Hennessey v. University of Kansas Hospital Authority

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 2, 2026
• Docket: 24-3163
• Status: Unpublished

Opinion

Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 2, 2026 _________________________________ Christopher M. Wolpert Clerk of Court TAMATHA HENNESSEY,

Plaintiff - Appellant,

v. No. 24-3163 (D.C. No. 2:21-CV-02231-EFM) UNIVERSITY OF KANSAS HOSPITAL (D. Kan.) AUTHORITY,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, Chief Judge, TYMKOVICH, and MORITZ, Circuit Judges. _________________________________

Tamatha Hennessey brought this action against the University of Kansas

Hospital Authority (UKHA), alleging that a hospital employee sexually assaulted her

during a radiologic procedure. She claimed UKHA negligently failed to supervise

the employee. The district court granted summary judgment to UKHA, reasoning

that Hennessey had not established a genuine factual issue about whether the assault

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 2

was foreseeable to UKHA. Hennessey appeals pro se from the district court’s

judgment. 1 We have jurisdiction, see 28 U.S.C. § 1291, and we affirm.

BACKGROUND

1. UKHA and its employee, McIntire

UKHA is a Kansas governmental entity that is charged with operation of the

University of Kansas Hospital (Hospital). During the events relevant to this dispute,

UKHA employed Jonathan McIntire as an MRI technician at the Hospital.

2. Hennessey’s MRI

On February 12, 2019, Hennessey arrived at the Hospital’s emergency

department presenting a variety of complaints, including chest, shoulder, and jaw

pain. Early the next morning, she underwent x-rays of her chest and right shoulder.

Later that morning, a doctor ordered MRIs of her cervical spine and right upper

extremity.

Hennessey requested to be sedated during the procedure. A Hospital nurse

gave her an intravenous dose of Ativan, a benzodiazepine drug, to prepare her for the

MRI.

Around 9:45 a.m., McIntire transported Hennessey to the MRI machine.

During the MRI procedures, he was alone with Hennessey. He performed four MRI

procedures. According to the MRI report he had to repeat some of the imaging

sequences because the images showed her moving during the procedures. The last

1 We liberally construe Hennessey’s pro se filings, but we do not act as her advocate. See Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023). 2 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 3

MRI image was completed at 12:39 p.m. Surveillance camera footage shows him

transporting her back to the emergency department at 1:08 p.m.

After Hennessey returned to the emergency department, a hospital social

worker visited her to complete a discharge planning assessment, but Hennessey was

asleep and could not wake up enough to speak with the social worker. She later

assisted in completing the discharge paperwork and was discharged from the Hospital

at 3:39 p.m. During the discharge process she did not make any accusations of

inappropriate conduct against McIntire.

3. The criminal proceedings against McIntire

Hennessey later filed a report with the University of Kansas police, claiming

that McIntire had assaulted her. He was charged with a felony in Kansas district

court. Hennessey testified at his preliminary hearing that she was in and out of

consciousness during the MRI procedure, but at one point she awoke to find McIntire

fondling her breasts and touching them with his mouth. Hennessey asserts that DNA

evidence supports her testimony.

McIntire denied Hennessey’s allegations. He stated during his deposition

testimony that the only contact he would have had with Hennessey’s breasts would

have been incidental when he removed five EKG leads with potentially ferrous

materials prior to performing the MRIs. Before McIntire’s criminal trial could take

place, the State of Kansas dismissed all charges against him.

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4. Procedural history of this action

After an initial filing in state court that she voluntarily dismissed, Hennessey

filed a pro se complaint in the District of Kansas, advancing a single claim against

UKHA of negligent supervision under Kansas law. The action proceeded under the

court’s diversity jurisdiction.

UKHA filed a motion to dismiss. It asserted Eleventh Amendment immunity

as an arm of the state. See Hennessey v. Univ. of Kan. Hosp. Auth., 53 F.4th 516,

527-28 (10th Cir. 2022) (discussing scope of Eleventh Amendment immunity).

UKHA also argued that as an instrumentality and arm of the state of Kansas it was

not a citizen of any state for purposes of diversity jurisdiction. UKHA did not

present any factual support for its arguments and did not analyze the factors

governing whether it was an arm of the state.

The district court nevertheless dismissed the action, finding after a sua sponte

analysis of the relevant factors that UKHA was an arm of the state and therefore

immune from Hennessey’s suit. Hennessey appealed. We concluded that it was

UKHA’s burden to demonstrate it was an arm of the state, id. at 531, and that UKHA

had failed to meet its burden with appropriate facts and argument, see id. at 525, 542.

In particular, “the district court erred in concluding that UKHA is not autonomous

under the language of the University of Kansas Hospital Authority Act [UKHAA].”

Id. at 524. We therefore vacated the dismissal and remanded for further proceedings.

