Nkemakolam et al v. St. John's Military School et al

Filing 309

MEMORANDUM AND ORDER - 279 Motion by defendant St. John's Military School for summary judgment is granted in part and denied in part. The motion is granted with respect to the claims for intentional infliction of emotional distress and neglig ent infliction of emotional distress by plaintiffs J.A., G.S., N.S., C.U., and L.T., and judgment is awarded to defendant on those claims. The motion is otherwise denied. It is further ordered 281 plaintiffs motion for summary judgment on the af firmative defense of comparative fault is granted in part and denied in part. The motion is granted with respect to the defense as applied to plaintiffs claims for intentional infliction of emotional distress and intentional failure to supervise, and judgment is awarded to plaintiffs to that extent. The motion is otherwise denied. Signed by District Judge John W. Lungstrum on 1/13/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

YOLANDA NKEMAKOLAM,
as Parent and Next Friend of K.N., et al.,

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)
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Plaintiffs,
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v.
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ST. JOHN’S MILITARY SCHOOL,
)
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Defendant.
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_______________________________________)

Case No. 12-2132-JWL

MEMORANDUM AND ORDER
This matter is presently before the Court on the motion by defendant St. John’s
Military School for summary judgment (Doc. # 279). The motion is granted in part
and denied in part, as set forth herein.
This matter also comes before the Court on plaintiffs’ motion for summary
judgment on the affirmative defense of comparative fault (Doc. # 281). That motion is
granted in part and denied in part. The motion is granted with respect to the defense
as applied to plaintiffs’ claims for intentional infliction of emotional distress and
intentional failure to supervise. The motion is otherwise denied.

I.

Summary Judgment Standards

Summary judgment is appropriate if the moving party demonstrates that there is

“no genuine dispute as to any material fact” and that it is “entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the
evidence and all reasonable inferences therefrom in the light most favorable to the
nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th
Cir. 2006). An issue of fact is “genuine” if “the evidence allows a reasonable jury to
resolve the issue either way.” Haynes v. Level 3 Communications, LLC, 456 F.3d 1215,
1219 (10th Cir. 2006). A fact is “material” when “it is essential to the proper disposition
of the claim.” Id.
The moving party bears the initial burden of demonstrating an absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. Thom v.
Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant
that does not bear the ultimate burden of persuasion at trial need not negate the other
party’s claim; rather, the movant need simply point out to the court a lack of evidence
for the other party on an essential element of that party’s claim. Id. (citing Celotex, 477
U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon
the pleadings but must “bring forward specific facts showing a genuine issue for trial as
to those dispositive matters for which he or she carries the burden of proof.” Garrison
v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient
evidence pertinent to the material issue “must be identified by reference to an affidavit,
2

a deposition transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J.
Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir. 2002).
Finally, the court notes that summary judgment is not a “disfavored procedural
shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed. R.
Civ. P. 1).

II.

Intentional Infliction of Emotional Distress

Eleven plaintiffs (either on their own behalf or through representatives) allege that
they were injured while attending defendant St. John’s Military School. Plaintiffs’
claims include a claim under Kansas law1 for intentional infliction of emotional distress.
Defendant seeks summary judgment on that claim as asserted by each plaintiff.
In order to recover on a claim for intentional infliction of emotional distress—a
cause of action also known as the tort of outrage—plaintiffs must show that defendant’s
conduct was extreme and outrageous. See Valadez v. Emmis Communications, 290 Kan.
472, 477 (2010).
Conduct that rises to the level of tortious outrage must transcend a
certain amount of criticism, rough language, and occasional acts and

1

Because the alleged torts took place in Kansas, the Court applies Kansas
substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 U.S. 496 (1941)
(in diversity action, forum state’s choice-of-law rules govern which state’s substantive
law applies); Ling v. Jan’s Liquors, 237 Kan. 629, 634-35 (1985) (under Kansas law, tort
actions are governed by the law of the state in which the tort occurred).
3

