Civil Litigation Case Update List

1st Amendment

Felix v. City of Bloomfield, ___ F.3d ___ (10th Cir. No. 14-2149, filed 11/09/16). A large display of the Ten Commandments on the city hall lawn in Bloomfield, New Mexico, violates the Constitution's Establishment Clause, the Tenth Circuit ruled recently in an unanimous decision penned by Judge David M. Ebel. The display, which weighs 3,400 pounds and stands 5-feet tall, was erected by private donors and was marked with a small disclaimer that the lawn had been opened to the public for the display of monuments "that reflect the City's history of law and government." That was not good enough for the Tenth Circuit. In response to a lawsuit by two polytheistic, Wiccan town residents, the court ruled that the monument, despite being privately sponsored, was government speech and an impermissible endorsement of religion.

Bird v. West Valley City, ___ F.3d ___ (10th Cir. No. 15-4024, 08/08/16)(summary by Fisher, Patterson Sayler & Smith). An employee can state a claim for First Amendment retaliation based on her employer's mistaken belief that she had engaged in protected speech. Karen Bird was the manager of West Valley City's animal shelter. In 2009, Bird had a disagreement with her supervisor, Kelly Davis, that escalated over the next two years to the point where Bird refused to answer Davis's questions or even be in the same room as him. In 2011, a local newspaper ran a story criticizing the animal shelter after a cat survived two euthanization attempts in the shelter's gas chamber. Not long afterwards, a different reporter called a City official for comment about an anonymous tip that the shelter was planning mass euthanizations because of overpopulation at the shelter. Both Davis and his supervisor, Layne Morris, believed Bird was responsible for the tip because she had been present during a meeting where overpopulation at the shelter had been discussed, and was notoriously against using the gas chamber. Bird, however, adamantly denied being the person responsible for the tip. When, shortly after being confronted about the tip, Bird received two unrelated disciplinary notices, she filed a complaint with human resources about Davis. As a result, the City investigated the entire animal shelter, and discovered that the majority of the employees believed Bird was the problem. The City terminated Bird in November 2011. She then filed suit alleging, among other things, First Amendment retaliation. The district court granted the City summary judgment on all of Bird's claims. On appeal, the Tenth Circuit explained that a First Amendment retaliation claim ordinarily requires a plaintiff to prove (1) she was engaged in constitutionally protected activity; (2) the defendant's actions would chill a person of ordinary firmness from engaging in the protected activity; and (3) the defendant's actions were substantially motivated by the protected conduct. Bird argued that she should be able to pursue a retaliation claim if she engaged in protected conduct or the defendant believed she had done so. In considering the issue, the Tenth Circuit relied on the U.S. Supreme Court's decision in Heffernan v. City of Patterson, 136 S. Ct 1412 (2016), wherein the Court held that an employee could bring a First Amendment retaliation claim if his or her employer believes the employee has engaged in protected conduct, "even if . . . the employer makes a factual mistake about the employee's behavior." Applying Heffernan to Bird's case, the Tenth Circuit concluded that the district court had erred in requiring Bird to establish she had actually engaged in protected conduct. The Tenth Circuit reversed and remanded for further proceedings.

Walker v. Texas Division, Sons of Confederate Veterans, Inc., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–144, filed 06/18/15). The Texas Division of the Sons of Confederate Veterans and its officers sued Texas arguing that rejection of SCV’s proposal for a specialty plate design featuring a Confederate battle flag violated the Free Speech Clause. The District Court entered judgment for the Board, but the Fifth Circuit reversed, holding that Texas’s specialty license plate designs are private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination when it refused to approve SCV’s design. The Supreme Court reversed, holding that Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Forum analysis, which applies to government restrictions on purely private speech occurring on government property, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, is not appropriate when the State is speaking on its own behalf. See also Rex v. Martinez, ___ F.3d ___ (2d Cir. No. 11-5199, filed 05/22/15)(rejection of "choose life" personalized plate based on policy to avoid plate controversies did not violate plaintiff's constitutional rights. Custom license plates are private speech and that the plates themselves are a nonpublic forum).

Reed v. Town of Gilbert, AZ, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13–502, filed 06/18/15). Gilbert, Arizona has a comprehensive Sign Code that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. “Ideological Signs,” defined as signs “communicating a message or ideas” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after. Good News Community Church whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. Unable to reach an accommodation with the Town, the Church filed suit, claiming that the Code abridged their freedom of speech. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, ultimately concluding that the Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech. The Supreme Court reversed. It held the sign code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Content-based laws target speech based on its communicative content, and are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R. A. V. v. St. Paul, 505 U. S. 377.

11th Amendment

Jones v. Kansas Dept. of Corrections, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113270, filed 02/26/16). Milo Jones, a Kansas prison inmate, obtained a money judgment in federal court against a former prison guard. Jones wasn't able to collect any of his judgment, though, because he wasn't able to locate the former guard or any of that guard's assets. So Jones has tried to collect the judgment against the Kansas Department of Corrections, the state agency that had employed the guard. Jones first tried to do that in federal court, but his claim against the state agency was dismissed for lack of jurisdiction: The United States Court of Appeals for the Tenth Circuit held that the Eleventh Amendment to the United States Constitution prevented a federal court from entering a money judgment against the State for the past conduct of its employees. See Jones v. Courtney, 466 Fed. Appx. 696 (10th Cir. 2012) (unpublished opinion) (dismissing claim against the State for lack of jurisdiction); Jones v. Courtney, No. 04-3255-JWL-DJW, 2007 WL 2893587 (D. Kan. 2007) (unpublished opinion) (granting judgment in favor of Jones and against former prison guard). After the federal court dismissed his claim against the State, Jones brought suit in the Kansas state court, again trying to collect his judgment against the Kansas Department of Corrections, a state agency. The state district court also dismissed this claim for lack of jurisdiction, although it didn't explain the basis for its decision. The district court's decision is affirmed based on the State's 11th Amendment and/or sovereign immunity.

ADA

Williams v. FedEx Corp. Servs., ___ F.3d ___ (10th Cir. No. 16-4032 (filed Feb. 24, 2017). Williams, a FedEx driver, was proscribed OxyContin for neck pain in 2008. Two years later, Williams was prescribed Suboxone to replace the OxyContin. Williams then used Suboxone for a year before tapering use in fall 2011. On September 9, 2011, Williams visited a doctor about effects of Suboxone withdrawal and two days later he was admitted to an emergency room. On September 26, 2011, FedEx granted Williams's leave of absence for conditions of "chronic neck pain and severe anxiety." Williams then called Aetna, the claims administrator for FedEx's Disability Plan, and requested benefits for workplace stress and also noted that Suboxone withdrawal prevented him from working. Aetna informed FedEx that Williams filed a disability claim for "substance abuse." As a result, FedEx sent Williams a copy of FedEx's Alcohol/Drug Free Workplace Policy (ADFWP), which required employees who seek assistance for drug abuse to undergo return-to-duty-testing and follow up testing for five years. Williams was also required to report to People Help, FedEx's vendor to assist employees with substance abuse. People Help recommended that Williams receive a non-diagnosis of substance abuse. Regardless, FedEx required Williams to comply with the ADFWP. Williams filed suit alleging, in part, that FedEx violated his rights under the ADA by discriminating against him based on a perceived disability. The district court granted FedEx's motion for summary judgment, which Williams appealed to the Tenth Circuit. On appeal, the Tenth Circuit reiterated that in an ADA discrimination claim, the court employs a burden shifting analysis where a plaintiff must first establish a prima facie case. Then, the defendant must articulate a nondiscriminatory reason for the adverse action. Finally, the burden shifts to the plaintiff to show that the defendant's reason is pretext for discrimination. The Court assumed Williams made a prima facie case. FedEx stated the reason it subjected Williams to the ADFWD drug testing was because it was required to do so when Aetna reported Williams took leave on the basis of substance abuse. Therefore, the burden was on Williams to show FedEx's reason was pretextual. Williams argued the evidence showed he was not a substance abuser, but rather was suffering from Suboxone withdrawal. The Court rejected Williams' argument. The Tenth Circuit noted that the focus is not on whether Aetna's report to FedEx was accurate, but whether FedEx had a good faith belief that Williams was in fact a substance abuser. The court found that Williams provided no evidence that FedEx lacked such a belief and the evidence showed that FedEx merely enforced a universally applicable policy with no ulterior motive. Therefore, the Court affirmed the district court's grant of summary judgment to FedEx.

Nebeker v. Nat'l Auto Plaza, ___ F.3d ___ (10th Cir. No. 15-4035, 04/01/16). A former employee could not bring an ADA discrimination claim based on her subjective belief that a request for accommodation would have been denied. Nebeker worked for National Auto Plaza ("NAP") from 2006 until 2012. During her tenure she suffered from various health conditions that caused her to come in late, leave early, and sometimes miss whole days of work. Although Nebeker's pay was never docked, NAP's owner, Kolby Hansen, repeatedly told her, "I need you to be here," and "You need to be here; you need to be here." Eventually, in February 2012, Hansen called Nebeker into his office and told her, "This isn't working for me." Hansen proceeded to loudly berate Nebeker about her absences before asking, "What do you have to say?" Nebeker responded, "I guess this isn't working for you," left Hansen's office, collected her belongings, and left the building. Nebeker later sent Hansen an e-mail clarifying she had not quit, but that she "naturally assumed [Hansen] was letting [her] go, so at that point, [she] walked out of [his] office and [he] didn't stop [her]." Nebeker sued NAP and Hansen for state law wrongful termination and violations of the FMLA and ADA. The district court granted the defendants' motion for summary judgement on all three claims, which Hansen appealed to the Tenth Circuit Court of Appeals. The Circuit first clarified that under Utah state law, a termination only occurs when an employer unequivocally shows an intent to discharge an employee. The court determined that while the phrase "This isn't working for me" is often used in break-ups, it may also be used by employers in performance reviews to encourage better work. Thus, the court concluded, no reasonable jury could find that Hansen's statement unequivocally demonstrated a desire to terminate Nebeker, and her wrongful termination claim therefore failed as a matter of law. Next, in considering Nebeker's FMLA claim, the Circuit explained that the FMLA guarantees twelve weeks of unpaid leave. Because Nebeker had never been docked pay, even when she took leave, the Tenth Circuit concluded that Nebeker could not demonstrate prejudice from any violation of the FMLA as a matter of law. Finally, in considering Nebeker's ADA claim, the Circuit pointed out that "[b]efore an employer's duty to provide reasonable accommodations--or even participate in the 'interactive process'--is triggered under the ADA, the employee must make an adequate request, thereby putting the employer on notice." Although Nebeker acknowledged she had never requested an accommodation from Hansen or NAP, she claimed that doing so would have been futile, citing Hansen's frequent reminders that he needed her in the office. The Circuit was unconvinced, pointing out that Hansen had never refused any of Nebeker's requests for leave and that "an employee's subjective belief about the futility of initiating the interactive process will not, by itself, relieve him or her of [the obligation to request an accommodation.]" Ultimately, the Circuit affirmed the district court's grant of summary judgment on all three of Nebeker's claims.

Carter v. Pathfinder Energy Services, Inc., ___ F.3d ___ (10th Cir. No. 10-8112, filed 11/03/11). The Tenth Circuit considered the ADA claim of a diabetic driller who was allegedly fired because of an altercation with another employee and use of bad language in a conversation with a supervisor. Plaintiff filed suit raising several claims, among them that he was terminated in violation of the Americans with Disabilities Act (ADA) because he had diabetes. The district court granted summary judgment to the employer on the ADA discrimination claim, concluding that plaintiff was not disabled based on the general notion that medication-controlled or diet-controlled diabetes is not a substantially limiting condition. The Tenth Circuit reversed summary judgment on the ADA claim, concluding that "hypothetically controllable disabilities are not automatically to be judged in their corrected state." (Emphasis added.) Rather, the district court must determine on the facts of each case whether plaintiff was actually able to control his diabetes through medication or diet. Because there was evidence in the record that plaintiff could not have controlled his diabetes with medication or diet, there was a fact question about whether plaintiff's diabetes was a substantially limiting condition and thus whether he suffered a disability as defined by the ADA.

Administrative Law

Goldman v. University of Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113283, filed 12/18/15). Parties cannot create jurisdiction by agreement. Where tort, contract, and due process claims are joined in the same action with KJRA claims, an appeal from a decision resolving only the KJRA claims is not from a final order and the Court of Appeals lacks jurisdiction.

Wright v. Kansas State Board of Education, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104634, filed 01/20/12). The board of education did not err or violate the expungement statutes by considering Wright's expunged conviction of felony theft or his disbarment in deciding not to issue him a teaching license. "In the end, if the Board has followed the rules, it is the judgment of the State Board of Education that matters when deciding who is fit to teach in Kansas, and not the courts. That is the public trust placed on the Board. We agree with the district court that the Board has followed the rules in this case. We will not substitute our view for that of the Board." Atcheson, J., concurring, said he upheld the board's decision "reluctantly," noting that "[i]n many respects, the Board supports its determination with factual distortions, specious legal interpretation, and lofty sounding rhetoric signifying little of substance."

