Cir. 1995) (noting that 28 U.S.C. § 1367 "essentially codifies" pendant
jurisdiction as outlined in Mine Workers); Wright v. Associated Ins. Companies, Inc., 29
F.3d 1244, 1250-51 (7th Cir. 1994) (same). Supplemental jurisdiction promotes judicial
efficiency and fairness to the parties by allowing related state and federal claims to be
resolved in a single action. Mine Workers, 383 U.S. at 726.

If the claims that supported federal jurisdiction in the first place have been
dismissed, as happened here, the federal court may decline to proceed solely on the
remaining state law claims. 28 U.S.C. § 1367(c)(3) (The trial court may decline to
exercise supplemental jurisdiction if all of the claims providing original federal
jurisdiction have been dismissed.). The decision to dismiss rests in the federal court's
sound discretion. Wright, 29 F.3d at 1251. Typically, however, a federal court will
dismiss the state law claims without prejudice to allow the plaintiff to refile them in state
court.

The reason for dismissal lies in a pragmatic bow to comity: state courts generally
should decide issues of state law, and federal courts, as courts of limited jurisdiction,
should not. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S. Ct. 614, 98 L.
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Ed. 2d 720 (1988) (When all federal claims have been eliminated before trial, a federal
court typically should decline jurisdiction over the remaining state claims in the interests
of comity.). Under 28 U.S.C. § 1367(d), plaintiffs dismissed from federal court because
only state law claims remain in their suits get a 30-day window to refile in state court,
even if any statute of limitations may have expired during the pendency of the federal
litigation.

A federal court may retain jurisdiction over state law claims and should do so if
some state rule might limit or preclude a plaintiff 's access to the state forum. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006)
(When a federal court dismisses federal claims, it "generally retains discretion to exercise
supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent state-law claims.");
Carnegie-Mellon, 484 U.S. at 350 n.7 (Dismissal of state law claims to promote comity
"does not establish a mandatory rule to be applied inflexibly in all cases."); Wright, 29
F.3d at 1251 (A federal court may retain supplemental jurisdiction over state claims if
some procedural bar would prevent their litigation in state court.).

In the federal case, Defendants filed a motion and supporting memorandum urging
the district court to decline jurisdiction over the state law claims. Defendants specifically
argued to the federal court that Plaintiffs "would not be unduly prejudiced by the
dismissal of [the] state law claims" because they could be refiled in state court. The
federal district court granted Defendants' motion and dismissed the state claims without
prejudice. Gaston, 2008 WL 169814, at *16. The court did so "upon consideration of the
arguments presented by counsel" and with the understanding fostered by those arguments
that Plaintiffs "will be free to pursue [their] claims in a Kansas court[.]" 2008 WL
169814, at *16.

Plaintiffs appealed the ruling dismissing the constitutional claims against Deputy
Roberts on qualified immunity grounds and the order dismissing their state law claims
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without prejudice. In that appeal, the Tenth Circuit relied heavily on its earlier opinion
and found no error in affording Deputy Roberts qualified immunity. Gaston v. Ploeger,
297 Fed. Appx. 738, 745 (10th Cir. 2008). In a single paragraph, the Tenth Circuit also
affirmed the dismissal of the state claims. 297 Fed. Appx. at 746.

While the Tenth Circuit decided that appeal, Plaintiffs filed this action in Brown
County District Court on July 11, 2008, reasserting the state law claims that had been
dismissed without prejudice.

RES JUDICATA

The Brown County District Court granted summary judgment to Defendants based
on res judicata, even though they refrained from asserting that affirmative defense in this
case. The district court's decision was erroneous in several respects. We reverse that
determination. To explain the full extent of the error, we must outline how res judicata
operates generally and in Kansas. We must also look at the doctrine of judicial estoppel,
which Defendants correctly acknowledge kept them from raising res judicata as a
defense.

Because the issue depends upon undisputed circumstances drawn from the
procedural history of this case and involves no resolution of disputed facts, it presents a
question of law subject to unrestrained review here. See State v. Duncan, 291 Kan. 467,
470, 243 P.3d 338 (2010) (When the facts are undisputed, the legal import of a party's
actions presents a question of law.); Chesbro v. Board of Douglas County Comm'rs, 39
Kan. App. 2d 954, 960, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008) (Even what is
commonly an issue of fact may be determined as a question of law when the material
facts are undisputed.). The Kansas Supreme Court has also recognized that "[t]he
applicability of res judicata or collateral estoppel is a question of law, subject to
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unlimited review." In re Care & Treatment of Sporn, 289 Kan. 681, 686, 215 P.3d 615
(2009).

Broadly speaking, res judicata or claim preclusion promotes judicial efficiency
and prevents a plaintiff from subjecting a defendant to repeated legal actions arising out
of the same factual circumstances. The doctrine, as commonly defined, does so in two
ways: (1) A plaintiff may not assert claims against a defendant that the plaintiff could
have brought but did not in an earlier suit against the defendant; and (2) after a court has
ruled against a plaintiff on the merits of a claim, the plaintiff may not reassert that claim
in a second suit against the defendant. 18 Wright, Miller, & Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 4402 (2002). In other words, res judicata prohibits a
plaintiff from filing a successive suit against a defendant based either on factually related
claims omitted from an earlier suit or on claims actually asserted and lost on a final
judgment on the merits in the earlier suit. In discussing those two preclusive effects of a
judgment, Wright, Miller, and Cooper explain: "The first is the effect of foreclosing any
litigation of matters that never have been litigated, because of a determination that they
should have been advanced in an earlier suit." And "the second is the effect of foreclosing
relitigation of matters that have once been litigated and decided." Federal Practice and
Procedure: Jurisdiction 2d § 4402, p. 7. See Pierson Sand v. Keeler Brass, 460 Mich.
372, 380, 596 N.W.2d 153 (1999) ("[T]he doctrine of res judicata applies, except in
special cases, in a subsequent action between the same parties and not only to points upon
which the court was actually required by parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the subject of litigation, and
which the parties, exercising reasonable diligence, might have brought forward at the
time.") (internal quotes omitted).

As a prominent corollary to those res judicata precepts, courts have commonly
recognized that claims dismissed without prejudice and, thus, without a ruling on their
merits may be reasserted in new litigation. Mine Workers, 383 U.S. at 726-27 (The
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United States Supreme Court recognizes that "if the federal claims are dismissed before
trial . . . the state law claims should be dismissed as well . . . . [T]he state claims may be
dismissed without prejudice and left for resolution to state tribunals."); Gold v. Local 7,
United Food and Commercial Workers, 159 F.3d 1307, 1311 (10th Cir. 1998) (When a
federal court declines supplemental jurisdiction under 28 U.S.C. § 1367, "[t]he proper
course of conduct . . . is to dismiss the state law claims without prejudice, in order to
permit them to be brought in state court."). Leading commentators take the same view. 47
Am. Jur. 2d Judgments, § 548 (Dismissal without prejudice ordinarily indicates "the
absence of a decision on the merits, leaving the parties free to litigate the matter in a
subsequent action."); 13D Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 3d § 3567.3 pp. 410-11 ("When a court . . . dismiss[es] the state-law claims
without prejudice . . . . [t]his course permits the plaintiff to refile in state court.");
Restatement (Second) of Judgments § 20 (1981) (A judgment for the defendant does not
bar another action by the plaintiff on the same claim when the court directs that the action
be dismissed without prejudice.).

More than 20 years ago, the Kansas Supreme Court embraced that well-accepted
treatment of a dismissal without prejudice. Jackson Trak Group, Inc. v. Mid States Port
Authority, 242 Kan. 683, 691, 751 P.2d 122 (1988). The Kansas Supreme Court
recognized that "res judicata is held not to apply to issues raised in the previous case
which were not decided by the court or the jury." 242 Kan. at 691. The court explained:
"[A] judgment is not res judicata as to any matters which a court expressly refused to
determine, and which it reserved for future consideration, or which it directed to be
litigated in another forum or in another action." 242 Kan. at 691 (citing American Home
Asssur. v. Pacific Indem. Co., Inc., 672 F. Supp. 495 [D. Kan. 1987]); 46 Am. Jur. 2d,
Judgments § 419, pp. 588-89). Under that authority, including Jackson Trak, res judicata
would have no application here, since Plaintiffs' state law claims were dismissed in
federal court without being decided on the merits. And everyone anticipated Plaintiffs
would file a suit in state court reasserting those claims.
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But in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997),
and in Rhoten v. Dickson, 290 Kan. 92, 223 P.3d 786 (2010) (affirming Stanfield), the
Kansas Supreme Court redefined res judicata in a unique and narrow way. Those two
decisions hold that res judicata bars a state court action reasserting state claims a federal
court has dismissed without prejudice and solely for lack of jurisdiction under 28 U.S.C.
§ 1367. Even though the federal court never ruled on the merits of the state law claims in
that circumstance, the court's dismissal of the federal claims on the merits, thereby
removing the basis for federal jurisdiction, is sufficient to prevent any later consideration
of the state claims in state court. Those decisions do not mention Jackson Trak's contrary
determination of the issue or purport to overrule it. Nor do they discuss the more
conventional treatment of res judicata we have outlined that would allow refiling of state
claims dismissed in federal court for want of jurisdiction.

Nonetheless, Stanfield and Rhoten do define the contemporary application of res
judicata in Kansas. That definition, however, appears to enlist no other adherents.
Comment, Kansas' Rationale Is Dust In The Wind, 50 Washburn L.J. 511 (2011) (A
detailed analysis of current Kansas res judicata doctrine cites substantial contrary case
authority from other jurisdictions but identifies no other jurisdiction recognizing a rule
comparable to that set forth in Stanfield and Rhoten.). And it has the effect of depriving a
plaintiff bringing state and federal claims in a federal court action of any forum to
adjudicate the state claims if the federal court declines to retain supplemental jurisdiction
over them after dismissing only the federal claims on the merits.

Accordingly, res judicata (at least in the way it must be applied in the Kansas state
courts) would have barred Plaintiffs from relitigating their state claims if the Brown
County District Court could have properly considered the doctrine. But the district court
could not and should not have injected res judicata into the case. Doing so was plain
error.
19


First, res judicata is an affirmative defense that must be pled in a defendant's
answer. K.S.A. 60-208(c). A defendant failing to assert an affirmative defense waives it.
Turon State Bank v. Bozarth, 235 Kan. 786, Syl. ¶ 1, 684 P.2d 419 (1984); Coffman v.
State, 31 Kan. App. 2d 61, 67, 59 P.3d 1050 (2002). As we discuss below, Defendants
made a deliberate decision—consistent with the doctrine of judicial estoppel—to refrain
from arguing a res judicata defense in the Brown County action. Given the absence of
Defendants' mention of res judicata in their answer or later in the case, the district court
erred in relying on the defense in its ruling granting summary judgment. Coffman, 31
Kan. App. 2d at 67 ("[A]ffirmative defenses cannot be raised by the court, and
consideration of such defenses constitutes error."); see Frontier Ditch Co. v. Chief
Engineer of Div. of Water Resources, 237 Kan. 857, 864, 704 P.2d 12 (1985) (The
district court improperly raised an affirmative defense on its own initiative—there, a
statute of limitations bar—and committed error by doing so.); Limestone Farms, Inc. v.
Deere & Company, 29 Kan. App. 2d 609, 615, 29 P.3d 457 (2001) (same); see also ARY
Jewelers v. Krigel, 277 Kan. 27, 38, 82 P.3d 460 (2003) (citing Frontier Ditch with
favor).

