Lain v. Johnson County Community College Foundation, Inc. et al

Filing 25

MEMORANDUM AND ORDER granting 9 defendant Johnson County Community College's Motion to Dismiss. Signed by District Judge John W. Lungstrum on 8/12/2013. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Lee Lain,
Plaintiff,
v.

Case No. 13-CV-2201

Johnson County Community College
and BNSF Railway Company,
Defendants.
MEMORANDUM & ORDER
Plaintiff Lee Lain filed this negligence action against defendants for injuries he sustained
after he slipped and fell due to an “unnatural accumulation of ice” on a pedestrian pathway at
the BNSF Technical Training Center on the campus of defendant Johnson County Community
College (“JCCC”). His claim against JCCC is asserted under the Kansas Tort Claims Act
(KTCA) and his claim against defendant BNSF Railway Company, his employer, is asserted
under the Federal Employers’ Liability Act. This matter is presently before the court on JCCC’s
motion to dismiss plaintiff’s complaint on the grounds that JCCC is immune from liability for
plaintiff’s damages pursuant to the “snow and ice” exception of the KTCA.

As will be

explained, the motion is granted.
In his amended complaint, plaintiff alleges that he was injured on January 26, 2011 in
connection with a slip and fall at the BNSF Technical Training Center on the campus of JCCC
while working for BNSF.

According to the allegations in plaintiff’s amended complaint,

plaintiff’s accident occurred as a result of “an unnatural accumulation of ice by the negligent
efforts of snow removal, which caused melting snow to drain across a pedestrian pathway,

where it re-froze, causing a safety hazard to individuals using said pathway.” In his response to
the motion to dismiss, plaintiff contends that discovery will show that JCCC
plowed its parking lots and made piles of plowed snow in areas where it could
later melt and to drain down across a walkway. This draining water then refroze
in a walkway which plaintiff used, resulting in his fall. Plaintiff further submits
that discovery will establish that had JCCC’s snow removal efforts been
performed properly, the snow would not have been piled in an area where it could
melt, drain across a walkway and then refreeze.
Plaintiff further alleges in his amended complaint that JCCC was negligent in failing to inspect
the pathway; failing to clean snow and ice of long duration off the pathway; failing to apply a
non-slip compound to the pathway; and failing to warn plaintiff about the unnatural
accumulation of ice.
The Kansas Tort Claims Act (KCTA) makes a governmental entity liable “for damages
caused by the negligent or wrongful act or omission of any of its employees while acting within
the scope of their employment under circumstances where the governmental entity, if a private
person, would be liable under the laws of this state.” K.S.A. § 75-5103(a).1 The KCTA makes
governmental liability the rule and immunity the exception. Fettke v. City of Wichita, 264 Kan.
629, 633 (1998). The burden is on the defendant, here JCCC, to establish immunity under one
or more of the exceptions to liability set forth in K.S.A. § 75-6104. Id. The exception invoked
by JCCC in this case provides as follows:
A governmental entity or employee acting within the scope of the employee’s
employment shall not be liable for damages resulting from . . . snow or ice
conditions or other temporary or natural conditions on any public way or other