ADEA

Riser v. QEP Energy, ___ F.3d ___ (10th Cir. No. 14-4025, filed 01/27/14). the Tenth Circuit considered a district court's ruling that awarded summary judgment to an employer on a former employee's gender discrimination claims. Kathy Riser was a 50-year-old woman who worked at QEP Energy under the job title "Administrative Services Representative II." Riser's job duties included fleet management and facilities management, and her annual salary was $47,382. In 2011, QEP initiated a 15-tier pay grade system based on tasks generally assigned to a job title. Riser was classified as a "Grade 5" employee based on tasks QEP knew administrative assistants typically performed. Riser asked to have her title and salary changed on two occasions, but never received a response. In May 2011, QEP created a "Fleet Administrator" position in response to Riser logging numerous overtime hours. QEP hired a 39-year-old male for the position, classified him as a Grade 7 employee, and had Riser train him. Around the same time, QEP began negotiating with a 30-year-old male for another position carved out of Riser's job duties, "Facilities Manager." QEP subsequently fired Riser and hired the new facilities manager at a Grade 7 pay level. Riser filed suit, alleging pay discrimination under the Equal Pay Act ("EPA"), Title VII, and the ADEA. The district court granted summary judgment on each of Riser's discriminatory pay claims, which she appealed. The Tenth Circuit initially focused on whether Riser's job duties were "substantially equal" to the newly hired employees. The court agreed that Riser focused less than 100 percent of her total time on each of the newly created jobs, but concluded that because each job was carved completely out of Riser's job responsibilities, there was a fact issue as to whether Riser's duties were "substantially equal" to the new employees. The court next considered QEP's affirmative defense that the difference in pay between Riser and the new employees was based on a gender-neutral pay classification. The court was unconvinced by QEP's argument, pointing out that Riser's pay classification was based on duties administrative assistants typically perform, despite the fact that Riser complained on two occasions that she had been inaccurately classified. The court applied a similar analysis to Riser's Title VII and ADEA claims, and concluded that genuine issues of material fact precluded summary judgment. It reversed the district court's decision and remanded the case for further proceedings.

Tomlinson v. El Paso Corp., ___ F.3d ___ (10th Cir. No. 10-1385, filed 8/11/11). Defendant El Paso ended its traditional pension plan and switched to a "cash balance plan." The old plan was a typical defined-benefit pension plan; employees received retirement benefits equal to a percentage of their final average monthly earnings multiplied by their years of service. Under the new cash balance plan, a percentage of each employee's pay was deposited into a hypothetical cash balance "account." The percentage of these "pay credits" increased with an employee's age and years of service. The cash balance plan adopted by El Paso was, as the company informed its employees, less generous than its previous traditional pension plan. A putative class of older employees filed suit, claiming that the alleged disadvantages they suffered by the implementation of the new pension plan amounted to violations of the ADEA. Plaintiffs' ADEA claims were dismissed on summary judgment. They appealed. Regarding plaintiffs' Section 4(i) ADEA claim, the Tenth Circuit held that determining whether a defined benefit plan has reduced a participant's benefit accrual because of age depends on what the employer puts into the program, not what the employee takes out. The court joined other circuits in holding that "plaintiffs alleging discriminatory benefit accrual must present evidence showing that the inputs are discriminatory rather than relying on disparate outputs." Thus, because El Paso did not discriminate in its distribution of "pay credits" under the new plan, any disadvantage older employees suffered simply by transition to the new plan was not discrimination.

Appeal

Wiechman v. Huddleston, ___ Kan. ___, ___ P.3d ___ (No. 110656, filed 04/15/16). The right to appeal in a civil case is entirely statutory and not a right guaranteed by the United States Constitution or the Kansas Constitution. Kansas appellate courts have jurisdiction to entertain an appeal in a civil case only if that appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. An appellate court has no authority to create an exception to statutory jurisdictional requirements to allow an appeal from an order setting aside a final judgment in a civil case. Brown v. Fitzpatrick, 224 Kan. 636, 585 P.2d 987 (1978), is overruled to the extent it created a common-law "jurisdictional exception" permitting appeals in civil cases not otherwise allowed by statute. Wiechman sued

Huddleston in 2007 for injuries suffered in a 2005 car wreck. He agreed to settle for $25,000, in 2008, but alleged he was never paid. The case was dismissed for lack of prosecution in December 2008. Wiechaman filed a motion to set aside the dismissal suit over 4 years later alleging he was never paid and alleging breach of the settlement agreement. The district court granted the motion. Huddleston filed this interlocutory appeal, arguing the district court lacked jurisdiction to set aside the dismissal order because Wiechman's motion was untimely under K.S.A. 2015 Supp. 60-260(c). The court dismissed the appeal. See also Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 111, 260 P.3d 387 (2011) (holding in a civil case that appellate courts have no authority to fashion equitable exceptions to statutory limitations on appellate jurisdiction).

Attorney Fees

CRST Van Expedited, Inc. v. EEOC, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14–1375, filed 05/19/16). Petitioner CRST, a trucking company using a system under which two employees share driving duties on a single truck, requires its drivers to graduate from the company’s training program before becoming a certified driver. In 2005, new driver Monika Starke filed a charge with the Equal Employment Opportunity Commission (Commission), alleging that she was sexually harassed by two male trainers during the road-trip portion of her training. Following the procedures set out in Title VII of the Civil Rights Act of 1964, see 42 U. S. C. §2000e–5(b), the Commission informed CRST about the charge and investigated the allegation, ultimately informing CRST that it had found reasonable cause to believe that CRST subjected Starke and “a class of employees and prospective employees to sexual harassment” and offering to conciliate. In 2007, having determined that conciliation had failed, the Commission, in its own name, filed suit against CRST under §706 of Title VII. During discovery, the Commission identified over 250 allegedly aggrieved women. The District Court, however, dismissed all of the claims, including those on behalf of 67 women, which, the court found, were barred on the ground that the Commission had not adequately investigated or attempted to conciliate its claims on their behalf before filing suit. The District Court then dismissed the suit, held that CRST is a prevailing party, and invited CRST to apply for attorney’s fees. CRST filed a motion for attorney’s fees. The District Court awarded the company over $4 million in fees. The Eighth Circuit reversed the dismissal of only two claims—on behalf of Starke and one other employee—but that led it to vacate, without prejudice, the attorney’s fees award. On remand, the Commission settled the claim on behalf of Starke and withdrew the other. CRST again sought attorney’s fees, and the District Court again awarded it more than $4 million, finding that CRST had prevailed on the claims for over 150 of the allegedly aggrieved women, including the 67 claims dismissed because of the Commission’s failure to satisfy its presuit requirements. The Eighth Circuit reversed and remanded once more. It held that a Title VII defendant can be a “prevailing party” only by obtaining a “ruling on the merits,” and that the District Court’s dismissal of the claims was not a ruling on the merits. The Supreme Court reversed. A favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party.

Lefemine v. Wideman, 567 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-168, filed 11/05/12). In plaintiffs' section 1983 suit against several police officers alleging that the prohibition of carrying pictures of aborted fetuses during their demonstrations violated their First Amendment rights, the Fourth Circuit's judgment affirming the district court's grant of plaintiffs' motion for a permanent injunction but denial of attorney's fees, on the ground that plaintiff is not a prevailing party because he did not secure monetary damages, is vacated and remanded where a plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Here, the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff.

Fox v. Vice, 556 U.S. ___, 131 S.Ct. 2205, ___ L.Ed.3d ___ (No. 10-114, filed 6/6/11). Federal law authorizes a court to award a reasonable attorney's fee to the prevailing party in certain civil rights cases. See 42 U.S.C. § 1988. We have held that a defendant may receive such an award if the plaintiff's suit is frivolous. In this case, the plaintiff asserted both frivolous and non-frivolous claims. We hold today that a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims. A trial court has wide discretion in applying this standard. But here we must vacate the judgment below because the court used a different and incorrect standard in awarding fees. In 2005, Petitioner Ricky D. Fox ran for Police Chief of Respondent Vinton, Louisiana ("the Town"). During the campaign, Respondent Billy Ray Vice, the incumbent Police Chief, attempted to blackmail Fox and damage his public image. Fox won the election, but sued Vice and the Town for attempting to derail his campaign. Among Fox's claims was a civil rights allegation under a federal statute, 42 U.S.C. § 1983. Following discovery in Fox's civil case, Vice and the Town moved for summary judgment on the federal claim. Fox withdrew the claim, conceding that he failed to assert the required elements, but continued to pursue his state-based tort claims. The defendants then moved for attorneys' fees under 42 U.S.C. § 1988, arguing that Fox's federal claim was frivolous. The district court granted the defendants' motion, and the Fifth Circuit affirmed on appeal. Fox argued that in a case with factually intertwined claims, a defendant must prevail over an entire lawsuit in order to receive attorneys' fees. Vice and the Town, however, claimed that nothing in Section 1988 prevents defendants from receiving attorneys' fees for individual frivolous claims.

Annexation

Baggett v. Board of County Comm'rs of Douglas County, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104441 filed 09/30/11). The Kansas Court of Appeals considered the propriety of an island annexation approved by a Board of County Commissioners (BOCC). Developers sought annexation of 155 acres of agricultural land near the Lecompton interchange of the Kansas Turnpike by the City of Lawrence. Because the land did not adjoin the city limits, the request was for an island annexation under K.S.A. 12-520c. The developers were unable to specify the intended uses of the land except to say that it would be something within the industrial zoning classifications. Despite strong recommendations otherwise from its planning staff, the City Planning Commission recommended annexation and, pursuant to the island annexation statute, sought the BOCC's approval. After a hearing, the BOCC approved the annexation 2-1. A group of landowners appealed the BOCC decision to the district court. The district court affirmed the BOCC's decision. The landowners appealed. The Court of Appeals reversed the BOCC's decision because the BOCC did not consider whether all possible uses of the property would be incompatible with the existing residential area. The court said:

 

"Where the developer of land in an island annexation cannot specify the intended uses of the land but provides only a category of potential uses, the Board must examine those potential uses-or at least the most potentially deleterious uses-and determine whether those potentially deleterious uses would 'hinder or prevent the proper growth and development of the area.' Failing in that examination, the annexation cannot survive judicial scrutiny under K.S.A. 12-520c."


The matter was remanded for further proceedings

Attorney Fees

Fox v. Vice, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-114, filed 06/06/11). Where a lawsuit alleges both frivolous and non-frivolous claims, a defendant can only recover attorney fees pursuant to 42 U.S.C. § 1988 only for the costs that defendant would not have incurred but for the frivolous claims. Fox and Vice were both running for police chief in Vinton, Louisiana. Vice, the incumbent chief, resorted to some dirty tricks, such as mailing an anonymous letter to Fox threatening to publish damaging charges unless he dropped out of the race, and arranging for a third-party to allege that Fox uttered racial slurs. Vice was subsequently convicted of criminal extortion based on these acts. Fox sued, claiming Vice and the City violated 42 U.S.C. § 1983 for interfering with his right to seek public office, as well as various state law claims. At the close of discovery, Fox conceded his civil rights claim was frivolous, but alleged the state law claims had merit. The district court granted awarded fees for defense of the entire suit, and the 5th Circuit affirmed. The Supreme Court reversed, holding that the but-for test requires allocation between frivolous and non-frivolous claims, and only allows recovery solely for the former.

Appellate Jurisdiction

Board of County Comm'rs. of Sedwick County, Kansas v. City of Park City, ___ Kan. ___, ___ P.3d ___ (No. 100157, filed 09/09/11). Park City annexed land. Sedgwick county opposed it and was awarded summary judgment. Park City requested and received two extensions to file post-trial motions. After losing those, Park City appealed. It contended that the district court's extension of deadlines should allow it to appeal out of time based on unique circumstances. The appellant's argument that an appellate court may exercise jurisdiction over a late appeal if the appellant can show unique circumstances, i.e., that the appellant reasonably relied on some judicial action that purportedly extended the time period for bringing an appeal, is rejected. An appellate court has no authority to create equitable exceptions to jurisdictional requirements and, therefore, the use of the unique circumstances doctrine to save an untimely appeal is illegitimate. Accordingly, Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), and Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988), are overruled to the extent they authorize an exception to a jurisdictional rule.

Blasting

Eastman v. Coffeyville Resources Refining & Marketing LLC, ___ Kan. ___, ___ P.3d ___ (No. 105805, filed 09/07/2012). Under the abnormally dangerous activity test of the Restatement (Second) of Torts § 519 (1976): (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he or she has exercised the utmost care to prevent the harm; and (2) this strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. See also Williams v. Amoco Production Co., 241 Kan. 102, 112-13, 734 P.2d 1113 (1987); City of Neodesha v. BP Corporation, (No. 101,183, opinion filed August 31, 2012, slip op. at 19-20, 25-26).