words that are inconsiderate and unkind. The law will not intervene where
someone’s feelings merely are hurt. In order to provide a sufficient basis
for an action to recover for emotional distress, conduct must be outrageous
to the point that it goes beyond the bounds of decency and is utterly
intolerable in a civilized society.
See id. (citing Taiwo v. Vu, 249 Kan. 585, 592-93 (1991)).
Defendant notes plaintiffs’ contention in the pretrial order that defendant
committed this tort by placing plaintiffs in close proximity with dangerous students, and
it argues that such conduct is not sufficiently outrageous as a matter of law. Defendant
has cited no authority to support that argument, however. The Court concludes that a
fact question remains for trial concerning whether defendant’s conduct was sufficiently
extreme. Plaintiffs have cited evidence that defendant admitted students with prior
discipline problems and employed lax admission standards; that students were charged
with disciplining other students; that defendant’s administrators had knowledge that
students hazed and inflicted physical harm on other students, including branding of
students’ skin without their consent; that supervisors tolerated and even witnessed
physical abuse by students of other students; that students complained, local police were
called on a number of occasions, and that multiple lawsuits alleged physical abuse;2 and
that the supervisors hired by defendant were poorly paid and included individuals with
criminal records. Thus, plaintiffs have provided evidence that defendant implemented
a system with students imposing physical discipline on other students, had notice that

2

Of course, the mere fact that lawsuits were filed does not provide evidence of
abuse, but it does provide evidence that defendant was aware of complaints of abuse.
4

such discipline caused physical harm, and nonetheless failed to protect plaintiffs from
such harm. The Court concludes that a reasonable jury could find that such conduct
exceeded the bounds of decency and is intolerable in modern society.
Defendant also argues that the causal chain between its conduct and plaintiffs’
injuries was broken by the physical assaults by the particular students, who are not
parties to this case. Defendant has provided no authority to support that position,
however. Indeed, as defendant is alleged to have wrongfully permitted the physical
assaults, the fact of those assaults does not necessarily insulate defendant from liability
for plaintiffs’ injuries. See, e.g., Restatement (Second) of Torts § 448 (“The act of a
third person in committing an intentional tort or crime is a superseding cause of harm to
another resulting therefrom, although the actor’s negligent conduct created a situation
which afforded an opportunity to the third person to commit such a tort or crime, unless
the actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person might avail
himself of the opportunity to commit such a tort or crime.”) (emphasis added), cited in
Citizens State Bank v. Martin, 227 Kan. 580, 589 (1980).
Accordingly, the Court denies defendant’s motion for summary judgment on this
basis.

III.

Severe Emotional Distress

Defendant also argues that it is entitled to summary judgment on nine plaintiffs’
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claims for intentional infliction of emotional distress and negligent infliction of
emotional distress, for the reason that those plaintiffs’ emotional distress was not
sufficiently severe as a matter of law. To prevail on these claims, a plaintiff must prove
that he suffered emotional distress that was severe or extreme. See Valadez, 290 Kan.
at 478. “Elevated fright, continuing concern, embarrassment, worry, and nervousness
do not by themselves constitute sufficient harm to a plaintiff to warrant the award of
damages for outrage.” Id. (citations omitted). Concerning this element, the Kansas
Supreme Court has quoted with approval the following excerpt from a treatise:
There is no laundry list of what qualifies as the requisite level of severity
[for emotional distress] . . .
[I]t is fair to say that headaches,
sleeplessness, irritability, anxiety, depression, listlessness, lethargy,
intermittent nightmares, and the like would probably not suffice anywhere.
On the other hand, physical symptoms probably would suffice, and
if purely mental symptoms are all that apply . . . those symptoms should
at least be long lasting and debilitating.
See id. at 479 (brackets in original) (quoting Boston, Kline & Brown, Emotional
Injuries: Law and Practice § 22:7 (1998)). The supreme court has also noted that “the
absence of psychiatric or medical treatment, including medication, weighs against a
finding of extreme emotional distress.” See id.
With respect to five plaintiffs—J.A., G.S., N.S., C.U., and L.T.—plaintiffs have
not identified in their response brief any specific emotional distress allegedly suffered,
instead citing only evidence concerning incidents of physical abuse. Accordingly, those
plaintiffs have not satisfied their burden to come forward with evidence of emotional

