Cansler v. State

The opinion of the court was delivered by We are presented in this case with interlocutory appeals by the plaintiff, Douglas E. Cansler, and by the defendant State of Kansas, in this personal injury action filed pursuant to the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq. Named defendants are the State of Kansas and the Kansas State Penitentiary, to whom we shall refer collectively as the State; and the Sheriff of Leavenworth County, the Leavenworth County Sheriff's Department and the Board of County Commissioners of Leavenworth County, to whom we shall refer as the County. The primary issues are whether the State and the County owed a duty to the plaintiff under the facts of this case and, if so, whether the acts or omissions of the defendants fall within the exceptions contained in K.S.A. 1981 Supp. 75-6104(c), (d) or (m). A brief procedural history is necessary to an understanding of the present posture of the case. The State was originally the only named defendant. Its answer alleged that the Sheriff of Leavenworth County, the Leavenworth County Sheriff's Department and the Board of County Commissioners of Leavenworth County should be joined as parties, pursuant to K.S.A. 60-258a(c), since their negligence contributed to plaintiff's injuries. The trial court sustained the motion and added the additional parties defendant. Plaintiff amended his petition to state a claim against the County. The County and the State then filed motions to dismiss for failure to state a claim upon which relief could be granted, citing K.S.A. 1981 Supp. 75-6104(c), (d) and (m). The trial court sustained both motions and dismissed the case. Plaintiff next filed a motion for rehearing and for leave to file a second amended [234 Kan. 556]