Sayre v. Lawrence, Kansas, City of et al
Filing
19
MEMORANDUM AND ORDER denying 7 Motion to Dismiss. Signed by Senior District Judge Richard D. Rogers on 8/21/2013. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARY SAYRE,
)
)
)
)
)
)
)
)
)
)
_
Plaintiff,
v.
CITY OF LAWRENCE, KANSAS, and
LAWRENCE ARTS CENTER
Defendants.
Case No. 13-2291-RDR
MEMORANDUM AND ORDER
This matter is presently before the court upon the motion of
defendant City of Lawrence, Kansas to dismiss.
The defendant seeks
to dismiss plaintiff Larry Sayre=s loss of consortium claim. 1 The
defendant contends that plaintiff has failed to comply with the
notice
requirements
of
K.S.A.
12-105b(d).
Having
carefully
reviewed the arguments of the parties, the court is now prepared to
rule.
I.
This
is
jurisdiction.
an
action
based
upon
diversity
of
citizenship
Plaintiff Mary Sayre asserts a claim for damages
against the City of Lawrence pursuant to the Kansas Tort Claims Act
(KTCA).
She asserts claims of negligence, premise liability and
loss of consortium for injuries she suffered at the Lawrence Arts
Center when she fell into an orchestra pit. Prior to filing this
1
The defendant now recognizes that Larry Sayre, plaintiff’s husband, is not a
plaintiff in this case. Even so, the defendant contends the plaintiff’s loss of
consortium claim should be dismissed.
1
action, plaintiff and her husband prepared a notice of claim pursuant
to K.S.A. 12-105b(d) and submitted it to the clerk of the City of
Lawrence.
The relevant portions of the claim stated the following:
3. Concise statement of the factual basis of the
claim is as follows: On or about June 24, 2012, claimant
was injured as a result of the negligent conduct of
employees of the City of Lawrence, including the failure
to ensure the safety of individuals at the Lawrence Arts
Center which caused or contributed to cause the claimant
to fall into the unprotected and unmarked orchestra pit.
It was or should have been known that failure to safely
secure the orchestra pit, and the corresponding failure
to warn, could result in reckless disregard to the safety
of individuals at the Lawrence Art Center.
.
.
.
.
.
5. A statement of the nature and extent of the injury
is as follows: Claimant was severely injured as a result
of the wrongful conduct of the defendant and received a
permanent injury as a result of the wrongful conduct of
defendant and its employees.
6.
Statement of the amount of monetary damages
requested is as follows: Claimant would request a jury to
determine the amount of the value of the losses.
Claimant=s monetary claim as to the defendant is $500,000.
II.
In the instant motion, the defendant City of Lawrence contends
that plaintiff=s husband=s claim for loss of consortium should be
dismissed because he failed to comply with the notice requirements
of K.S.A. 12-105b(d).
The City argues that plaintiff=s husband
failed to (1) concisely identify or otherwise state the basis of this
claim; and (2) describe the damages/injuries which give rise to this
claim.
Plaintiff points out that Kansas law does not recognize a
separate cause of action for a spouse for loss of consortium.
2
Plaintiff notes that the right to recover for loss of consortium vests
with the spouse who files an action for personal injuries.
Plaintiff
contends that the notice provided to the City substantially complied
with K.S.A. 12-105b(d) because she notified the City of the character
and extent of the injuries she sustained.
III.
Under the KTCA, a party may not commence a tort action against
a municipality without first filing a proper notice of claim.
12-105b(d).
K.S.A.
The claimant is required to include Aa concise statement
of the factual basis of the claim@ as well as a Aconcise statement
of the nature and extent of the injury claimed to have been suffered.@
Id.
A notice is effective if it is within Asubstantial compliance@
of the statutory requirements.
Id.
ASubstantial compliance@ is not defined in K.S.A. 12-105b(d),
but it has been defined by the Kansas courts as follows:
Substantial compliance means compliance in respect to the
essential matters necessary to assure every reasonable
objective of the statute. The statutory objectives are to
advise the municipality of the time and place of the injury
and to give the municipality an opportunity to ascertain
the character and extent of the injury sustained.
Dodge City Implement, Inc. v. Bd. of Cty. Com=rs of Cty. of Barber,
288 Kan. 619, 205 P.3d 1265, 1281 (2009)(citations and quotation
marks omitted).
3
In Kansas, there is not a separate cause of action for a spouse
for loss of consortium due to injuries to a spouse.
Mfg. Co., 715 F.Supp. 328, 330 (D.Kan. 1989).
Annis v. Butler
Rather, the right to
recover for loss consortium lies with the spouse who files an action
for personal injuries, not the spouse who actually suffers the loss
of consortium.
Stucky v. Health Care Prod., Inc., 794 F.Supp. 1069,
1070 (D.Kan. 1992).
Neither party has provided the court with any case law
concerning the exact issue noted in this caseB-the failure to mention
loss of consortium in the notice to the municipality required by
K.S.A. 12-105b(d).
Having reviewed the notice in this case, the
court is persuaded that the notice substantially complies with K.S.A.
12-105b(d).
Thus, plaintiff can proceed with the loss of consortium
claim in this action.
In reaching this conclusion, the court notes that K.S.A.
12-105b(d) requires only a Aconcise statement of the nature and the
extent of the injury claimed to have been suffered.@
The objectives
of the statute are to allow the municipality an opportunity to
determine
the
character
and
extent
of
the
injury
sustained.
Recently, the Kansas Supreme Court held that a notice of claim asking
for
$19,590.07
in
damages
substantially
complied
with
K.S.A.
12-105b(d) even though the plaintiff later sought damages of
$228,088.25 in his subsequent lawsuit.
4
Continental Western Ins. Co.
v. Shultz, 2013 WL 3378339, at * 7 (Kan. July 5, 2013).
The Court
noted that the notice filed by plaintiff Aprovided sufficient
information to advise the defendants about the extent of injuries@
and Aafforded the municipality an opportunity to fully investigate
the merits of the negligence claim.@
Id.
Similar observations can be made about this case.
The notice
statute does not require a detailed listing of the injuries suffered.
The notice submitted by plaintiff allowed the City to quickly
ascertain the circumstances of plaintiff=s injury.
Thus, the court
finds that plaintiff=s notice substantially complied with K.S.A.
12-15b(d).
The court notes that other jurisdictions considering
this issue have reached differing conclusions.
The court believes
that the court in District of Columbia properly addressed this issue
as follows, even though the standard for compliance with the notice
requirement is stricter in the District of Columbia than in Kansas:
Claims for loss of consortium are collateral to a spouse=s
claim for injuries; the two claims are tied together and
the one (consortium) is dependent on the other (injuries).
As long as the injured spouse=s notice provides the District
with sufficient information to allow it to investigate the
accident, to try to settle claims, and to prevent future
accidents, formal notice of a claim for loss of consortium
will provide the city with no additional information
necessary to effectuate the purposes of the statute. The
District is not prejudiced by not receiving notice of a
spouse=s claim for loss of consortium. A cursory
investigation would reveal the nature of the claimant=s
injuries and his or her marital status.
Romer v. District of Columbia, 449 A.2d 1097, 1101 (D.C. 1982).
5
Therefore, the court shall deny defendant City of Lawrence=s
motion to dismiss.
IT IS THEREFORE ORDERED that defendant City of Lawrence=s motion
(Doc. # 7) be hereby denied.
IT IS SO ORDERED.
Dated this 21st day of August, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?