Mark LeTourneau et al v. Kansas Department of Transportation, et al
MEMORANDUM AND ORDER granting 67 Motion for Partial Summary Judgment. Signed by Chief District Judge Julie A Robinson on 6/1/2017. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK LETOURNEAU, ET AL.,
Case No. 15-CV-2629-JAR
MEMORANDUM AND ORDER
Plaintiffs Mark LeTourneau and Deborah LeTourneau bring this action to recover
personal injury damages arising from a motorcycle accident where Mark LeTourneau alleges he
lost control of the motorcycle as the result of uneven pavement on the highway. The State of
Kansas Department of Transportation (“KDOT”)1 hired Defendant to perform the improvements
to the highway that led to the alleged uneven pavement. Plaintiffs’ Complaint alleges Kansas
state law claims of negligence, negligence per se, and loss of consortium.2 This matter is before
the Court on Defendant’s Motion for Partial Summary Judgment (Doc. 67) as to the negligence
per se claim. The motion is fully briefed, and the Court is prepared to rule. For the reasons
explained in more detail below, the Court grants Defendant’s motion for summary judgment.
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 judgment as a matter of law.3 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
Defendant KDOT and Defendant Mike King, the secretary of transportation for the State of Kansas, were
dismissed from this action on December 16, 2014 on the basis of Eleventh Amendment Immunity. Doc. 12.
Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
the light most favorable to the nonmoving party.4 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”5 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”6 An issue
of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.8 In attempting to meet this 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 regarding an essential
element of the other party’s claim.9
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”10 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.11 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
Bones v. Honeywell, Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
Wright ex rel. Tr. Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 2004)).
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (internal quotations omitted).
Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2002) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex, 477 U.S. at 324; Spaulding, 279
F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
rational trier of fact could find for the nonmovant.”12
The facts “must be identified by reference to an affidavit, a deposition transcript, or a
specific exhibit incorporated therein.”13 Rule 56(c)(4) provides that opposing affidavits must be
made on personal knowledge and shall set forth such facts as would be admissible in evidence.14
The nonmoving party cannot avoid summary judgment by repeating conclusory opinions,
allegations unsupported by specific facts, or speculation.15
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”16 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”17
The following facts are stipulated to by the parties.18 On October 9, 2012, Plaintiff Mark
LeTourneau was involved in a single-rider motorcycle accident on United States Highway 281 in
Barton County, Kansas at approximately mile marker 108. At the time and in the location of the
accident, Highway 281 in Barton County was under construction. KDOT owned, controlled, and
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
Adams, 233 F.3d at 1246.
Fed. R. Civ. P. 56(c)(4).
Fed. R. Civ. P. 56(c)(1); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.
2006) (citation omitted); see also Celotex, 477 U.S. at 323–24 (“One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually unsupported claims or defenses”).
Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
Conway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
maintained Highway 281 at mile marker 108. Defendant was performing construction work on
Highway 281 in the location of the accident under a contract with KDOT.
The construction work Defendant performed at the location involved a three-fourth inch
mill and a one and one-half inch thin hot mix asphalt (“HMA”) overlay. KDOT planned,
approved, designed and specified the traffic control plan for the construction work Defendant
performed on Highway 281. At the time and in the location of Mark LeTourneau’s accident, the
entire width of Highway 281 had been milled and an HMA overlay had been installed in the
northbound lane. Mark LeTourneau was traveling north in the northbound lane of Highway 281.
He traveled off the northbound lane and on to the east shoulder, which was milled. While
attempting to transition back into the northbound lane from the east shoulder, Mark LeTourneau
lost control of his motorcycle and crashed.
The issue presented for summary judgment is whether a violation of K.S.A. § 68-2102
can form the basis of a negligence per se claim under Kansas law. The elements of negligence
per se under Kansas law are: “(1) a violation of a statute, ordinance, or regulation, and (2) the
violation must be the cause of the damages resulting therefrom.”19 Also, the plaintiff must
establish that an individual right of action for injury arising out of the violation was intended by
the legislature.20 The determination of whether an individual right of action exists under a statute
is a question of law.21 In determining whether an individual right of action was intended, courts
generally employ a two-part test: (1) “the party must show that the statute was designed to
protect a specific group of people rather than to protect the general public,” and (2) “the court
Pullen v. West, 92 P.3d 584, 593 (Kan. 2004) (citing Cullip v. Domann, 972 P.2d 776 (Kan. 1999)).