6

distress that is sufficiently severe under Kansas law, and summary judgment is
appropriate in favor of defendant on those plaintiffs’ emotional distress claims.
Plaintiffs have submitted evidence that an expert has diagnosed three
plaintiffs—J.M., C.D., and H.T.—with post-traumatic stress disorder (PTSD).
Defendant has not explained why such a condition is not sufficiently severe to support
an emotional distress claim, or cited any authority to support such an argument. Cf., e.g.,
Monaco v. HealthPartners of So. Ariz., 995 P.2d 735, 739 (Ariz. Ct. App. 1999) (PTSD
constituted sufficiently severe condition to support an emotional distress claim); Gulley
v. Markey, 2003 WL 169953, at *3 (Ohio Ct. App. Jan. 24, 2003) (unpub. op.) (evidence
of depression and PTSD was sufficient to support claim for intentional infliction of
emotional distress). Defendant argues that the expert did not treat those plaintiffs for
their condition. Defendant concedes, however, that although a lack of treatment is a
factor for consideration, it is not dispositive. In this case, an expert has diagnosed
significant emotional distress in the form of PTSD, and such evidence is sufficient to
support a reasonable finding that these three plaintiffs suffered sufficiently severe
emotional distress. Defendant’s motion for summary judgment on this basis is denied
with respect to these three plaintiffs.
Finally, plaintiff M.K. has submitted evidence of a suicide attempt. Defendant
argues that such emotional distress is not sufficient, and it cites Robison v. Board of
County Commissioners of Rush County, 2007 WL 518829 (Kan. Ct. App. Feb. 16, 2007),
an unpublished opinion without precedential value, in support of that argument. In that
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case, however, the court noted that there was no indication that medical treatment was
necessary. See id. at *9. In this case, there is evidence that M.K. attempted suicide by
overdosing on prescription medication, for which M.K. was treated at a hospital. The
Court concludes that a reasonable jury could find that such emotional distress was
sufficiently severe to permit liability.
The Court also rejects defendant’s argument that there is insufficient evidence
linking M.K.’s suicide attempt to defendant’s conduct. The hospital records relating to
the attempt note M.K.’s reference to depression from being hazed and bullied and
harassed by other students at the school, and such evidence is sufficient to allow a
reasonable jury to find that defendant’s conduct in failing to protect M.K. from abuse
caused his suicide attempt. The Court denies defendant’s motion for summary judgment
on this basis with respect to plaintiff M.K.

IV.

