Muxlow v. City of Topeka

NOT DESIGNATED FOR PUBLICATION

No. 117,428

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KELLY MUXLOW,
Appellant,

v.

CITY OF TOPEKA,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed June 15, 2018.
Affirmed.

Robert E. Keeshan, of Scott, Quinlan, Willard, Barnes & Keeshan, LLC, of Topeka, for appellant.

Nicholas H. Jefferson, assistant city attorney, for appellee.

Before LEBEN, P.J., GARDNER, J., and BURGESS, S.J.

PER CURIAM: Kelly Muxlow was injured when she fell into an unmarked culvert
with no guardrails while walking through the grassy area between a Topeka city park and
the street beside it. She sued the City of Topeka to recover for her injuries.

The City moved for summary judgment, claiming immunity from liability under
the Kansas Tort Claims Act. While the Act generally allows tort suits against state and
local governments to proceed, there's an exception for recreational use. Under that
exception, a two-part analysis applies. The government is generally immune from claims
for injuries resulting from the use of public property intended or permitted to be used as a
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park, playground, or open area for recreational purposes. But there's no immunity if the
governmental entity committed the highest level of negligence, what's called gross and
wanton negligence.

The district court found that the recreational-use exception applied because the
place where Muxlow fell, which is adjacent to a park, was permitted to be used for
recreational purposes. The court separately concluded that Muxlow had not provided
sufficient evidence to show gross and wanton negligence by the City. Based on these
conclusions, the district court granted the City's motion.

On appeal, Muxlow argues that summary judgment wasn't appropriate for two
reasons: First, that the place where she fell wasn't a recreational area, and second, that
there was evidence that the City acted with gross and wanton negligence. But neither
party disputes that the area was public property permitted to be used for recreational
purposes—such as jogging and walking dogs. And gross and wanton negligence requires
some evidence that the City knew of the danger the culvert presented, but Muxlow has
not presented any evidence that the City knew of any danger. Thus, the district court
correctly held that summary judgment was appropriate because the City was immune
from Muxlow's claim under the recreational-use exception. We therefore affirm the
district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Kelly Muxlow took her dogs out for a walk one evening in June 2013 near the
Governor's mansion in Topeka, Kansas. Shortly before sundown, Muxlow reached an
area along Fairlawn Road that didn't have a sidewalk, so she walked through a grassy
area that sits between the road and MacLennan Park. While crossing through, she saw a
fox approach. Muxlow picked up one of her dogs and started backing up—she soon fell
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into a 4-foot deep unmarked concrete culvert that sits in the grassy area. There were no
guardrails around the culvert.

Muxlow's fall resulted in cuts and bruising to her face, as well as a heel fracture
that required two surgeries. The City placed temporary barricades around the culvert two
days after Muxlow's fall, and a few months later it installed metal guardrails.

Muxlow sued the City in June 2015, alleging that the City was negligent for
failing to put barriers or signs around the culvert. The City of Topeka argued that the
culvert was installed in the 1960's by the State of Kansas, so it wasn't responsible for
Muxlow's injuries. Muxlow tried to join the State of Kansas, the Kansas Department of
Transportation, and the Kansas Secretary of Transportation to her lawsuit. But Muxlow
brought her claims against the additional defendants outside of the two-year statute of
limitations, so the district court granted their motion to dismiss them from the suit.

After discovery (the process in which parties to litigation can learn the facts by
exchanging information and deposing witnesses), the City moved for summary judgment.
One basis for the motion was recreational-use immunity under the Kansas Tort Claims
Act.

After hearing oral arguments on the City's motion, the district court issued a
written decision granting the City's motion and entering judgment in its favor. The
district court found that one issue was dispositive in the case—that the City of Topeka
was immune from suit under the Kansas Tort Claims Act.

Muxlow then appealed to our court. We too have heard oral argument from the
parties. We have also reviewed both their filings in the district court and briefs filed on
appeal.