Dresher v. KDOT, 264 Kan. 762, 958 P2d 656 (1998). In 1985 Clarkson Construction KDOT's contractor, began work on 169 highway near Olathe. As part of the work on KDOT's highway project, Clarkson performed blasting to aid in the removal of material. In April 1993, the Deishers filed a petition for inverse condemnation against the KDOT alleging that within the prior 2 years, plaintiffs had discovered that the water levels in their well had "gone down to unusable levels of less than 6 feet." The district court held that the Deishers' remedy lay in tort, not in inverse condemnation and that plaintiffs' injury was reasonably ascertainable more than 2 years prior to the time they filed the action; thus, the statute of limitations had run. The Supreme Court affirmed. See also Olson v. State Highway Commission, 235 Kan. 20, 679 P.2d 167 (1984). In that case, J.A. Tobin Construction Company (Tobin), in its construction of a new highway, was conducting blasting operations approximately one-eighth of a mile from plaintiff Martha Olson's new home. The blasting began in 1977 and continued until September 1979. In May or June 1978, a hairline crack was discovered in a wall of plaintiff's basement. In March 1980, numerous large cracks were discovered in the foundation wall. On October 29, 1980, Olson filed an action against Tobin and the State Highway Commission (now KDOT) for damages to her real property resulting from acts of negligence during the highway construction project. She alleged that damage to a pond on her property, damage to the foundation and cistern of her new house, and the destruction of fences along part of her land had not become reasonably ascertainable until 1980. The district court granted defendants' motion for summary judgment finding the 2-year statute of limations barred the action. Olson appealed, claiming her cause of action had not accrued until the act giving rise to the cause of action first caused substantial injury. The Olson court stated that actions for permanent damages caused by negligence to land are governed by the 2-year period of limitations, which begins to run on the date the damage was sustained. K.S.A. 60-513(a)(4), (b). The Olson court observed K.S.A. 60-513(b) provides that a cause of action shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or until the time the fact of injury (inferentially, the fact of substantial injury) becomes reasonably ascertainable to the injured party. Olson, 235 Kan. at 26. The Olson court noted that our statutes of limitation were not designed to force injured parties into court at the first sign of injury, regardless of how slight it might be, just because that injury and damages resulting therefrom may be permanent in nature. Where the evidence is in dispute as to when the fact of injury first became reasonably ascertainable to plaintiffs, it is an issue for determination by the trier of fact. George v. W-G Fertilizer, Inc., 205 Kan. 360, 366, 469 P.2d 459 (1970). The same is true in determining when substantial injury first occurred. Thierer v. Board of County Commissioners, 212 Kan. 571, 512 P.2d 343 (1973). In Olson, the district court's grant of summary judgment was reversed, and the case was remanded for further proceedings.

Claims

Sleeth v. Sedan City Hospital, ___ Kan. ___, 317 P.3d 782 (No. 105876, filed 02/07/14). Christopher J. Johnson died when David Short, a hospital employee, punctured Johnson's bowel while inserting a feeding tube. Johnson's parents sued the hospital and Short. Plaintiffs didn't file a claim, but sent threatening demand letters to the hospital's adminstrator. Finding no valid 12-105b claim, the district court dismissed the lawsuit. The Supreme Court affirmed the district court’s dismissal for lack of jurisdiction. Substantial compliance with K.S.A. 2012 Supp. 12-105b(d) is not achieved when a claimant’s notice fails to provide any statement of monetary damages. We hold further that the provision in K.S.A. 2012 Supp. 12-105b(d) giving a municipality 120 days to investigate and review a claim is a statutory condition precedent to filing a lawsuit and that a claimant’s premature filing of a lawsuit leaves a court without subject matter jurisdiction. In this case, even if we assume plaintiffs substantially complied with K.S.A. 2012 Supp. 12-105b(d) by May 2, 2010, which is the earliest date they provided the hospital with any statement of damages, the district court properly dismissed their case because they prematurely filed it. The Sleeths' lawsuit was filed more than 120 days after the initial February 21 letter, but less than 120 days after the May 2 letter itemizing damages. In doing so, the Court reversed a split Court of Appeals panel (Sleeth, 2012 WL 402018, at *12.), noting there were three separate Court of Appeals opinions and remarking that it is challenging to determine when Chief Judge Richard D. Greene (concurring) and Senior Judge J. Patrick Brazil (dissenting) diverged from Judge G. Gordon Atcheson's analysis regarding some sub-issues.

Continental Western Ins. Co. v. Shultz, ___ Kan. ___, ___ P.3d ___ (No. 103776, filed 07/05/13), affirming Continental Western Ins. Co . v. Shultz, No. 103,776, 2011 WL 2793583, at *13 (Kan. App. 2011) (unpublished opinion). Steinert was injured in an automobile accident with a Great Bend police officer. Steinert received workers compensation benefits as a result of his injuries, and his workers compensation carrier, Continental Western (CW), sought subrogation from the City of Great Bend. CW alleged $19,590.07 in damages in its K.S.A. 2012 Supp. 12-105b(d) (5) notice of claim and when the claim first became a lawsuit in the district court. But several months after suit was filed, CW was allowed to amend its pleadings due to an accounting error and the alleged damages rose to $228,088.25. Great Bend objected, arguing the notice of claim did not adhere to the statute's disclosure requirements in light of the 11 - fold increase in damages. The Court of Appeals held that the notice substantially complied with the statute and the Supreme Court agreed.

Richard v. Board of County Commissioners of Sedgwick County, ___ F.Supp. ___ (USDC-Kan. 2012 WL 4794588 (10/09/12), a mentally ill detainee was severely injured after a deputy beat him while trying to subdue him in his jail cell. The plaintiff later died. The plaintiff's estate filed suit asserting federal claims and state law tort claims against Sedgwick County, two of its sheriffs, and other jail employees and contractors. The lawsuit claimed, among other things, that Sedgwick County and the sheriffs negligently hired and failed to train and properly supervise the deputy. The Sedgwick County defendants sought partial summary judgment on the basis that some of the state tort claims exceeded the scope of those described in the notice of claim pursuant to K.S.A. 12-105b(d). The statute requires plaintiff to include in the notice a statement of the factual basis for plaintiff's claim. Plaintiff's notice set forth the facts of the beating in detail. However, there was no mention in the letter of facts supporting a claim against the County or its sheriffs for negligent hiring, training or supervision of the deputy. Plaintiff argued that claims such as negligent hiring and failure to train were implied by the facts of the beating. The federal district court disagreed, reasoning that the "mere allegation that an officer used excessive force on one occasion does not reasonably suggest a claim of negligent hiring, training or supervision of the officer, or that other officers engaged in willful or wanton conduct which caused the injury." Plaintiff also argued that the County was not prejudiced by the omission of additional facts in the notice of claim because it was able to gather all facts necessary to evaluate the claim from its investigation of the beating. Again, the court disagreed, concluding that "even if the county was able to quickly ascertain the circumstances of this injury, the objectives of § 12-105b were undermined by a lack of notice that plaintiff was complaining about tortious actions and omissions of the sheriff's department itself," rather than merely the tortious actions of the deputy. Further, the notice gave Sedgwick County "no objective reason to investigate or assess its KTCA liability exposure from its hiring practices, training program, or policies for treatment of mentally ill inmates. The legislative purpose of facilitating the 'early and easy resolution' of claims is thwarted when the picture of liability in a pre-suit notice differs so materially from the actual claims made in a subsequent lawsuit." The federal district court granted the Sedgwick County defendants' motion for partial summary judgment.

Unified School Dist. No. 457, Finney County, Kan. v. Phifer, 729 F.Supp. 1298, 1306 (1990)(the express wording of [K.S.A.] 12–105b reveals that it was intended to encompass all claims against a municipality, contractual in nature or not.") "The purpose of this provision is obviously to afford the public entity the opportunity to investigate the claim, to assess its liability, to attain settlement, and to avoid costly litigation. Therefore, the legislative classification of claims against public entities for special notice requirements serves a rational purpose. Since the requirements of 12–105b are conditions precedent to defendant's counterclaims two and three, and since their performance has not been pleaded or proven, the plaintiff's motion is granted."

Comparative Fault

Siruta v. Siruta, ___ Kan. ___, ___ P.3d ___ (No. 105698, filed 04/24/15). Should a jury have been permitted to compare the fault of one parent, a vehicle's driver, to the other parent, who was asleep in the passenger seat at the time of the accident? Melissa and Duskin Siruta, along with their 7-year-old son Tate, were driving home from a wrestling tournament when, at approximately midnight, their vehicle rolled over, causing Tate's death. Although the couple had been taking turns driving, Melissa was driving at the time of the accident while Duskin slept in the front seat. Because the evidence suggested Melissa may have fallen asleep at the wheel, Duskin brought a wrongful death claim against her. At trial, and over Duskin's objection, the jury was permitted to compare Duskin's fault, as passenger, to Melissa's, as driver. The jury found both parents 50 percent liable and both appealed. The Kansas Court of Appeals affirmed the district court's decision and jury instructions, and both parties again appealed to the Kansas Supreme Court. The focus of Duskin's appeal was on whether the jury should have been permitted to compare his fault, as passenger, to Melissa's, as driver. In reviewing the issue, the Kansas Supreme Court explained that under Kansas law a passenger may be liable for negligence in two situations: (1) where a passenger fails to use due care for his or her own safety; or (2) under a joint enterprise or when the passenger and driver had a special relationship. With respect to the first situation, the court concluded that Duskin, as a passenger, only had a duty to protect his own safety, and that this duty could not be imputed to other passengers such as Tate. Next, in considering whether evidence supported Melissa's "joint enterprise" theory, the court noted that the focus should have been on the right to control the vehicle. The court explained that although the evidence showed that Melissa and Duskin had a vague understanding they would be driving in shifts, there was no evidence suggesting the parties had an agreement that one could tell the other how to drive or that such orders would be followed. Because there was insufficient evidence to submit a "joint enterprise" theory to the jury, the court determined that no evidence supported a duty flowing from Duskin, as passenger, to Tate, as co-passenger, and the district court's jury instructions had been in error. The court reversed and remanded for further proceedings.

Dickerson v. Saint Luke's South Hospital, ___ Kan.App.2d ___, ___ P.3d ____ (No. 7110,513 ,filed 04/03/15). Nicole Dickerson passed away in 2008 following treatment at St. Luke's South Hospital. Dickerson's estate ("the Estate") filed a wrongful death suit against St. Luke's and two of Dickerson's doctors. Following the close of evidence at trial, the Estate's attorney proposed a jury instruction that permitted the jury to compare the fault of St. Luke's, the defendant doctors, and three of Dickerson's other treating physicians, none of whom were parties to the suit. The defendants objected, arguing that comparative fault was an affirmative defense and that only defendants could force the court to compare the fault of non-parties, any of whom the plaintiff could simply have sued. The comparative fault instruction ultimately presented to the jury did not permit it to assign fault to any of the non-party doctors. After the jury assigned no fault to any of the defendants, the Estate appealed to the Kansas Court of Appeals. On review, the Court of Appeals recognized that pursuant to K.S.A. 60-258a(c), only a defendant may join additional parties for purposes of comparing fault. However, after reviewing the language from PIK Civ. 4th § 105.04, Kansas's comparative fault instruction, the court determined that joinder was legally distinct from a request to compare the fault of a non-party, and that only joinder was a defendant-specific right. Thus, although the court acknowledged that plaintiffs typically do not request that the fault of non-parties be considered, the trial court had erred in refusing to give plaintiff's requested instruction. Regardless, the court determined that the error had not been prejudicial because "[t]hese parties would still be 0% at fault no matter how many more nonparties were added . . . ." Accordingly, the Court of Appeals found no prejudicial error and affirmed judgment in favor of the defendants.

Constitutional Law

State v. Buser, ___ Kan. ___, ___ P.3d ___ (No. 105982, unpublished, filed 07/01/15). K.S.A. 2014 Supp. 20-3301 imposes deadlines for all state court decisions. This statute is unconstitutional because it violates the separation of powers.

Obergefell v. Hodges, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-556, filed 06/26/15). Same-sex couples have a constitutional right to marry under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Justice Kennedy authored the 5-4 majority opinion, which had four separate dissents.

McBurney v. Young, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12-17, filed 04/29/13). Does the Virginia Freedom of Information Act, Va. Code Ann. §2.2–3700 et seq., violate either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause? The Virginia Freedom of Information Act (FOIA), provides that "all public records shall be open to inspection and copying by any citizens of the Commonwealth," but it grants no such right to non-Virginians. §2.2–3704(A) (Lexis 2011). Petitioners, who are citizens of other States, unsuccessfully sought information under the Act and then brought this constitutional challenge. The Court holds that petitioners’ constitutional rights were not violated. By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the Commonwealth’s refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause. The state Freedom of Information Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship.

Eighth Street Car Wash v. City of Chanute, ___ F.Supp. ___ Case No. 13-1070-JTM, USDC Kan. 3/3/13). The city imposed water restrictions due to drought conditions. The restrictions included a fine for, among other activities, running a commercial car wash during daytime hours. Eighth Street Car Wash sought an injunction and damages, claiming the restrictions violated its constitutional rights. Because water restrictions do not affect a fundamental right, the court reasoned that the regulation would be upheld if it was rationally related to a legitimate state interest. The court held that the preservation of water supplies during a time of drought is clearly a legitimate public purpose. Further, the Eighth Street Car Wash was not singled out because the restrictions applied to all car washes. The court noted that other businesses such as golf courses and swimming pools had also been subject to restrictions. The Eighth Street Car Wash also could not prove that it had suffered irreparable damage because of the restrictions. The restrictions applied to all car washes, thus there was no basis for inferring a general loss of market share to any competitor. The court denied injunctive relief, but noted that the car wash could pursue its claims for monetary damages.

