F I L E D United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 28 1998
TENTH CIRCUIT PATRICK FISHER Clerk __________________________
CINDI SAPORITO,
Plaintiff-Appellant,
v. No. 97-3086 (D.C. No. 94-1553-MLB) BOARD OF COMMISSIONERS OF THE (D. Kan.) COUNTY OF LABETTE, KANSAS,
Defendant-Appellee. __________________________
ORDER AND JUDGMENT* __________________________
Before ANDERSON and KELLY, Circuit Judges, and BRETT,** District Judge. __________________________
Cindi Saporito, (“Saporito”), appeals an order of the United States District Court for
the District of Kansas granting summary judgment to the Board of Commissioners of the
County of Labette, Kansas (“County”) on Saporito’s claims for negligent failure to conduct
a proper search and negligent failure to continue a proper search. Saporito also appeals an
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.
Honorable Thomas R. Brett, District Judge, United States District Court for the **
Northern District of Oklahoma, sitting by designation. adverse jury verdict on her claim for negligent failure to warn, asserting the court gave
erroneous jury instructions. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. For
the reasons expressed below, the trial court is affirmed.
I. Background
This action was brought by Saporito, known as Cindi Roberts at the time of the
incident which gave rise to this litigation , to recover damages for the wrongful death of her
3-year-old daughter, Sarah Roberts (“Roberts”) on December 17, 1992. Roberts died from
severe hypothermia after Saporito drove her vehicle into floodwaters on a rural county
gravel road in sub-freezing weather. Saporito and Roberts were able to escape from the
partially submerged and disabled vehicle, but were not discovered until the following
morning. Roberts died sometime during the night and Saporito was initially believed to be
dead when found. Saporito also sought damages for physical and mental injuries to herself
arising from the incident. Saporito filed this action against County for negligently failing
to erect traffic signs warning of periodic flooding and for negligently failing to perform its
law enforcement duties in commencing and continuing a search for Saporito and Roberts
after they were reported missing.
The sequence of events which led to the fatal accident began at approximately 5:30
p.m. on December 17, 1992, when Saporito left her rural home to pick up Roberts at her
babysitter in Parsons, Kansas. Saporito’s home was located on Strauss Road, which
Saporito knew was impassible due to the flooding of the Neosho River based upon the level
-2- of water surrounding her home and from radio news reports. Saporito exchanged Christmas
presents with the babysitter and then drove through Parsons to view the holiday lights with
her daughter.
At approximately 7:00 p.m., Saporito began the drive home, taking the usual alternate
route she followed when the Neosho River flooded. The alternate route was a gravel road
two miles east of the Strauss Road intersection. However, Saporito was singing Christmas
carols with her daughter and inadvertently turned on the road one mile east, which appeared
to be identical to the correct road, until it abruptly ended in a “T” intersection.
Believing she had traveled far enough south to be beyond the flooding, she turned
west on Road 22,000, a road with which she was not familiar. Saporito crossed a bridge
traversing Litup Creek , a tributary of the Neosho River, and drove into icy floodwaters on
the far west side of the bridge. The engine of her vehicle died as the water rose above the
base of the car windows and poured into the floorboard. Saporito felt the current carrying
the rear of the vehicle downstream. She then removed Roberts from her restraint seat and
carried her through chest-high frigid water, slipping several times, completely submerging
the pair. After reaching the bridge, Saporito lost consciousness, peripherally aware of
Roberts’ crying and walking in circles around her.
At about 7:00 p.m., Saporito’s 9-year-old son telephoned family friends, Rick and
Kelly Neel, concerned that his mother had not returned home. The Neels began to search
for the now-missing pair. At one point, the Neels traveled down the same road as Saporito
-3- but were stopped by floodwaters before reaching the bridge which Saporito had crossed and
on which she and Roberts collapsed. Rick Neel flashed his headlights toward the bridge and
called to Saporito but saw no one and heard no response.
