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BRADLEY v. BOARD OF BUTLER COUNTY COMM'RS.3/3/1995
Christine Bradley appeals the district court's order granting summary judgment in favor of the Board of County Commissioners of Butler County (Butler County) and the City of Andover (Andover).
On April 26, 1991, a tornado struck Andover. Bradley subsequently filed suit in Sedgwick County against Butler County and Andover seeking damages for serious injuries she suffered when that tornado struck her home. She claimed that Butler County and Andover officials were negligent in failing to adequately warn her of the approaching storm.
Both Butler County and Andover filed motions challenging venue and requesting summary judgment. The trial court entered summary judgment for both defendants on grounds that the action arose out of emergency preparedness activities for which Butler County and Andover were immune pursuant to the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. specifically K.S.A. 75-6104(j). The trial court also construed the motion to dismiss on grounds of improper venue as a motion to transfer and ordered the case transferred to Butler County.
We affirm the trial court's order granting the motions for summary judgment and first find as a matter of law that the emergency preparedness exception to the Kansas Tort Claims Act contained in K.S.A. 75-6104(j) protects both defendants from liability to plaintiff under the facts present in this case. That statute reads:
"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable in damages resulting from:
. . . .
(j) any claim based upon emergency preparedness activities, except that governmental entities shall be liable for claims to the extent provided in article 9 of chapter 48 of the Kansas Statutes Annotated."
"Summary judgment is proper where the only question or questions presented are questions of law." Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). It is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the nonmovant. On appeal, this court applies the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Here, there are no material facts in dispute, and the summary judgment motion presents a pure question of law.
Bradley first argues that this statute cannot cloak Butler County with immunity because Butler County did not have in place an approved emergency plan as required by the Kansas Emergency Preparedness Act, K.S.A. 48-904 et seq. (Ensley). She specifically refers to K.S.A. 48-929 (Ensley) which in relevant part reads:
"(d) In accordance with the standards and requirements for disaster emergency plans promulgated by the division of emergency preparedness, each county, city and interjurisdictional disaster agency shall prepare and keep current a disaster emergency plan for the area under its jurisdiction, which has been approved after examination and periodic review by the division of emergency preparedness."
At the time of the tornado, Butler County did not have an emergency preparedness plan that had been approved by the state division of emergency preparedness. In fact, it was the only Kansas county that did not. It had previously submitted one for appr
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