At oral argument, counsel for Defendants confirmed that they deliberately
refrained from relying on res judicata given the dictates of judicial estoppel. The
omission of the affirmative defense was not an oversight but recognition of an obligation
imposed on Defendants as a result of their argument to the federal court for dismissal of
the state claims in that forum. Judicial estoppel provides an alternative ground precluding
res judicata as a defense in this action.

Judicial estoppel precludes a party from taking one position in a case to induce the
court to act in a certain way and then taking a contrary or conflicting position in a related
proceeding involving the same opposing parties. New Hampshire v. Maine, 532 U.S. 742,
749-51, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001); see Reed Elsevier, Inc. v. Muchnick,
20

559 U.S. ___, 130 S. Ct. 1237, 1248-49, 176 L. Ed. 2d 18 (2010) (recognizing and
summarizing the doctrine of judicial estoppel as discussed in New Hampshire). The
United States Supreme Court described the doctrine this way: "'[W]here a party assumes
a certain position in a legal proceeding, and succeeds in maintaining that position, he may
not thereafter, simply because his interests have changed, assume a contrary position,
especially if it be to the prejudice of the party who has acquiesced in the position
formerly taken by him.'" New Hampshire, 532 U.S. at 749 (quoting Davis v. Wakelee,
156 U.S. 680, 689, 15 S. Ct. 555, 39 L. Ed. 578 [1895]). Thus, judicial estoppel
"'generally prevents a party from prevailing in one phase of a case on an argument and
then relying on a contradictory argument to prevail in another phase.'" 532 U.S. at 749
(quoting Pegram v. Herdrich, 530 U.S. 221, 227 n.8, 120 S. Ct. 2143, 147 L. Ed. 2d. 164
[2000]). The doctrine operates not only within a single suit; it applies to positions taken
in related proceedings. 532 U.S. at 749. A court may apply judicial estoppel in its
discretion as necessary to preserve "'the essential integrity of the judicial process.'" 532
U.S. at 750. That integrity is compromised when a party invites a court to rule a certain
way by advancing a particular argument and then allows another court to rule in an
inconsistent way in cognate litigation. The doctrine is a flexible one, operating with
sufficient suppleness to remedy impermissible manipulations in varied situations. The
Kansas appellate courts have recognized and applied judicial estoppel. See In re
Marriage of Hudson, 39 Kan. App. 2d 417, 425, 182 P.3d 25, rev. denied 286 Kan. 1178
(2008).

Judicial estoppel should be applied to prevent the use of res judicata (as retooled in
Stanfield and Rhoten) to bar the litigation of the state law claims arising out of Belden's
death. In the federal case, Defendants affirmatively sought dismissal of those claims
without prejudice and represented to the federal court that they could then be fully
litigated in state court. The federal court exercised its discretion to accede to that request,
in part, based on Defendants' representations, though it could have retained the state
claims. Defendants plainly understood as much and, consistent with preserving the
21

integrity of the process, declined to plead res judicata in this case after Plaintiffs refiled
the state claims in Brown County. But Defendants then stayed silent when the Brown
County District Court did precisely what judicial estoppel precluded. The district court
acted contrary to the representations Defendants used to secure dismissal of the federal
action by preventing Plaintiffs from litigating their state claims based on the unasserted
affirmative defense of res judicata.

At oral argument, counsel for Defendants suggested judicial estoppel should not
apply because the Brown County District Court acted on its own to invoke res judicata to
dismiss Plaintiffs' state law claims. We fail to see any meaningful difference in a
distinction between Defendants improperly asserting res judicata in state court and failing
to inform the state court that their earlier position in the litigation precluded them from
relying on res judicata as a defense. The integrity of the process seems pretty much
equally compromised in either event. Defendants had an obligation to see that the Brown
County District Court was fully informed of those circumstances even after the summary
judgment ruling, since that was where the court latched onto res judicata.

Plaintiffs did not raise the issue with the district court. But given the posture of the
case, they had neither an effective vehicle nor much reason to do so. The trial court
imposed res judicata in its summary judgment ruling without prompting or briefing from
the parties. Plaintiffs had no opportunity or need to address the issue in their opposition to
summary judgment. Because the summary judgment ruling relied on several independent
grounds to dismiss Plaintiffs from court, asking for reconsideration on res judicata would
have been an academic exercise at best. A plaintiff need not file a motion to alter or
amend a judgment under K.S.A. 60-259(f), as a prerequisite to taking an appeal.

The issue presents a question of law, and no gap in the evidence prevents this
court from fully considering it. Given that set of circumstances, along with the policies
supporting judicial estoppel in this case, there is nothing amiss in appellate review of the
22

point. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008) (An
appellate court may consider an issue first raised on appeal for various reasons including
service of "the ends of justice.").

The circumstances here also outline the substantial problems (not to mention
likely error) a court stirs up by relying on an affirmative defense no one has presented in
a case. There may well be sound, though latent, reasons for that omission. For example,
parties often enter into an agreement between themselves to toll any statute of limitations
defense so they may continue presuit negotiations beyond that deadline. If suit is filed,
the defendant then refrains from asserting the affirmative defense. The trial court need
not be informed of the agreement. But the court ought not then rely on its perception of a
statute of limitations defense to grant judgment. The situation here is materially similar.
While there was no formal agreement between the parties as to forbearance of a res
judicata defense, Defendants were just as constrained by their formal representations to
the federal court. It was, therefore, equally inappropriate and detrimental to the judicial
process for the Brown County District Court to make uninvited use of res judicata to
grant summary judgment to Defendants.

Based on their representations to the federal court to secure dismissal of Plaintiffs'
state claims in that forum, Defendants were estopped from advocating for or benefiting
from a res judicata defense in this suit. The district court erred in using res judicata as a
legal ground to enter summary judgment for Defendants.

COLLATERAL ESTOPPEL

The Brown County District Court also granted summary judgment to Defendants
based on the collateral estoppel effect of facts the Tenth Circuit found in deciding the
interlocutory appeal and affording Sheriff Shoemaker and Sgt. Hollister qualified
immunity on the federal constitutional claims. We find the district court's ruling to be in
23

error to the extent Defendants' liability on the state law claims is premised on the
argument that jail personnel should have known Belden was suicidal or that they
otherwise violated facility procedures that might have prevented the suicide. Those
theories do not conflict with the Tenth Circuit's factual findings. As with our
consideration of res judicata, this issue presents a matter of law.

Collateral estoppel or issue preclusion binds a party to a factual determination
made in a case as an integral part of a judgment when the same issue comes up in a
successive suit involving the same litigants. In re Tax Appeal of City of Wichita, 277 Kan.
487, 506, 86 P.3d 513 (2004); Hawkinson v. Bennett, 265 Kan. 564, 589, 962 P.2d 445
(1998) (There must be a prior judgment on the merits between the parties or those in
privity with them, and "'the issue . . . must have been determined and necessary to
support the judgment.'") (quoting Jackson Trak Group, 242 Kan. at 690-91). The doctrine
furthers substantially the same goals as res judicata in promoting judicial efficiency and
preventing unfairness to an opposing party. Collateral estoppel essentially recognizes that
once a court has determined a material factual issue, a party may not secure a new
determination contrary to that finding in later litigation.

Collateral estoppel is also an affirmative defense. K.S.A. 60-208(c). And
Defendants did not plead collateral estoppel in their answer in this case. Ordinarily, that
would amount to a waiver. Here, however, Defendants relied on the doctrine in their
papers supporting summary judgment. Plaintiffs identified the argument as one based on
collateral estoppel and responded on the merits. They did not argue that the affirmative
defense had been omitted from Defendants' answer and, therefore, waived. Accordingly,
Plaintiffs relinquished that procedural challenge to collateral estoppel and effectively
freed the Brown County District Court to apply the defense. See Herrington v. Pechin,
198 Kan. 431, 434, 424 P.2d 624 (1967) (When the proponent argues or offers evidence
on an affirmative defense without objection from the opposing party that the defense had
not been pled, the court may consider the defense.). The rule permitting use of an unpled
24

affirmative defense in the absence of an objection based on its omission from the answer
is one of long standing. See Owner-Operator Indep. Drivers, Inc. v. USIS Commercial
Services, Inc., 537 F.3d 1184, 1190 (10th Cir. 2008); Hardin v. Manitowoc-Forsythe
Corp., 691 F.2d 449, 458 (10th Cir. 1982); Wagner v. United States, 573 F.2d 447, 452
(7th Cir. 1978).

Under the circumstances, the district court properly could apply collateral estoppel
in this case. In turn, the district court properly could (and did) give effect to the Tenth
Circuit's factual finding that neither Sheriff Shoemaker nor any jail personnel had actual
knowledge Belden was suicidal. The district court likewise properly could (and did)
consider the Tenth Circuit's determination they acted without deliberate indifference to
Belden's situation on August 14, 2002, meaning their conduct fell short of a conscious
disregard or blind avoidance tantamount to willfulness. Leavitt v. Correctional Medical
Services, Inc., ___ F.3d ___, ___ (1st Cir. 2011) (In discussing deliberate indifference,
the court likens the standard to "'[w]illful blindness . . . and not mere negligence; these
concepts are directed at a form of scienter in which official culpability ignores or turns
away from what is otherwise apparent.'") (quoting Alsina-Ortiz v. Laboy, 400 F.3d 77, 82
[1st Cir. 2005]).

But the trial court's decision to credit the factual findings of the Tenth Circuit does
not provide a legally sufficient basis to enter judgment for Defendants on the state law
claims. Those claims are grounded in negligence. As we discuss more fully later,
negligence may be premised on simply failing to take reasonable steps or action
consistent with a legal duty. Carelessness is enough. Plaintiffs need not demonstrate the
sheriff or the jail employees knew Belden was suicidal to show they were negligent. That
would be more than sufficient, but it is unnecessary. To resist summary judgment, they
need only point to facts permitting an inference that a reasonable person should have
known Belden was suicidal or otherwise in distress or an inference that jail personnel
25

negligently failed to follow established policies or procedures that might have prevented
Belden's death.

In sum, the Tenth Circuit's rulings cut off any argument that Sheriff Shoemaker
and the jail employees knew Belden intended to kill himself. And that lack of actual
knowledge required dismissal of the constitutional claims in the Tenth Circuit's analysis.
But the state law claims, based on negligence, carry no such requirement of actual
knowledge. The legal threshold is set much lower. The Tenth Circuit's factual findings,
therefore, do not establish the negligence claims to be legally insufficient. Those
findings, credited through collateral estoppel in this case, do not require judgment for
Defendants on the negligence claims. The district court erred in so ruling.