Contracts

Clemmons v. Kansas City Chiefs Football Club, Inc., ___ Mo.App. ___ (No. WD75329 (filed February 26, 2013)). Clemmons was employed for 38 years by the Chiefs. He was terminated at age 60 from the position of controller. He filed a charge of age discrimination with the Missouri Human Rights Commission and later sued the Chiefs in circuit court. The Chiefs filed a motion to compel arbitration because Clemmons had signed an arbitration agreement in his third year of employment. The agreement stated that Clemmons consented to submission of any claim or cause of action he had against the Chiefs to the Commissioner of the National Football League and that the Commissioner's decision would be final and binding on all parties. Clemmons argued that the arbitration agreement was invalid and the circuit court agreed, denying the Chiefs' motion to compel arbitration. On appeal, the issue was whether the arbitration agreement was supported by the required element of consideration. The Chiefs argued that their promise to arbitrate any disputes against Clemmons supplied consideration for Clemmons' similar promise. The court concluded that the Chiefs made no such promise in the arbitration agreement, thus it could not serve as consideration. Next, the Chiefs argued that Clemmons' promise to arbitrate was made in exchange for their offer of continued at-will employment. The court held that this was an illusory promise and invalid consideration because it did not alter the nature of Clemmons' then-existing at-will employment relationship. The court was not persuaded otherwise by the fact that Clemmons continued to work for the Chiefs for decades after signing the arbitration agreement because the key was what Clemmons received in exchange for his promise at the time he signed the agreement. The appellate court affirmed the circuit court's order denying the Chiefs' motion to compel arbitration, finding the arbitration agreement was invalid due to lack of consideration.

Damages

Hilburn v. Enerpipe Ltd., ___ Kan.App.2d ___, ___ P.3d ____ (No. 112765, filed 03/11/15). Diana K. Hilburn was riding home with her husband when a truck owned and operated by Enerpipe, Ltd. (Enerpipe) rear-ended their car. The collision negatively impacted Hilburn's recovery from a recent back surgery, resulting in a second surgery and chronic pain. After a trial, a jury returned a verdict in the amount of $335,000 in total damages for Hilburn, most of which compensated for her noneconomic losses. The district court, over Hilburn's objection, applied K.S.A. 60-19a02 and capped her damages at $250,000. She alleged it violated her constitutional rights to apply the cap to a negligence claim that does not involve medical malpractice. The Court of Appeals rejected her claim, holding the quid pro quo test outlined in Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012) was satisfied. The two-part inquiry requires a court to decide (1),"whether modification to the common-law remedy or the right to jury trial is reasonably necessary in the public interest to promote the public welfare,", and (2) whether the legislature substituted an adequate statutory remedy for the modification to the individual right." The existence of available and affordable mandatory motor vehicle insurance is an adequate substitute remedy conferred on those individuals whose rights are adversely impacted.

Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (No. 99818, filed 10/05/12). The Kansas Supreme Court, two justices dissenting, upheld the constitutionality of a Kansas statute limiting a medical malpractice plaintiff's jury award for non-economic damages to $250,000. Amy C. Miller, sued Dr. Carolyn N. Johnson in Douglas County District Court for mistakenly removing her left ovary during a surgery intended to take the right ovary. The jury found the doctor at fault and awarded Miller $759,679.74 in damages,$575,000 of that award was for noneconomic loss. The trial judge lowered the judgment to comply with the statutory cap. The majority acknowledged that the constitutionality of statutory caps on jury awards was "a long-standing and highly polarizing question nationwide." The Court noted two other Kansas Supreme Court decisions had reached contradictory results on the subject in 1988 and 1990, but held that K.S.A. 60-19a02 did not violate a medical malpractice plaintiff's right to a jury trial, right to remedy by due course of law, right to equal protection under the law, or the separation of powers doctrine under the Kansas Constitution. Beier and Johnson, dissenting, said they would have held that the statutory cap violated Miller's constitutional rights to trial by jury and remedy by due course of law, while reserving judgment on the equal protection challenge.

Deference to Agency Interpretation

Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). The doctrine of operative construction has "been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books." See also, Clayton v. Univ. of Kansas Hospital Auth., ___ Kan.App.2d ___, ___ P.3d ____ (No. 115674, filed 01/13/17).

Discovery

Green v. Blitz U.S.A, Inc., ___ F.Supp.3d ___(E.D. Tex. Mar. 1, 2011), the U.S. District Court for the Eastern District of Texas found the defendant’s abuse of the discovery process to be so egregious that it ordered the offending party to provide a copy of the court’s highly detailed opinion to every plaintiff in every lawsuit it has had proceedings against it during the two previous years. Moreover, the court ordered that a copy of the opinion be filed with the abusing party’s first pleading with the presiding court in every new lawsuit in which it is a party, whether as a plaintiff, defendant, or any other capacity, for five years.

Due Process

J.A. Tobin Construction Co., Inc. v. Williams, ___ Kan.App.2d ___, ___ P.3d ____ (No. filed 104458, filed 09/30/11). When a real-estate owner fails to pay property taxes for an extended time period, the government may sell the property to pay those taxes. But first it must make reasonable efforts to notify the owner. Therefore, if the owner's name and address are readily ascertainable, the government must provide notice of the tax sale by personal service (received directly by the taxpayer or, when authorized by law, its agent) rather than by publication service through a general notice published in a newspaper.

Employment

Unal v. Los Alamos Pub. Sch., No. 15-2055 (10th Cir. 01/29/16). Unal, a Turkish-born Muslim woman, worked as an elementary school teacher in the Los Alamos Public School District ("LAPS"). Three days after filing discrimination complaints against LAPS Principal, the Principal informed Unal that the school was moving her classroom from inside the school to an outside portable classroom, effective immediately. Unal sued alleging retaliation and a hostile work environment. The district court granted defendants summary judgment. The 10th Circuit reversed in part. Workplace relocation is not materially adverse unless the relocation alters the employee's work conditions or interferes with his or her ability to complete employment duties. Unal's new classroom was not inferior to her old one and did not undermine her ability to teach, it concluded that Unal had not suffered a materially adverse employment action and the district court had not erred in granting the defendants summary judgment. However, it reversed on the hostile work atmosphere claim, and remanded.

Green v. Donahoe, ___ F.3d ___ (10th Cir. No. 13-1096, filed 07/28/14). Green worked as a postmaster for the U.S. Postal Service. In 2008, he filed an informal charge of discrimination with the Postal Service EEO office but never filed formal charges. In November 2009, Green was investigated for failing to comply with a number of employee grievances, which resulted in the Postal Service paying damages and penalties. Following this investigation, Green signed an agreement with the Postal Service on December 16, 2009 that allowed him to take sick leave until March 31, 2010 and then choose between retirement or a lower-paying job more than 300 miles away. Green submitted his retirement papers on February 9, 2010. He then initiated EEO counseling on March 22, alleging he had been constructively discharged for filing his earlier EEO complaint. Green eventually filed suit, and his constructive discharge claim was dismissed on summary judgment as time-barred. Green appealed the decision to the Tenth Circuit. On appeal, the Tenth Circuit recognized a federal employee's rights under Title VII differ from a private sector employee. A federal employee must begin the process of filing a charge of discrimination by contacting an EEO counselor within 45 days of the discriminatory action. If the issue is not resolved, the employee can file a charge with the employing agency and then either appeal to the EEOC or file suit. In Green's case, the timeliness of his constructive discharge claim turned on when the 45-day time period to contact an EEO counselor began. Ordinarily, an employment discrimination claim accrues when the discriminatory action is announced to the employee. The Tenth Circuit recognized that in almost all constructive discharge cases, the employee's resignation occurs on that same date, making Green a matter of first impression. After reviewing decisions from other circuits, the court declined to endorse the "legal fiction" that an employee's subsequent notice of resignation can be considered a discriminatory act of his or her employer. The court held that to avoid the time bar, Green must have initiated counseling within 45 days of entering his December 16, 2009 settlement agreement and not within 45 days of his retirement. Because Green did not initiate counseling until March 22, 2011, the Tenth Circuit affirmed the district court's ruling that the constructive discharge claim was time-barred.

Elections

Ramcharan-Maharajh v. Gilliland, ___ Kan.App.2d ___, ___ P.3d ____ (No. 106906 filed 09/07/12). Plaintiff became unhappy with a local rails-to-trails project authorized several years before by the governing body of Osage City, Kansas. He gathered signatures on a petition calling for a public vote on the project. Plaintiff took the petition to a city council meeting and alleged that the city agreed to hold a referendum election if certain conditions were met. Plaintiff then presented the petition to the Osage County Clerk. Osage County declined to review the signatures or accept the petition because it did not present a proper question for election. Plaintiff filed a petition for writ of mandamus seeking to compel Osage County officials to hold a referendum election on the rails-to-trails project. The district court dismissed the petition. The Court of Appeals affirmed, reasoning that: 1) referendums are authorized only by statute and there was no statute authorizing the referendum sought by plaintiff; 2) the city cannot agree to conduct a referendum not authorized by statute, and in any event there was no indication the city made such an agreement; and 3) the First Amendment right to petition the government does not guarantee a right to referendum.

Equal Protection

Windsor v. United States, ___ F.3d ___ (2nd Cir. No. 12-2335, filed 10/18/12). Plaintiff Edith Windsor sued as surviving spouse of a same-sex couple that was married in Canada in 2007 and was resident in New York at the time of her spouse’s death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes under 26 U.S.C. § 2056(A) solely because Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, defines the words “marriage” and “spouse” in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married.. At issue is Windsor’s claim for a refund in the amount of $363,053, which turns on the constitutionality of that section of federal law. The Court holds § 3 of the DOMA unconstitutional, applying intermediate scrutiny. DOMA is not substantially related to the important government interest of encouraging procreation.

Evidence

Schlaikjer v. Kaplan, ___ Kan. ___, ___ P.3d ___ (No. 92932, filed 01/25/13). Plaintiff was diagnosed with tracheal stenosis (a narrowing of the trachea). Dr. Kaplan placed two metal stents in plaintiff's trachea. When Schlaikjer continued to have difficulty breathing she was referred to Dr. Cooper, a thoracic surgeon. Dr. Cooper removed the metal stents as part of a series of treatments to repair the damage they caused. In her malpractice suit against Dr. Kaplan, Schlaikjer sought to have Dr. Cooper testify both as her treating physician and as her only expert. In his deposition, Dr. Cooper testified that his full-time practice was in the academic setting, although his "classroom" was in the operating room with residents. During his 80-90 hour work week, Dr. Cooper typically spent two full days operating, a half day each seeing emphysema patients and new patients, and another full day on follow-up visits. The district court concluded that Dr. Cooper did not spend 50% of his time in actual clinical practice, making his testimony inadmissible. Dr. Kaplan was granted summary judgment, which the Court of Appeals affirmed. On review, the court held that K.S.A. 60-3412 applies to any witness who would give expert testimony on the standard of care in a medical malpractice action, regardless of whether the witness is also a treating physician. The court held that "actual clinical practice" means patient care, not limited to face-to-face care, and includes advising on or addressing care for a patient, hands-on training or teaching of surgical residents, and clinical research. After considering Dr. Cooper's clinical schedule and testimony that his teaching instruction was more akin to a hands-on apprenticeship in surgery, the court concluded that there was not substantial competent evidence that Dr. Cooper did not spend at least 50% of his time in actual clinical practice. Because Dr. Cooper's expert testimony should have been admitted, the district court erred in granting Dr. Kaplan summary judgment.

Fair Housing Act

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13–1371, filed 06/25/15). Inclusive Communities Project, Inc. (ICP) brought a disparate-impact claim under §§804(a) and 805(a) of the Fair Housing Act (FHA), alleging the Texas Dept. of Housing and Community Affairs (TDH) caused continued segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. Under the FHA it is unlawful to “refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to a person because of race” or other protected characteristic, §804(a), or “to discriminate against any person in” making certain real-estate transactions “because of race” or other protected characteristic, §805(a). Disparate-impact claims are cognizable under the Fair Housing Act. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest their policies serve, an analysis that is analogous to Title VII’s business necessity standard.

Firearms

Shirley v. Glass, ___ Kan. ___, ___ P.3d ___ (No 102570, 07/19/13). The mother of a deceased child brought a a negligent entrustment claim against a gun shop. The shop sold a firearm that wound up in the hands of Russell Graham, a convicted felon. Graham told his grandmother, Imogene Glass, that he wanted to buy a shotgun so he could teach his young sons to hunt. Glass accompanied Graham to the gun shop. Graham told the shop owners he was a convicted felon, but that Glass would be buying the gun. Glass passed the background check and Graham paid for the gun and took it home. Later that day, he shot one of his sons and then committed suicide. The district court granted summary judgment to the Georges and the gun shop. The mother appealed. The Court of Appeals affirmed the judgment on negligence per se but reversed summary judgment on the negligent entrustment claim. The Kansas Supreme Court granted review and reversed on negligent entrustment. The court concluded that: "violations of firearm-transfer statutes may be used by a plaintiff to establish a duty and a breach of a duty. Beyond establishing duty and breach, however, the plaintiffs will still have to prove the other elements of the tort they allege." Further, regarding the duty of care owed by a firearms dealer, the court held: "those in possession of firearms should exercise the highest standard of care in deterring the possession of those firearms by those who are at special risk to misuse the weapons. The legislature has determined that certain convicted felons fall within that special-risk group, and a firearms dealer must exercise the highest standard of care in order to avoid selling guns to such felons."