Id. at 594.
must review legislative history to determine whether a private right of action was intended.”22
While some statutes expressly impose personal liability, the absence of such an express provision
does not necessarily negate legislative intent that the statute creates a private right of action.23 In
the absence of express provisions, the legislative intent to grant or withhold such a right is
determined primarily from the language of the statute.24 Courts may also consider the nature of
the evil sought to be remedied and the purpose the statute was intended to accomplish.25
K.S.A. § 68-2102 provides:
Every person who shall have entered into a contract to make any improvement, or
any municipality which has undertaken for itself the making of any improvement,
shall, where the work so undertaken requires the closing of any highway or the
rendering of the same impassable or dangerous to travel while such improvement
is being made, place at the intersection of all highways leading thereto, barricades
and warning signs, advising the public that the highway is closed or is impassable
or dangerous to travel.
Defendant’s only contention for summary judgment is K.S.A. § 68-2102 is not intended
to create a private right of action. As a threshold matter, Plaintiffs argue Kansas courts have
already established K.S.A. § 68-2102 as a private right of action. Plaintiffs rely heavily on
Kelley v. Broce Construction Co.26 for the proposition the Kansas Supreme Court has found
K.S.A. § 68-2102 is a private right of action. In Kelley, the Kansas Supreme Court considered
whether Broce, a road contractor, was negligent in violating K.S.A. § 68-2102.27 The jury
verdict established that “insufficient lighting” was the act of negligence that was the proximate
Id. (citing Nichols v. Kan. Political Action Comm., 11 P.3d 1134 (Kan. 2000); Nora H. Ringler
Revocable Family Tr. v. Meyer Land & Cattle Co., 958 P.2d 1162 (Kan. Ct. App. 1998)).
Id. at 593.
Id. at 593–94.
Id. at 594.
468 P.2d 160 (Kan. 1970).
Id. at 166.
cause of injury.28 The Kansas Supreme Court held Broce had a duty to provide a barricade and
warning lights on the highway pursuant to the statute.29 This case involved ordinary negligence,
and the statute was used to establish a duty of care.30
The Court finds this case distinguishable from Kelley because Kelley involved ordinary
negligence whereas here, Plaintiffs assert a negligence per se theory. Negligence and negligence
per se are distinguishable in “the means and the method of ascertainment, in that negligence
must be found by the jury by the evidence, while negligence per se results from violation of a
specific law or ordinance.”31 Thus, Kelley, which analyzes the statute as a means for establishing
a duty of care for negligence, is not applicable to negligence per se analysis.32 Further, Kelley
did not and could not have addressed whether K.S.A. § 68-2102 established a private cause of
action because determining whether a statute create a private right of action was added to
negligence per se analysis in 1991 after Kelley was decided.33 Thus, this case did not establish
that K.S.A. § 68-2102 created a private right of action.
Further, the other cases Plaintiffs cite are also inapplicable to analysis of whether K.S.A.
§ 68-2102 establishes a private cause of action. In Schroder v. Braden, the Kansas Supreme
Court considered whether K.S.A § 68-2102 created an obligation on contractors to place signs
Id. at 167.
H. Wayne Palmer & Assocs. v. Heldor Indust., Inc., 839 F. Supp. 770, 774 (D. Kan. 1993).
See also Shirley v. Glass, 308 P.3d 1, 6 (Kan. 2013) (concluding that the plaintiff had not pleaded a
negligence per se claim as a separate cause of action created by statute but, instead, she was asserting only a claim
of “simple negligence” that relied on federal and Kansas statutes prohibiting the distribution of firearms to felons to
define the standard of care).
The Kansas Supreme Court added the element requiring plaintiff to establish that an individual right of
action was intended by the legislature in 1991 in Schlobohm v. United Parcel Service, Inc. 804 P.2d 978 (Kan.
1991), abrogated on other grounds by Shirley v. Glass, 308 P.3d 1 (Kan. 2013) (analyzing language in Schlobohm in
the context of establishing the duty of care for ordinary negligence). This element was added more than twenty
years after Kelley was decided in 1970.
and barricades on the roadway while under construction.34 For purposes of establishing a duty of
care for negligence, the Kansas Supreme Court found the contractor was under no duty to place
signs and barricades on the roadway for which it was removing a culvert.35 There is no mention
of the statute creating a private right of action for purposes of negligence per se. Further, in
Fountain v. Se-Kan Asphalt Services, Inc., the Kansas Court of Appeals considered whether a
road contractor had a duty of care “to the public” for purposes of a wrongful death action to
maintain roads used in traveling to and from a construction site.36 The court held that K.S.A. §
68-2102 did not extend duties to a highway in which a contractor is using only for travel.37 Yet
again, there is no mention in Fountain of the statute creating a private right of action for
purposes of negligence per se.