Requirement of Accompanying Physical Injury

Defendant seeks summary judgment on the basis that no plaintiff suffered a
sufficient physical injury to permit recovery for negligent infliction of emotional distress.
“It has long been the general rule in Kansas that there can be no recovery for emotional
distress suffered by the plaintiff which is caused by the negligence of the defendant
unless it is accompanied by or results in physical injury to the plaintiff.” Hoard v.
Shawnee Mission Med. Ctr., 233 Kan. 267, 274 (1983).
Defendant relies on the Kansas Supreme Court’s statement in Hoard (repeated
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in later cases) that “[c]ase law requires that the physical injuries must directly result from
the emotional distress allegedly caused by the defendant’s negligence, and must appear
within a short span of time after the emotional disturbance.” See id. at 279 (emphasis
in original). Defendant argues from that statement that the qualifying physical injuries
must have resulted from the claimed emotional distress, and it further argues that,
although plaintiffs have alleged physical injuries from abuse by other students, those
injuries were not caused by the emotional distress.
The Court rejects this argument by defendant. The rule as stated in Hoard and
as repeated in other cases is that there must be physical injury that results from the
emotional distress or that accompanies the emotional distress. See id. at 274. In Hoard,
there was no evidence of accompanying physical injury, and the court stressed that any
later physical injury cannot be too remote but must have resulted directly from the
emotional distress and within a short time period. See id. at 275-79. If a resulting
physical injury is required in all cases, there would have been no reason for the court to
include within the rule the alternative of an accompanying physical injury.
Moreover, permitting the alternative showing of an accompanying physical injury
satisfies the rule’s rationale of addressing the fact that the temporary emotion of fright
“is so evanescent a thing, so easily counterfeited, and usually so trivial.” See id. at 724
(quoting Prosser, Law of Torts § 54 (4th ed. 1971)). The concern is permitting liability
for merely negligent conduct that causes only emotional harm. The fact that a negligent
act causes physical injury as well provides the additional assurance that the overall effect
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on the plaintiff was sufficiently substantial to permit the possibility that the plaintiff
actually suffered real emotional distress.
Defendant has not cited any case in which the court rejected a claim for negligent
infliction of emotional distress because plaintiff’s physical injury merely accompanied
but was not caused by the emotional distress. Indeed, plaintiffs commonly are permitted
to claim both physical and emotional injuries in a typical negligence case. For instance,
in Hough v. Atchison, Topeka and Santa Fe Railway Co., 133 Kan. 757 (1931)—the first
case cited by the Hoard court in support of the general rule, see Hoard, 233 Kan. at
274—the supreme court held that the general rule that purely mental damages are not
recoverable in a negligence case did not preclude recovery there because the plaintiff had
suffered physical injuries from being struck by a train. See Hough, 133 Kan. at 762. In
St. Clair v. Denny, 245 Kan. 414 (1989), the Kansas Supreme Court, after quoting the
general rule from Hoard, noted that “Kansas cases discussing recovery for emotional
distress all appear to involve either prior or contemporaneous physical injury.” See id.
at 423 (emphasis added).
Accordingly, the Court rejects defendant’s argument that the required physical
injury for a claim of negligent infliction of emotional distress must have resulted from
the claimed emotional distress. In addressing this claim, defendant conceded in its reply
brief that plaintiffs had alleged physical injuries. In the context of opposing plaintiffs’
negligent supervision claim, however, defendant also argued that a plaintiff may not
recover for emotional distress in the absence of physical injury. As explained above, that
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general statement of Kansas law is correct, as shown, for example, by the application of
that rule in Hough and St. Clair, which did not involve claims for negligent infliction of
emotional distress, but instead involved general negligence claims.3 Defendant argues
that five plaintiffs did not suffer sufficient physical injuries to allow for recovery for
emotional distress based on negligent supervision. The Court thus will address that
argument in the context of both of plaintiffs’ claims based on negligence.
Plaintiff J.A. Plaintiffs provided evidence that J.A. was beaten and suffered
physical abuse. Defendant notes that J.A. has not claimed any damages for the cost of
medical treatment, and it argues that any physical injury was too minor to allow for
recovery for emotional distress. In citing and applying the rule requiring a physical
injury, however, Kansas courts have not imposed a threshold requiring a physical injury
of a certain severity. Defendant also points to the interrogatory in which it asked J.A.,
in the event that he was “claiming personal injury,” to identify the part of his body that
was injured as a result of the occurrences mentioned in the complaint. In response, J.A.
stated that his hand was broken at school “and the continued use of it when it was not to
be used exacerbated the injury.” Defendant cites J.A.’s deposition testimony that the
broken hand resulted from an incident unrelated to the claims in this suit. The
interrogatory answer also referred to the exacerbation of that injury, however, and the

3

Defendant also cites this Court’s prior reluctance to recognize a school’s duty to
supervise students in such a manner to prevent purely emotional harm without physical
harm. See Theno v. Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952, 968-69
(D. Kan. 2005) (Lungstrum, J.).
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answer therefore does not preclude reliance on a physical injury caused by defendant’s
conduct. Moreover, the interrogatory’s reference to a “claim” for “personal injury” is
ambiguous in this context, and there is evidence that J.A. did suffer physical harm, as
required for the recovery of emotional distress, whether or not he is seeking to recover
damages specifically for the physical harm (an issue that this Court does not decide).
Plaintiff G.S.