FLSA

State of Nevada et al. v. United States Dep't of Labor, et al., ___ F.Supp.___, Case No. 4:16-cv-00731 (E.D. Tex. 2016). On November 22, 2016, a federal judge in Texas granted a nationwide preliminary injunction prohibiting the Department of Labor ("DOL") from implementing and enforcing its new overtime regulations that would have significantly increased the minimum salary rate for employees to qualify for the "white collar" exemptions under the Fair Labor Standards Act (FLSA). The new regulations were set to take effect on December 1, 2016. As a result, employers no longer need to implement the changes that would have increased employee salaries of executive, administrative, and professional employees to maintain their exemption from the overtime and minimum wage provisions of the FLSA. The decision applies to pending changes to increase the salary level required to meet the tests for exemption from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Judge Amos Mazzant granted the Emergency Motion for Preliminary Injunction filed by 21 states in a suit against the DOL to block the implementation of the DOL Final Rule. Focusing on the statutory language of the FLSA, the court found that Congress intended the white collar exemptions to apply to employees performing actual executive, administrative and professional duties without regard to a minimum salary level. The court ruled the DOL exceeded its delegated authority by raising the minimum salary to a point where it supplants the duties test, and the states would likely prevail on the underlying case. The result, according to the court, is a rule that improperly creates a de facto salary test for determining which workers fall under the FLSA white collar exemptions. The court found that states and employers would likely suffer irreparable harm, the potential injury outweighed any damage to the DOL, and the injunction would not injure public interest. On this basis, the Court found that nationwide injunctive relief was proper to prevent the DOL from implementation and enforcement of the Final Rule pending resolution of the case.

FMLA

Olson v. Penske Logistics, LLC, ___ F.3d ___ (10th Cir. No. 15-1380 filed 08/26/16). Penske Logistics fired Olson while he was on FMLA leave for unacceptable job performance and dishonesty. Olson's work was initially adequate, but he was placed on a 60-day performance improvement plan in June 2014. Olson then requested FMLA leave and Olson's leave was approved on July 18, 2014. That same day, his supervisor Elliott received notice from a Penske customer that the Denver warehouse was performing unsatisfactorily. An investigation revealed an inventory loss, which Olson had hidden. Also, the warehouse was behind schedule on performing audits. Moreover, Olson did not bill a customer for certain work done and lied to Elliott by claiming he did not perform the work. Elliott recommended Olson's termination and Olson was subsequently terminated while still on his FMLA leave. Olson filed suit, alleging that Penske unlawfully interfered with his FMLA rights. The district court granted Penske's motion for summary judgement and Olson appealed. The Circuit rejected Olson's argument that if not for his FMLA leave, he would have been able to defend his conduct and save his job. The evidence showed that no defense would succeed in allowing Olson to keep his job. The court pointed to Elliott's declaration that he was not aware of any employee with Olson's level of unsatisfactory performance who was not discharged. The evidence showed that Elliott's recommendation of termination was based on Olson's job performance and untruthfulness, and not because he felt inconvenienced. Therefore, the Tenth Circuit held that Olson could not show his termination was related to exercising his FMLA rights and subsequently affirmed the district court's grant of summary judgment to Penske.

Brannan v. Unified School District 211, ___ F.Supp. ___ (USDC - Kan. No. 11-1128, filed 01/09/13. Plaintiff was a custodian for the school district who sought leave to care for her adult daughter in Alaska during and after the birth of her daughter's third child. The request did not mention or ask for leave under the Family and Medical Leave Act ("FMLA"). Plaintiff had previously been granted leave to care for her adult daughter and grandchildren after the births of her daughter's first and second children. At the time of her third request, Brannan's daughter's pregnancy was proceeding normally with no complications. Brannan was granted her remaining days of paid leave and an additional five days of unpaid leave for a total of 13.5 working days of leave to be exhausted on January 27, 2010. Unhappy with this amount, plaintiff submitted her two weeks' notice of resignation but later withdrew it. However, prior to leaving, plaintiff cleared out her desk and took her personal things before leaving for Alaska on January 12, 2010. While on leave, Brannan contacted her school principal and informed him she would need to stay longer in Alaska. The principal responded that Brannan was to return to work on January 27 but that she could make a written request for FMLA leave with medical certification. Brannan did not read this response, but sent a handwritten request for additional leave accompanied by a doctor's note that stated Brannan was helping care for her grandchild. The district again responded that because the request did not state it was for FMLA leave, Brannan needed to be at work at the agreed upon date. Again, Brannan did not read this response but decided to stay in Alaska until after her agreed upon return date. Brannan was terminated on January 27 when she did not return to work. Plaintiff filed suit against the school district alleging that the district interfered with her right to take FMLA leave by refusing her request for leave to take care of her adult daughter during the birth of her daughter's third child. The court held that Brannan did not show that her daughter was incapable of self-care at any time Brannan had requested leave. The daughter had no complications from the pregnancy or birth, and could cook, clean, and take care of herself. The only assistance she needed was to care for her two older children. The court held that FMLA does not entitle an employee to leave to care for grandchildren and allows for leave to care for an adult child "only if the child is suffering from a serious health condition and is 'incapable of self-care because of a mental or physical disability.'" Thus, plaintiff was not entitled to FMLA leave and her claims failed.

Brown v. ScriptPro, LLC, ___ F.3d ___ (10th Cir. No. no. 11-3293 filed 11/27/12). Brown worked as a customer service analyst from March 2007 to November 2008. He received one annual performance review. He earned favorable comments about quality of work and attendance, but less than favorable comments about organization of work and work relationships. His review noted he spent too much time on the internet and made coworkers feel uncomfortable. Other employees later reported that he was rude to customers on the phone. In anticipation of the birth of his second child, Brown worked from home for two weeks without permission. Once the baby was born he worked from home and took paid time off. He did not record his time worked from home on the employer's timekeeping system. He returned to work and was confronted about his working from home. He asked for additional time off to accompany his wife to a doctor's appointment. Two days later he was terminated. Brown brought FMLA and FLSA claims against his employer. The district court granted summary judgment to the employer. Brown appealed. On the FMLA interference claim, the Tenth Circuit recognized that temporal proximity between a request for FMLA leave and termination may support the idea that the termination was related to the exercise of FMLA rights. However, the employer defended on the theory that it would have terminated Brown for reasons unrelated to FMLA, notably Brown's performance problems. Brown argued that this was pretext. The Tenth Circuit clarified that the McDonnell Douglas burden shifting test does not apply to FMLA interference claims, but analyzed whether there was a fact dispute about the alternative reasons for termination. The court held that there was no fact dispute, and Brown's own opinion of his work performance was not enough to create such a dispute and defeat summary judgment. On the FLSA claim, the Tenth Circuit agreed that Brown provided evidence that he worked overtime hours. However, Brown did not meet his burden to produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. Brown did not enter the disputed hours in his employer's timekeeping system, and he kept no other written records of his time. Brown argued that it was the employer's duty to keep track of his time, but the Tenth Circuit observed that courts only relax the plaintiff's burden to show the amount of overtime worked where the employer fails to keep accurate records. Here, the employer kept accurate records through its timekeeping system, but Brown failed to avail himself of it. The grant of summary judgment for the employer was affirmed.

Intellectual Property

TASER International v. Karbon Arms, LLC, ___ F. Supp. ___ (USDC - DE 2014). The United States District Court for the District of Delaware entered a final judgment on January 10, 2014 in this patent infringement litigation awarding TASER a permanent injunction. The Court's final judgment decreed that Karbon Arms' MPID and MPID-C conducted electrical weapons infringe TASER's U.S. Patent Numbers 6,999,295; 7,782,592 and 7,800,885. The Court further decreed that the above referenced TASER patents are valid and enforceable and awarded TASER $2,385,366 in damages for infringement.

Immunity

Sanchez v. Unified School District No. 429, ___ Kan.App.2d ___, ___ P.3d ____ (No. 110584, filed 11/14/14). Plaintiffs sued the school district and principal, among others, due to the bullying their child received at school. The district court granted the principal and the school district summary judgment. The Court of Appeals reversed. The adoptive immunity exception K.S.A. 2013 Supp. 75-6104(I), does not apply. Although the principal has immunity under the federal Coverdell Act, the district is directly liable for breaching its special duty to properly supervise students and protect Austin from harm, a claim separate and distinct

from its claim of indirect liability under the doctrine of respondeat superior.

Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, ___ L.Ed.3d ___ (2009). Iqbal’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination. Pp. 11–23.

(a) This Court assumes, without deciding, that Iqbal’s First Amendment claim is actionable in a Bivens action, see Hartman v. Moore, 547 U. S. 250, 254, n. 2. Because vicarious liability is inapplicable to Bivens and §1983 suits, see, e.g., Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691, the plaintiff in a suit such as the present one must plead that each Government-official defendant, through his own individual actions, has violated the Constitution. Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences”; it involves a decisionmaker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279. Iqbal must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin.

(b) Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw thereasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly.First, the tenet that a court must accept a complaint’s allegations astrue is inapplicable to threadbare recitals of a cause of action’s ele-ments, supported by mere conclusory statements. Id., at 555. Sec-ond, determining whether a complaint states a plausible claim is con-text-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dis-miss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

"The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation,including "avoidance of disruptive discovery." Siegert v. Gilley, 500 U. S. 226, 236 (1991) (KENNEDY, J., concurring in judgment)." Iqbal, 129 S.Ct. at ___.

KTCA

Patterson v. Cowley County, (Nos. 114705 and 114707, filed 01/27/17). Two drunk kids drove their SUV off the road and into a river and drowned. Their parents sued a number of government agencies alleging wrongful death caused by the government's negligence. The Court held that Patterson failed to establish that the MUTCD imposed a duty on the County to conduct an engineering study on its portion of 322nd Road for purposes of making a decision related to installation of warning traffic control devices described in the MUTCD. The Court adopted t he Berkovitz-Gaubert test to determine whether the County's failure to place the warning signs at issue falls within the scope of discretionary immunity under K.S.A. 2015 Supp. 75-6104(e). As the party claiming the exception to liability based on a discretionary function, the County has the burden to establish that its decision to place (or not place) the warning signs (1) involves an element of individual judgment or choice and (2) is the kind of function susceptible to public policy analysis. Decisions at all levels of government, including frequent or routine decisions, may be protected by discretionary function immunity if the decisions require analysis of government policy concerns. See K.S.A. 2015 Supp. 75-6104(e) (although originally adopting the FTCA's language for the discretionary function exception word for word, the Kansas Legislature later added the words "and regardless of the level of discretion involved"). Regardless of the designation of the County's portion of 322nd Road as nonlow volume or low volume, there is no standard within the MUTCD that requires a governmental entity to follow any specific course of action related to the placement of an advisory speed plaque, a Dead End sign, or a No Outlet sign. Accordingly the Court held that the County did not have a duty to initiate an engineering study to determine if the MUTCD required the County to place any additional traffic control devices on the County's portion of 322nd Road; the County is immune from liability under the discretionary judgment exception of the KTCA for any failure to place an advisory speed plaque, a Dead End sign, or a No Outlet sign on its portion of 322nd Road; the County is not immune from liability under the recreational exception of the KTCA for any failure to place an advisory speed plaque, a Dead End sign, or a No Outlet sign on its portion of 322nd Road; the KTCA exception to liability for failing to inspect the property of another does not apply to the facts presented in this case; and the Township did not have a duty to place traffic control devices or other warning

signs on its portion of 322nd Road.

KORA

State v. Great Plains of Kiowa County, Inc., ___ Kan. ___, ___ P.3d ___ (No. 115932, filed 02/10/17). In January 2001, Great Plains of Kiowa County, Inc. (GPKC) signed a lease agreement with the Board of Trustees of the Kiowa County Memorial Hospital (Board) to run the hospital. GPKC appealed from a district court ruling that requested financial records from its hospital operations were public records under the Kansas Open Records Act (KORA) and fining GPKC for failing to turn over the records on the request of the Kiowa County Commission (County). The Court of Appeals affirmed, concluding that GPKC's records were public. GPKC has only one function—to operate the Hospital on behalf of the Board. As far as the record shows GPKC provides no services to any other entity, public or private. The Board cannot hide its records by delegating the operations to GPKC and violate its statutory duty to maintain adequate financial records pertaining to the operations of the County-created hospital. By assuming the role as the sole operator of the hospital on behalf of the Board, GPKC's operating records are deemed to be public records.

Kansas National Education Association v. State of Kansas, ___ Kan. ___, ___ P.3d ___ (No. 114135, filed 01/20/17). Article 2, § 16 of the Kansas Consitition does not forbid the logrolling that occurred in this case. Logrolling is combining bills containing different subjects in a single bill. 2014 H.B. 2506 contained appropriations as well as removal of teachers' due process protections, but both provisions related to education.