Given there is no relevant case law deciding whether K.S.A. § 68-2102 establishes a
private right of action, the Court must first decide whether K.S.A. § 68-2102 is designed to
protect a specific group of people or the general public. Plaintiff argues that the specific group
of people the statute was designed to protect is “those travelers who would come upon such
specific construction or improvements in the road while traveling” rather than the general
public.38 Further, Plaintiffs argue that while the statute applies to specific persons, it also applies
to specific types of road construction—those requiring road closure, impassable conditions, or
dangerous travel. As Kansas courts have acknowledged, the case law considering the doctrine of
391 P.2d 1005, 1008 (Kan. 1964).
837 P.2d 835, 839–40 (Kan. Ct. App. 1992).
Id. at 841.
Doc. 69 at 5.
negligence per se is “inconsistent” and has led to some “curious results.”39 However, the Court
will attempt to decipher based on the relevant Kansas Supreme Court case law whether this
statute is applicable to the public or a more specific group.
In Schlobohm v. United States Parcel Services, the plaintiff was injured when she fell in
an entranceway that violated the building code.40 The Kansas Supreme Court acknowledged the
general rule that statutes enacted to protect the public at large do not give rise to a cause of action
for negligence per se.41 Still, the court found that the building code section was enacted to
protect a special class of individuals “who enter and exit doorways from injury caused by
tripping over an improper elevation differential between the floor and threshold.”42
In Kerns v. G.A.C., Inc., the plaintiff, a six-year-old child, fell into a closed swimming
pool at a mobile home park and nearly drowned.43 The plaintiff sued under a negligence per se
theory, citing a city code provision regarding the maintenance of closed swimming pools.44 The
district court allowed the claim to go to the jury.45 On appeal, the Kansas Supreme Court stated
the general rule that a violation of an ordinance could not establish negligence per se.46
However, the court held that the “swimming pool ordinances were enacted to protect a special
class of person—those who gain access to a closed pool and require rescuing, a class of which
included [the plaintiff].”47
Shirley v. Glass, 241 P.3d 134, 160 (Kan. Ct. App. 2010) (Malone, J., concurring) (considering the
history of negligence per se doctrine in Kansas case law), overruled by Shirley v. Glass, 308 P.3d 1 (Kan. 2013).
804 P.2d 978, 980 (Kan. 1991), abrogated on other grounds by Shirley v. Glass, 308 P.3d 1 (Kan. 2013).
Id. at 981.
Id. at 982.
875 P.2d 949, 953 (Kan. 1994).
Id. at 955.
Id. at 962.
Most recently, in Pullen v. West, the plaintiff filed a claim asserting negligence per se
where the plaintiff sustained injuries during a Fourth of July fireworks display at the defendants’
home.48 The plaintiff claimed the defendants violated Kansas statutes, rules, and regulations
governing fireworks displays, in part by failing to follow the rules and regulations of the
National Fire Protection Association (“NFPA”) pamphlet No. 1123.49 While the Kansas
Supreme Court recognized portions of NFPA No. 1123 applied to certain groups of people, “the
overall purpose of NFPA 1123 is not just to protect those individuals watching or putting on the
display because the danger certainly exists that others (the general public) might be harmed by
the storage, use, or transportation of fireworks.”50 The Kansas Supreme Court held the
statutorily incorporated safety standards for fireworks displays did not support a cause of action
for negligence per se because the regulations were enacted for the protection of the general
public.51 Although the ordinances in Schlobohm and Kerns appeared to be enacted for the
protection of the general public, the Kansas Supreme Court in Pullen moved to consideration of
the express legislative purpose of the statute to determine whether the statute was applicable to
the general public or a narrower group.52
Thus, the Court here will employ the most recent approach of the Kansas Supreme Court
in Pullen. First, in the express language of the statute, K.S.A. § 68-2102 states that the statute is
designed to “advis[e] the public” that the road is closed.53 The plain language makes clear this
92 P.3d 584 (Kan. 2004).
Id. at 593.
Id. at 596.
Id. at 597.
Id. at 595 (“[T]he express legislative purpose in directing the state fire marshal to adopt reasonable
fireworks rules and regulations is ‘for the safeguarding of life and property from fire, explosion and hazardous
materials.’ K.S.A. 31–133(a). The scope of this enabling legislation is thus very broad and is not limited to
enacting rules and regulations specifically for those involved in fireworks displays.”).