Id. at 542-43. We stated that on remand, UKHA could “opt to renew its [Fed. R. Civ.

4 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 5

P.] 12(b) motion or to file an answer so the case may proceed to the next step in

litigation.” Id. at 543.

On remand, UKHA filed an answer to Hennessey’s complaint, followed by its

motion for summary judgment in which UKHA raised several other defenses to her

claim, including sovereign immunity under state law. The district court granted

summary judgment to UKHA on one of these defenses: that Hennessey had failed to

establish a genuine issue of material fact concerning the foreseeability to UKHA of

McIntire’s alleged assault.

DISCUSSION

“We review summary judgment decisions de novo, applying the same standard

as the district court.” Mauldin v. Driscoll, 136 F.4th 984, 993 (10th Cir. 2025). A

district court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We can affirm summary judgment on any

ground adequately supported by the record, so long as the appellant has had a fair

opportunity to address the alternative ground. Lowther v. Children Youth & Fam.

Dep’t, 101 F.4th 742, 760 (10th Cir. 2024).

“When, as here, a federal court is exercising diversity jurisdiction, it must

apply the substantive law of the forum state,” which in this case is Kansas. N.H. Ins.

Co. v. TSG Ski & Golf, LLC, 128 F.4th 1337, 1344 (10th Cir. 2025). We review

questions of state law de novo, with the goal of either applying the most recent

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statement of the Kansas Supreme Court on an issue or predicting how the Kansas

Supreme Court would rule on the issue if presented to it. Id. at 1344-45.

1. Jurisdictional Issues

This case presents threshold jurisdictional issues. We review questions

concerning subject-matter jurisdiction de novo. See, e.g., Interstate Med. Licensure

Compact Comm’n v. Bowling, 113 F.4th 1266, 1273 (10th Cir. 2024).

A. Eleventh Amendment immunity

In our previous decision we did not ultimately determine whether UKHA was

an arm of the state. We left that issue to the district court on remand. Hennessey,

53 F.4th at 543. But on remand UKHA chose not to reassert an Eleventh

Amendment defense and instead raised other defenses on summary judgment,

including sovereign immunity based on the Kansas Tort Claims Act (KTCA). See,

e.g., Jones v. Kan. Dep’t of Corr., 376 P.3d 774, 776 (Kan. Ct. App. 2016)

(distinguishing between Eleventh Amendment immunity and sovereign immunity as

codified in the KTCA). Nor does UKHA attempt to re-assert an Eleventh

Amendment defense on appeal. Although Eleventh Amendment immunity is

jurisdictional, it may be waived. See Hennessey, 53 F.4th at 527. By abandoning its

Eleventh Amendment argument without presenting additional facts on that issue as

we contemplated, UKHA waived its assertion of Eleventh Amendment immunity.

B. Diversity jurisdiction

In our previous decision we also discussed UKHA’s argument that if it was an

arm of the state, diversity jurisdiction would be lacking. See Hennessey, 53 F.4th at

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531-32 (noting that a state and its arms or alter egos are not “citizens” of any state for

diversity purposes). But we placed the burden with UKHA to support its

diversity-based argument by demonstrating factually that it is an arm of the state.

Hennessey, 53 F.4th at 532. By abandoning its “arm of the state” argument without

further factual development, UKHA presented at most a facial rather than a factual

attack on diversity jurisdiction. Such an attack requires us to look at the face of the

complaint and to accept its allegations as true. Graff v. Aberdeen Enterprizes, II,

Inc., 65 F.4th 500, 507 (10th Cir. 2023). We already did so, and we found them

sufficient to invoke diversity jurisdiction in the federal courts. See Hennessey,

53 F.4th at 542 n.13; see generally Moor v. Cnty. of Alameda, 411 U.S. 693, 717

(1973) (“[A] political subdivision of a State, unless it is . . . the arm or alter ego of

the State, is a citizen of the State for diversity purposes.” (internal quotation marks

and footnote omitted)), overruled on other grounds by Monell v. N.Y. City Dep’t of

Soc. Servs., 436 U.S. 658, 690 (1978). We therefore have no further basis to inquire

into diversity jurisdiction here.

2. Sovereign immunity under the KTCA

In its summary judgment motion, UKHA raised a sovereign immunity defense,

providing several reasons why it had not waived its immunity under the Kansas Tort

Claims Act (KTCA). The district court did not address this sovereign immunity

issue, and instead resolved the case on the merits. But under Kansas law sovereign

immunity is jurisdictional, see, e.g., Purvis v. Williams, 73 P.3d 740, 750

(Kan. 2003), and “courts are compelled to address it,” State ex rel. Schmidt v. Nye,

7 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 8

440 P.3d 585, 589 (Kan. Ct. App. 2019). We therefore consider whether sovereign

immunity bars Hennessey’s claim.