At about 9:00 p.m., Gary Saporito, Cindi’s then fiancé, arrived home and began
contacting friends and the local hospital in an effort to find Saporito and Roberts. Rick Neel
(“Neel”) joined Gary Saporito and the two continued to search for the missing woman and
child. At one point they returned to the road leading to the bridge with a hand-held halogen
spotlight but were still unable to locate the missing pair. At approximately 11:30 p.m., Neel
called the Labette County Sheriff’s Department, identified himself as Saporito’s father, and
advised there must have been a serious accident or foul play involving the missing persons.
Neel requested an immediate search be instigated for them. The dispatcher put out an
attempt to locate (“ATL”) bulletin to the two patrolling deputies, one of whom kept a
lookout for the missing pair until he went off duty at 1:30 a.m. Gary Saporito and Neel
continued to search throughout the night. A photograph of the missing pair was taken to the
Sheriff’s office between 2:00 a.m. and 3:00 a.m. by Gary Saporito and Neel. The remaining
deputy went off duty at approximately 4:00 a.m. No search personnel were available until
the next shift came on duty at approximately 7:00 a.m. At about that time, Neel was
organizing a more intense search effort with friends and neighbors.
At approximately 8:00 a.m. the next morning, Deputies Eric Charles and Ken Hicks
drove to the Srauss Road area. They drove through high water on Strauss Road and
-4- approached the intersection with Road 22,000, which remained flooded. As they were
turning around to exit the floodwaters, they looked east and saw Saporito’s partially
submerged vehicle. Looking toward the bridge, they first thought they saw two logs which
had been deposited on the bridge by floodwaters. Upon closer inspection, they discovered
that the two objects they saw were Saporito and Roberts; Roberts dead and Saporito,
unconscious but alive.
II. Standard of Review
We review the district court’s grant of summary judgment de novo, applying the same
standard as employed by the district court. Bohn v. Park City Group, Inc., 94 F.3d 1457,
1460 (10th Cir. 1996). Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Williams v. Widnall, 79 F. 3d 1003, 1005 (10th Cir. 1996).
The moving party has the initial burden of showing that there is no genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this
burden, the party opposing a properly supported motion for summary judgment must offer
evidence, in admissible form, of specific facts sufficient to raise a genuine issue for trial as
to the elements of the non-moving party’s case. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, to defeat a summary judgment motion, the
-5- non-movant “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Id. at 586.
In applying this standard, we must “examine the factual record and reasonable
inferences therefrom in the light most favorable to the non-moving/opposing party.” Kidd
v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). If no dispute exists concerning
a genuine issue of material fact, we then determine whether the district court correctly
applied the substantive law. Peck v. Horrocks Engineers, Inc., 106 F.3d 949, 951 (10th Cir.
1997).
The standard for review as to Saporito’s claim of error in the district court’s jury
instructions, if properly raised on appeal, is whether the jury was misled in any way and
whether it had understanding of the issues and its duty to determine those issues. Wheeler
v. John Deere Co., 935 F.2d 1090, 1102 (10th Cir. 1991).
III. Analysis
Saporito and County filed cross motions for summary judgment in the district court.
Saporito’s motion was denied. The district court granted County’s motion regarding
Saporito’s claims of negligence in the conduct of the search. County’s motion as to
Saporito’s claim of negligent failure to sign was denied. A jury trial followed on that claim
which resulted in a verdict for County.
Saporito’s first assertion is that the district court erred in granting summary judgment
to County on Saporito’s claim of negligent failure to conduct a proper search based upon
-6- Saporito’s failure to substantially comply with the notification requirements of the Kansas
Tort Claim Act, Kan.Stat.Ann. § 12-105b(d) (1991), (“Tort Claim Act”) . This statute
provides, in pertinent part, as follows:
Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claim act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) the name and address of the claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim . . . . (emphasis added)
The notice of claim sent on behalf of Saporito was dated August 16, 1994, and reads as
follows, in pertinent part:
Our firm has been retained by Ms. Cindi Saporito to represent her interests, and those of the Estate of her deceased three year old daughter, against Labette County for injuries and damages arising from an incident on or about December 18, 1992, as a result of the county’s negligence. This letter is being sent pursuant to, and in compliance with KANSAS STATUTES ANNOTATED SECTION 12-105(a) [sic], prior to initiating a lawsuit. Pursuant to KANSAS STATUTES ANNOTATED SECTION 12-105a(d) [sic], you are hereby given notice of the following: .... As Mrs. Roberts drove west on the county road, she approached a low water bridge. No signs or warnings were posted to indicate the presence of high water or a flooded roadway. Mrs. Roberts drove her car onto the bridge and immediately ran into deep, running water that covered the roadway for approximately 120 feet....