Municipal Law

City of Topeka, v. Imming, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112869, filed 03/11/15). The City Council could not ratify the City Manager's decision to file this lawsuit without an open, affirmative vote on the matter or by taking some action consistent with ratification. The defeat of a council person's motion to suspend the rules meant only the Council chose not to suspend the rules that evening and is ineffective as implied ratification. But since the challenger filed a counterclaim seeking a writ of mandamus compelling the City to repeal an ordinance or hold an election, the Court was compelled to review all of the substantive issues raised by the City in its declaratory judgment action. On those issues, the district court did not err in holding the challenger was not entitled to relief. This ordinance purchasing the track and expanding the STAR bond district was a legislative act, not an administrative one subject to initiative. However, "ordinances subject to referendum or election under another statute" cannot be the subject of an initiative and referendum petition pursuant to K.S.A. 12-3013(e)(3). Because Imming's petition did not comply with the STAR bond protest petition requirements in K.S.A. 2014 Supp. 12-17,169(b)(2), the district court did not err in denying his request for a writ of mandamus.

Stichman v. City of Independence, ___ Kan.App.2d ___, ___ P.3d ____ (No. 108,142, unpublished, filed 11/21/12 ). Ned Stichman was the park and zoo supervisor for the City of Independence, Kansas. Micky Webb was the city manager. Webb hired Barb Beurskens to be the assistant park and zoo supervisor in October 2010. On February 17, 2012, Webb issued a directive granting Beurskens full managerial authority of the park and zoo department, effectively relieving Stichman of his managerial duties. Stichman sued the City and Webb, alleging Webb acted beyond his powers as city manager and that Beurskens was not qualified to perform the duties assigned by Webb. The district court denied Stichman's petition for declaratory judgment and granted summary judgment to the City. The Court of Appeals affirmed, concluding that Webb had the power as city manager to determine whether a person was qualified to perform certain job duties and to assign duties to that person in his discretion.

Negligence

Burnett v. Eubanks, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112429, filed 05/27/16). Joel Burnette sought treatment for back pain. Defendant treated him and allegedly negligently caused spread of an infection by injecting cortisone through edema. As a result, Joel contracted bacterial meningitis—an inflammation of the meninges covering the spinal cord. This developed into arachnoiditis, an incurable disease of the central nervous system. The arachnoiditis caused many problems for Joel. He suffered from pain, and he had problems with his balance, bowel function, gait, and walking. It produced dizziness, fatigue, and sexual dysfunction. Joel sued for malpractice. Eventually Joel took his own life, so his heirs added a wrongful death suit. The jury returned a verdict finding for the Burnettes on liability, assessing 75 percent of the fault to Dr. Eubanks and 25 percent to the Clinic. No fault was attributed to Joel. After caps, the court awarded Burnettes $637,738.38 from Eubanks and $212,579.46 from the clinic. Defendants complained of a jury instruction saying "a party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claims for damages." The court rejected their complaint, saying recovery for negligence in Kansas is governed by principles of comparative negligence, and in wrongful death claims, one who contributes to a wrongful death is a cause of that death as contemplated by the wrongful death statute. It rejected any construction of the wrongful death statute to mean that only those who are the sole cause of a wrongful death can be pursued for damages under the wrongful death statute.

Negligence Per Se

Blackwell v. Gorrell, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114374, filed 09/16/16)((unpublished, summary by Fisher Patterson Sayler & Smith). The Kansas Court of Appeals reviewed a district court's order granting summary judgment in a negligence suit to a driver who crossed the center line of traffic, causing a head-on collision. On February 13, 2012, Ophelia Blackwell was driving eastbound on U.S. Highway 50 when Kathy Gorrell's westbound vehicle slid or skidded across the center line, causing a head-on collision. U.S. Highway 50 is a four lane highway, with two lanes of traffic going each direction. At the time of the accident, both Blackwell and Gorrell had been driving in the inner lanes because of snow and icy accumulation in the outer lanes. During her deposition, Gorrell testified that she remembered her car skidding across the center line very quickly and that there was no time for her to do anything before the collision. Blackwell sued Gorrell, claiming her negligence had caused Blackwell's injuries. The district court granted Gorrell's motion for summary judgment, finding that the uncontroverted evidence showed the accident had not been caused by any conduct attributable to her. Blackwell appealed to the Court of Appeals. On appeal, the Kansas Court of Appeals first considered whether Gorrell owed Blackwell a duty not to cross the center line of the highway. K.S.A. 8-1514(a) provides that all vehicles "shall be driven upon the right half of the roadway." The court declined to rule on whether violation of K.S.A. 8-1514 would constitute negligence per se. However, in Shirley v. Glass, 297 Kan. 888 (2013), the Kansas Supreme Court held that a statute may establish a duty of care where the plaintiff shows that the statute's purpose is to protect him or her from the type of harm that actually occurred. Relying on Shirley, the Court of Appeals concluded that one of the purposes of K.S.A. 8-1514 was to protect citizens from head-on collisions. Accordingly, the court concluded that Gorrell owed Blackwell a duty to maintain control of her car and remain on the right side of the road. Next, the court considered whether the district court had erred in finding that Gorrell's conduct had not been the proximate cause of the collision as a matter of law. Although the district court relied heavily on Gorrell's testimony that "there was not any time to do anything," the Court of Appeals concluded that a jury could nonetheless find that Gorrell had been driving her car at a speed that was greater than reasonable under the hazards then existing, and summary judgment was therefore inappropriate. The Court of Appeals reversed the district court's and remanded the case for trial.

Negligent Entrustment

Martell v. Driscoll, ___ Kan. ___, ___ P.3d ___ (No. 106429, filed 06/07/13). Martell, as conservator for Kim "Travis" Driscoll, sued Leroy Driscoll and others claiming that Leroy negligently entrusted a vehicle to him, a poor driving drunk with a suspended license, which caused him injury. The district court dismissed the suit, holding that Kansas did not allow first-party negligent entrustment suits. The Supreme Court reversed, holding: (1) Kansas law recognizes a first - party negligent entrustment claim; (2) if an entrustor owed a duty of care to an entrustee and that duty was breached, then determining the parties' comparative fault for the incident resulting in injuries to the entrustee is a quest ion of fact for the jury to decide; and (3) Kansas public policy does not prevent an entrustor from being liable for an entrustee's injuries that resulted from the entrustee's negligent use of the entrustor's chattel.

Notice Pleading

T.H, C.C., and R.N.C. by and through her next of friend, T.H. v. Univ. of Kan. Hosp. Auth., ___ Kan. ___, ___ P.3d ___ (No. 114285 filed 01/06/17) (summary by Fisher Patterson). The Kansas Court of Appeals considered whether the facts contained in a petition satisfied Kansas's notice pleading standard for a claim requiring proof of malice. T.H. and C.C. took their 9-month-old daughter, R.N.C., to see Dr. Francesca Perez-Marques, a doctor at the University of Kansas Hospital Authority ("KU"), about a respiratory infection. After examining R.N.C., Dr. Perez-Marques suspected R.N.C had been the victim of severe sexual abuse, and alerted the police. T.H. and C.C. vehemently disputed Dr. Perez-Marques's report and filed suit. The district court granted the defendants' motion to dismiss, finding that (1) they were immune from suit for any claim related to a report of suspected child abuse made without malice; and (2) the plaintiffs failed to plead that Dr. Perez-Marques's report had been made with malice. Plaintiffs appealed to the Kansas Court of Appeals. Pursuant to K.S.A. 38-2223(a)(1)(A), doctors are mandatory reporters of suspected child abuse. The statute makes the willful and knowing failure to report suspected abuse a misdemeanor crime. Additionally, the statute provides civil immunity to "[a]nyone who, without malice, participates in the making of a report . . . or . . . any activity or investigation relating to the report." K.S.A. 38-2223(f). On appeal, T.H. and C.C. argued that K.S.A. 38-2223(f) contained no language suggesting it was intended to provide immunity to doctors who committed malpractice by negligently misdiagnosis child abuse. The Court of Appeals disagreed, pointing out that if K.S.A. 38-2223(f) did not apply to negligent diagnoses, doctors would effectively be required to choose between reporting suspected abuse and exposing themselves to malpractice liability, or declining to report and exposing themselves to criminal liability. Given the Kansas Legislature's policy rationale of "provid[ing] for the protection of children . . . by encouraging the reporting of suspected child abuse and neglect," the Court of Appeals affirmed the district court's dismissal of the plaintiff's claims pursuant to K.S.A. 38-2223(f). Although T.H. and C.C. also argued that they had effectively pled that Dr. Perez-Marques's report had been made with malice, the Court of Appeals disagreed. The court acknowledged that T.H. and C.C had sufficiently pled that Dr. Perez-Marques had diagnosed sexual abuse without any reasonable justification or excuse. However, "even accepting these facts as true, there are no facts set forth in the petition from which we can infer that [Dr. Perez-Marques] intended to do harm or acted with 'actual evil-mindedness or specific intent to injury.'" Moreover, the court noted, "neither the word malice nor any of its synonyms appear anywhere in the petition." Because the court concluded that T.H. and C.C failed to effectively plead that Dr. Perez-Marques acted with malice, it affirmed the district court's dismissal.

Notice of Claims

Whaley v. Sharp, ___ Kan. ___, ___ P.3d ___ (No. 107776, filed 12/24/14), reversing No. 107,776, 2013 WL 1149750, at *1 (Kan. App. 2013). K.S.A. 2013 Supp. 12-105b(d) does not require notice when a lawsuit is filed only against a municipal employee and not the municipality. Ann Krier died after treatment at Ashland Health Center. Her adult daughter, Janice Whaley, sought recovery for the malpractice of a physician and his assistant. Defendants alleged the claims should be dismissed because they were municipal employees. The district court agreed. The Supreme Court reversed, overruling King v. Pimentel, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995).

Premises Liablity

Bradshaw v. Smith, ___ Kan.App.2d ___, ___ P.3d ____ (No. 113922, filed 08/19/16)(unpublished) (summary by Fisher Patterson). Lewis Bradshaw was a 72-year-old independent contractor who worked for Hy Grade Construction & Materials. Hy Grade owned a 500 acre tract of land that it leased for pasture and used for harvesting pecans. Bradshaw acted as caretaker for the land, and in that role mowed the grass and cleared brush. In November 2008, Bradshaw was fatally injured when, while burning brush, an explosion occurred. A subsequent investigation uncovered six empty boxes of building demolition explosives in a barn on the tract, although the parties remain unsure how the boxes ended up in the barn or how the explosives ended up in Bradshaw's brush pile. Bradshaw's wife sued Hy Grade under the theories that Hy Grade (1) breached its duty of care to persons permitted on its property; and (2) engaged in an abnormally dangerous activity by having explosives on its premises. The district court granted Hy Grade's motion for summary judgment, and Bradshaw's wife appealed. The Court of Appeals first addressed Bradshaw's negligence claim. The court classified Bradshaw an invitee, meaning that Hy Grade owed him a duty of reasonable care. The court explained that unlike the produce aisle of shopping market, or the lobby of a business, however, Kansas case law did not support Bradshaw's claim that Hy Grade's duty of care required it to inspect its property for explosives. The court also dismissed Bradshaw's argument that Hy Grade should have been on notice of the risk of explosives because of the empty explosive boxes, because that claim required the court to impermissibly stack inference upon inference. Finally, the court pointed out that even if Hy Grade did have a duty to inspect, such an inspection would not have uncovered latent dangers (i.e. hidden explosives), and Hy Grade had no duty to warn Bradshaw about open and obvious dangers (i.e. plainly visible explosives). The Court of Appeals affirmed summary judgment on Bradshaw's negligence claim. Next, the court addressed Bradshaw's strict liability claim. When a party engages in an abnormally dangerous activity, he or she faces strict liability for the types of harm that make the activity dangerous. In Bradshaw's case, the court determined that Hy Grade had not engaged in an abnormally dangerous activity because the company did not use explosives on the property and the record did not support any connection between the presence of explosives in Bradshaw's brush pile and any activity attributable to Hy Grade. The Court of Appeals affirmed summary judgment for Hy Grade on Bradshaw's strict liability claim.

Wrinkle v. Norman, ___ Kan. ___, ___ P.3d ___ (No. case no. 103373 filed 05/17/13). Kansas defines new duty to "trespassing" good samaritan. Wrinkle observed four or five cows wandering loose in front of property belonging to the Normans. As Wrinkle herded the cows through an open gate and toward a pen, one calf strayed into a clothesline wire, caught the line around its neck, and began to choke. While removing the line from the calf's neck, Wrinkle was tripped by the clothesline and landed on a concrete pad. Wrinkle broke his back, and sued the Normans , alleging they had created a dangerous condition on their property and presented an unreasonable risk of harm by leaving their gate open and by leaving a clothesline wire running across the ground. The district court and the Kansas Court of Appeals concluded that Wrinkle was a trespasser on the Normans' property and they had breached no duty to him. The Supreme Court reversed and adopted a new rule which gives implicit permission for one party to enter the property of another to prevent certain kinds of serious harm, and the possessor of the property has a duty of reasonable care to protect the well-being of the person exercising that privilege. The court noted that this rule makes it possible for a Good Samaritan to enter the property of another for the purpose of averting great property loss or personal injury without having to suffer the consequences of being deemed a trespasser.

Products Liability

Ridolfi v. Riddell, et al., (Colorado, jury verdict rendered 4/13/13 - profiled in the Kansas City Star on 4/16/13). The jury awarded $11.5 million to the family of Rhett Ridolfi, a football player who has severe brain damage and partial paralysis as the result of a concussion he sustained in a Trinidad High School practice in 2008. The lawsuit was originally brought against Riddell and several high school administrators and football coaches in Las Animas County, about 200 miles south of Denver near the New Mexico line. The jury assessed 27 percent of the fault for Ridolfi’s injury to Riddell, making the company responsible for paying $3.1 million of the damages. Riddell was found negligent in failing to warn players about concussion dangers. Three people reached confidential settlements before Saturday’s verdict, but two coaches were still defendants at the trial.