The sovereign immunity inquiry in this case requires us to answer two

questions: (1) is UKHA a governmental entity that may benefit from sovereign

immunity? and (2) if so, has the KTCA waived that immunity for Hennessey’s claim?

A. UKHA is a governmental entity.

In Kansas, sovereign immunity extends to governmental entities, Zaragoza v.

Bd. of Comm’rs, 571 P.3d 545, 553 (Kan. 2025), including both the state and

municipalities, Kan. Stat. Ann. § 75-6102(c). The state includes “the state of Kansas

and any department or branch of state government, or any agency, authority,

institution or other instrumentality thereof.” Id. § 75-6102(a). Municipalities include

“any county, township, city, school district or other political or taxing subdivision of

the state, or any agency, authority, institution or other instrumentality thereof.” Id.

§ 75-6102(b).

Hennessey argues UKHA is “simply a hospital” rather than a governmental

entity. Aplt. Opening Br. at 5. We disagree. 2 Under the UKHAA, UKHA is an

instrumentality of the state of Kansas that performs “an essential governmental

2 We also disagree that our prior decision established that UKHA is not a governmental entity. To the contrary, we assumed that the UKHAA potentially provided “a sufficient basis to resolve” UKHA’s “characterization” in favor of Eleventh Amendment immunity, even if other immunity factors had not been resolved. Hennessey, 53 F.4th at 533. 8 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 9

function.” See Kan. Stat. Ann. § 76-3304(a). And the UKHAA specifically provides

that UKHA is subject to the KTCA. See id. § 76-3315.

B. The KTCA’s discretionary function exception applies.

The KTCA waives sovereign immunity for a governmental entity sued “‘for

damages caused by the negligent or wrongful act or omission of any of its employees

while acting within the scope of their employment under circumstances where the

governmental entity, if a private person, would be liable under the laws of this

state.’” Hill v. State, 448 P.3d 457, 469 (Kan. 2019) (quoting Kan. Stat. Ann.

§ 75-6103(a)). Hennessey’s negligent supervision claim relies on direct, rather than

vicarious liability. See, e.g., Estate of Belden v. Brown Cnty., 261 P.3d 943, 967

(Kan. Ct. App. 2011) (stating theories of liability based on negligent hiring, training,

and supervision “impose direct liability on an employer or policymaker rather than

vicarious liability for the misconduct of an underling”). Because the KTCA

“essentially subject[s] governmental entities to vicarious liability under the doctrine

of respondeat superior,” Schreiner v. Hodge, 504 P.3d 410, 422 (Kan. 2022), UKHA

reasons the KTCA does not waive sovereign immunity for a direct-liability claim

based on negligent supervision, like Hennessey’s claim. 3

3 Hennessey appears to agree with UKHA’s premise but draws a contrary conclusion from it. She argues that if her negligent supervision claim does not fall within the KTCA, UKHA cannot assert a sovereign immunity defense against that claim. But her argument rests on a misunderstanding of how the KTCA works. At early common law, the state of Kansas and its political subdivisions had blanket immunity from civil actions. See Zaragoza, 571 P.3d at 553. The KTCA, adopted in 1979, modified this common-law doctrine to “permit[] individuals to bring tort claims against all state and local governmental entities, subject to the limitations of 9 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 10

We need not resolve this issue, because even assuming the KTCA applies,

UKHA argues that Hennessey’s claim is barred by its discretionary function

exception. The KTCA’s discretionary function exception provides that “[a]

governmental entity or an employee acting within the scope of the employee’s

employment shall not be liable for damages resulting from . . . any claim based upon

the exercise or performance or the failure to exercise or perform a discretionary

function or duty on the part of a governmental entity or employee, whether or not the

discretion is abused and regardless of the level of discretion involved.” Kan. Stat.

Ann. § 75-6104(a)(5).

UKHA argues that Hennessey’s negligent supervision claim, which targets

UKHA’s exercise of discretion in supervising McIntire—including the need for

policies concerning chaperoning patients or otherwise protecting them from assault

by treating providers—falls within the discretionary function exception. See Aplee

Br. at 29-33. Hennessey has not adequately developed an argument to the contrary. 4

We therefore affirm the grant of summary judgment to UKHA based on its argument

that the discretionary function exception of the KTCA applies.

the act.” Id. Absent a claim that fits within the KTCA, no such permission to sue a state entity is made available by the statute. 4 In her reply brief, Hennessey asserts that “Kansas courts hold that where mandatory protocols exist or should exist (e.g., requiring a chaperone during vulnerable procedures), the discretionary function defense does not apply.” Reply Br. at 7. This single-sentence argument is not adequately developed, and we therefore decline to consider it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir 2007) (this court will not consider inadequately briefed arguments). 10 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 11