To satisfy this element of a physical injury, plaintiffs cite an

incident in which G.S.’s head was repeatedly slammed into a bus seat. Defendant points
to G.S.’s deposition testimony that he suffered no “visible injury” from that incident, but
that testimony does not necessarily foreclose the possibility of physical injury that was
not visible. See, e.g., Hough, 133 Kan. at 762 (qualifying physical injury may be
internal, without surface wounds of any kind). The nature of the incident provides
evidence that G.S. suffered at least some physical injury at that time. In the Court’s
view, the occurrence, allegedly caused by defendant’s negligence, was sufficiently
physical in nature, with a physical impact on the plaintiff, to satisfy the rule prohibiting
recovery purely for mental distress in the absence of physical harm. The Court rejects
defendant’s argument with respect to this plaintiff.
Plaintiff N.S. Defendant notes that N.S. does not claim damages for medical
expenses, that he did not seek medical treatment after any of five particular incidents of
abuse, and that he testified that he did not suffer cuts or similar effects from those
incidents. N.S. also testified that he did not suffer any injury specifically from excessive
physical training. Plaintiffs have provided evidence, however, of physical abuse suffered
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by N.S., and he did not testify that he did not suffer any physical harm from any of the
incidents that he identified. The Court rejects defendant’s argument with respect to this
plaintiff.
Plaintiff K.N. Plaintiffs have provided evidence of physical abuse suffered by
K.N. Defendant notes that K.N. alleges injuries to his head, ankle, and eye, but it argues
that K.N. has testified that he did not suffer “permanent” injuries. As noted above,
however, there is no rule requiring the physical injury to be permanent or of a certain
severity. Defendant also notes that K.N. identified only his PTSD in response to an
interrogatory, but as discussed above, the fact that K.N. may not “claim” any other
“personal injury” does not mean that he did not suffer any physical harm for purposes
of this analysis. Finally, as noted by plaintiff’s expert, PTSD involves physical
symptoms, and defendant has not explained why PTSD may not qualify as the necessary
physical injury or provided authority to that effect. Cf. Henricksen v. State, 84 P.3d 38,
55 (Mont. 2004) (PTSD is a physical manifestation of bodily harm resulting from
emotional distress that is sufficient to show that the emotional distress is genuine and
severe). The Court rejects defendant’s argument with respect to plaintiff K.N.
Plaintiff Z.O.

Plaintiffs have provided evidence that Z.O. suffered physical

abuse. For the same reasons as noted above, defendant’s interrogatory about claimed
personal injury is too ambiguous to restrict Z.O.’s proof of this requirement. Moreover,
Z.O. did identify an injured hand in that answer. Defendant points to Z.O.’s testimony
that he injured his hand punching another student, but the injury occurred in reaction to
13

an alleged sexual touching, and a jury could reasonably find that the injury was therefore
caused by defendant’s conduct. Z.O. also identified his PTSD in his interrogatory
answer, which also involves bodily symptoms. The Court rejects defendant’s argument
concerning this plaintiff.
The Court concludes that questions of fact remain, based on evidence viewed in
plaintiffs’ favor, concerning whether plaintiffs suffered physical harm and thus may
recover for emotional distress caused by negligent conduct. Accordingly, the Court
denies defendant’s motion for summary judgment on this basis.

V.

Negligent Supervision

Defendant also seeks summary judgment on plaintiffs’ negligent supervision
claim on the ground of a lack of foreseeability. Specifically, defendant argues that
plaintiffs must provide evidence that it had notice of dangerous propensities of the
specific students who allegedly abused plaintiffs, such that abuse by those particular
students was reasonably foreseeable. The Court rejects this basis for summary judgment,
as defendant has not shown that Kansas law requires such a showing that an act by the
particular third party is foreseeable.
Defendant relies on Nero v. Kansas State University, 253 Kan. 567 (1993), and
Beshears ex rel. Reiman v. Unified School District No. 305, 261 Kan. 555 (1997). In
neither case, however, did the court limit the type of evidence that could make harm to
the plaintiff foreseeable. In Nero, a university had placed an alleged rapist in a coed
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dorm with the plaintiff between terms, and the court held that the evidence created an
issue of fact for the jury concerning foreseeability. See Nero, 253 Kan. at 584-85. The
court did not state that evidence of a general danger to plaintiff could not satisfy the
foreseeability requirement in the right circumstances. Beshears involved a fight at
school, and in holding that the school could not have prevented the fight, the court noted
that the particular third party’s prior conduct did not show him to be dangerous. See
Beshears, 261 Kan. at 565-66. Again, however, the court did not suggest that the
foreseeability requirement could not be satisfied by evidence that the school had reason
to know that a fight would occur between unknown students.
Defendant also cites Cupples v. State, 18 Kan. App. 2d 864 (1993), which
involved an attack by one prison inmate upon another. In concluding that the attack was
not foreseeable as a matter of law, the court noted that there was no factual basis for
finding that the particular third party would attack the plaintiff. See id. at 880. The court
also stated, however, that where no specific duty is owed to protect the plaintiff from a
particular third party, the defendant was “required only to exercise reasonable and
ordinary care to prevent attacks by other inmates.” See id. Thus, the Cupples court
recognized that even without a foreseeable attack by a specific person, the defendant
may have a general duty of reasonable care to prevent attacks. Similarly, in this case,
plaintiffs assert a general duty of defendant to exercise reasonable care to prevent
physical abuse of students by other students.
Finally, defendant cites Sly v. Board of Education of Kansas City, 213 Kan. 415
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(1973). In concluding that an attack at school was not foreseeable, the court considered
the specific attackers’ prior discipline problems. See id. at 425. “Most importantly” in
the court’s view, however, the trial court had found that there had been no prior fighting
between students generally at that place and time. See id. Thus, the court also
considered whether an attack was foreseeable in a general sense, not tied to the particular
third parties.
Accordingly, the Court does not agree with defendant that, in order to prove a
claim of a negligent failure to prevent an attack under Kansas law, the plaintiff must
show that an attack by the specific third party was foreseeable. Rather, a plaintiff must
show only that defendant knew or should have known that its actions would likely have
resulted in harm to students. In Cupples, the court described foreseeability as follows:
Foreseeability, for the purpose of proving negligence, is defined as a
common-sense perception of the risks involved in certain situations and
includes whatever is likely enough to happen that a reasonably prudent
person would take it into account. An injury is foreseeable so as to give
rise to a duty of care where a defendant knows or reasonably should know
that an action or the failure to act will likely result in harm.
Cupples, 18 Kan. App. 2d at 879 (citations omitted). Defendant has not argued that there
is no evidence that the abuse of students by other students generally was foreseeable.
As noted above, plaintiffs have presented evidence that defendant implemented a system
in which students disciplined other students and that defendant had notice of incidents
of abuse. Plaintiffs have also provided evidence that complaints had been made to
defendant about some of the particular attackers. Such evidence, viewed in the light