Judicial estoppel does not figure into or prevent the application of collateral
estoppel, as it does with res judicata. As outlined earlier, Plaintiffs were plainly
disadvantaged under the Kansas version of res judicata after their state claims were
dismissed in federal court and they were required to file a new action in Brown County—
contrary to Defendants' representations to the federal court to induce the dismissal. That's
why Defendants properly refrained from asserting res judicata and why judicial estoppel
precludes their benefiting from the district court's uninvited reliance on res judicata. But
no similar disadvantage befalls Plaintiffs from collateral estoppel. Even if Plaintiffs had
remained in federal court to litigate their state claims, they would have been bound by the
Tenth Circuit's factual findings. Federal courts apply the doctrine of law of the case to
give effect to legal and factual determinations made on appeal when an action is then
remanded to the trial level for further proceedings. See United States v. Pineiro, 470 F.3d
200, 205 (5th Cir. 2006) (Law of the case "prohibits a district court on remand from
reexamining an issue of law or fact previously decided on appeal and not resubmitted to
the trial court on remand."); National Hockey League v. Plymouth Whalers, 419 F.3d
462, 470 (6th Cir. 2005) (Law of the case binds the parties to an appellate court
determination regarding the absence of an "economic market" in an antitrust action.).
26

Plaintiffs would have been bound by the Tenth Circuit's factual findings in state court
through collateral estoppel and in federal court through law of the case.

LEGAL DUTY OWED INMATES

Without elaboration in its memorandum decision, the trial court found "no
evidence" Defendants breached a legal duty owed Belden as a pretrial detainee. The court
incorporated Defendants' summary judgment arguments in support of that conclusion.
The ruling furnished an independent basis to dismiss the claims Plaintiffs have asserted.
We find the trial court's ruling to be incorrect as to the actions of jail personnel on August
14. There are disputed material facts that would allow a jury to find their action or
inaction to be negligent and a proximate cause of Belden's death. But Plaintiffs have
failed to show material factual disputes that could result in tort liability because of the
hiring, training, or general supervision of the jail employees. Plaintiffs have likewise
failed to show that the jail's pertinent policies and procedures are themselves deficient or
fail to conform to accepted standards for prison facilities. The trial court, therefore,
properly granted summary judgment on Plaintiffs' theories based on the hiring, training,
or general supervision being substandard and based on the policies and procedures being
inadequate.

The standards for weighing summary judgment are well settled. A party seeking
summary judgment has the obligation to show, based on appropriate evidentiary
materials, there are no disputed issues of material fact and judgment may, therefore, be
entered in its favor as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver,
289 Kan. 891, 900, 220 P.3d 333 (2009); Korytkowski v. City of Ottawa, 283 Kan. 122,
Syl. ¶ 1, 152 P.3d 53 (2007). In essence, the movant argues there is nothing for a jury or a
trial judge sitting as factfinder to decide that would make any difference. The party
opposing summary judgment must then point to evidence calling into question a material
factual representation made in support of the motion. Shamberg, 289 Kan. at 900;
27

Korytkowski, 283 Kan. 122, Syl. ¶ 1. If the opposing party does so, the motion should be
denied so a factfinder may resolve that dispute. In addressing a request for summary
judgment, the trial court must view the evidence most favorably to the party opposing the
motion and give that party the benefit of every reasonable inference that might be drawn
from the evidentiary record. Shamberg, 289 Kan. at 900. An appellate court applies the
same standards in reviewing the entry of a summary judgment.

To begin at the beginning, actionable negligence requires a duty owed by the
defendant to the plaintiff, a breach of that duty, harm to the plaintiff, and a causal
connection between the breach and the harm. Adams v. Board of Sedgwick County
Comm'rs, 289 Kan. 577, 585-86, 214 P.3d 1173 (2009); Reynolds v. Kansas Dept. of
Transportation, 273 Kan. 261, Syl. ¶ 1, 43 P.3d 799 (2002). A governmental entity—
here, Brown County—and its officers and employees may be liable for negligence under
the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., subject to various immunities and
other limitations.

The existence of a legally enforceable duty presents a question of law. Adams, 289
Kan. 577, Syl. ¶ 4. A county maintaining a jail owes a duty of care to the inmates housed
there. This court discussed the duty in detail in Thomas v. Board of Shawnee County
Comm'rs, 40 Kan. App. 2d 946, 951-56, 198 P.3d 182 (2008), rev. granted (January 7,
2010). Because review has been granted, Thomas may not be cited as controlling legal
authority. Supreme Court Rule 8.03(i) (2010 Kan. Ct. R. Annot. 68) (Upon a grant of
review, the Court of Appeals opinion "has no force or effect."). But the reasoning of and
authority cited in Thomas have persuasive value as a studied analysis of the issue in much
the same way secondary sources may enlighten or provoke courts in their
decisionmaking. In Thomas, 40 Kan. App. 2d at 956, the court adopted Restatement
(Second) of Torts § 314A (1964) as an appropriate statement of the standard of care a
penal facility owes inmates in its custody. We have evaluated the law in this area and
come to the same conclusion. An obligation of reasonable care to inmates arises because
28

they are not at liberty to meet their own needs and, thus, must depend upon those who
hold them. The authors of Restatement (Second) of Torts § 314A articulate a sound,
measured duty appropriate to that legal relationship.

Other Kansas cases recognize a legally enforceable duty of care derived from the
special relationship between a place of incarceration or confinement and the person held.
Adams, 289 Kan. 577, Syl. ¶ 6 (A person having legal custody of an individual holds a
special relationship imposing a duty to reasonably control that individual.); Hesler v.
Osawatomie State Hospital, 266 Kan. 616, 624-25, 971 P.2d 1169 (1999) (citing
Restatement [Second] of Torts § 314A regarding special relationships creating duty of
care, including taking legal custody of another); Jackson v. City of Kansas City, 263
Kan. 143, 156-57, 947 P.2d 31 (1997) (Police officers owed a duty to a handcuffed
arrestee to protect him against third parties, as provided in Restatement [Second] of Torts
§ 320 [1964].); P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 833, 877 P.2d 430 (1994);
Washington v. State, 17 Kan. App. 2d 518, 523-24, 839 P.2d 555, rev. denied 252 Kan.
1095 (1992) (A state prison has a duty of reasonable care as outlined in the Restatement
[Second] of Torts § 320 to protect an inmate from harm at the hands of another inmate.).
Notably, those cases look to the Restatement in fashioning the scope of the duty.

The Jackson decision is especially instructive in that the Kansas Supreme Court
found that after arresting and handcuffing Jackson, two police officers had a duty to
protect him from attack by his enraged girlfriend. The officers failed to do so, and she
stabbed Jackson. The court specifically cited Restatement (Second) of Torts § 320 as
establishing a duty on the part of those taking legal custody of an individual to protect
him or her from third persons who reasonably might pose a danger. That section of the
Restatement (Second) reflects a specialized application of the more general duty of care
owed individuals in legal custody outlined in Restatement (Second) of Torts § 314A. See
Doe Parents No. 1 v. State, Dept. of Educ., 100 Hawaii 34, 79, 58 P.3d 545 (2002)
(characterizing Restatement [Second] § 320 as "a particularized application of [the] rule"
29

set out in Restatement [Second] § 314A); Fedie v. Travelodge Intern., Inc., 162 Ariz.
263, 265, 782 P.2d 739 (1989) (noting that a special relationship of the type described in
Restatement [Second] § 314A triggers the duty to protect against third parties outlined in
Restatement [Second] § 320). The legal recognition the Kansas Supreme Court gave
Restatement (Second) § 320 depends upon a duty of care owed those in legal custody
and, therefore, tacitly accords similar status to the comparable duty outlined in
Restatement (Second) § 314A. The Court of Appeals decision in Washington, 17 Kan.
App. 2d at 523-24, carries the same import. The court applied Restatement (Second)
§ 320 as defining a duty of care due one inmate in circumstances suggesting he was a
likely target for violent retaliation from another inmate.

The Kansas Supreme Court has regularly relied upon the Restatement (Second) of
Torts for authoritative guidance in fashioning controlling doctrine on scope of duty,
negligence, and related liability issues when a plaintiff alleges a special relationship.
Adams, 289 Kan. at 593-97; Hesler, 266 Kan. at 624 (citing Restatement [Second] of
Torts §§ 314A, 316, 319 and 320 [1964]); Jackson, 263 Kan. at 156-57 (applying
Restatement [Second] § 320); Boulanger v. Pol, 258 Kan. 289, 303-08, 900 P.2d 823
(1995) (noting Restatement [Second] §§ 315-20 and applying § 315). The court also
frequently draws on the Restatement (Second) in other areas of tort law. See, e.g.,
Valadez v. Emmis Communications, 290 Kan. 472, 477, 229 P.3d 389 (2010); Puckett v.
Mt. Carmel Regional Med. Center, 290 Kan. 406, 421, 228 P.3d 1048 (2010); Thomas v.
Benchmark Ins. Co., 285 Kan. 918, 930-33, 179 P.3d 421 (2008). The considered and
continuing reliance the court affords the Restatement (Second) as a sound source for legal
principles shaping common-law tort doctrine in Kansas lends considerable support to our
conclusion here.

Jails and other penal institutions, therefore, stand in a special relationship with the
persons they detain as outlined in with Restatement (Second) of Torts § 314A. And
having taken legal custody of those prisoners in a manner that "deprive[s]" them of
30

"normal opportunities for protection," such an institution "is under a duty to . . . take
reasonable action to protect them against unreasonable risk of physical harm."
Restatement (Second) of Torts § 314A. The Brown County jail (or more exactly its
managerial personnel and staff employees) owed Belden that duty of care. As outlined in
the Restatement, actionable harm may result from the inmate's own conduct. Restatement
(Second) of Torts § 314A comment d. Thus, the duty includes protecting self-destructive
inmates from acting on those impulses. Penal facility employees are obligated to
intervene if they know or have reason to know an inmate is endangered. Comment f.
Their actions need not exceed what "is reasonable under the circumstances." Comment f.
This conclusion conforms to the reasoning in Thomas, 40 Kan. App. 2d at 956. But we
have afforded no precedential weight or value to Thomas. In keeping with our duty, we
have endeavored to independently review and analyze the issue, and having made our
best effort to do so, we independently arrive at the same conclusion as the Thomas court.

The duty outlined in Restatement (Second) § 314A strikes a careful balance
between the inherent difficulties in operating a penal facility and the recognized public
policy in providing a reasonably stable, safe environment for persons confined in those
facilities. Under the reasonableness standard, penal institutions are not guarantors of their
charges' safety or wellbeing. Liability is not strictly imposed for harm. At the same time,
jails and prisons may not cavalierly dismiss the basic needs of those they hold by denying
a reasonable measure of what might be considered decent conditions. A reasonableness
standard allows individual facilities a necessary flexibility in adopting procedures and
practices to meet their obligations without undue burden or cost. What may be reasonable
in the Brown County jail might be substandard in a much larger urban jail or a state
prison housing large numbers of convicted violent felons but no pretrial detainees.

