Hohe et al v. Knowledge Learning Corp.
Filing
261
MEMORANDUM AND ORDER denying 148 Motion to Dismiss Count III and/or for More Definite Statement as to Count I of Plaintiffs' First Amended Complaint. Signed by Magistrate Judge David J. Waxse on 6/1/2011. (bh)
DJW/1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
A. H., a Minor, by and through
his next friends and natural parents
Steven Hohe and Velvet Hohe, et al.,
Plaintiffs,
Civil Action
No. 09-2517-DJW
v.
KNOWLEDGE LEARNING CORP.,
d/b/a Children’s World Learning Center,
also d/b/a Kindercare Learning Center,
Defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Count III and/or for More
Definite Statement as to Count I of Plaintiffs’ First Amended Complaint (ECF No. 148). For the
reasons set forth below, the motion is denied.
I.
Background Information
This is a tort action brought by a minor child, A. H., by and through his father and mother
and “next friends” Steven and Velvet Hohe. The action is also brought by Steven Hohe and Velvet
Hohe, individually. Plaintiffs claim that A. H. was subjected to abuse by an employee of Defendant,
Cathleen Vincent, while A. H. was at child care facility owned and operated by Defendant.
Plaintiffs’ First Amended Complaint alleges four counts; however only two counts are at
issue in this motion, Count I and III. Count I asserts a claim for negligent hiring and supervision
and is brought by A. H., by and through his parents and Next Friends Steven and Velvet Hohe.
Count I alleges that “[t]he negligence of Defendant Children’s World in hiring and/or retaining
Cathleen Vincent, Pamela Amaral, teachers, and their supervisors” caused A. H. to suffer physical
and psychiatric injuries and will cause Plaintiff to continue to suffer physical and psychiatric harm
into the future.1 A. H. prays for judgment under Count I “for a sum in excess of $75,000.00.”2
Count III, on the other hand, is brought by Steven and Velvet Hohe individually, and asserts
that Steven and Velvet Hohe have been injured and damaged in the following manner:
a.
They have sustained and will in the future sustain expenses for medical care
for minor Plaintiff A. H., the exact nature and extent of which are unknown
at this time; and
b.
They have been deprived of the services of their son and have otherwise been
injured and damaged because of the injuries suffered by their son.3
In other words, Steven and Velvet Hohe seek to recover in Count III for A. H.’s past and
future medical and psychiatric expenses and for the loss of A. H.’s services. Count III prays for
judgment in favor of Steven and Velvet Hohe in an amount exceeding $75,000.00.4
Defendant moves to dismiss with prejudice Count III, arguing two points. First, Defendant
argues that Plaintiffs are making duplicative claims to recover expenses: the first claim is being
made by A. H. through his parents and Next Friends in Count I, while the second is being made by
A. H.’s parents, Steven and Velvet Hohe, in Count III. Defendant contends theses claims will result
in a duplicative recovery, and that the parents’ claim to recover expenses set forth in Count III
should be dismissed with prejudice. In the alternative, Defendant asks the Court to require Plaintiffs
1
First Am. Compl. (ECF No. 142), Count I, ¶¶ 49-51.
2
Id., Wherefore Clause, Count I.
3
Id., Count III, ¶ 59.
4
Id., Wherefore Clause, Count III.
2
to provide a more definite statement as to Count I, i.e. “to identify the categories of damages they
pursue under said count.”5
Second, Defendant argues that Steven and Velvet Hohe’s claim to recover for A. H.’s
services is not a claim that is recognized under Kansas common or statutory law. Defendant
therefore argues that it, too, should be dismissed.
II.
Motion to Dismiss Steven and Velvet Hohe’s Claim for Medical Expenses Contained
in Count III and/or for More Definite Statement as to Count I
The Court finds Defendant’s motion as to this issue to be mooted by the parties’ proposed
Pretrial Order, which the Court will be filing soon. Section 10 of that Pretrial Order, which is
entitled “Damages,” clearly indicates that it is Plaintiffs Steven and Velvet Hohe who seek to
recover for Plaintiff’s “past medical expenses,”6 while it is A. H. who seeks to recover for “future
life care plan/medical expenses.”7 Thus, under the Pretrial Order, Plaintiffs make no attempt to seek
a duplicative recovery of A. H.’s medical expenses, as Defendant maintains in its Motion to Dismiss.