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ANALYSIS

On appeal, Muxlow argues that the City wasn't entitled to recreational-use
immunity because the place where Muxlow fell wasn't a recreational area and there was
some evidence that the City acted with gross and wanton negligence. Before we get into
Muxlow's arguments, we must first review a bit of procedure.

After parties to a dispute have had a chance to discover evidence, but before their
case goes to trial, a party may submit a motion to the trial court seeking summary
judgment. K.S.A. 2017 Supp. 60-256(a). The party seeking summary judgment must
show, based on both parties' evidence, that there is no dispute as to any significant fact
and that they are entitled to judgment as a matter of law. In other words, the moving party
must show that there's nothing for a jury or a trial judge sitting as fact-finder to decide
that would make any difference to the outcome of the case. See Armstrong v. Bromley
Quarry & Asphalt, Inc., 305 Kan. 16, 24, 378 P.3d 1090 (2016).

The party opposing summary judgment must point to evidence calling into
question some significant fact—if they do so, summary judgment must be denied so a
fact-finder can resolve the dispute. When ruling on a summary-judgment motion, the
district court must view the evidence in the light most favorable to the party opposing the
motion. On appeal from the grant of summary judgment, we apply the same standards the
trial court applied. Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan. 350, 358-59, 352
P.3d 1032 (2015).

Because entry of summary judgment amounts to a question of law—it entails the
application of legal principles to uncontroverted facts—we owe no deference to the trial
court's decision and our review is unlimited. Resolving the summary-judgment issue in
this case also involves the interpretation of a statute. That too is a question of law over
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which we have unlimited review. Poston v. U.S.D. No. 387, 286 Kan. 809, 812, 189 P.3d
517 (2008).

We now turn to Muxlow's first argument on appeal—that the district court erred
when it found that the City was entitled to recreational-use immunity at all.

Because at common law, the state or national government could not be sued,
negligence claims against the government are allowed only as provided by statute. The
Kansas Tort Claims Act provides that negligence claims usually may be brought against
the government, but the Act also provides several exceptions to liability. K.S.A. 2017
Supp. 75-6103(a). Liability is the rule and immunity the exception, however, and the
burden is on the State to show that it is immune from liability under one of the Act's
exceptions. Keiswetter v. State, 304 Kan. 362, 366, 373 P.3d 803 (2016).

The exception to liability that's central in this case is known as the recreational-use
exception. Under the Act, an individual can't bring a claim against the government "for
injuries resulting from the use of any public property intended or permitted to be used as
a park, playground or open area for recreational purposes, unless the governmental entity
or an employee thereof is guilty of gross and wanton negligence proximately causing
such injury." K.S.A. 2017 Supp. 75-6104(o). In other words, the government can't be
sued for injuries on public property used for recreational purposes unless it acted with
gross and wanton negligence.

The legislative purpose behind the recreational-use exception was explained by
our Supreme Court in Jackson v. U.S.D. 259, 268 Kan. 319, 331, 995 P.2d 844 (2000):

"The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental
entity when it might normally be liable for damages which are the result of ordinary
negligence. This encourages governmental entities to build recreational facilities for the
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benefit of the public without fear that they will be unable to fund them because of the
high cost of litigation. The benefit to the public is enormous. The public benefits from
having facilities in which to play such recreational activities as basketball, softball, or
football, often at a minimal cost and sometimes at no cost. The public benefits from
having a place to meet with others in its community."

Because of the strength of the legislative purpose behind this exception, our Supreme
Court has held that recreational-use immunity is to be broadly applied to accomplish that
legislative purpose. Poston, 286 Kan. at 812; Lane v. Atchison Heritage Conf. Center,
Inc., 283 Kan. 439, 445, 153 P.3d 541 (2007); Wilson v. Kansas State University, 273
Kan. 584, 592, 44 P.3d 454 (2002).