The absence of blanket tort immunity for penal institutions in the KTCA indicates
a legislative determination that those facilities should be subject to liability for otherwise
actionable negligence. And it signals a public policy decision that the constitutional floor
31

precluding intentional and deliberately indifferent mistreatment of prisoners fails to
sufficiently serve societal norms and goals—in particular, rehabilitation—expected of
this state's penal system. In other words, something more humane and attentive than
simply refraining from constitutionally prohibited abuse is required. Had the legislature
meant to impose no greater duty or obligation than the constitutional minimum, it would
have adopted a specific tort claim exception in K.S.A. 75-6104 immunizing jails and
prisons for their treatment of inmates. Cf. K.S.A. 75-6104(v) (immunity for "any claim
arising from providing a juvenile justice program to juvenile offenders" if the program
contracts through the commissioner of juvenile justice). The imposition of tort liability
also provides a financial incentive for governmental actors operating jails and prisons to
adhere to their duty to reasonably protect inmates from harm. The Restatement standard
provides an appropriate calibration of that duty.

Using the reasonableness standard of Restatement (Second) Torts § 314A to
define the duty owed prisoners hardly reflects legal pioneering. Numerous jurisdictions
have done so over the past 40 years. Myers v. County of Lake, Ind., 30 F.3d 847, 850 (7th
Cir. 1994) (construing Indiana law and citing Restatement [Second] § 314A); Joseph v.
State, 26 P.3d 459, 466 & n.26 (Alaska 2001) (The court notes Alaska's law regarding the
duty owed inmates conforms to "the prevailing view" and cites Restatement (Second) §
314A as reflective of that view.); Haworth v. State, 60 Hawaii, 557, 563-64 & n.4, 592
P.2d 820 (1979); Hildenbrand v. Cox, 369 N.W.2d 411, 415 (Iowa 1985) (Noting its
frequent reliance on the Restatement [Second], the court points to § 314A as instructive
on law enforcement officers' "special duty to aid and protect" arrestees.); Slaven v. Salem,
386 Mass. 885, 887-88, 438 N.E.2d 348 (1982) (citing Restatement [Second] § 314A and
noting "case law from other jurisdictions generally follows the Restatement view");
Thornton v. City of Flint, 39 Mich. App. 260, 275, 197 N.W.2d 485 (1972); Murdock v.
City of Keene, 137 N.H. 70, 72-73, 623 A.2d 755 (1993); Shea v. Spokane, 17 Wash.
App. 236, 242, 562 P.2d 264 (1977), aff'd 90 Wash. 2d 43, 578 P.2d 42 (1978); Brownelli
v. McCaughtry, 182 Wis. 2d 367, 374-75, 514 N.W.2d 48 (Wis. App. 1994); see also City
32

of Belen v. Harrell, 93 N.M. 601, 603, 603 P.2d 711 (1979) (Without citing the
Restatement, the court recognizes: "[I]n the case of a jailed prisoner, the custodian has
the duty to exercise reasonable and ordinary care for the protection of the life and health
of the person in custody."); Gregoire v. City of Oak Harbor, 170 Wash. 2d 628, 635, 244
P.3d 924 (2010) (Citing case authority from 1918 rather than the Restatement, the
Washington Supreme Court notes that state's "courts have long recognized a jailor's
special relationship with inmates, particularly the duty to ensure health, welfare, and
safety.").

Those cases do not suggest standards or duties distinguishing between pretrial
detainees and those convicted of crimes. See Bell v. Wolfish, 441 U.S. 520, 537-40, 99 S.
Ct. 1861, 60 L. Ed. 2d 447 (1979) (Consistent with the United States Constitution,
pretrial detainees may be subject to sweeping "regulatory restraints" necessary to
"maintain security and order" at the facility.). Nor do we. Nonetheless, inmates awaiting
trial have been incarcerated not for punitive or rehabilitative purposes at all but because
they have been unable to post bond to secure their release while the criminal justice
process moves toward a resolution of the charges against them. 441 U.S. at 538-39
(Pretrial detainees may not be subjected to conditions imposed for punitive purposes in
contrast to restrictions on liberty incidental to "some other legitimate governmental
purpose," such as the safe operation of a penal facility.). They present a compelling
constituency for reasonableness in measuring the legal duty of care penal institutions
should extend to inmates.

DUTY CONSIDERED IN THIS CASE

Having set forth the legal duty owed Belden as a detainee in the Brown County
jail, we now look at Defendants' conduct in satisfying that duty. Our analysis takes the
facts in a light most favorable to Plaintiffs, since we are reviewing the district court's
entry of summary judgment for Defendants.
33


Legal Considerations

The contours of a duty, especially one shaped by reasonableness, must be cast to
the particular circumstances of the case. But various considerations may inform that
determination. Madison ex rel. v. Babcock Center, Inc., 371 S.C. 123, 140, 638 S.E.2d
650 (2006) ("The standard of care in a given case may be established and defined by the
common law, statutes, administrative regulations, industry standards, or a defendant's
own policies and guidelines."). In some instances, there may be applicable statutes or
regulations establishing a duty of care. Thus, in a motor vehicle collision case, running a
stop sign amounts to a breach of duty or negligence. PIK Civ. (4th) 121.01, 121.09.
Common practices or standards within an industry often bear on the scope of a duty
owed. Pullen v. West, 278 Kan. 183, 204-05, 92 P.3d 584 (2004). And an entity's own
policies and procedures help measure compliance with a duty. See K.S.A. 75-6104(d) (A
governmental entity's policies protecting a person's health or safety do not create a legal
duty to that person, but the failure to follow such a policy may be considered in
determining if the entity has been negligent with regard to an independent legal duty.);
Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 626-28, 938 P.2d 1293
(1997) (construing K.S.A. 75-6104[d]). Neither industry standards nor entity-specific
practices are generally treated as conclusive in establishing a "reasonable" duty. They are,
however, instructive. Madison, 371 S.C. at 140-41 (cases cited). The KTCA so provides.
K.S.A. 75-6104(d).

Whether a duty has been breached presents a question of fact and, therefore,
typically is unsuited for summary disposition rather than submission to a jury. Calwell v.
Hassan, 260 Kan. 769, Syl. ¶ 3, 925 P.2d 422 (1996); Honeycutt v. City of Wichita, 251
Kan. 451, 452, Syl. ¶ 8, 836 P.2d 1128 (1992). Causation—the connection between the
breach and the injury—similarly is a question of fact usually reserved for the jury.
Calwell, 260 Kan. 769, Syl. ¶ 3; St. Clair v. Denny, 245 Kan. 414, 417, 781 P.2d 1043
34

(1989). Should the evidence taken in the best light for a plaintiff nonetheless fail to
establish a basis for a jury to return a verdict for that plaintiff, the court may enter a
summary judgment for the defendant. See St. Clair, 245 Kan. at 417; Lay v. Kansas Dept.
of Transportation, 23 Kan. App. 2d 211, 215, 928 P.2d 920 (1996), rev. denied 261 Kan.
1085 (1997). In negligence cases, that should be the exception. Lay, 23 Kan. App. 2d at
215 ("Usually, a determination of the presence or absence of negligence should be left to
the trier of fact.").

Factual Considerations

Examining the factual record in light of those principles establishing the duty
owed and the relaxed standard of review governing summary judgment, we ask whether,
giving Plaintiffs the benefit of every disputed fact and every plausible inference, a
reasonable jury might render a verdict for them. We do not consider the probability of
such a verdict, only its possibility. And we neither venture some prediction on that score
nor suggest the parties try to divine one from our discussion.

Several facts bear highlighting in a review of the record:

•The jail had a policy that inmates could not obscure the windows to their cells.
The purpose behind the policy seems self-evident. Jail personnel cannot see what the
inmates are up to if the windows are covered. An inmate wishing to avoid that
observation may be undertaking something dangerous, nefarious, or even self-destructive.
In his deposition, Sgt. Hollister testified an obstruction of a cell window should be
removed "as soon as possible" although doing so requires two officers for safety reasons.

•The jail had a policy that the general inmate population was to be observed once
an hour. The jail, also by policy, maintained Cell 14 for persons in need of observation
every 15 minutes. Persons at immediate risk of harm were to be placed there. That group
35

included detainees displaying suicidal behaviors, recent arrestees under the influence of
drugs or alcohol, and those with other potentially acute medical problems.

•In the 5 years before Belden's death, between 75 and 100 inmates at the Brown
County jail had either attempted suicide or engaged in behavior indicating to jailers a
serious risk of suicide. That is an average of one such incident every 2 1/2 to 3 1/2 weeks.

•About 6:40 p.m. on August 14, Sgt. Hollister told Deputy Roberts to get another
officer and move Belden to Cell 14. Sgt. Hollister apparently did not tell Deputy Roberts
why Belden need to be moved. Deputy Roberts called Sgt. Hollister at home because
Belden had papered over the window of his cell. Shortly after 8 p.m., with the assistance
of an inmate trusty, Deputy Roberts attempted to enter Belden's cell and found Belden
hanged from the door with a bed sheet around his neck.

Deputy Roberts

From the record evidence, including those circumstances, a jury reasonably could
conclude Deputy Roberts was negligent and that negligence played a causative role in
Belden's death. We outline what a jury might infer. Once Belden papered the window to
his cell and refused to move the obstruction, Deputy Roberts should have suspected and
did suspect something was afoot or amiss with Belden. He was concerned enough to
disturb Sgt. Hollister, the jail administrator, at home to get some guidance. A jury could
find that Sgt. Hollister's directive to move Belden to Cell 14 also should have alerted
Deputy Roberts to a significant problem requiring immediate attention.

While Sgt. Hollister did not explicitly state why Belden was to be placed in Cell
14, the only applicable criterion would have been the potential for suicidal behavior.
Belden neither was intoxicated nor had some medical condition requiring close
monitoring. At that point, Deputy Roberts could have inferred Sgt. Hollister, at least,
36

considered Belden a danger to himself. Moreover, suicidal behavior among the inmate
population was far from unusual or extraordinary. Based on the frequency of those
incidents, jailers reasonably could be expected to view attempted suicide by an inmate as
an ever present possibility rather than an occurrence so rare as to be discounted as wholly
improbable.

A jury could find that Deputy Roberts should have considered Belden a suicide
risk after talking with Sgt. Hollister. That would be true even if Deputy Roberts had not
come to that conclusion based on his own observations. Just as important in analyzing
any breach of duty, Deputy Roberts should have acted far more aggressively in carrying
out Sgt. Hollister's directive to get Belden into Cell 14, whatever the reason. Sgt.
Hollister wanted Belden in a place where the jailers could actually see what he was doing
and where he would be directly monitored every 15 minutes. Deputy Roberts, however,
did little or nothing to accomplish that objective.

Deputy Roberts says he talked to the dispatcher about getting another officer to the
jail so they could enter Belden's cell and move him. But the jail log reflects no such
communication. A jury could infer Deputy Roberts never contacted the dispatcher. And,
even if he had, he did nothing to follow up when nobody arrived to help. Deputy Roberts
waited more than an hour and a half to enlist an inmate trusty to enter the cell holding
Belden.

