Funk et al v. Pinnacle Health Facilities XXXII, LP et al
MEMORANDUM AND ORDER denying 14 Motion for Leave to Amend Complaint; granting 9 Motion to Dismiss. Count I of plaintiffs' Petition is hereby dismissed with prejudice. Signed by District Judge J. Thomas Marten on 08/15/2017. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK FUNK, as Administrator of the Estate
of Dorothy Funk, deceased; MARK FUNK as
heir at law of his mother, Dorothy Funk; and
ALAN FUNK, as heir at law of his mother,
Case No. 17-1099-JTM
PINNACLE HEALTH FACILITIES XXXII,
LP, d/b/a CLEARWATER NURSING &
MEMORANDUM AND ORDER
Plaintiffs, Mark Funk and Alan Funk, filed the present negligence and wrongful death
suit against defendant, Pinnacle Health Facilities, based on Dorothy Funk’s fall at the Clearwater
Nursing and Rehabilitation Center in Clearwater, Kansas. From September 29, 2014, to
December 1, 2014, Dorothy was a resident at the Clearwater Nursing facility.
Plaintiffs allege that on October 1, 2014, Clearwater’s records indicate that Dorothy
suffered a non-injury fall on the premises and her Care Plan was updated to say, “[p]rovide
Dorothy with grabber to alleviate her reaching forward from her wheelchair…. and endangering
[her] safety.” Nine days later on October 10, the Care Plan added or initiated this goal: “Dorothy
will remain free from significant injuries resulting from falls.” Plaintiffs additionally allege that
this non-fall was not reported to Mark Funk, holder of Dorothy’s durable power of attorney.
Knowledge of the non-injury fall was not made known to Mark or Alan Funk until the medical
records were provided after Dorothy’s death.
Plaintiffs further allege that on December 1, 2014, Dorothy fell out of her wheelchair
while reaching forward, fracturing her hip. According to the Clearwater EMS Report, the fall
was unwitnessed, but a Clearwater staff member heard Dorothy screaming after the fall.
December 1, 2014, was the last time that Clearwater Nursing provided care to Dorothy.
On January 7, 2017, plaintiffs filed their first petition in the Sedgwick County District
Court. In the Plaintiffs’s Count I, it is alleged that defendant was negligent in their care and
treatment of Dorothy, including, but not limited to:
“(a) failing to adequately comply with their own care plan designed specifically for
Dorothy Funk to prevent the very type of fall contemplated in the care plan; (b) failing to
ensure that Dorothy Funk received adequate supervision, assistance, and devices to
prevent such accidents and her resulting injuries; (c) failing to seek, obtain, and order,
timely, necessary qualified health care consultations and treatment; (d) failing to provide
timely, prompt, and adequate medical care and treatment as required Mrs. Funk’s
physical condition; and (e) failing to comply with standards and duties applicable to
nursing homes, including those which required the nursing home to maintain adequate
staff to appropriately monitor the resident and to render proper care to all patients at all
In Count II, the plaintiffs present a claim against Life Care Center of Andover for
negligence, and a third claim against both Pinnacle and Life Care Center of Andover for the
allegedly wrongful death of Dorothy due to an infection. Pinnacle’s motion to dismiss only
addresses Count I. The wrongful death claim in Count III has its own statute of limitation which
appears to be timely and is not affected by defendan’t motion to dismiss.
A statute of limitations bar may be presented as an affirmative defense under Rule
12(b)(6). Herrera v. Las Cruces Pub. Sch., No. 16-2179, 2017 U.S. App. LEXIS 10466, at *10
(10th Cir. 2017). For a plaintiff to survive a Rule 12(b)(6) motion, a plaintiff must plead
sufficient factual allegations “to state a claim to relief that is plausible on its face.” Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., No. 15-1386, 2017 U.S. App. LEXIS 11490, at *32
(10th Cir. 2017) . For a claim to be facially plausible, the plaintiff must plead facts that would
allow the court to draw reasonable inferences that the defendant is liable for the misconduct. Id.
The question to ask for a motion to dismiss is: did the plaintiff provide evidence to support its
claim? Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
A motion to dismiss is disfavored and therefore should not be dismissed for failure to
state a claim, unless it appears beyond a reasonable doubt that the plaintiff cannot prove any set
of facts which support his claim entitling the plaintiff to relief. Hospital Bldg. Co. v. Trustees of
Rex Hosp., 425 U.S. 738, 746 (1976). When considering a motion to dismiss, “all well-pleaded
facts, as distinguished from conclusory allegations, must be taken as true” and all reasonable
inferences must be afforded to the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.
The Kansas statute of limitation for tort claims, which includes negligence, is two years.
Kan. Stat. § 60-513(a)1; Doe v. Popravak, No. 115,282, 2017 WL 2494958, at *1 (Kan. Ct. App.
2017). The purpose behind having a statute of limitation is to “secure the peace of society and to
protect the individual from being prosecuted upon stale claims” and to “give prompt notice
before memories fade and evidence is lost.” Castro v. Am. Insulated Wire, No. 92,200, 2004
Kan. Stat. Ann. ' 60-513(a) provides in part:
(a) The following actions shall be brought within two years:
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have
accrued until the fraud is discovered.
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
(5) An action for wrongful death.
(6) An action to recover for an ionizing radiation injury as provided in K.S.A. 60-513a, 60-513b and 60513c, and amendments thereto.
(7) An action arising out of the rendering of or failure to render professional services by a health care
provider, not arising on contract.
LEXIS 105, at *9 (Kan. Ct. App. 2004); Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1301 (10th
Cir. 2003). The limitation period begins when the action first causes “substantial injury” K.S.A.