K.S.A. § 68-2102 (emphasis added).
statute is drawn to protect the public at large rather than a narrow or specific group. Second, the
courts have interpreted the statute’s purpose as “placing duties on contractors to take steps to
protect the public in the area involved in a construction project. It clearly encompasses all roads
under the contractor’s control during a construction or repair project.”54 Thus, K.S.A. § 68-2102
has been interpreted broadly in its language. Third, there is no express provision allowing for a
private cause of action. If the legislature truly intended for the statute to cover a narrower group
than the general public, it could have inserted such language into the statute. For instance,
instead of stating barricades and signs should be erected to advise “the public,” it could have
stated the barricades and signs should be erected to advise “oncoming travelers” or “travelers
who happen upon the closure.” Given the brevity of the scope of the statute’s express language,
the Court finds that K.S.A. § 68-2102 is intended to protect the public.
Further, even if the statute applies to a narrow group rather than the general public, the
court still must consider the legislative history of the statute to determine whether a private right
of action was intended.55 Where legislative history is lacking, Kansas courts have considered the
number of amendments to the statute and whether the legislature granted a private right of action
in such amendments.56 Kansas courts also will generally not infer a private cause of action
where a statute provides criminal penalties but does not mention civil liability.57 When
Fountain v. Se-Kan Asphalt Servs., Inc., 837 P.2d 835, 840 (Kan. Ct. App. 1992) (emphasis added).
Kan. St. Bank & Tr. Co. v. Specialized Transp. Servs., Inc., 819 P.2d 587, 591, 603 (Kan. 1991)
(deciding K.S.A. § 38-1522, which required school employees to report abuse, protected children rather than the
public, but the legislature did not intend a private right of action).
Id. at 604 (pointing to the fact that the statute has been amended five times and stating “[i]f the
legislature had intended to grant a private right of action in K.S.A. § 38-1522, it would have done so.”).
Pullen, 92 P.3d at 597 (citing Greenlee v. Bd. of Clay Cty. Comm’rs, 740 P.2d 606, 610 (Kan. 1987) (“It
would appear that the legislature has thoroughly addressed the legislative remedies for violation of the cash-basis
law and the budget law, and that failure to provide a private cause of action for an individual citizen was
intentional.”); Loar v. Roletto, 982 P.2d 993 (Kan. Ct. App. 1999) (concluding where legislature provides criminal
and administrative remedies for violation of Kansas Automobile Injury Reparations Act, “[t]he absence of a
provision securing a private cause of action appears to be intentional”); Gietzen v. Feleciano, 964 P.2d 699 (Kan. Ct.
elaborating on this point, the Kansas Supreme Court explained when the wrong perpetrated by
the defendants “became a wrong only [because] the legislature made it so,” then the “statutorily
created wrong is to be remedied in the manner prescribed by the legislature.”58
The parties do not cite nor could the Court find legislative history addressing whether
K.S.A. § 68-2102 is intended to create a private right of action. Further, the legislature has
amended K.S.A. § 68-2102 twice since it was enacted in 1957. In both the 1995 and 2004
amendments, there is no indication that the legislature considered or granted a private right of
action. Thus, the legislative history does not indicate intent to create a private right of action.
K.S.A. § 68-2107 is the penalties section for violations of K.S.A. § 68-2102. It
prescribes that any person “failing, neglecting or refusing to comply with the provisions of this
act . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than
$10 nor more than $100, or imprisoned for not less than 10 days nor more than 90 days, or by
both such fine and imprisonment.”59 These penalties are solely criminal in nature, so violations
of K.S.A. § 68-2102 are meant to be remedied in this manner. There is no indication that civil
remedies may be sought. Thus, the Court is unwilling to infer a private cause of action for a
statute with solely criminal penalties. In conclusion, the Court finds the legislative history does
not indicate K.S.A. § 68-2102 is meant to create a private right of action.
The authority cited above establishes that the Kansas legislature did not intend to
establish an individual cause of action for violations of K.S.A. § 68-2102. Therefore, the Court
App. 1998) (“The legislature saw fit to limit the relief from a violation of the [Campaign Finance Act] to a
complaint before the Commission [on Governmental Standards and Conduct]. It did not provide a cause of action
for damages in favor of a party aggrieved about a violation, and we will not read one into the statute.”)).
Nichols v. Kan. Political Action Comm., 11 P.3d 1134, 1145 (Kan. 2000).
K.S.A. § 68-2707. To the extent that Plaintiffs argue these penalties are not strong enough, this is the
province of the legislature, not the Court.
concludes that the doctrine of negligence per se is inapplicable to this case. Thus, summary
judgment is properly granted in favor of Defendant on the negligence per se claim.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Partial Motion
for Summary Judgment (Doc. 67) is granted.
IT IS SO ORDERED.
Dated: June 1, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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