-7- The current swept the vehicle from the road and carried it a distance downstream. It was very dark at the time of the incident, approximately 9:30 p.m.; it was very cold in late December; and Mrs. Roberts had been detoured onto a road which she had never traveled. Mrs. Roberts took Sara [sic] in her arms and got out of the vehicle. She struggled to wade through very deep, running water back to the low water bridge where she collapsed. Mrs. Roberts and Sara [sic] were discovered the next morning at approximately 9:00 a.m. by Labette County Sheriff’s Officers . .... If the county is not the entity responsible for posting detour and/or warning signs at the location of this incident, please notify us immediately. (emphasis added)
The district court determined the demand letter did not substantially comply with the
provisions of the Tort Claim Act in placing County on notice of a claim for negligent failure
to conduct a proper search. We agree.
The only claim of negligence of which County was potentially notified by this letter
was one for failure to post warning signs about flood conditions. There is no mention of
failure to properly conduct a search. The fact that the letter references the pair was
“discovered” by sheriff’s officers does not assert a failure to exercise reasonable care in the
search. Saporito correctly states that the purpose of the Tort Claim Act is in part to provide
a unit of government with the opportunity to ascertain the facts attending the events at a time
while the occurrence is fresh in the minds of those possessing knowledge of the subject.
However, under Saporito’s argument, a notice would require nothing beyond the recitation
of the facts of the incident, leaving defendants subject to any possible causes of action which
might be asserted from those facts. Such an interpretation is contrary to the purpose and
intent of the Tort Claim Act, which initially is to allow government to be apprised of and
-8- honor legitimate claims for redress without the expense and distraction of litigation.
Substantial compliance requires a plaintiff to state facts sufficient to constitute “a concise
statement of the factual basis of the claim...and circumstances of the act, omission or event
complained of.” Kan.StatAnn.§12-105b(d) (1991).
The district court based its decision on the holding in Johnson v. Board of County
Commissioners of Pratt County, 913 P.2d 119 (Kan. 1996), which interprets the provisions
of the Kansas Tort Claim Act. In Johnson, plaintiffs filed a lawsuit for damage to their
property caused by erosion from redirected water flow across their property resulting from
the construction of a new bridge in 1988. A second cause of action was asserted under the
Restatement (Second) of Torts § 323 (1964) for negligence based upon statements made and
remedial work performed by the county after a flood in 1988 which occurred shortly after the
construction of the new bridge.
The Johnson court concluded that the conduct underlying the two causes of action was
separate and distinct. As plaintiff’s notice had addressed only the issue of erosion, it did not
provide the necessary notice to the defendant required by the Tort Claim Act regarding the
second claim asserted.
In this case, Saporito’s notice relates only to failure to post detour and/or warning
signs. This constitutes a separate act or omission from conducting a search for a missing
person. Saporito failed to substantially comply with the notice requirements of
Kan.Stat.Ann. §12-105b(d), which requirements are a condition precedent to commencing
-9- an action against County. Saporito is therefore barred from bringing claims arising from the
alleged negligent search.
The district court also granted summary judgment to County on Saporito’s claim for
failure to continue the search. Saporito asserts she did not discover this claim until discovery
was produced and is therefore excused from the notice requirements of the Tort Claim Act.
However, the complaint filed by Saporito alleges “that defendants negligently failed to
initiate a timely search for plaintiff and her daughter when they were reported lost.”
In response to Saporito’s allegation, County answered that the claim made was
outside the scope of the required notice. Saporito could have cured the defect at that time
but chose to stand on the complaint as pled. Accordingly, the Court finds Saporito failed
to fulfill the condition precedent in regard to her claim for negligent failure to continue the
search and the district court properly granted summary judgment on this claim.