§ 60-513(b)2. Kansas courts interpret “substantial injury” to be an “actionable injury.” Michaelis
v. Farrell, 48 Kan. App. 2d 624, 630, 296 P.3d 439, 444 (2013). An actionable injury is one
sufficiently ascertainable to justify an action for a recovery of damages. Id.
Under Kansas law, an action accrues at the time the negligent act causes an injury if
“both the act and the resulting injury are reasonably ascertainable by the injured person.” Moon
v. City of Lawrence, 267 Kan. 720, 727, 982 P.2d 388, 394 (1999). The “reasonably
ascertainable” language is an objective standard suggesting an examination of the surrounding
circumstances. Id. “Inherent in ‘to ascertain’ is ‘to investigate.’” Davidson v. Denning, 259 Kan.
659, 675, 914 P.2d 936, 946 (1996); Berndt v. Kramer, 249 Fed.Appx. 45, 51 (10th Cir. 2007).
The time the plaintiff could have first filed and prosecuted an action to a successful conclusion
determines when an action accrues. Michaelis, 296 P.3d at 444-45. The statute of limitations may
start to run even when the plaintiff does not know of the negligent act. Berndt, 249 Fed.Appx. at
50. Were a plaintiff able to wait to file an action until directly confronted with evidence of a
negligent act, the statute of limitations may never begin. Kelley v. Barnett, 23 Kan. App. 2d 564,
571, 932 P.2d 471, 477 (1997). If an injury is reasonably ascertainable, the plaintiff has the duty
to investigate any possible negligence, unless “the information necessary to determine
negligence is concealed or otherwise unreliable.” Id.
K.S.A. § 60-513(b) states:
Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be
deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if
the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of
limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party,
but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to
the cause of action.
Defendant alleges that the injury in question was clear and ascertainable on December 1,
2014, and therefore the statute of limitations should bar this claim that was brought on January 7,
2017. To rebut this, plaintiffs contend that defendant’s negligence became discernable only when
Dorothy’s prior fall was reported to Mark Funk. Additionally, plaintiffs contend that a fall does
not indicate negligence by anyone because “people frequently fall without actionable
negligence,” and, “[e]lderly persons, including those in nursing homes, often fall and sustain
serious injury.” (Dkt. 16, at 3).
However, the injury and the fall were both reasonably ascertainable at the time of the
December fall. Whether or not defendant had an obligation to inform plaintiffs of the non-injury
fall that occurred in October has no bearing on whether or not plaintiffs could have investigated
the December fall. Because the December fall and injury were both ascertainable at the time,
plaintiffs had a duty to investigate possible negligence.
Estoppel is an exception to the general rule that “nothing can interrupt the running of the
statute of limitations.” Friends Univ. v. W. R. Grace & Co., 227 Kan. 559, 563-64, 608 P.2d 936,
941 (1980). Estoppel may be invoked when a defendant’s own deception prevented the plaintiff
from being able to timely bring its claim. Barnes v. United States, 776 F.3d 1134, 1149 (10th
Cir. 2015). This deception requires an intentional or fraudulent concealment, in the absence of a
confidential or fiduciary duty, that is an affirmative act designed to prevent, and does prevent,
the discovery of the cause of action. Doe v. Popravak, 2017 WL 2494958 at *1. Further, there
must be some actual deception used to prevent knowledge, affirmative concealment, or some
misrepresentation to exclude suspicion and prevent injury. Friends Univ., 227 Kan. at 564. The
question to ask is whether there was a “design to prevent the discovery of the facts which gave
rise to the action,” and whether the “act operated as a means of concealment.” Id.
Plaintiffs allege that despite their diligence, defendant “delayed releasing medical records
until long after Dorothy’s death” and that defendant also “altered or misrepresented the facts by
openly posing a fall-prevention grab bar in Dorothy’s empty bed.” & 25, 26, and 30 of amended
complaint. However, the plaintiffs do not specify if or when they asked for the records, how long
they had to wait to receive the documents, or any facts which would support a claim of actual
deception. There is nothing before the court which would support a determination that defendant
acted with a design to prevent the discovery of facts. If there was any delay in producing the
records, this would only serve as a red flag to a reasonable people, and futher highlighting the
need to investigate.
Moreover, the placement of a grab bar in Dorothy’s empty bed did not prevent plaintiffs
from being able to investigate the December 1, 2014, fall. Having a grab bar on the bed is
consistent with continuing to try to protect Dorothy from a fall once she returned from the
hospital. Because there was an ascertainable fall and nothing to suggest a design to prevent the
discovery of the facts giving rise to the action, the court grants defendant’s motion to dismiss
The court further denies plaintiff’s request to amend the complaint. Ordinarily, a court
will freely grant leave to amend a complaint, in order to “safeguard a plaintiff's opportunity to
test her claims on the merits.” Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 559
(10th Cir. 1997). However, a court “may deny a motion for leave to amend as futile when the
proposed amended complaint would be subject to dismissal.” Id. at 562
Here, the proposed amended complaint supplies nine additional factual paragraphs which
focus on the state of knowledge held by Ms. Funk’s sons (Dkt. 14-1, at 6-8), but do not alter the
fundamental nature of the case, or the essential facts that an injury occurred in December, 2014,
that the injury was of a manifest and serious nature, and of a type which should alerted plaintiffs
of the need to investigate the incident. K.S.A. 60-513 required plaintiffs to bring their lawsuit
within two years of the December 1, 2014 fall but failed to do so.
IT IS ACCORDINGLY ORDERED on this 15th day of August, 2017 that plaintiffs’
Motion to Amend (Dkt. 14) is denied as futile; defendant’s Motion to Dismiss (Dkt. 9) is granted
such that Count I of plaintiffs’ Petition is hereby dismissed with prejudice.
___s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE
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