Muxlow argues that it would be an absurd result if we considered the place where
she fell to be a recreational area subject to the recreational-use exception. The area was
not specifically designated or intended by the City to be used for recreational activities.
But "[i]n order for a location to fall within the scope of K.S.A. 75-6104(o), the location
must merely be 'intended or permitted to be used . . . for recreational purposes.'"
(Emphasis added.) Jackson, 268 Kan. at 326; see Lane, 283 Kan. at 440 (finding
recreational-use immunity barred suit by plaintiff injured after slipping on city
conference center's loading dock); Boaldin v. University of Kansas, 242 Kan. 288, 291,
747 P.2d 811 (1987) (finding recreational-use immunity barred suit by plaintiff injured
while sledding on hill at the University of Kansas).

The language of the statute is clear—to be entitled to recreational-use immunity,
the public land need only be permitted to be used for recreational purposes. And here, the
evidence shows—and neither party disputes—that the area was permitted to be used for
recreational purposes:

 Muxlow testified that people walk dogs, jog, and walk there.
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 As Muxlow's attorney recounted at the hearing on the summary-judgment motion,
"There's Easter egg hunts, kid fitness, et cetera, which attract large numbers of
people."
 Muxlow was injured while enjoying a recreational activity herself—walking her
dogs.
 The grassy area where Muxlow was injured runs along the edge of MacLennan
Park. See Lane, 283 Kan. at 446 (explaining that an area "must be viewed
collectively to determine whether it is used for recreational purposes."); Dye v.
Shawnee Mission School District, No. 98,379, 2008 WL 2369847, at *2 (Kan.
App. 2008) (unpublished opinion) ("Courts do not segregate parts of the property
to determine whether the recreational use exception applies; instead, they examine
the collective character of the property in question."). So you would expect people
to use it to access the park, and its location next to the park underscores the
testimony that people regularly used it to walk, jog, or to walk a dog there.

Muxlow argues that the City wasn't entitled to recreational-use immunity under
the Act for three other reasons, none of which are persuasive. First, Muxlow argues that
the area can't be considered part of MacLennan Park because it isn't "integral" to the park
itself. Kansas appellate courts have extended recreational-use immunity to property
integral to or near a recreational facility. See Poston, 286 Kan. at 817-19; Wilson, 273
Kan. at 590-92 (holding that the exception applies to restrooms located in a football
stadium); Nichols v. U.S.D. No. 400, 246 Kan. 93, 95-97, 785 P.2d 986 (1990) (applying
exception where plaintiff was injured in a grassy area near football field); Dye, 2008 WL
2369847, at *2-3. But the area itself is an open space permitted to be used for recreational
purposes, so it is unnecessary to determine whether it is "integral" to the adjacent park.
That the area was adjacent to the park merely reinforces the separate conclusion that the
area between the park and the road was itself used recreationally.

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Next, Muxlow argues that cities have a common-law duty to maintain safe streets
and right-of-ways, and that the City of Topeka breached this duty by constructing an
unmarked concrete culvert in that spot. Even assuming that the City owes this duty, it is
still immune from claims arising from injuries that occur on public land that the
government permits to be used for recreational purposes. K.S.A. 2017 Supp. 75-6104(o).

Last, Muxlow says the district court ignored several important facts when it
granted summary judgment—that there are no comparable open culverts in Topeka, that
the bulk of the culvert is in the City's right of way, and that an expert concluded in his
report that the culvert "was akin to an open grave and that the growth of the
neighborhood now compelled the use of safety features." But these facts, even if true,
don't go to whether this space was public property permitted to be used for recreational
purposes. See Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) ("'The
disputed question of fact which is immaterial to the issue does not preclude summary
judgment.'").

So the district court correctly concluded that the recreational-use exception to
liability applied here. That meant that the City was immune from claims of ordinary
negligence. The City can only be liable here if Muxlow shows that the City's acts
amounted to gross and wanton negligence. See K.S.A. 2017 Supp. 75-6104(o).

Normally, whether a party has been negligent (even grossly and wantonly so) is a
factual question to be submitted to a jury, but summary judgment is proper if a plaintiff
has presented no evidence of gross and wanton negligence. See, e.g., Vaughn v. Murray,
214 Kan. 456, 459, 521 P.2d 262 (1974); Jackson v. City of Norwich, 32 Kan. App. 2d
598, Syl. ¶ 3, 85 P.3d 1259 (2004). In response to a summary-judgment motion, the non-
moving party must set forth specific facts showing that there is a genuine issue for trial.
K.S.A. 2017 Supp. 60-256(e)(2).