Protection from Abuse

Baker v. McCormick, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114756, filed 07/29/16). Grandfather brought PFA action on behalf of grand kids. This angered the kids mother, who moved out after the PFA petition was filed, but before the hearing. The Court of Appeals held that since the children resided with Grandfather (Linus) at the time he filed the PFA action, he had the authority to do so. As one court has noted, a related term, "residence," "is not a term of fixed legal definition but takes on shades of meaning according to the context in which it is found." And jurisdiction continues. The goal of the Act is to provide access to the court so that situations can be sorted out and appropriate orders of protection entered. That goal would be thwarted if moves by children while the action is pending—which could occur for any number of reasons— took away the court's jurisdiction to hear the case. Where, as here, the children resided with the adult who filed the action at the time of filing, that is sufficient to give the court jurisdiction to preside over the case to its natural conclusion. However, grandparents cannot bring a claim for grandparent-visitation rights in a PFA proceeding - only in divorce and paternity cases. Additionally, Linus failed to prove abuse as to one child, and that finding was affirmed on appeal. Despite claims by Linus the judge was biased against him; the Court of Appeals commiserated with the trial judge who had to deal with him: at the end of the hearing the court said it "wished it could order everyone into counseling." While the Court of Appeals indicated that such a comment was "problematic," but did not find the comment indicative of the sort of personal bias, prejudice, spite, or ill will concerning a party that would require disqualification of a judge or suggest that we should disregard the judge's factual findings on account of bias.

Proximate Cause

Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). Proximate cause is cause "which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act." A plaintiff must produce evidence that "affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." Id. at 628.

Retaliatory Discharge

Campbell v. Husky Hogs, L.L.C., ___ Kan. ___, ___ P.3d ___ (No. 103458, filed 05/20/11). A common-law tort for retaliatory discharge may be brought against an employer when an employee claims he or she was fired for filing a wage claim under the Kansas Wage Payment Act (KWPA), K.S.A. 44-313 et seq. The district court dismissed the lawsuit because there was no previously recognized exception to the terminable-at-will doctrine for discharging an employee for filing a KWPA wage claim. The district court also found there was an adequate remedy available under that Act. The Supreme Court reversed, holding the pleadings state a valid claim for retaliatory discharge, and the statutory remedies provided by the KWPA are an insufficient substitute for common-law remedies.

Saving Statute

Lehman v. City of Topeka, ___ Kan.App.2d ___, ___ P.3d ____ (No. 109694, filed 04/04/14). In 2010 Lehman filed suit in SN County alleging a hole drilled near her home weakened its structure and caused flooding and foundation issues. One of the defendants filed for bankrupcty and the case was stayed, and later dismissed. Lehman sued again in 2012, but only named the City as a defendant. The City moved for dismissal claiming K.S.A. 60-518 did not save the suit because it was not refiled in six months. The district court granted the motion and the Court of Appeals affirmed.

State Created Danger

Estate of B.I.C. v. Gillen, ___ F.3d ___ (10th Cir. No. No. 11-3219 (filed 12/18/12). (Summary by IMLA). A social worker was denied summary judgment on a state-created danger claim based on her failure to intervene in a child abuse matter where the child later died. In order to succeed on a danger-creation claim a plaintiff must meet all elements of a six-part test:

(1) the charged state entity and the charged individual actors created the danger or increased plaintiff’s vulnerability to the danger in some way; (2) plaintiff was a member of a limited and specifically definable group; (3) defendant[’s] conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, is conscience shocking.

Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003).

There are policy concerns underlying the requirements for a danger-creation claim including, "(1) the general need for restraint; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policy decisions impacting public safety." Currier v. Doran, 242 F.3d 905, 920 (10th Cir. 2001).

Statute of Limitations

Armstrong v. Bromley Quarry & Asphalt, Inc., ___ Kan. ___, ___ P.3d ___ (No. 109,864, filed 09/09/16)(summary by Fisher Patterson). Bromley Quarry & Asphalt, Inc. ("Bromley") operated an underground limestone mine abutting property owned by Willis Armstrong and Stephanie Prohaska. In 1996, Armstrong canceled a lease that allowed Bromley to mine his property after a dispute between the parties arose. In 2005, Armstrong began suspecting that Bromley was still mining his property after he felt his house shaking from a nearby blast. Armstrong checked the survey maps Bromley filed with various state and federal agencies, but the surveys reflected that there was no mining on his property. In March 2011, however, Bromley commissioned a new survey, which reflected that the perimeter of its mine was, in fact, encroaching on Armstrong's property. When Armstrong discovered the encroachment he filed suit for trespass and conversation, which he claimed had been ongoing from 1996 through 2011. The district court determined that Armstrong's injuries had been reasonably ascertainable more than two years before he filed suit, and limited his claims to those occurring in the past two years. The Court of Appeals affirmed, and Armstrong appealed to the Kansas Supreme Court. On appeal, the Kansas Supreme Court reiterated that trespass and conversation claims are subject to a two-year statute of limitations, which commences when a party's injury becomes "reasonably ascertainable." Bromley argued that Armstrong's injuries were "reasonably ascertainably" because he suspected the trespass in 2005 and could have paid for a survey to confirm his suspicion. While the Court agreed that Armstrong's suspicions triggered a duty to investigate, it remained unconvinced that a reasonable investigation would have uncovered the trespass. The Court explained: "[W]hat would cause a reasonably prudent landowner to take this additional action [paying for a survey] under the circumstances--after reviewing maps on file with regulatory agencies that showed no mining had occurred on his or her property?" The Court concluded that the record on summary judgment was insufficient to determine that Armstrong's claims had been reasonably ascertainable as a matter of law. The Kansas Supreme Court reversed the decisions by the district court and Court of Appeals and remanded the case for further proceedings.

Substitution of Parties

Hollister v. Heathman, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111823, filed 03/06/15). Roger Hollister filed suit against his former attorney, James Heathman, for legal malpractice. In 2013, while the action was still pending, Hollister passed away. On March 27, 2013, Heathman's attorney filed a suggestion of death, which he served on the former attorney of Hollister's wife, Rebecca. On April 21, Hoffman filed a motion to dismiss for failure to substitute. Then, on May 1, 2013, Rebecca Hollister wrote a letter to the trial judge, which he told both Hollister and Hoffman he would consider as a "Motion for a Substitution of the Proper Party." At the May 20, 2013 hearing on the motion, Hoffman's counsel objected to Hollister's substitution, arguing that K.S.A. 60-225 required the "personal representative" of Hollister's estate be substituted as the party, rather than Hollister herself. The district court agreed and granted Hollister 90 days to substitute the proper party. When no party had been substituted as of September 6, 2013, the trial court granted Hoffman's motion to dismiss, which Hollister appealed. K.S.A. 60-225(a)(1) requires a motion for substitution be made "within a reasonable time" after service of a suggestion of death, which must be served pursuant to K.S.A. 60-225(a)(3). On appeal, Hollister argued that because Hoffman served her former attorney, she had never been properly served and thus her time to substitute had not begun to run. The Court of Appeals agreed, pointing out that although K.S.A. 60-225(a)(3) and K.S.A. 60-205 require service on a party's attorney where the party is represented, Rebecca Hollister was a nonparty, and thus Hoffman was required to obtain service through the means identified in K.S.A. 60-303, such as personal or residence service or return receipt delivery, which had not occurred. The court also held that the trial court had abused its discretion in finding the time between when the suggestion of death was filed and when Hollister responded, 35 days later, was unreasonable. The court reversed and remanded the case for further proceedings.

Title 7

Drury v. BNSF Ry. Co., ___ F.3d ___ (10th Cir. No. 15-3021, filed 08/02/16). Michael Drury was hired by BNSF in 1996. Throughout his employment, Drury was known as an advocate for Native American interests. In 2006, Drury complained about race-related comments made by his supervisor. Shortly afterwards, Drury complained that his supervisor had issued him a negative performance evaluation in retaliation for his complaints. An investigation ensued, and Drury's supervisor was terminated. In November 2010, Drury reported that a subordinate had used BNSF funds for personal use, triggering an investigation. Drury's supervisors commended him for reporting the issue and rated his performance "on target" in his 2010 evaluation. In mid-2011, Drury's leadership was rated "needs improvement," based on feedback from his subordinates. Drury was demoted in October 2011 and terminated in 2012 based on further poor evaluations. Drury filed suit, claiming BNSF violated Title VII and Kansas public policy by terminating him. The district court granted BNSF's motion for summary judgement, which Drury appealed. On appeal, Drury claimed the district court erred by failing to consider race-related comments made by his former supervisor in 2006 and by a co-worker. The Tenth Circuit disagreed, explaining that because neither employee was involved in Drury's demotion or termination, their comments were not relevant to whether those decisions were made with discriminatory animus. Drury next claimed that the supervisor who issued his performance evaluation in 2011 harbored a racial animus against him. In dismissing the argument, the Tenth Circuit pointed out that Drury testified during his deposition that he had not heard his supervisor make any derogatory remarks, and had only raised the claim in an after-the-fact affidavit, which the court concluded had been properly stricken as a "sham affidavit." The Tenth Circuit also dismissed Drury's claim that BNSF's stated basis for demoting and terminating him must be pretext, because his evaluations from 2007 to 2010 had been positive, noting "successful past performance does not support the conclusion that subsequent negative evaluations are pretextual." Drury also claimed he was terminated for reporting his subordinate's misuse of BNSF funds, in violation of Kansas public policy. The Tenth Circuit disagreed, explaining that because there was an 11 month gap between Drury's report and his demotion, the temporal gap between the two events was too large to create a causal link. The Tenth Circuit affirmed summary judgment for BNSF on all claims.

Young v. United Parcel Service, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 12–1226, filed 03/25/15). Young was pregnant and subject to a 20 pound lifting restriction. UPS requires its drivers to lift 70 pounds. Young claims she was denied an accomodation although UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant “persons.” The Fourth Circuit granted UPS summary judgment. The Supreme Court reversed. Viewing the record in the light most favorable to Young, there was a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. In other words, Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis.

Bejar v. McDonald, ___ F.3d ___ (10th Cir. No. 14-3154 , 02/03/15) should an amended complaint alleging unlawful employment discrimination and retaliation under Title VII be dismissed for failure to exhaust administrative remedies, despite the fact that the plaintiff exhausted his administrative remedies with respect to the allegations contained in his initial complaint? The Court said yes. In July 2011, Dr. Jose Bejar filed an EEOC charge alleging his employer, the Department of Veteran Affairs ("VA"), discriminated against him based on his race, national origin, and prior EEO reporting during the time period of May to June 2011. The EEOC issued Bejar a right-to-sue letter, and he subsequently filed a pro se complaint in federal court. After the VA moved to dismiss Bejar's complaint, he retained counsel and sought leave to amend. In Bejar's first amended complaint, however, his attorney alleged additional facts that occurred in September 2011, after Bejar's EEOC complaint had been filed. The VA again moved to dismiss, and the district court held that it lacked jurisdiction over Bejar's first amended complaint because he failed to exhaust his administrative remedies. Bejar appealed to the Tenth Circuit. On review, the Tenth Circuit affirmed the district court's decision. Although Bejar complained that the new incidents referenced in his first amended complaint were the result of "involuntary mistakes" by his attorney, the court reiterated that a litigant is bound by his attorney's actions and that the district court had properly concluded that it lacked subject-matter jurisdiction. The court further held that even if Bejar's initial claim had been considered, he failed to state a viable claim against the VA and dismissal would still have been warranted.

Weatherly v. Alabama State University, ___ F.3d ___ (11th Cir. No. 12-13414, filed 09/03/13). As an employment defense lawyer, you know it will be bad when the opinion starts with, "The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama," and one of the concluding paragraphs starts with, "We are left to speculate who is in charge at ASU." In affirming a $1 million award to plaintiffs the 11th Circuit takes to task the university's lawyers for missing deadlines and shoddy legal work. Plaintiff's superiors were high-ranking University officals, and one was a state legislator. Weatherly testified at trial that one of the superior's use of the term "nigger" in the workplace was commonplace. This supervisor made comments in Weatherly’s presence like, "I’m tired of nigger shit" and would mockingly refer to ASU’s mass transportation as the "nigger bus line." In March 2008, this superior (who herself is a black female) became enraged at Weatherly’s inability to multitask and told her that she was "sick and tired of this nigger shit" and stated "bitch, you need to do what I asked you to do." Weatherly verbally reported the incident to ASU Human Resources (“HR”) and requested a transfer. An HR official responded that nothing could be done. The other plaintiff's had similar stories, and one was subjected to sexual discrimination by a male supervisor.