Because the Pretrial Order, when filed, will supercede Plaintiffs’ First Amended Complaint,8 there
is no basis for the Court to dismiss Steven and Velvet Hohe’s claim for medical expenses nor is
there any reason to order Plaintiffs to provide a more definite statement as to the types of damages
sought in Count I. Defendant’s motion is therefore denied with respect to Plaintiffs’ claim for
medical expenses.
5
Def.’s Mot. to Dismiss Count III and/or for More Definite Statement as to Count I of Pls.’
First Am. Compl. (ECF No. 148) at 2.
6
Parties’ Proposed Pretrial Order, ¶ 10.a(1).
7
Id. ¶ 10.a(2).
8
Weyerhaeuser Co. v. Brantley, 510 F.3d 1256, 1267 (10th Cir. 2007) (“The subsequent
pretrial order supercedes the pleadings.”) (citing Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir.
2002)).
3
III.
Motion to Dismiss Steven and Velvet Hohe’s Claim for Loss of A. H.’s Services
Contained in Count III
In the First Amended Complaint and the soon-to-be-filed Pretrial Order, Steven and Velvet
Hohe assert a claim to recover for the loss of A. H.’s services.9 Plaintiffs assert that a parent’s claim
to recover for the loss of a living minor child’s services was recognized by the Kansas Supreme
Court in the 1924 decision Stone v. City of Pleasanton.10
In Stone, the Kansas Supreme Court unequivocally held that a parent in a negligence action
may recover for the loss of the services of a minor child.11 The primary issue before the Stone Court
was the nature of the damages a father could recover in a negligence action for personal injuries
suffered by his minor child. The Court held that the father could not recover for any prospective
damages–– including prospective care, nursing or artificial arms for the child––except for the loss
of the child’s services.12 In so ruling, the Court noted “the rule” in Kansas that a parent may recover
damages for loss of the minor child’s services.13 The Court stated:
The rule is that . . . the injured person can recover all the damages sustained by him
from the time of his injury until the time of his death; that the father can recover
damages sustained by him by reason of nursing, medical care, and attention given
in an effort to restore the boy to health, and can recover damages sustained by
reason of the loss of the services of the boy from the time of his injury until he
becomes 21 years of age; but that the father cannot recover on any item of damage
for which the son can recover, nor any prospective damage other than loss of service.
Neither father nor son can recover for anything for which the other can recover. The
9
See First Am. Compl. (ECF No. 142), Count III, ¶ 59.a; Joint Proposed Pretrial Order, Third
Theory of Recovery, ¶ 6.a(3).
10
115 Kan. 476, 223 P. 303 (1924).
11
Id. at 303-04.
12
Id. at 304.
13
Id. at 303.
4
damages for which the father can recover, outside of loss of service, are limited to
the expenses he has incurred in attempting to restore the boy to health.14
The Court also cited a treatise with approval, which recognized the same rule:
For the personal injury and suffering of a child occasioned by a tort committed on
it the father cannot recover any damages, but the child must sue therefor by its
guardian or next friend. The common law, with its usual disregard of sentimental
considerations, affords a parent . . . no remedy for an injury to his child. He [the
parent] can recover only for his pecuniary loss thereby, and his pecuniary loss
includes two elements: His loss of the child’s services and earnings, present and
prospective to the end of the minority, and the medical expenses incurred in effecting
or attempting to effect a cure.15
Defendant urges the Court to disregard the Stone decision, arguing that a parent’s claim for
the loss of services of a living minor child “is an antiquated, outdated cause” that should be rejected
by a modern-day Kansas court.16 Defendant argues that recent Kansas cases have rejected claims
brought by children in negligence actions to recover for the loss of a living parent’s services, and
this Court should therefore refuse to apply Stone and should dismiss Steven and Velvet Hohe’s claim
for loss of A. H.’s services. Defendant maintains it is “hard to believe that modern Kansas courts
would most recently hold that a child cannot seek damages for an injured parent, but a parent may
seek damages for ‘loss of services’ of an injured child.’”17
It is true that recent Kansas Supreme Court cases have rejected children’s claims for the loss
of a parent’s services. For example, in a 2004 case, Natalini v. Little,18 the Kansas Supreme Court
14
Id. at 303 (emphasis added).
15
Id. at 304 (quoting 20 R.C.L. 615).
16
Def.’s Reply in Support of Mot. to Dismiss Count III and/or for More Definite Statement
as to Count I of Pls.’ First Am. Compl. (ECF No 173) at 7.