In the meantime, Deputy Roberts should have begun monitoring Belden as if he
had been placed in Cell 14—that is, every 15 minutes. While Deputy Roberts could not
have visually monitored Belden, he could have spoken to him that often. The record
evidence indicates Deputy Roberts' contact with Belden between 6:30 and 8:15 p.m. was
at best limited and sporadic. It plainly was less intensive than the policy requiring
monitoring every 15 minutes for an inmate in Cell 14.

37

Those circumstances sketch a picture from which a jury could find a breach of the
duty of care owed Belden. The duty itself is one of reasonableness to prevent an
unreasonable risk of physical harm, including self-inflicted harm. Through its policies,
the Brown County jail had determined that placing inmates at risk for suicide in a
specific, controlled location (Cell 14) and monitoring their status frequently and regularly
(every 15 minutes) satisfied that legal duty. The policy plainly aimed to protect the health
and safety of inmates. In turn, under the KTCA, government entities and their employees
may not claim immunity based on the enforcement or the failure to enforce policies with
health and safety purposes when they owe an independent legal duty to the person
harmed. K.S.A. 75-6104(d). Here, of course, the Brown County Sheriff's Department and
its employees owed that sort of duty to Belden, as an inmate. Moreover, the failure to
conform to an internal policy intended to protect the health and safety of identifiable
individuals is itself evidence of negligence or breach of that duty. K.S.A. 75-6104(d). In
short, that section of the KTCA precludes using an internal policy to establish a duty of
care but permits a jury to consider violation of a policy in determining negligence. A jury
finding of negligence similarly would draw support from the concomitant failure to
remove the obstruction from the cell window. Again, that failure represented a violation
of a jail procedure adopted, at least in part, to fulfill the duty to avoid harm to the
inmates.

More broadly, a jury could find that jail personnel generally should have known
Belden had become potentially suicidal. In the days before Belden died, his fellow
inmates saw him pacing and clenching his fists at times and sitting, rocking, and crying at
other times. In their briefing, the parties do not provide us with much information about
the frequency of that apparently aberrant conduct—it both marked a change in Belden's
affect and reflected activity that would seem to indicate significant agitation—and the
record on appeal isn't especially illuminating. From what is available, a jury could infer
that jail personnel should have seen Belden exhibiting those troubling behaviors had they
been effectively monitoring the inmates on an hourly basis consistent with policy. At
38

least one of Belden's cellmates in the week or so leading up to the suicide later told the
KBI the rocking and crying had become quite frequent. In turn, a jury could find that
those observations, had they been made, should have triggered closer monitoring, perhaps
in Cell 14, or actual intervention. At the very least, Deputy Roberts could have been
informed that he should have been especially attentive to Belden's conduct on August 14.
He then might have been more dutiful in actively intervening when Belden first covered
his cell window.

In sum, a jury could find that Deputy Roberts breached a duty of care he, as a jail
employee, owed to Belden and the other inmates. Again, we offer no intimation as to
what we surmise a reasonable jury should or would conclude. As appellate judges, we are
in no position to make the finely tuned credibility determinations 12 jurors come to after
seeing witnesses on the stand and studying the full range of evidence. Ours is a legal
determination that the evidence in the record would be at least minimally sufficient to
support a finding of negligence as to Deputy Roberts.

The issue of causation as to Deputy Roberts' action and inaction also must be left
for the jury on the factual record presented here. We have little hesitation in concluding
that the evidence could support a jury finding of a causal link between the breach of duty
and the ultimate harm. Had Belden been moved to Cell 14 promptly after Sgt. Hollister
and Deputy Roberts spoke, a jury could infer that he would have been monitored every
15 minutes, which, in all likelihood, would have kept him from successfully hanging
himself. The record supports the inference that Cell 14 had been stripped of
accouterments, such as bed sheets, that would facilitate self-destructive behavior. Deputy
Roberts indicated in his deposition testimony that the jailers "would take all [Belden's]
stuff" before placing him in Cell 14, where there was only a mattress. Even if that were
not the case, a jury could conclude that had Belden been watched every 15 minutes he
would not have had time to kill himself in that manner. A jury could find the same would
have been true had the paper been removed from Belden's cell window and had he then
39

been watched there every 15 minutes. The call was not one for the district court to make
on a summary judgment record, but one for a jury based on a full airing of the evidence at
trial.

Sgt. Hollister

A jury could find from the evidence that Sgt. Hollister breached the duty of care
jail employees owed Belden. The evidence supports a finding that Sgt. Hollister wanted
Belden moved to Cell 14 based on what he told Deputy Roberts during their telephone
conversation about 6:40 p.m. on August 14. Sgt. Hollister apparently did not say why,
and, in his deposition testimony later, he disclaimed any belief that Belden had become
potentially self-destructive. But a jury would act within its prerogative to discount the
deposition testimony and draw a contrary conclusion from the circumstantial evidence of
what Sgt. Hollister said and wrote on August 14. Sgt. Hollister's contemporaneous report
states he directed Deputy Roberts to get another officer, "remove all items from [Belden],
and move Belden to cell 14 for further observation." The removal of personal property
from Belden, such as shoe laces, and heightened monitoring in Cell 14 would be
consistent with a standard suicide watch. In the report, Sgt. Hollister did not suggest
moving Belden to Cell 14 amounted to discipline. That would have been contrary to
policy, at least as presented in the summary judgment record, since jailers did not use
placement in Cell 14 as a punitive measure. Rather, Sgt. Hollister wanted Belden watched
closely.

A jury could conclude that Sgt. Hollister was insufficiently emphatic and explicit
in giving direction to Deputy Roberts in a situation infused with that recurring possibility
of a self-destructive inmate. In other words, Sgt. Hollister should have given Deputy
Roberts a direct order—in those words—to get Belden out of the situation in which he
had placed himself. Sgt. Hollister testified at his deposition that he wanted the paper off
the window and Belden in Cell 14 "as soon as possible," and he presumed it would have
40

been done faster. But Sgt. Hollister was communicating with a jailer lacking formal
training and who apparently did not sense much urgency in accomplishing the task.
Deputy Roberts may or may not have tried to get another officer to the jail; the evidence
is equivocal. He did wait about 90 minutes to enter Belden's cell and, then, with the help
of an inmate trusty rather than another officer. As we have noted, during that time,
Deputy Roberts did not monitor Belden in the rigorous way required for inmates
considered sufficiently at risk to be placed in Cell 14. Sgt. Hollister apparently made no
effort to follow up with Deputy Roberts to make sure Belden had been taken care of.

From the evidence, a jury might find that Sgt. Hollister considered Belden to be
substantially at risk, but he inadequately conveyed to Deputy Roberts the seriousness of
the situation and the need for prompt action. A ranking officer in that instance reasonably
should have given a clear order as to what was to be done and some similarly explicit
direction that the order be carried out promptly and that any deviation or delay be
immediately reported. Whether Sgt. Hollister breached the legal duty we have outlined
should be for a jury to determine. Causation presents a jury question, as well. A jury
could reasonably conclude that given a direct, unequivocal order, Deputy Roberts would
have been more aggressive in securing help in a timely fashion and moving Belden to
Cell 14.

Sufficient evidence establishes issues for a jury to decide regarding liability based
on the conduct of Sgt. Hollister and Deputy Roberts during the evening of August 14.
Those issues arise from how the officers addressed the specific incident involving
Belden.

41

Sheriff Shoemaker

Nothing in the record evidence indicates Sheriff Shoemaker had any direct contact
with Belden on August 14 or the days leading up to his suicide. Accordingly, Sheriff
Shoemaker did not breach a duty owed Belden in that manner.

But Plaintiffs contend Sheriff Shoemaker failed to fulfill the duty owed inmates of
the Brown County jail by negligently hiring, training, and supervising the facility's
employees and by implementing inadequate policies and procedures for the factility's
operation. We look at those theories of liability. They impose direct liability on an
employer or policymaker rather than vicarious liability for the misconduct of an
underling. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 334-35, 961 P.2d 1213
(1998).

Negligent hiring and retention derive from the same sort of employer conduct:
either hiring an individual knowing he or she has characteristics that present an "undue
risk" of harm to others given the nature of the job duties or retaining such an individual
after learning of such characteristics. Schmidt v. HTG, Inc., 265 Kan. 372, Syl. ¶¶ 9, 10,
961 P.2d 677 (1998); Wayman v. Accor North America, Inc., 45 Kan. App. 2d 526, 539-
40, 251 P.3d 640 (2011). A company that hires or keeps on a traveling sales
representative after learning the person has a string of convictions for driving under the
influence presents a textbook example of negligent hiring or retention when the driver
gets loaded at lunch and then plows into a car while on company business. See Lincoln v.
Fairfield-Nobel Co., 76 Mich. App. 514, 518-19, 257 N.W.2d 148 (1977). Plaintiffs offer
no evidence that Deputy Roberts or any other jail employees had characteristics that
rendered them unfit for the positions they held or the duties they were to perform. The
trial court properly entered summary judgment on that theory.

42

Negligent supervision entails either inadequate oversight and review of an
employee in the performance of his or her job duties or failing to control an employee
with propensities that might pose a danger. Marquis, 265 Kan. at 331, Wayman, 45 Kan.
App. 2d at 542. Again, Plaintiffs offer no facts to show Sheriff Shoemaker was deficient
in his supervision of Deputy Roberts or other jail employees or that any of the employees
had "propensities" that posed a risk to Belden or the other inmates. As we have noted,
Sgt. Hollister was arguably lax in directing and dealing with Deputy Roberts during the
evening hours of August 14 leading up to Belden's suicide. But that laxity does not
translate into a claim of direct liability against Sheriff Shoemaker. Summary judgment
was properly entered for Sheriff Shoemaker.

A claim based on negligent training depends upon establishing facts showing that
more or better training would have prevented the harm. While the record shows Deputy
Roberts received what might be termed on-the-job training as a jailer and little or no
formal instruction in a classroom setting, Plaintiffs have not demontrated that such
schooling would have made any difference in this case. Deputy Roberts was fully aware
of the jail policies and procedures for monitoring inmates and for removing obstructions
from cell windows. He didn't necessarily need more training on those practices. As we
discuss below, Plaintiffs have provided no meaningful evidence suggesting those policies
or practices were legally insufficient in some way.

Plaintiffs suggest had Deputy Roberts received training in detecting potentially
suicidal inmates, events might have unfolded and ended differently on August 14. There
is some evidence that jail personnel generally should have seen Belden behaving
unusually in his cell—the rocking and crying and the pacing—if the inmates were being
visually monitored on an hourly basis. But nothing suggests Deputy Roberts saw
anything of that nature on August 14 after Belden had been moved to the single cell. And
Deputy Roberts interpreted Belden's conduct that evening as defiant rather than suicidal.
Nonetheless, Sgt. Hollister had directed Deputy Roberts to move Belden to Cell 14,
43

where the jail placed potentially suicidal inmates. Even if we suppose more or better
training would have caused Deputy Roberts to conclude Belden were a risk to himself,
the result would have been the same. Belden should have been placed in Cell 14 and
subject to monitoring every 15 minutes. It was the failure to monitor Belden in that
manner, whether in Cell 14 or where he was, that creates a jury question on liability here,
not Deputy Roberts' lack of training. In other words, Plaintiffs have failed to show even
disputed facts suggesting a causative connection between Deputy Roberts' lack of
training and Belden's death. Summary judgment was appropriately entered on Plaintiffs'
inadequate training theory.