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Gross and wanton negligence requires more than the mere carelessness of ordinary
negligence but doesn't require a willful intent to injure. Soto v. City of Bonner Springs,
291 Kan. 73, 82, 238 P.3d 278 (2010). Wanton acts are those showing that the defendant
realized the imminence of injury to others and still didn't take steps to prevent injury
because of indifference to the ultimate outcome. Wanton conduct is established by the
mental attitude of the wrongdoer rather than by the particular negligent acts. Adamson v.
Bicknell, 295 Kan. 879, 890, 287 P.3d 274 (2012); Soto, 291 Kan. 73, Syl. ¶ 9; Jackson,
32 Kan. App. 2d at 601.

To amount to gross and wanton negligence under the Kansas Tort Claims Act,
there must be some evidence that the government knew of the danger the condition
presented and chose not to address it. See Lee v. City of Fort Scott, 238 Kan. 421, 425,
710 P.2d 689 (1985) (finding no evidence of gross and wanton negligence in case
involving injury from steel cables strung between trees because there were no prior
injuries to alert city to danger); Jackson, 32 Kan. App. 2d at 601 (affirming summary
judgment in case where woman stepped into a depression around covered-water valve in
park because there was no evidence the city realized the danger it presented); see also
Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 392-93, 836 P.2d 1222 (1992)
(finding that summary judgment was not proper because city knew of prior injury, so city
had actual knowledge of the danger). That makes sense because it's the mental attitude of
the wrongdoer that's at issue, not whether, as in ordinary negligence, a reasonable person
would have realized there was a danger present.

Muxlow points on appeal to several facts to support her claim of gross and wanton
negligence: (1) the minimal cost to install a guardrail around the culvert; (2) that many
other culverts in the City had guardrails or were covered; (3) that an expert said that the
culvert was roughly the same size as an open grave; and without warning signs or safety
measures, it posed a serious hazard to pedestrians; and (4) Paul Muxlow's affidavit
claiming that the City was grossly and wantonly negligent.
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We have also reviewed the specific statements of uncontroverted fact, as
supported by evidence, that were supplied by Muxlow on summary judgment to the
district court. There is some testimony that city workers doing street sweeping or snow
plowing might have noticed the culvert. And there was evidence that the City placed
guard rails at some other culverts.

But none of this showed that the City knew that the culvert presented a danger.
Since the time the culvert was first installed in the 1960's, no one alerted the City to any
injuries involving the culvert. Although Muxlow's husband submitted an affidavit stating
that he believed "an open culvert without covering or guard rails in an area frequented by
[people] is gross and wanton negligence," a party opposing summary judgment must set
forth specific facts showing that there is a genuine issue for trial—bare opinions or
unsupported conclusions will not suffice. K.S.A. 2017 Supp. 60-256(e)(2); RAMA
Operating Co. v. Barker, 47 Kan. App. 2d 1020, 1031, 286 P.3d 1138 (2012). Thus,
Muxlow has failed to present any evidence that the City acted with gross and wanton
negligence and summary judgment on this point was also proper. See Lee, 238 Kan. at
425; Jackson, 32 Kan. App. 2d at 601; Winn v. City of Leawood, No. 91,210, 2004 WL
835991, at *3 (Kan. App. 2004) (unpublished opinion) (affirming summary judgment for
city when no evidence showed it knew of danger to children from disassembled backstop
at city park even though parks officials knew children often climbed various objects in
parks).

In sum, there is no evidence that the City's failure to place guardrails or warning
signs rose to the level of gross and wanton negligence, and the area where Muxlow fell
was public property permitted to be used for recreational purposes. So the district court
correctly concluded that the City was immune from liability for Muxlow's injuries under
the recreational-use exception of the Kansas Tort Claims Act as a matter of law.

We therefore affirm the district court's judgment.