The Court next reviews Saporito’s claims regarding the jury instructions given by the
district court in the negligent signage claim. Saporito urges two instructions are erroneous
and that their inclusion justifies reversal and the granting of a new trial. The allegedly
objectionable instructions are numbers 16 and 19. Instruction number 16 reads as follows:
The law of Kansas provides that a county has the duty to warn drivers using its roadways of a road hazard which is not self-evident so that a driver operating his or her vehicle in a reasonable and prudent manner may perceive, decide and perform a necessary maneuver to avoid hazard. The violation of this duty is negligence.
-10- Instruction number 19 reads:
The law of Kansas provides that a county is not liable for temporary conditions on a roadway due to weather. Labette County has the burden of proof on this issue.
Saporito asserts instruction number 16 misstates Kansas law and is prejudicial to
Saporito, and that a proper instruction would have resulted in a different verdict. Saporito
urges the duty to warn extends to all drivers, not only to those who are reasonable and
prudent.
Saporito asserts instruction number 19 is contrary to the law of the case as stated in
the Memorandum and Order of the district court dated December 12, 1996, in which the
court concluded that the definition of weather “does not include floods, although it assuredly
includes events that cause floods.”
County counters that this Court is procedurally barred from reviewing the instructions
based upon Saporito’s failure to provide a trial transcript. Alternatively, County states
instruction number 19 does not conflict with the district court’s prior rulings and both
instructions properly state the law of Kansas. Finally, County asserts any error is harmless
because the jury did not reach the affirmative defense of government immunity which is the
subject of the challenged instruction number 19.
We hold Saporito failed to provide an adequate record against which the Court may
review the jury instructions given. Further, had an adequate record been provided, it is clear
from the verdict form that the jury never progressed beyond an initial finding that Saporito
-11- failed to establish the County was at fault under Saporito’s case in chief and therefore never
considered instruction 19 regarding the affirmative defense. Finally, the Court concludes
instruction number 16 is an accurate recitation of Kansas statutory law and instruction
number 19 is consistent with case law. As such, and absent evidentiary background to
establish otherwise, the instructions are not misleading.
This circuit has long held that when reviewing a jury charge to determine its propriety
the Court must consider all the jury heard and then view the charge from the jury’s
perspective. King v. Unocal Corp., 58 F.3d 586, 587 (10th Cir. 1995), (quoting Considine
v. Newspaper Agency Corp., 43 F.3d 1349, 1365 (10th Cir. 1994)). Instructions need not
be faultless in every particular but must leave the jury with an understanding of the issues and
its duty to determine those issues. The dispositive issue, when considered in the context of
the entire proceeding, is whether the instructions were misleading in any way. Shamrock
Drilling Fluids, Inc., v. Miller, 32 F.3d 455 (10th Cir. 1994).
It is “appellant’s responsibility to order and provide all portions of the transcript
necessary to give the Court of Appeals a complete and accurate record of the proceedings
insofar as such proceedings relate to the issues raised on appeal.” 10th Cir. R. 10.1.1. The
rule recognizes that occasions will arise where a complete transcript is not necessary or when
a partial transcript is sufficient.
Two appellate rules address the record necessary for consideration of jury instructions
on appeal. 10th Cir. R. 10.3.1(e) provides that all jury instructions should be included as
-12- well as proposed instructions which were refused. 10th Cir. R. 10.3.2(a) states: “when an
appeal is based upon ...the giving or failure to give a jury instruction ...a copy of the pages
of reporter’s transcript at which the evidence, offer of proof, instruction, ruling or order, and
any necessary objection are recorded, should be included in the record.”1
In this case, as in King, supra., Saporito provided no transcript or excerpts of the
proceedings below detailing the evidence at trial on which the district court relied in
fashioning appropriate instructions. It is appellant’s responsibility to provide such record.
10th Cir. R. 10(b)(2). Further, the Court is under no obligation to remedy any failure of
counsel to fulfill that responsibility. Deines v. Vermeer Mfg. Co., 969 F.2d 977 (10th Cir.