Plaintiffs contend the policies and procedures in the Brown County jail were so
inadequate as to constitute negligence. But they offer no material evidence to bolster their
bare claim to that effect. In the summary judgment papers, they provide an affidavit from
Victor D. Lofgreen, who they proffer as an expert in jail operations. At least on appeal,
Defendants do not challenge Lofgreen's qualifications to provide expert testimony. We
accept him as an expert in that subject matter. As we have noted, policies and procedures
falling below accepted practices in an industry or otherwise failing to conform to
standards of reasonable care may create tort liability. See Dye v. WMC, Inc., 38 Kan.
App. 2d 655, 663-64, 172 P.3d 49 (2007) (An entity may be liable for retaining an
independent contractor knowing of the contractor's substandard procedures.).

Plaintiffs, however, offer no evidence that the Brown County jail's policies and
procedures for monitoring inmates were substandard. They turn to Lofgreen on that
score. The problems with his opinions are two-fold. Many of them are couched solely in
terms of legal standards. Lofgreen repeatedly offers his opinion that various aspects of
the jail operations reflected "negligence" and "deliberate indifference" to the rights and
needs of Belden. Other opinions are simply conclusory; they lack specificity and
foundation tied to factually identifiable deficiencies in the policies or deviations from
accepted penal practices. The opinions cite neither accepted "industry" practices nor other
44

standards as a measure for the adequacy of the practices at the jail. The closest Lofgreen
comes is a statement that "the manner" in which Defendants "incarcerated inmate Jeffrey
Ray Belden were [sic] inconsistent with accepted corrections practices" and amounted to
negligence resulting in Belden's death. But Lofgreen details no such practices. Some of
the opinions fall short on both counts. Those problems present insurmountable barriers to
this court's consideration of the opinions to stave off summary judgment.

While an expert may offer an opinion on ultimate issues in a case, K.S.A. 60-
456(d), he or she cannot properly provide legal conclusions. See Puckett v. Mt. Carmel
Regional Med. Center, 290 Kan. 406, 444-45, 228 P.3d 1048 (2010) ("[I]t is generally
recognized that testimony expressing a legal conclusion should ordinarily be
excluded . . . ."). Expert testimony in that form invades the province of the court to
discern the governing law and to instruct the jury accordingly. 290 Kan. at 444-45.
Lofgreen's affidavit seems to trade in almost nothing but legal conclusions by couching
his opinions in terms of negligence and deliberate indifference. 290 Kan. at 445 (A
witness may not express opinions in terms of "the legal standard of care."). In Puckett,
the Kansas Supreme Court discussed the prohibition of expert opinion cast in terms of
legal standards in the context of juror confusion during a trial. But the rule applies
equally to opinions in affidavits filed in support of or in opposition to summary
judgment. See K.S.A. 60-256(e) (Affidavits must set forth evidence in a form that would
be admissible at trial.). It would be both contrary to K.S.A. 60-256(e) and nonsensical to
suggest an affidavit could be used to defeat summary judgment by presenting opinion
evidence that would be inadmissible in the trial of the case.

In addition, and perhaps more significantly, Lofgreen fails to tie his opinions to
shortcomings in particular jail policies or procedures. He notes the evidence shows that
Belden was not monitored as often as he should have been, but he never says the
procedure calling for observation of an inmate in Cell 14 every 15 minutes is somehow
deficient. Lofgreen never indicates there is some conventional monitoring period for
45

inmates considered at risk, reflecting an accepted standard among penologists or prison
administrators. Nor does Lofgreen say any other particular policy in effect at the Brown
County jail was substandard in that way. As a result, his opinions lack an essential factual
foundation. See Kuxhausen v. Tillman Partners, 40 Kan. App. 2d 930, 944, 197 P.3d 859
(2008) (Expert opinion testimony must be grounded in more than speculation or
unsupported assumption.). There is nothing so obviously wrong with or deficient in the
Brown County jail policies and practices that we could suggest a jury reasonably might
find them to be negligent simply by reading them and considering their application to
these circumstances, even with a generous dollop of common sense. Hopkins v. State,
237 Kan. 601, Syl. ¶ 9, 702 P.2d 311 (1985); see Puckett, 290 Kan. at 435-36 (A jury
may infer neither the appropriate standard of care nor a causal connection to the claimed
injury if they would not be "apparent to an average layperson [based on] common
knowledge or experience."); Pullen, 278 Kan. at 204-05 (noting jury likely lacks common
knowledge or experience to discern industry standards or practices pertaining to
commercial fireworks shows).

Accordingly, the trial court properly granted summary judgment to Sheriff
Shoemaker with regard to the policies and procedures of the jail.

Brown County Commissioners

Plaintiffs have sued Warren Ploeger, Glen Leitch, and Steve Roberts as the Brown
County Commissioners holding office at the time of Belden's suicide and make
substantially the same claims against them as against Sheriff Shoemaker. Based on the
factual record developed in the district court and submitted on appeal, the county
commissioners are entitled to summary judgment for the same reasons as Sheriff
Shoemaker.

46

In addition, the commissioners are entitled to summary judgment because they are
not legally responsible for the hiring or training of personnel or promulgation of policies
or procedures within the Brown County Sheriff's Department, particularly with regard to
jail operations. In Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 261-62,
62 P.3d 247 (2003), the Kansas Supreme Court noted that an elected county sheriff "is
not a subordinate of" the elected board of county commissioners but functions with a
comparable grant of authority from the legislature. In turn, the county commissioners are
"not free to usurp the powers of the office of sheriff by controlling the hiring or firing of
the deputies and assistants appointed by the sheriff." 275 Kan. at 262. That ruling reflects
the statutory mandate of K.S.A. 19-805(a) giving county sheriffs hiring and firing
authority within their departments subject only to personnel policies county commissions
may adopt as applicable to all county employees other than elected officials, K.S.A. 19-
805(d). County commissioners have no authority and, hence, no legal duty to control
hiring and firing decisions of elected sheriffs within their departments. Commissioners
cannot be personally liable for breach of a nonexistent duty.

The Kansas Legislature has similarly given sheriffs—not county commissions—
statutory authority to operate jails. K.S.A. 19-811 ("The sheriff shall have the charge and
custody of the jail of his county . . . ."); K.S.A. 19-1903 ("The sheriff of the county . . .
shall keep the jail, and shall be responsible for the manner in which the same is kept.").
The United States District Court for the District of Kansas recognized: "Under Kansas
statutes, the county sheriff is clearly responsible for keeping the county jail." Woodson v.
Sully, 801 F. Supp. 466, 468 (D. Kan. 1992). Those statutes confer exclusive authority on
a county sheriff to establish policies and procedures for operating a jail. And, in turn, the
county commissioners may not require particular operational practices in a jail. Absent
such authority, individual county commissioners cannot be held legally liable for the
deleterious consequences of substandard jail policies, procedures, or practices.


47

ISSUES THE DISTRICT COURT TREATED AS MOOT

In its decision on Defendants' summary judgment motion, the district court
declined to rule on disputes over immunities under the KTCA, K.S.A. 75-6104, Brown
County's vicarious liability, and application of the statute of limitations. The district court
treated those matters as moot because it granted summary judgment on other grounds to
all Defendants on all claims. The issues, however, were developed in the summary
judgment papers submitted to the district court. Given our determination that Plaintiffs
have presented viable claims, those issues are no longer dormant.

An appellate court may consider issues a district court has declined to review as
moot in several circumstances. If the appellate court rejects the trial court's reasons for a
dispositive ruling, in whole or in part, those "moot" issues could provide an alternative
basis to uphold the judgment. Thus, an appellate court may look at them because it will
commonly affirm a lower court that has reached the correct result despite relying on an
incorrect reason. See In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d
1091 (1988) (An appellate court may consider an issue raised for the first time on appeal
if it may uphold a lower court judgment otherwise based on an insufficient ground.);
Vencor Hospitals v. Blue Cross Blue Shield, 169 F.3d 677, 682 n.12 (11th Cir. 1999) (An
appellate court may consider issue argued below although not relied upon by district
court in deciding a case.). Such consideration may be particularly appropriate on
summary judgment because the facts are undisputed (they must be viewed in favor of the
nonmoving party) and the determination to grant or deny the motion presents a question
of law. An appellate court has a vantage point equal to that of the district court when it
comes to questions of law. Here, as noted, the parties briefed the moot issues in their
summary judgment papers. See Box v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir.
1985) (An appellate court may affirm on any ground found in the trial record so long as
the parties have had the opportunity to address that ground.). Finally, an appellate court
may act in the name of judicial efficiency to reach issues in that posture rather than
48

remanding for initial disposition below—thereby inviting another round of appellate
briefing and delay. Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008) (The court of
appeals recognizes that "[s]ince we could affirm summary judgment on this alternative
ground if it had merit, we find it prudent to address this argument now in the interest of
judicial efficiency." On review, the appellate court found the alternative ground to be
without merit and reversed the summary judgment.).

This is one of those exceedingly rare cases. We cannot overstate that rarity. But
the lapse of time has been extraordinary. Belden died 9 years ago, and the litigation of his
death has worn on for 7 years. Remanding the issues for further consideration can only
cause additional and possibly significant delay. As it is, witnesses may be difficult to
find. And time almost inevitably has dulled their recollections. More delay will only
aggravate those problems. Were the litigation on its first appeal, we would be far less
concerned. But this is the third visit to an appellate court, counting the trips to the United
States Court of Appeals.

As we have noted, the issues the district court declined to consider present
questions of law at the summary judgment stage. We review those issues and decide them
for purposes of summary judgment, thereby clearing the way for proceedings on remand
that typically follow resolution of a dispositive motion. As with many such issues,
however, the district court may consider them anew in light of the evidence admitted at
trial, especially if that evidence differs materially from the summary judgment record.

KTCA Immunities

Defendants assert they may not be held to answer for Belden's death based on two
immunities extended governmental entities and their employees under the KTCA. They
seek shelter in the discretionary function immunity and the police protection immunity.
K.S.A. 75-6104(e), (n). Neither helps them.
49


The general precepts governing application of the KTCA have been often recited,
though the specific implications of many of the immunities outlined in K.S.A.75-6104
remain unsettled. Under the KTCA, liability is the rule, and the exceptions granting
immunity are to be narrowly construed. Kansas State Bank & Tr. Co. v. Specialized
Transportation Services, Inc., 249 Kan. 348, 364, 819 P.2d 587 (1991) ("The KTCA is an
open-ended act, making governmental liability the rule and immunity the exception.");
Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984) (KTCA creates a
"general rule of governmental liability" subject to exceptions that are to be given a "strict
or narrow interpretation."); see Dougan v. Rossville Drainage Dist., 243 Kan. 315, 318,
757 P.2d 272 (1988). The government actor seeking protection through an exception
must establish the basis for such relief from liability. Woodruff v. City of Ottawa, 263
Kan. 557, 562-63, 951 P.2d 953 (1997); Jackson, 235 Kan. at 286.