16

most favorable to plaintiffs, creates a question of fact for the jury on the issue of
foreseeability, and the Court therefore denies defendant’s motion for summary judgment
on this basis.

VI.

Intentional Failure to Supervise

Plaintiffs also assert a claim for intentional failure to supervise. In a prior order
in this case, the Court rejected defendant’s argument that Kansas would not recognize
such a cause of action. See Nkemakolam v. St. John’s Military School, 2013 WL
1687093, at *1-2 (D. Kan. Apr. 18, 2013) (Lungstrum, J.). Defendant seeks summary
judgment on this claim as well on the basis of a lack of foreseeability, but the Court
concludes, for the same reasons stated above with respect to negligent supervision, that
a fact question remains for the jury on that issue. Defendant also suggests that because
of the intentional nature of the tort, a stricter standard of foreseeability would apply, such
that plaintiffs would need to show that it was certain that harm would occur. The Court
need not decide the whether such a standard should apply, however, as the Court
concludes that a fact question would remain even under defendant’s standard.
Accordingly, the Court denies defendant’s motion for summary judgment on this claim.

VII.

Defense of Comparative Fault

By their own motion, plaintiffs seek summary judgment on defendant’s
affirmative defense of comparative fault, by which defendant seeks at trial to compare
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its own fault with that of the third-party students alleged to have harmed plaintiffs, as
well as the fault of plaintiffs and their guardians.
A.

Defendant’s Preliminary Arguments in Opposition

Defendant first argues that plaintiffs have improperly failed to rely on record
evidence for their motion. Plaintiffs’ motion essentially raises legal issues, however, and
plaintiffs are entitled to seek summary judgment on defenses that lack a legal basis. See,
e.g., Fed. R. Civ. P. 56(a) (court shall grant summary judgment if movant is entitled to
judgment as a matter of law).
Defendant next argues that plaintiffs’ motion is premature and that the issue of
comparative fault may not be decided before trial. The authority cited by defendant,
however, does not preclude consideration of this issue at this time, but merely makes the
point that issue of comparative fault may not be submitted to the jury unless there is
sufficient evidence of the non-party’s fault. See Gust v. Jones, 162 F.3d 587, 593 (10th
Cir. 1998). If there is no legal basis for the assertion of comparative fault regardless of
how the evidence comes in at trial, plaintiffs are entitled to summary judgment at this
time.
Defendant also devotes a number of pages of its response brief to providing a long
quote from a Kansas case purportedly concerning the legal duty owed by defendant to
plaintiffs. Defendant fails to explain adequately, however, how that discussion bears on
the issue of whether defendant is entitled to assert comparative fault in this case under
the allegations made by plaintiffs.
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Finally, defendant’s argument that the Court should ignore one argument by
plaintiffs because it is not sufficiently encompassed within the “Questions Presented”
section of plaintiffs’ brief is borderline frivolous. The applicable rules establish no such
requirement. Plaintiffs argued the issue in the body of its memorandum, and defendant
cannot have suffered any prejudice from plaintiffs’ failure to summarize its arguments
more broadly in another part of the brief.
B.

