Nelson v. State

311 P.3d 1167

Justin NELSON, Plaintiff,andPatricia DeBolt, Appellant,

v.STATE of Kansas Social and Rehabilitation Services, Appellee.

No. 108,190.

Court of Appeals of Kansas.

Oct. 25, 2013.

Appeal from Wyandotte District Court; David W. Boal, Judge.

Daniel E. Doherty, of Law Office of Daniel E. Doherty, of Overland Park, and Michael D. Gibbons, of The Gibbons Law Firm, of Lee's Summit, Missouri, for appellant.

Gregory A. Lee, of Cooper & Lee, LLC, of Topeka, for appellee.

Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.

MEMORANDUM OPINION

LEBEN, J.

Patricia DeBolt claims purely emotional damages based on the alleged negligence of the State of Kansas. But purely emotional damages caused by another's negligence generally aren't recoverable in Kansas without some associated physical injury. See Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, Syl. ¶ 1, 662 P.2d 1214 (1983). The district court granted summary judgment to the State on DeBolt's claim, based in part on the district court's conclusion that DeBolt had no recoverable damages. We agree with the district court and affirm its judgment.

We will start with an overview of the background facts of the case—only a few of them need to be recited to resolve the legal issues before us. In 1997, DeBolt's 13–year–old son, J.N., was declared a child in need of care by the Johnson County District Court. The court placed J.N. in the legal custody of the Department of Social and Rehabilitation Services (SRS), which then placed J.N. at a facility run by Kaw Valley Center, Inc. While J.N. was there, another resident, Jerry Noblitt, sexually assaulted him. Later, Noblitt stipulated that he had committed two acts of oral sodomy against J.N.; Noblitt was charged with 23 sexual offenses against 10 boys.

Ten days after Noblitt was charged with those offenses, J.N.'s civil legal custody was officially restored to his mother. But J.N. spent the next 10 to 12 months at a juvenile-offender boot camp in Topeka.

Throughout this time, DeBolt said that no one with SRS told her that J.N. had been sexually assaulted. She claims that this “deprived [her] of the opportunity to offer the parental care, education, counseling, training, love and nurturing that her son needed.” DeBolt asserts that SRS had a legal duty to notify her of the assaults against J.N., and she seeks damages for emotional harm caused by the SRS's failure to notify her. She does not claim any economic damages (like lost wages or out-of-pocket economic losses) or damages for any bodily injury to her.

There is more to the story, of course. DeBolt had cooperated with SRS in placing J.N. into SRS legal custody, and she says that an SRS employee told her that SRS would let her know if anything bad happened to J.N. while he was in SRS custody. Legal claims were also made by J.N. against both SRS and Kaw Valley; those clams were settled, as was a claim by DeBolt against Kaw Valley. The story is a sad one and an important one, and we do not mean to diminish its importance by providing only an overview of the background facts. But additional details are not required to determine that the district court correctly found that DeBolt didn't have a valid damage claim against SRS.

Because of the rule under which there are no recoverable damages when only emotional injuries are caused by negligence, DeBolt has tried to frame her lawsuit as making another type of claim. Her precise claims aren't completely clear from her filings in the district court on the summary-judgment motion. She said that her “cause of action is not a bodily injury negligence claim,” but instead “is [a] claim explicitly recognized under K.S.A. 38–141, for infringement upon a parent's fundamental right to exercise primary control over the care and upbringing of her child.” As we explain below, K.S.A. 38–141 cannot turn DeBolt's claim here into something other than one for negligence. And if it's a negligence claim, she has no cause of action because she hasn't suffered any compensable damages.

K.S.A. 38–141(b) provides a statement of Kansas public policy in two respects—first, “that parents shall retain the fundamental right to exercise primary control over the care and upbringing of their children in their charge,” and second, “that children shall have the right to protection from abuse and neglect.” Apparently to make clear that our state's public policy has always respected a parent's right to raise his or her children and a child's right to state protection from abuse and neglect, K.S.A. 38–141(c) provides that subsection (b) shall not be interpreted “to expand, diminish or in any way alter the scope of the rights of parents or children to the extent such rights exist[ed]” when the statute was enacted in 1996.

DeBolt cites the final provision of K.S.A. 38–141, subsection (d), which provides for potential court enforcement of the public-policy objectives set out in subsection (b). Subsection (d) gives parents the right to “maintain a cause of action ... for claims arising under the principles established in subsection (b).” In addition, “[a]ny person authorized by law to act on behalf of a child may maintain a cause of action in the name of such child ... for claims arising under the principles established in subsection (b).”

No appellate cases have discussed K.S.A. 38–141, but we find nothing in its language authorizing a damage claim. Subsection (d) authorizes “claims arising under the principles established in subsection (b).” Parents could sue to enforce their “right to exercise primary care” over their children, and those authorized to act on behalf of a child could sue to enforce the child's “right to protection from abuse and neglect.” But subsection (c) said that nothing in the statement of rights found in subsection (b) expanded the rights already in existence, and any claims authorized under subsection (d) merely carry out “the principles established” in subsection (b). So if parents had a claim for damages for violation of their parental rights before the enactment of K.S.A. 38–141 in 1996 as part of the broad Juvenile Justice Reform Act of 1996, see L.1996, ch. 229, sec. 159, they had the same rights afterwards.

To the extent that K.S.A. 38–141(b) factors into this case at all, it would only be to the extent that it suggests that SRS has a legal duty to DeBolt. To establish liability for negligence against any defendant, including a governmental entity, the plaintiff first must establish that the defendant owed a duty to the plaintiff. See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 585–86, 214 P.3d 1173 (2009). But even if we assume the existence of an SRS legal duty to DeBolt on these facts, DeBolt has no negligence claim because Kansas does not allow negligence claims for purely emotional damages. See Hoard, 233 Kan. 267, Syl. ¶ 1; see also Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988); Stephenson v. Honeywell Int'l, Inc., 669 F.Supp.2d 1259, 1262 (D.Kan.2009); Westerbeke, Survey of Kansas Tort Law: Part II, 50 U. Kan. L.Rev. 225, 259 (2002).

DeBolt also cites to some cases in which emotional damages have been allowed, each arising with respect to a specific type of claim for which such damages have been recognized. E.g., Monroe v. Darr, 221 Kan. 281, 286–87, 559 P.2d 322 (1977) (allowing recovery for mental anguish in a suit for breach of the right to privacy in one's own home); Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1253 (10th Cir.2005) (allowing recovery for mental anguish in suit filed under anti-discrimination statutes). DeBolt argues that her rights as a parent are similar to the “fundamental personal rights” at issue in those cases, and she again cites to K.S.A. 38–141. As we have explained, that statute did not create any new rights, and we do not...