In K.S.A.75-6104, the KTCA sets forth a lengthy, nonexclusive list of immunities
to the general rule of governmental liability for tortious conduct. The police protection
immunity states that a public entity or its employees "shall not be liable for damages
resulting from failure to provide, or the method of providing, police or fire protection."
K.S.A. 75-6104(n). That section codifies the common-law principle of government
immunity known as the public duty doctrine. Hopkins, 237 Kan. at 609-10 (Various
immunities in K.S.A. 75-6104, including that for police and fire protection, codify
preexisting common-law doctrine.); see Robertson v. City of Topeka, 231 Kan. 358, 363,
644 P.2d 458 (1982). Under that doctrine, governmental entities could not be liable for
breach of duties owed the general public as opposed to particular individuals. 231 Kan. at
363 ("[T]he duty of a law enforcement officer to preserve the peace is owed to the public
at large, not a particular individual."); Potts v. Board of Leavenworth County Comm'rs,
39 Kan. App. 2d 71, 80-81, 176 P.3d 988 (2008) (outlining scope of public duty
doctrine). Because municipalities provide police protection to the public at large, they
could not be sued for the negligent delivery of that service in a particular instance.
50

Roberts, 231 Kan. at 363 ("Absent some special relationship with or specific duty owed
an individual, liability will not lie for damages."); Potts, 39 Kan. App. 2d at 81. For
example, a city could not be successfully sued because police officers were inexcusably
slow in responding to a call of a home invasion in progress and, as a result, the victim
suffered prolonged abuse and serious injuries at the hands of the criminals.

Here, the KTCA immunity modeled on the public duty doctrine does not apply.
The duty owed Belden derived not from his status as a member of the general public but
from his status as a detainee in the Brown County jail. As a detainee, Belden occupied a
special and legally protected relationship with the keepers of the jail. It is that
relationship that imposes the legal duty at issue here. And K.S.A. 75-6104(n) affords no
immunity for a breach of that particularized duty. None of the defendants may avoid
liability on that basis.

On summary judgment, Defendants claimed immunity based on the performance
of discretionary functions. K.S.A. 75-6104(e). The immunity protects government entities
and their employees when they undertake decisionmaking requiring the exercise of
discretion, even if that discretion may be abused in the process. K.S.A. 75-6104(e). The
protection is not confined to decisions made at an executive level or made by elected
officials and may encompass some choices made by nonsupervisory personnel. K.S.A.
75-6104(e); Woodruff, 263 Kan. at 562-63 (Tactical decisions of police officers acting in
the field may constitute immunized discretionary functions.).

Discretionary function immunity under the KTCA comes into play when a
government actor makes a choice among policy options in addressing a given set of
circumstances. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc.,
249 Kan. 348, 365, 819 P.2d 587 (1991) ("[A] discretionary function must involve some
element of policy formulation."). But discretionary function immunity does not protect a
decision simply because it entails a selection between taking an action and refusing to
51

take that action. If that were true, discretionary function immunity would eliminate
governmental tort liability, since virtually every decision to act or to refrain from acting
involves some degree of choice. 249 Kan. at 365. ("[T]he mere exercise of some
judgment cannot be the test for a discretionary function because judgment is exercised in
almost every human endeavor.") (internal quote omitted). Rather, the decision must
reflect something more—a course of conduct grounded in legitimate options requiring an
exercise of reasonable judgment to select one option over the others. Hesler v.
Osawatomie State Hospital, 266 Kan. 616, 633, 971 P.2d 1169 (1999).

Brown County's reliance on discretionary function immunity falls short both
legally and factually. Given the way the case sits now, no decisionmaking of the type
even arguably immunized remains at issue. We have affirmed the summary judgment for
Defendants on the negligence claims arising from the policies and procedures in place at
the jail or on the absence of some different (and presumably better) operational practices.
Likewise, we have upheld the summary judgment dismissing the hiring, retention,
training, and supervision claims that arguably might include immunized discretionary
components. We have done so in the absence of any disputed facts that would support a
jury verdict on those claims. As a result, there is nothing left to immunize.

The remaining claims on which we reverse do not even arguably implicate
protected discretionary functions in light of the summary judgment record and the
required review deferential to Plaintiffs' claims. Deputy Roberts' actions and inactions on
August 14 entail no discerning choices among reasonable alternative courses of action.
His conduct would not come within the scope of that immunity. And Sgt. Hollister
essentially failed to give Deputy Roberts a clear order or otherwise provide sufficient
direction to him on August 14 and then failed to follow up on compliance. Again, that
sort of failure presents no reasoned or deliberative choice among options of the sort
warranting immunity. Had Sgt. Hollister chosen to advise Deputy Roberts in Spanish
knowing that the officer spoke only English, no one would suggest he engaged in a
52

protected discretionary function in making that choice. The failure actually implicated in
the record might not be so stark, but it differs in degree rather than in kind.

The Kansas Supreme Court's recent decision in Soto v. City of Bonner Springs,
291 Kan. 73, 238 P.3d 278 (2010), does not require a different conclusion. In that case,
Soto sued for false imprisonment when law enforcement officers detained him for several
days on an arrest warrant issued for someone else with a nearly identical name. Soto
alleged the officers were negligent in their efforts to confirm he was not the wanted man.
The Supreme Court found the discretionary function immunity protected the officers. No
statutes imposed specific obligations on law enforcement officers holding an arrestee to
confirm a claim of mistaken identity. And the particular governmental entities maintained
no detailed, mandatory policies outlining actions to be taken in that situation. The officers
took steps to ascertain whether they had the right person in custody. Although Soto may
have thought those efforts to be lacking, the officers' determination on how best to
proceed reflected protected discretionary decisionmaking in selecting among myriad
reasonable methods and options for confirming they had detained the wanted man and
not an unfortunate name-alike. The facts here do not portray the same kind of selection
among reasonable alternatives.

In addition, the discretionary function exception is legally inapplicable to the
circumstances of this case. As we have already indicated, K.S.A. 75-6104(d) supplies the
appropriate tort claim immunity here, at least as to the jail policies and procedures
directly at issue. Those policies—regulating the monitoring of inmates in distress and
prohibiting inmates from obscuring the windows in their cells—pertain to the health and
safety of those confined in the jail. In turn, K.S.A. 75-6104(d) affords immunity to
government entities based on the adoption and enforcement of health and safety policies
only if the entities owe no independent duty to the persons protected. As the Kansas
courts recognize, governmental bodies maintaining penal facilities owe a freestanding
53

duty to the inmates to act reasonably to provide a safe environment. Accordingly, Brown
County secures no refuge in K.S.A. 75-6104(d).

Moreover, K.S.A. 75-6104(d), as a statutory provision specifically addressing
health and safety policies, applies to the exclusion of the more general discretionary
function immunity. Typically, of course, a specific statutory enactment controls over a
more general one operating in the same sphere. In re K.M.H., 285 Kan. 53, 82, 169 P.3d
1025 (2007). There is no reason to jettison that preference here. The legislative history of
the immunity granted in K.S.A. 75-6104(d) redoubles that conclusion. As outlined in
Jarboe, 262 Kan. at 626-28, the legislature enacted that subsection to negate a judicial
interpretation of the discretionary function exception rendered in Fudge v. City of Kansas
City, 239 Kan. 369, 720 P.2d 1093 (1986), prohibiting immunity when government actors
deviate from internal policies and procedures in dealing with individuals owed no legally
enforceable duty apart from one created through those policies and procedures. In other
words, Fudge recognized that detailed, mandatory governmental policies and procedures
could create a legal duty where none otherwise existed and breach of that duty would not
be immunized under the KTCA. The legislative response to Fudge was a resounding
rejection of that interpretation of the KTCA, captured in the passage of K.S.A. 75-
6104(d). That section, then, reflects a particularized application of the discretionary
function exception, and where it applies, it does so to the exclusion of the more general
exception.

As to the Brown County jail policies and procedures at issue, K.S.A. 75-6104(d)
controls and would not extend immunity to Defendants.

Brown County's Vicarious Liability

In the district court, Brown County argued that it should not be held vicariously
liable for any negligence of Sheriff Shoemaker or his department's employees based on a
54

statute of limitations defense. The County submits Plaintiffs did not include a specific
assertion of vicarious liability in their federal court complaint. Plaintiffs first expressly
mentioned vicarious liability, using that term, in their petition filed after dismissal of the
federal case and long after the events surrounding Belden's death. We address the point
because we have determined there is evidence from which a jury might impose liability
on either Deputy Roberts or Sgt. Hollister.

Under the KTCA, Brown County would be liable for the negligent conduct of the
Sheriff's Department employees acting within the scope of their work and not otherwise
immunized. In Cansler v. State, 234 Kan. 554, 567, 675 P.2d 57 (1984), the Kansas
Supreme Court recognized that a county would bear legal liability for negligent actions of
sheriff's department employees performing a duty the department had undertaken. The
provisions of KTCA conform to that determination. As we have pointed out, the KTCA
mandates that a governmental entity shall be liable for the wrongful conduct of its
employees. Under the KTCA, a "government entity" entails the "state or [a]
municipality." K.S.A. 75-6102(c). In turn, a "municipality" includes "any county" but
sheriffs' departments are not separately listed in the definition. K.S.A. 75-6102(b).
Sheriffs' departments are embraced within the term "municipality." Thus, for purposes of
the KTCA, sheriff's department personnel are employees of the county. The federal
courts in Kansas have concluded sheriffs and their supporting staff are county employees.
Woodson, 801 F. Supp. at 468-69; Eames v. Board of County Com'rs, 733 F. Supp. 322,
324 (D. Kan. 1990) (sheriff and deputies "are employees of the county they serve").

All of the state law claims arising from Belden's death are governed by the 2-year
statute of limitations in K.S.A. 60-513. Plaintiffs had knowledge of the nature and scope
of those claims when they filed their federal complaint in 2004. They filed their petition
in this case almost 4 years later. For purposes of addressing the vicarious liability of
Brown County, we presume the petition to have been filed after the claims accrued and
the 2-year limitations period had run.
55


We discount Plaintiffs' argument that the vicarious liability allegations asserted in
the petition "relate back" to the filing of the federal suit and, therefore, should be
considered timely for that reason. Under K.S.A. 60-215(c)(1), an amendment to a petition
asserting new claims or grounds for relief against a defendant relates back to the date of
the original filing. If a petition has been filed within the statute of limitations for the
claims to be added by amendment, the new claims are treated as timely. But K.S.A. 60-
215 does not apply here. It pertains to amendments to pleadings in a pending suit. If
Plaintiffs had amended their petition in this case to add a claim against one of the
defendants, the claim would be treated as if it had been raised in the original petition. But
the relation back aspects of K.S.A. 60-215 have nothing to do with an earlier suit—such
as the federal complaint—that has been dismissed. In short, K.S.A. 60-215 does not
provide a bridge allowing an amendment filed in one case to be considered part of an
earlier suit.