Plaintiffs’ Intentional Tort Claims

Two of plaintiffs’ claims are for intentional infliction of emotional distress and
intentional failure to supervise. The Court agrees with plaintiffs that a defendant is not
entitled to compare its intentional conduct with others’ conduct. The comparative fault
statute, K.S.A. § 60-258a, speaks only of the comparison of negligence with other
negligence. Moreover, in Sieben v. Sieben, 231 Kan. 372 (1982), the Kansas Supreme
Court held that the enactment of the comparative fault statute did not change the
“common law rule of joint and several liability for defendants in intentional tort actions.”
See id. at 378. Defendant notes that plaintiffs’ intentional tort claims depend upon
conduct by third parties, and it argues that the present case therefore does not involve
multiple tortfeasors committing a single tort, as contemplated in Sieben. In describing
this rule, however, the Sieben court quoted with approval the statement that joint and
several liability applies, whereby each intentional tortfeasor is liable for the entirety of
the harm to the plaintiff, even if the tortfeasors are charged with distinct and different
acts contributing to the injury. See id. (quoting 74 Am. Jur. 2d, Torts § 76). Defendant
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has provided no authority for the application of comparative fault in the case of an
intentional tort claim. Accordingly, plaintiff’s motion is granted as it relates to their
intentional tort claims, and plaintiffs are awarded judgment on this defense as applied
to those claims.
C.

Plaintiffs’ Negligence Claims

With respect to their negligence claims, plaintiffs argue that defendant should not
be permitted to compare the fault of the third-party students who allegedly inflicted
physical abuse on plaintiffs because those third parties acted intentionally and not
negligently. Plaintiffs are correct that, under Kansas law, intentional wrongdoing cannot
be compared with the defendant’s negligence under the comparative fault statute. See
Kansas State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 374-76
(1991). Defendant responds that plaintiffs’ injuries in some cases may have been caused
by negligent conduct by the third parties. Plaintiffs insist that they do not seek to recover
for injuries caused accidentally by other students. Nevertheless, the evidence at trial
may reveal harmful conduct by the third parties that a reasonable jury could deem
negligent, in which case a comparative fault instruction would not be prohibited.
Accordingly, the Court denies plaintiffs’ motion for judgment on this defense as it relates
to third parties at this time.
Plaintiffs also seek summary judgment on the defense of comparative fault as
applied to the conduct of plaintiffs themselves or their guardians. Plaintiffs argue that
such fault should not be compared because defendant had a duty to protect plaintiffs
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from harm. Plaintiffs have not provided any authority, however, that would prohibit
application of comparative fault in such circumstances. The comparative fault statute
permits the comparison of others’ negligence with that of the defendant. Accordingly,
plaintiffs have not shown that defendant will not be permitted to assert at trial the
comparative negligence of plaintiffs or their guardians, and the Court therefore denies
plaintiffs’ motion for summary judgment as it relates to such parties.

IT IS THEREFORE ORDERED BY THE COURT THAT the motion by
defendant St. John’s Military School for summary judgment (Doc. # 279) is granted in
part and denied in part. The motion is granted with respect to the claims for
intentional infliction of emotional distress and negligent infliction of emotional distress
by plaintiffs J.A., G.S., N.S., C.U., and L.T., and judgment is awarded to defendant on
those claims. The motion is otherwise denied.

IT IS FURTHER ORDERED BY THE COURT THAT plaintiffs’ motion for
summary judgment on the affirmative defense of comparative fault (Doc. # 281) is
granted in part and denied in part. The motion is granted with respect to the defense
as applied to plaintiffs’ claims for intentional infliction of emotional distress and
intentional failure to supervise, and judgment is awarded to plaintiffs to that extent. The
motion is otherwise denied.

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IT IS SO ORDERED.

Dated this 13th day of January, 2014, in Kansas City, Kansas.

s/ John W. Lungstrum___________
John W. Lungstrum
United States District Judge

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