Plaintiff does not dispute that JCCC is a “governmental entity” for purposes of the KCTA. See
K.S.A. § 75-6102c (c) (“governmental entity” means a “state or municipality”); K.S.A. § 12105a(a) (“municipality” includes a ”community junior college”).
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public place due to weather conditions, unless the condition is affirmatively
caused by the negligent act of the governmental entity.
K.S.A. § 75-6104(l).
In its motion to dismiss, JCCC contends that it is immune from liability for plaintiff’s
injuries because plaintiff has failed to allege an affirmative act of negligence that caused the
condition. In support of its motion, JCCC relies in large part on the Kansas Court of Appeals’
decision in Owoyemi v. University of Kansas, 2004 WL 1373305 (Kan. App. June 11, 2004), a
case with facts strikingly similar to the facts alleged in plaintiff’s complaint here. In Owoyemi,
the plaintiff was injured when she slipped and fell on ice that had formed on a walkway between
a parking garage and the main hospital entrance of the University of Kansas Medical Center. Id.
at *1. The plaintiff testified that there was very light snow falling at the time of her accident and
that there was snow “which had been previously pushed back off the crosswalk.” Id. According
to plaintiff, there was a strong possibility that “snow which had previously fallen melted and
refroze.” Id. The plaintiff filed a negligence action against the University alleging that the
University negligently failed to inspect the crosswalk on the morning of the accident and
negligently failed to remove or treat the patch of ice where she slipped. Id. The University
moved for summary judgment and the district court granted that motion, ruling that the
University was immune from liability under K.S.A. § 75-6104(l). Id.
On appeal, the University argued that it was immune because the plaintiff’s fall was
caused by snow or ice due to natural weather conditions and not by any affirmative acts of
negligence on the part of the University which contributed to the accident. Id. at *2. In
response, the plaintiff conceded that the ice causing her fall was originally due to natural
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weather conditions, but argued that the particular patch of ice where she fell resulted from snow
which had previously melted and refroze:
Owoyemi claims that the condition was affirmatively caused by the negligent acts
of the University employees because they: (1) failed to properly inspect the
walkway that morning, and (2) failed to remove snow next to the sidewalk where,
under the temperature conditions, it would melt and refreeze.
Id. (emphasis added). The Kansas Court of Appeals affirmed the district court. Id. at *4. In
doing so, the Court of Appeals emphasized that the uncontroverted evidence established that the
ice upon which the plaintiff fell originated from natural weather conditions and that there was no
evidence of an “artificial factor” that contributed to the accident. Id. at *3. Rejecting the
plaintiff’s arguments, the Court of Appeals stated that the University’s “failure to remove snow
from near the sidewalk where it could melt and refreeze was not an affirmative act” and that
“such a requirement would appear to impose an unreasonable burden on the property owner.”
Id. In sum, the Court of Appeals held that the snow and ice exception of the KTCA “clearly”
applied such that University was immune from liability. Id. at *4.
Plaintiff here attempts to distinguish Owoyemi on the grounds that the plaintiff in that
case alleged only that the University “failed” to act in certain respects such as failing to remove
adjacent snow and failing to inspect the sidewalk. Plaintiff contends that these allegations are
distinct from her contention that JCCC’s affirmative snow removal methods (i.e., piling snow in
areas where the snow could melt, drain across the sidewalk and then refreeze on the sidewalk)
were negligent. But plaintiff’s allegation that JCCC negligently piled snow adjacent to the
sidewalk is simply another way of saying that JCCC failed to remove snow adjacent to the
sidewalk. Just as JCCC cleared the sidewalks and parking lots and, in doing so, piled snow
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adjacent to the sidewalk that then melted and refroze, the Owoyemi decision reflects that the
University engaged in snow removal efforts, pushed snow off the sidewalk and left that snow
adjacent to the sidewalk, where it later melted and refroze.

Significantly, despite the

University’s affirmative steps to clear the sidewalks, the Court of Appeals declined to
characterize those steps as affirmative acts of negligence (which the Court of Appeals believed
would impose an unreasonable burden on the University) and focused instead on the
University’s failure to remove snow that it had pushed back off the sidewalk. Finally, like
Owoyemi, plaintiff here does not contend that an artificial factor contributed to his accident.
Plaintiff’s allegations, then, are not materially distinct from the facts of Owoyemi.
There is no other basis on which the court can distinguish Owoyemi from this case.
While the Owoyemi decision was rendered at the summary judgment stage, plaintiff here has
indicated precisely what facts would be revealed in discovery and the court has considered those
facts in resolving JCCC’s motion. As in Owoyemi, then, the court concludes that the ice that
caused plaintiff’s accident was there as a result of natural weather conditions and, under the
totality of the circumstances, there was no affirmative negligent act on the part of JCCC which
contributed to the icy condition. Compare Taylor v. Reno County, 242 Kan. 307 (1987) (county
immune under snow and ice exception; ice that had accumulated on bridge was the result of
natural weather condition and there was no affirmative act by the county that contributed to the
accident) and Lopez v. Unified Gov’t of Wyandotte County, 31 Kan. App. 2d 923 (2003) (county
immune under snow and ice exception; ice that formed on street after water line break was
caused by natural cooling temperatures and there was no affirmative act by the county that
contributed to condition) with Draskowich v. City of Kansas City, 242 Kan. 734 (1988) (city not
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immune under snow and ice exception; ice formed on street after county employee turned water
on to locate water line break and allowed street to flood).
For the foregoing reasons, the court concludes that the snow and ice exception of K.S.A.
§ 75-6104(l) clearly applies and JCCC is immune from liability. The court declines plaintiff’s
request for permission to amend his complaint as there is no suggestion in his submissions that
he would be able to plead facts under which JCCC would not be immune from liability.

IT IS THEREFORE ORDERED BY THE COURT THAT defendant Johnson County
Community College’s motion to dismiss (doc. 9) is granted.

IT IS SO ORDERED.

Dated this 12th day of August, 2013, at Kansas City, Kansas.

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

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