Nonetheless, Brown County fails on its statute of limitations argument because
Plaintiffs' federal complaint provided sufficient notice to the County that it faced
vicarious liability for the alleged negligence of various Sheriff's Department employees.
The federal complaint was filed before the statute of limitations expired and, thus,
preserved that theory. Following dismissal of the complaint, Plaintiffs filed their petition
in this case within the 30-day window created by 28 U.S.C. § 1367(d) permitting a party
to reassert state law claims dismissed for lack of jurisdiction in federal court without
facing a statute of limitations bar. Accordingly, any theories of state law liability fairly
within the notice provided to Brown County in the federal complaint should be treated as
timely for limitations purposes.

Under Fed. R. Civ. P. 8, a complaint need only contain "a short and plain
statement of the claim showing the pleader is entitled to relief." See Vincent v. City
Colleges of Chicago, 485 F.3d 919, 923 (7th Cir. 2007). The content should give the
56

defendant "fair notice" of the claims, typically by identifying the circumstances and
events to be litigated. Aktieselskabet AF 21.November 2001 v. Fame Jeans, 525 F.3d 8,
15-16 (D.C. Cir. 2008). But a sufficient, if minimal, complaint requires neither recitation
of specific facts nor identification of precise legal theories. Vincent, 485 F.3d at 923.

Plaintiffs' complaint identified by name or description the Sheriff's Department
employees and the county commissioners and outlined alleged deficiencies in their
actions in dealing with Belden and in operating the jail. The allegations also indicated all
of the individuals acted within the scope of their work or the purview of their elected
offices. The complaint sought to impose liability on the individual defendants and Brown
County, but it did not use the terms "respondeat superior" or "vicarious liability" to
identify one of the legal bases for doing so. Federal courts have consistently recognized
allegations of that sort in a complaint—identifying alleged acts of negligence or other
wrongful conduct on the part of employees performing their jobs—give fair notice to the
employer that it may be subject to vicarious liability. Rebstock v. Evans Productions
Engineering Co., Inc., No. 4:08CV01348 ERW, 2009 WL 3401262, *11 (E.D. Mo. 2009)
(unpublished opinion) (Plaintiff's allegations of negligent acts by defendant's employees
were sufficient to put defendant on notice of respondeat superior liability even though the
complaint fails to use that phrase, vicarious liability, or similar terminology.); George v.
Morton, No. 2:06-CV-1112-PMP-GWF, 2007 WL 680788, *13 (D. Nev. 2007)
(unpublished opinion) ("[U]nder the ordinary notice pleading standard, Plaintiff has
stated a claim against HRSM because Plaintiff alleged HRSM's officers conducted
business without all required licenses thereby putting HRSM on notice of its potential
vicarious liability."); Isik Jewelry v. Mars Media, Inc., 418 F. Supp. 2d 112, 130 (E.D.
N.Y. 2005); Del Amora v. Metro Ford Sales and Service, Inc., 206 F. Supp. 2d 947, 949-
50 (N.D. Ill. 2002) (A complaint alleging wrongdoing by a nonsupervisory employee of
defendant and defendant's violation of federal credit reporting statutes "encompass[ed]
the possibility of a theory of vicarious liability," thereby giving sufficient notice under
Fed. R. Civ. P. 8.).
57


Federal law guides the determination of the sufficiency of the notice imparted to
Brown County in Plaintiffs' complaint. Given that authority, we conclude that Brown
County had adequate and timely notice in the complaint that it could face liability for the
alleged wrongful conduct of the other defendants. Accordingly, its statute of limitations
defense to liability based on vicarious liability fails. The Kansas Supreme Court has taken
a view comparable to that expressed in the federal courts regarding the sufficiency of
pleadings in imparting notice of vicarious liability to employers. Beggerly v. Walker, 194
Kan. 61, 65-66, 397 P.2d 395 (1964) (Allegations implying an employee acted within the
scope of his employment at a private club when he hit plaintiff, a patron at the club,
provided sufficient notice to the employer that it faced respondeat superior liability.).
While Beggerly was decided under the old procedural rules, we have little doubt the
outcome would be the same under the present Kansas Code of Civil Procedure, which is
closely modeled on the federal rules.

Our conclusion is further bolstered by the KTCA. Liability of a governmental
entity for the negligent acts of its employees arises by operation of law under the KTCA
rather than from any formal allegation of such liability in the petition. Under K.S.A. 75-
6103, "each governmental entity shall be liable for damages caused by the negligent or
wrongful act or omission of any of its employees while acting within the scope of their
employment . . . ." And under K.S.A. 75-6109, "a governmental entity is liable, and shall
indemnify its employees against damages, for injury or damage proximately caused by an
act or omission of an employee while acting within the scope of his or her employment."
Those provisions statutorily impose liability on a governmental entity subject to the
KTCA for employee negligence. That would be true regardless of whether a plaintiff has
even named the government body as a defendant, let alone expressly pled vicarious
liability.

58

Brown County alleges neither undue surprise nor prejudice resulting from
Plaintiffs' assertion of vicarious liability. The County does not suggest it would have
defended against the federal claims or the state claims in some other way had Plaintiffs
been excruciatingly clear in alleging vicarious liability. Even if the complaint were
insufficiently exact, Brown County shouldn't have been deterred in fully defending
against the claims because, as we have said, it knew it would be legally liable under the
KTCA for any judgment against individual Sheriff's Department employees for conduct
arising from their employment. And that liability would attach regardless of how
Plaintiffs pled their case against the County.

Deputy Roberts' Statute of Limitations Defense

In the summary judgment papers, Deputy Roberts argued that he had a statute of
limitations defense because he was not identified by name as a defendant in the federal
complaint but merely through the pseudonym "John Doe," described as an "unidentified
employee[] of Brown County. . . responsible for guarding and supervising Jeffrey Ray
Belden on the day of his death." Deputy Roberts was not formally identified as a
defendant until well into the federal litigation and well after the limitations period had
expired. Deputy Roberts says that entitles him to assert that defense in this suit. Plaintiffs
countered that the federal court reviewed and rejected his statute of limitations argument.

Deputy Roberts did raise his limitations defense in federal court, and it was
denied. The federal district court ruled that he had not timely asserted the defense after he
had been added as a named defendant. The court found Deputy Roberts, therefore,
waived the defense. We need not detail the procedural gymnastics in federal court
resulting in that determination given our resolution of the issue here. Likewise, we do not
venture into the efficacy of naming pseudonymous defendants in federal suits as
surrogates for unknown individuals. We presume the practice to be ineffective to avoid a
limitations bar. See Garrett v. Fleming, 362 F.3d 692, 696-97 (10th Cir. 2004) (holding
59

that naming a "John Doe" defendant in a complaint fails to preserve a claim against a
statute of limitations bar and collecting cases on the point).

Given the Kansas Supreme Court's formulation of res judicata or claim preclusion
in Stanfield and Rhoten, Deputy Roberts cannot raise an affirmative defense based on the
statute of limitations precisely because he could have and did assert it in the now
dismissed federal suit. As we have discussed, Rhoten applies res judicata to bar
relitigation of state claims filed in federal court and then dismissed for lack of jurisdiction
in that forum. Just as Rhoten presumed to apply federal res judicata principles, we must
do likewise—filtered through the prism of that Kansas Supreme Court precedent—to
determine the impact on Deputy Roberts' defense. See Rhoten, 290 Kan. at 106.

Res judicata, as applied in federal courts, precludes relitigation of every matter
related to a cause of action, including particular theories of liability and particular
defenses to those theories. The United States Supreme Court has repeatedly stated res
judicata binds the "'"parties and those in privity with them, not only as to every matter
which was offered and received to sustain or defeat the claim or demand, but as to any
other admissible matter which might have been offered for that purpose."'" Travelers
Indemnity Co. v. Bailey, 557 U.S. ___, ___, 129 S. Ct. 2195, 2205, 174 L. Ed. 2d 99
(2009) (quoting Nevada v. United States, 463 U.S. 110, 130, 103 S. Ct. 2906, 77 L. Ed.
2d 509 [1983]) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L. Ed. 195
[1877]). A leading treatise cites that formulation of the rule of res judicata as "a typical
example." 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d
§ 4406, p. 140 (2002). Federal appellate courts regularly rely on that statement of the
doctrine. See, e.g., Czarniecki v. City of Chicago, 633 F.3d 545, 550 (7th Cir. 2011);
Wintermute v. Kansas Bankers Sur. Co., 630 F.3d 1063, 1067-68 (8th Cir. 2011). The
Supreme Court has offered similarly broad descriptions of the reach of res judicata in
other cases. Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980)
60

("[R]es judicata . . . precludes the parties or their privies from relitigating issues that were
or could have been raised in that action.") (citing Cromwell, 94 U.S. at 352).

Federal courts, then, construe res judicata to preclude a defendant from raising a
defense that had been or was asserted in an earlier case between the same parties arising
out of the same cause of action. This is sometimes called defense preclusion. See 18A
Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4442 (2002).
As the Kansas Supreme Court has defined claims or causes of action and judgments on
the merits for res judicata purposes in Stanfield and Rhoten, Deputy Roberts may not
present a statute of limitations defense in this case because he presented that same
defense in response to the same claims in the federal court action where a judgment on
the merits has been entered, albeit only on the federal claims. While Deputy Roberts
undoubtedly disagrees with the federal court's rejection of his defense, that is irrelevant to
a res judicata bar in this case. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394,
398, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981) ("Nor are the res judicata consequences . . .
altered by the fact that the judgment may have been wrong or rested on a legal principle
subsequently overruled in another case.") (Cases cited.).

In response to Defendants' summary judgment motion in this case, Plaintiffs
pointed to the determination of Deputy Roberts' limitations defense in federal court as
prohibiting it here. Unlike a defendant, a plaintiff has no obligation to assert the defense
preclusion component of res judicata during the pleading stage of a civil suit. A
defendant must identify res judicata as an affirmative defense in an answer as provided in
K.S.A. 60-208(c). This case illustrates why there is no equivalent obligation for a
plaintiff asserting defense preclusion to raise that theory at the pleading stage.

Here, Deputy Roberts asserted his statute of limitations defense in his answer—it,
too, is an affirmative defense that must be pled. But a plaintiff is not required to file a
pleading in response to affirmative defenses in an answer. K.S.A. 60-207(a). Indeed, no
61

such pleading is allowed. Accordingly, a plaintiff may raise defense preclusion at such
time in the litigation as the defendant seeks a court ruling on an affirmative defense.

Plaintiffs in this case likewise are not barred by judicial estoppel from invoking
defense preclusion. They did not ask the federal court to dismiss their state law claims so
those claims could be pursued in Brown County District Court. Defendants did, and their
request triggered an estoppel applicable to them. Plaintiffs, however, consistently and
adamantly resisted dismissal of their state law claims in federal court. Their assertions do
not now preclude them from relying on the defense preclusion aspects of res judicata.

Under Kansas res judicata principles, Deputy Roberts may not assert a statute of
limitations defense in this case.

CONCLUSION

The district court's entry of summary judgment for Defendants is affirmed in part
and reversed in part. The case is remanded for further proceedings consistent with this
opinion.