1992). Absent that record, this Court has no context within which to evaluate the correctness
of the instructions.
The Court notes, however, that substantive grounds appear in the record which
support a finding that the jury instructions given were proper. In particular, the court
prepared a verdict form which progressively addressed the issues presented in the following
order: Saporito’s case in chief, County’s defense, comparative negligence, County’s
affirmative defense and finally, calculation of damages. The first question on the verdict
form was, “Do you find Labette County to be at fault? (Answer “yes” or “no”).” The jury
placed a checkmark beside the space provided for “No.” Immediately following this, the
1 Saporito provided only the transcript of the instruction conference. No proposed instructions were proffered.
-13- form states: “If no, sign and date verdict, and notify the law clerk that verdict has been
reached. If your answer is yes, proceed to answer question 2.”
The instruction format also followed the same progression. The court first gave
standard opening instructions. In instruction number 12, the court set forth the claims and
defenses of the parties, beginning with a statement of the case-in-chief and explaining the
appropriate burden of proof. Affirmative defenses are then explained, along with the burden
of proof for these.2 Instructions regarding comparative fault are given next, followed by
instructions on Kansas law.
2 Instruction number 12 reads: The plaintiff, Cindi Saporito, claims that she was injured, that her daughter died, and that she sustained damages as a result of the fault of the defendant, Labette County, in failing to maintain its roads in a reasonably safe condition by failing to erect warning signs of a road hazard that was not self-evident: water on Road 22000 at the Litup Creek bridge. The defendant asserts that the hazard was self-evident, denies that the absence of a warning sign caused the accident, and denies that the plaintiff was injured or damaged to the extent she claims. The plaintiff has the burden of proving that her claims are more probably true than not true. The defendant claims, as affirmative defenses, that the plaintiff was at fault in failing to drive with appropriate caution given the information known to her at the time of the accident, failing to keep a proper lookout, failing to keep her vehicle under proper control, driving at a speed greater than is reasonable under the conditions and hazards then existing, and driving into water without knowing the depth and current. The defendant also claims that the flooded roadway was a temporary condition caused by weather. The plaintiff denies that she was at fault in any way and denies the flood was caused by weather conditions. The defendant has the burden of proving its affirmative defenses are more probably true than not true. These are merely the claims and defenses of the parties. The claims and defenses themselves are not evidence.
-14- Instruction number 16 deals with an issue which was necessarily considered by the
jury in rendering its verdict. The absence of a trial transcript however prevents the Court
from determining whether the evidence conflicted with the instruction. The Court finds the
inclusion of the term “reasonable and prudent manner” is consistent with the Kansas
Supreme Court’s previous ruling in a construction zone warning sign case, Sterba v. Jay, 249
Kan. 270, 816 P.2d 379 (1991), that the duty to warn is owed to the “ordinarily observant
driver.” The Court notes no appreciable difference in the meaning of “reasonable and
prudent” and “ordinarily observant” which so misstates the law as to mislead the jury.
Instruction number 19 addresses the affirmative defense of liability for temporary
conditions due to weather. The language of this instruction is taken directly from the Kansas
statute, Kan. Stat. Ann. §75-6104. No qualifying instructions follow. It is on its face an
accurate statement of the law of the state and absent additional record to establish it is
misleading in light of the testimony at trial, is not misleading so as to justify reversal of the
verdict rendered. Further, the instruction is not inconsistent with the district court’s prior
order. The court’s ruling was made in the context of interpreting the statutory exceptions to
governmental immunity carved from the Kansas Tort Claim Act, specifically Kan.Stat.Ann.§
75-6104(l).3 Moreover, the jury did not reach the issue of this affirmative defense as it
returned its verdict based upon the conclusion that Labette County was not at fault.
3 This section provides a governmental entity shall not be liable for damages resulting from “temporary or natural conditions on any public way or other public place due to weather conditions.”
-15- Inferentially, the jury found Saporito did not meet her burden of proof. This Court
concludes the district court’s instructions were proper given the record presented.
AFFIRMED.
Entered for the Court
Thomas R. Brett, Senior District Judge
-16-