17
Id.
18
278 Kan. 140, 92 P.3d 567 (2004).
5
held that family members, including children of the injured plaintiff, could not assert a claim for
pecuniary and non-pecuniary damages to recover for their own mental anguish and suffering, loss
of protection, advice, counseling, attention and loss of pension and household services.19 Also, in
Klaus v. Fox Valley Systems, Inc.,20 a 1996 decision, the Kansas Supreme Court held that “Kansas
does not recognize that minor children have a cause of action against a tortfeasor for direct negligent
injury to their parent, resulting in an indirect injury to them for loss of parental care and society.”21
It is not clear to the Court whether the Kansas Supreme Court, if faced with the issue today,
would apply the reasoning of Natalini and Klaus to conclude that a parent has no claim for loss of
the minor child’s services and to overrule Stone. It is clear, however, that as a federal district court
sitting in diversity, this Court must apply the law of the forum state, as announced by the forum
state’s highest court.22 It is well settled that “this court is duty-bound to follow controlling
precedent” from the Kansas Supreme Court on state law issues.23 As a result, it is not this Court’s
place to expand Kansas state law beyond the bounds already set by the Kansas Supreme Court.24
19
Id. at 142, 146.
20
259 Kan. 522, 912 P.2d 703 (1996).
21
Id. at 531.
22
Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir. 1998) (citations omitted)
23
Cheek v. City of Edwardsville, Kan., No. 06-2210-JWL, 2007 WL 4163421, at *2 (D. Kan.
Nov. 21, 2007), aff’d, 325 F. App’x 699 (10th Cir. Sept. 10, 2008).
24
See Parsells v. Manhattan Radiology Group, L.L.P., 255 F. Supp. 2d 1217, 1236 (D. Kan.
2003) (“It is not the place of this court . . . to expand Kansas state law beyond the bounds set by the
Kansas Supreme Court.”) (citations omitted). See also Proctor & Gamble Co. v. Haugen, 222 F.3d
1262, 1280 (10th Cir. 2000) (“[I]t is not our place to expand Utah state law beyond the bounds set
by the Utah Supreme Court or, in the absence of Utah Supreme Court precedent, by the lower Utah
courts.”) (citations omitted).
6
Rather, this Court has the duty to ascertain and apply Kansas precedent as announced by the Kansas
Supreme Court and to reach the same result that a Kansas court would reach.25
This Court finds that Stone is directly on point and that no Kansas case has overruled or
modified it.26 Stone sets forth the Kansas “rule” that a parent may recover damages sustained by
reason of the loss of the services of his/her minor child from the time of the child’s injury until the
child reaches the age of twenty-one.27 Accordingly, the Court holds that Stone is still good law and
that Plaintiffs Steven and Velvet Hohe, as parents of their minor child A. H., have the right to assert
a claim for loss A. H.’s services until he reaches twenty-one years of age. The Court must therefore
deny Defendant’s Motion to Dismiss the loss of services claim.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Count III and/or for
More Definite Statement as to Count I of Plaintiffs’ First Amended Complaint (ECF No. 148) is
denied.
25
Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000) (“[A] federal court sitting in
diversity must ascertain and apply state law to reach the result the [forums state’s] Supreme Court
would reach if faced with the same question.”) (citing Shugart v. Central Rural Elec. Coop., 110
F.3d 1501, 1504 (10th Cir. 1997)); Blanke, 152 F.3d at 1228 (federal court sitting in diversity “must
ascertain and apply [the state’s] law with the objective that the result obtained in the federal court
should be the result that would be reached in [the state] court.”) (quoting Wood v. Eli Lilly & Co.,
38 F.3d 510, 512 (10th Cir. 1994)).
26
The Court notes that the Kansas Supreme Court in a 1990 case, Arche v. U. S. Dep’t of
Army, 247 Kan. 276, 798 P.2d 477 (1990) recognized that Stone is still good law. In Arche, the
Court observed that “[t]he typical case involving a claim for future expense arising from personal
injuries to a minor is controlled by Stone v. City of Pleasanton, 115 Kan. 476, 223 P. 303 (1924).”
Arche, 247 Kan. at 294. Thus, the Kansas Supreme Court as recently as 1990 recognized Stone as
controlling precedent.
27
Stone, 223 P. at 303.
7
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 1st day of June 2011.
s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge
cc:
All counsel and pro se parties
8
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