3. Alternatively, we affirm summary judgment on the merits.

Alternatively, we affirm the district court’s decision on the merits. Under

Kansas law, “[w]hen a third party asserts a negligent retention and supervision claim

against an employer, liability results . . . [if] the employer had reason to believe that

an undue risk of harm to others would exist as a result of the employment of the

alleged tortfeasor.” Kan. State Bank & Tr. Co. v. Specialized Transp. Servs., Inc.,

819 P.2d 587, 598 (Kan. 1991). Ordinarily, “[w]hether risk of harm is reasonably

foreseeable is a question to be determined by the trier of fact,” but a court may

determine the question as a matter of law “when reasonable persons could arrive at

but one conclusion.” Beshears ex rel. Reiman v. Unified Sch. Dist., 930 P.2d 1376,

1384 (Kan. 1997) (internal quotation marks omitted).

UKHA argued in district court that it was entitled to summary judgment

because Hennessey had presented no evidence of McIntire’s allegedly dangerous

propensities or that UKHA knew or should have known of those alleged propensities.

Hennessey countered that UKHA could also be liable if she showed it was reasonably

foreseeable that a sexual assault could occur on UKHA’s premises, irrespective of

McIntire’s individual propensities. Like the district court, we find it unnecessary to

determine whether Kansas courts would apply the broader standard Hennessey

advances, “because even considering [her] evidence, it does not create a genuine

issue of material fact as to foreseeability.” R. at 1016.

No genuine factual issue exists about whether McIntire’s alleged assault was

reasonably foreseeable to UKHA. First, UKHA had no reason to foresee that

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McIntire in particular would act outside his employment duties by committing a

sexual assault on a patient. He was licensed by the Kansas Board of Healing Arts as

a radiologic technologist. To become licensed, he underwent an education and

employment verification and a criminal history record check. When hiring him,

UKHA used a third-party agency to perform a background check concerning his

education, employment, and criminal history. The agency verified his information

and reported that he had no known criminal history. And until the events involving

Hennessey, UKHA had received no reports or complaints about sexually

inappropriate conduct involving McIntire.

Hennessey argues the sexual assault was reasonably foreseeable for reasons

that go beyond Hennessey’s personal history or characteristics. She contends the

structural conditions involving her procedure (her isolation in a remote part of the

hospital with McIntire for several hours when she was under the influence of a

prescribed sedative drug) should have alerted UKHA that sexual assault was a

possibility and that it needed to provide closer supervision of McIntire and the

procedure. 5 She also argues that UKHA was on notice that such an attack was

5 Hennessey argues that the length of time it took to complete her MRI scan should have alerted UKHA that something had gone wrong. But she does not cite evidence about the typical time frame required to complete the MRI procedure. Moreover, UKHA explained that completion of the procedure was delayed because it was necessary to re-do some of the images, and it provided a detailed chronology of the MRI scan in its motion for summary judgment, see R. at 698-99, detailing the time frame for each portion of the procedure, which Hennessey did not contest. She fails to show that a delay in completing the procedure, even together with the other structural factors she cites, made a sexual assault reasonably foreseeable to UHKA. 12 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 13

foreseeable because fifteen months before her assault a different patient was

assaulted in a different part of the hospital by a different employee. Finally, she

asserts that UKHA had a statutory duty under Kan. Stat. Ann. § 65-2837(b)(30) to

properly supervise McIntire pursuant to its Code of Conduct.

None of these factors made the attack reasonably foreseeable. The fact that

McIntire’s employment allowed him to be alone for an extended time with a sedated

patient does not indicate that a sexual assault was a reasonably foreseeable result of

his employment. As the district court reasoned, an earlier isolated incident consisting

of an attack in a different area of the hospital by a different type of employee did not

give UKHA reason to anticipate McIntire’s alleged sexual assault. 6 The cited statute

merely explains that UKHA had a duty to properly supervise persons who performed

professional services, not that the harm was foreseeable. As for the Code of

Conduct, Hennessey’s citation indicates that UKHA’s policies prohibit violation of

federal, state, or local laws and regulations—not that a sexual assault violating such

laws was foreseeable to UKHA.

6 Hennessey argues that the prior incident involved an emergency department technician and occurred in the emergency department of the hospital. Because she had also been admitted to the hospital’s emergency department, she contends the prior incident was sufficiently similar to put UKHA on notice of the possibility that McIntire might sexually assault her. But regardless of where in the hospital Hennessey was admitted, the fact remains that she alleges that this incident involved a radiology technician and took place in the radiology department, not the emergency department. And she points to no other similarities in the two incidents that would render the alleged conduct in this case foreseeable. 13 Appellate Case: 24-3163 Document: 41 Date Filed: 01/02/2026 Page: 14

For the reasons we have stated, UKHA was entitled to summary judgment.

We affirm.

Entered for the Court

Nancy L. Moritz Circuit Judge