Transportation Network Companies (TNCs)

Boston Taxi Owners Ass'n v. City of Boston, ___ F.Supp. ___, (No. 15-10100 (D. Mass. Mar. 31, 2016). The Massachusetts Federal District Court has denied Boston's motion to dismiss in an Equal Protection challenge by taxi operators against a regulatory scheme which requires traditional taxis to comply with a set of rules but does not impose a similar requirement on Transportation Network Companies. However, the court found that such a two-tiered system did not constitute a taking or a breach of contract or equitable estoppel principles. In 2008, Boston's Police Commissioner issued so-called Rule 403, defining a taxicab as "[a] vehicle used or designed to be used for the conveyance of persons for hire from place to place within the City of Boston." Rule 403 requires all taxicab operators to possess a medallion, maintain a properly equipped and functioning taxicab, display a hackney license, and belong to an approved dispatch service, among other things. There are currently 1,825 medallions issued by Boston. In 2012, Uber, Lyft and Sidecar (the Transportation Network Companies) began operating in Boston, relying on drivers who provide pre-arranged transportation services in their own private vehicles. Boston did not enforce Rule 403 against the TNCs. Massachusetts state requirements, which overlay the Boston rules, were modified to prohibit TNC drivers from soliciting or accepting "street hail" rides. The state laws also instructed the Department of Public Utilities to regulate TNCs by (1) requiring TNCs to obtain a certificate from DPU in order to do business in Massachusetts, (2) ensuring that TNCs and their drivers to carry appropriate liability insurance and (3) requiring TNCs to perform background checks on their drivers. However, the new Boston gubernatorial administration did not permit the DPU to implement the aforementioned duties without a further legislative act. In early 2015, the Boston Taxi Owners Association and two individual taxicab license owners sued Boston, the Commissioner and various other defendants, asserting federal constitutional, contract and equitable rights. They moved for a preliminary injunction, arguing that Boston had created an arbitrary, two-tiered system that gave the TNCs unfair advantages. Plaintiffs also alleged that defendants violated their constitutional rights under the Takings and Equal Protection Clauses and their contract rights under Massachusetts law by declining to enforce Rule 403 against TNCs. The court ruled against plaintiffs on the Takings Clause claim, finding that a decrease in the value of a taxi medallion (allegedly caused because TNCs were not required to have medallions) did not amount to a taking of a property interest. Although a medallion owner could exclude another person from using that specific medallion, the medallion did not provide the owner with the "exclusive right to engage in the taxi business." Applying rational basis analysis, however, the court found that the Boston scheme likely violated the Equal Protection Clause. Although differences existed between the taxis and the TNCs, those differences were largely the result of Boston's failure to apply Rule 403 to the TNCs. "The City may not treat the two groups unequally and then argue that the results of that unequal treatment render the two groups dissimilarly situated and, consequently, not subject to equal protection analysis. Such circular logic is unavailing." The differing treatment had no "fair and substantial relation" to an asserted goal of increasing the availability of cost-effective transportation, nor was it justified by the argument that greater regulation of TNCs might be preempted in the future by pending state legislation. Thus Boston's motion to dismiss was denied. The court denied plaintiffs' breach of contract claim, because Boston's sale of medallions was not accompanied by any agreement to provide market exclusivity to medallion holders. Similarly, plaintiffs' promissory estoppel and equitable estoppel claims failed because Boston had not made any promises about exclusivity upon which medallion holders could justifiably rely. Plaintiffs' initial requests for preliminary injunction 14 months earlier had been denied. However, the court noted that in light of the declining value of taxi medallions due to TNC competition, plaintiffs had made a reasonable showing of their ability to succeed on the equal protection claim, justifying injunctive relief in the near future:

Therefore, taking judicial notice of recent activity in the Massachusetts General Court with respect to the regulation of TNCs and in expectation of some resolution during the current legislative session, the Court will direct the defendant City of Boston, on or before September 30, 2016, 1) to inform the Court what changes to Rule 403 it intends to adopt regardless of the status of the state law at that time and 2) to show cause why this Court should not enter a preliminary injunction ordering the City to apply Rule 403 to TNCs.

Qualified Immunity

A.M. v. Holmes, ___ F.3d ___ (10th Cir. No. 14-2066 & 14-2183, filed 07/25/16). Holmes, an assistant principal, searched 14-year old student F.M. (among others) after another student reported he had engaged in a narcotics transaction at school. F.M. had $200 in cash and a a contrband marijuana leaf belt buckle in his backpack, but did not otherwise possess drugs. In F.M.'s mother's suit against the Assistant Principal, the court found that the search was supported by reasonable suspicion. The search was both justified at its inception and reasonable in scope. Accordingly, A.M. failed to demonstrate any Fourth Amendment violation premised on an unreasonable search by Ms. Holmes, and affirmed the district court’s grant of qualified immunity to Ms. Holmes on this claim.

Estate of Reat v. Rodriguez, ___ F.3d ___ (10th Cir. No. 15-1001, filed 08/12/16). This case arises out of the fatal shooting of Jimma Pal Reat at a Denver intersection. Reat was killed after Denver 911 operator Juan Rodriguez directed him back into the path of his armed assailants. His estate sued the 911 operator, alleging civil rights claims pursuant to 42 U.S.C. § 1983 and various state law claims. Rodriguez moved for summary judgment on all claims against him on the basis of qualified immunity. The district court granted summary judgment in his favor on all constitutional claims except for a Fourteenth Amendment substantive due process claim based on a theory of state-created danger. Under that claim, Reat’s Estate contends Rodriguez used his governmental authority to subject him to the callous shooting that caused Reat’s death. The Circuit concluded the law was not clearly established such that a reasonable 911 operator would have known his conduct violated Reat’s constitutional rights. Because it decided only that the law was not clearly established, it did not opine on whether Rodriguez violated Reat’s constitutional rights. It reversed and remand for entry of summary judgment in favor of Rodriguez. On the state-created danger theory, the Court said:

Two preconditions are necessary for the application of the state-created danger doctrine: first, the state actor took an affirmative action, and, second, that action led to private violence injuring the plaintiff. [Estate of B.I.C. v. Gillen, 761 F.3d 1099, 1105, 1106 (10th Cir. 2014) (quoting Trotter v. Regents, 219 F.3d 1179, 1184 (10th Cir. 2000)).] If these preconditions are met, a plaintiff next must show:

 

(1) the charged state . . . actor[] created the danger or

increased plaintiff’s vulnerability to the danger in some

way; (2) plaintiff was a member of a limited and

specifically definable group; (3) defendant[’s] conduct put

plaintiff at substantial risk of serious, immediate, and

proximate harm; (4) the risk was obvious or known; (5)

defendants acted recklessly in conscious disregard of that

risk; and (6) such conduct, when viewed in total, is

conscience shocking.

Keylon v. City of Albuquerque, 535 F.3d 1210, 1217-18 (10th Cir. 2008). Qualified immunity is almost always a question of law and should only be submitted to a jury in exceptional cases. In a 42 U.S.C. section 1983 action alleging that plaintiff's Fourth Amendment rights were violated when she was arrested without probable cause for concealing her identity, denial of post-trial motion by plaintiff after a jury found defendant-officer not liable is reversed where, since there were no disputed issues of material fact regarding whether the officer had probable cause to arrest, the district court erred in denying plaintiff judgment as a matter of law and in submitting the question of qualified immunity to the jury. Officers were investigating an alleged criminal damage case. Keylon was identified as the suspect's mother. An officer asked her for the son's date of birth. Keylon said she did not know. The officer determined she was lying, demanded ID from her, and then arrested her for concealing her identity in violation of a statute prohibiting "resisting or abusing a . . peace officer in the lawful discharge of his duties." Finding there was no reasonable suspicion to suspect that Keylon was violating an ordinance, the Circuit held there was no probable cause for her arrest and the issue of qualified immunity should not have been submitted to the jury.

Service of Process

Porter v. Wells Fargo Bank, N.A., ___ Kan.App.2d ___, ___ P.3d ____ (No. 103323, filed 05/20/11). Substantial compliance under K.S.A. 60-204 is not met by serving a foreign corporation by certified mail addressed generally to the corporation at a post office box address. Since service of process was never properly effected on Wells Fargo, the district court never acquired jurisdiction over the person of the defendant, and the subsequent judgment is void ab initio. See also Taylor v. Medicalodges, Inc., No. 102,539, unpublished opinion filed August 20, 2010 pet. for rev. filed September 20, 2010 (pending).

Taxes

Heartland Apartment Association, Inc. v. City of Mission, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 111521, filed 07/02/15). Mission's driveway tax, described as a "transportation user fee," for public street maintenance, constitutes an illegal assessment. Under K.S.A. 12-194, cities cannot levy or impose an excise tax or a tax in the nature of an excise tax. A tax is a forced contribution to raise revenues for the maintenance of governmental services offered to the general public.

Amazon v. New York, 568 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 13-252 & 13-259, cert. denied 12/02/13). For the longest time, Amazon's clearest advantage over brick and mortar stores was the lack of sales tax. That advantage, however, has been slowly dissipating, at the company has clashed with multiple states over attempts to force the online retailer to collect taxes from customers, and in many cases, relented. Overstock is more of the same story. Now, both companies, facing different sales tax rules in each state, and facing different rules than their competitors, have petitioned for a writ of certiorari with the Supreme Court. Both Amazon and Overstock maintained affiliate programs that would pay commissions to websites that sent traffic their way. In 2008, New York added Tax Law § 1101 [b][8][vi], which subjected sales to state taxes if the cumulative payouts for these types of arrangements exceeded $10,000. The odd advertising/solicitation/affiliate law differs from that of every other state, and is different than the U.S. Supreme Court's physical presence test that has been the law since 1992. In upholding the law, the New York Court of Appeals stated that the "world has changed dramatically in the last two decades, and it may be that the physical presence test is outdated." That ruling, and Amazon and Overstock's assertions that the New York law is unconstitutional, form the basis of their petition. In 1967, the Supreme Court held that only businesses with a "substantial nexus" within a state were subject to state taxation. The ruling was extended in Quill Corp. v. North Dakota, where the court devised the physical presence test, and held that floppy disks did not suffice. The law led online retailers to avoid expanding their physical presence into states with sales tax, though as online sales have increased, states have made fervent efforts to tax the online retailers. One such method, which the Supreme Court mentioned explicitly in Quill, was federal legislation. The most recent effort to clarify online sales tax rules is the Marketplace Fairness Act of 2013, which passed the Senate, and has collected dust since. It would subject all online sales, by all companies, to state sales tax. Amazon, wishing for an even playing field with smaller competitors, has supported the law. Whether your company buys online goods or sells them, this battle will impact you in the near future. If the Supreme Court takes the case, and upholds New York's odd law, the tax picture becomes much more complicated. If Congress passes the pending legislation, things become simplified, yet likely more expensive.

Title 7

Helm v. State of Kansas, ___ F.3d ___ (10th Cir. No. 10-3092, filed 09/07/11). Plaintiff sued the State under Title VII for sexual harassment. The district court granted summary judgment for defendant on the basis that Helm fell within the personal staff exemption to Title VII's definition of employee and did not qualify for protection under that statute. The district court concluded that summary judgment was also proper based on the State's assertion of the Faragher/Ellerth defense to employer liability for harassment of an employee by a supervisor. Helm appealed. The Tenth Circuit affirmed on the basis of the Faragher/Ellerth defense and did not address the question of whether Helm, a judicial administrative assistant, fell within the personal staff exemption under Title VII. Helm argued that her supervisor, a state district judge, was the alter ego of the State of Kansas, rendering the Faragher/Ellerth defense unavailable. The Tenth Circuit disagreed, reasoning that "state district judges, although they have considerable authority, do not occupy a position in the top echelons of the state's management." Further, the Tenth Circuit held that the harassment did not culminate in Helm's termination because she was terminated by a different judge and the termination was based on her own criminal conduct. Finally, the Tenth Circuit concluded that the State exercised reasonable care to prevent and promptly correct any sexually harassing behavior and Helm failed to take advantage of preventive or corrective opportunities.

El v. SEPTA, 479 F.3d 232 (3rd Cir. 2007). El, a 47-year old black male, filed suit against SEPTA claiming that disqualification of applicants for paratransit drivers based on criminal history (murder conviction at age 15) had a disparate impact on blacks. SEPTA presented expert testimony about the risk of recidivism. El did not rebut this evidence. The Circuit granted summary judgment holding that no evidence existed that a reasonable jury could find that SEPTA's policy was inconsistent with business necessity.

Unemployment

Rhodenbaugh v. Kansas Employment Security Board of Review, ___ Kan.App.2d ___, ___ P.3d ____ (No. 114134, filed 04/01/16). Rhodenbaugh was employed by the hospital as an emergency desk clerk. After she was hired, the hospital changed its policy and required all employees to receive a flu vaccination, with exemptions for medical and religious reasons. Rhodenbaugh refused to get a shot and failed to provide a letter from her physician that proved a medical exemption. Based on this refusal, Rhodenbaugh was terminated from her employment. The hospital appealed the award of unemployment benefits to the Kansas Employment Security Board of Review (Board), arguing that Rhodenbaugh was terminated for cause. The Board agreed. Rhodenbaugh appealed to the McPherson County District Court, and the Board moved to change venue to Shawnee County. That motion was granted, and the Shawnee County District Court affirmed the Board's decision. Rhodenbaugh appealed and claimed she was not terminated for misconduct. It was undisputed that Rhodenbaugh knew about the hospital safety rule, and because she failed to meet one of the listed exemptions, the district court correctly determined that she was terminated for cause under K.S.A. 2015 Supp. 44-706(b).


Revised April 9, 2017