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No. 120,472

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

UNIVERSITY OF KANSAS HOSPITAL AUTHORITY,

Appellee/Cross-appellant,

v.

BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, KANSAS,

Defendant/Cross-appellee,

and

CITY OF OTTAWA, KANSAS,

Appellant/Cross-appellee.

SYLLABUS BY THE COURT

1.

K.S.A. 2019 Supp. 22-4612 requires certain government agencies to pay the 

medical expenses incurred by persons in their custody.

2.

K.S.A. 2019 Supp. 22-4612 conveys the legislature's intent to hold government 

agencies liable for medical costs incurred for the treatment people receive while in their 

custody. This statute, in conjunction with K.S.A. 22-4613, is rooted in the principle that 

government agencies have a duty to treat people in their care humanely.

3.

The test for determining whether a government agency has an obligation to pay a 

person's medical expenses is whether a person is in the agency's custody when the 

decision was made to obtain medical treatment.
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4.

A formal arrest is not always necessary to show a person is in custody. Instead, 

whether a person is in custody turns on the facts of each case.

5.

A party seeking summary judgment must show that there are no disputed issues of 

material fact and that judgment may therefore be entered as a matter of law—essentially, 

that there is nothing the fact-finder could decide that would change the outcome. The 

district court's task does not change simply because all parties have filed summaryjudgment motions on stipulated facts. Each motion must be separately and independently 

reviewed under these summary-judgment standards.

6.

Under K.S.A. 8-2104(d), when a person is stopped by law enforcement for 

felonious traffic offenses, law enforcement has a legal duty to arrest the offender—to take 

the offender into custody and bring him or her before a judge. The officer conducting the 

stop has no discretion whether to take the offender into custody.

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed June 26, 2020. 

Affirmed in part, reversed in part, and remanded with directions.

David Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, and Jeannette L. Wolpink

and Michael K. Seck, of the same firm, of Overland Park, for appellant/cross-appellee. 

Jennifer Martin Smith, of Alderson, Alderson, Conklin, Crow & Slinkard, L.L.C., of Topeka, for 

appellee/cross-appellant.

Patric S. Linden, Kevin D. Case, and Cory R. Buck, of Case Linden P.C., of Kansas City, 

Missouri, for defendant/cross-appellee.

Before HILL, P.J., GREEN and WARNER, JJ.
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WARNER, J.: This case stems from a disagreement over who should pay the 

hospital bills a man incurred when he was injured in a fiery crash after fleeing from 

Ottawa police officers. Kansas statutes require certain government agencies to pay for the 

medical care a person receives while in their custody. The district court, based on 

stipulated facts, granted summary judgment in favor of the hospital in its claim against 

the City of Ottawa, finding as a matter of law that the police officers would have been 

required to arrest the man but for his injuries. We must decide whether the undisputed 

facts show the injured man was in the city's custody when he received his hospital 

treatment.

After reviewing the parties' allegations and arguments, we conclude there are 

unanswered factual questions that prevent us from deciding the billing dispute between 

the city and the hospital. We therefore reverse the district court's grant of summary 

judgment in favor of the hospital and remand the case to resolve these lingering 

questions. We also affirm the district court's judgment in favor of another government 

entity, the Franklin County Board of County Commissioners, as the county is not 

responsible to pay the injured man's medical expenses in this case. 

FACTUAL AND PROCEDURAL BACKGROUND

On an April evening in 2014, Ottawa Police Sergeant A.J. Schmidt observed a 

man speeding through Ottawa in a Ford Expedition without its headlights on. Sergeant 

Schmidt recognized the driver, who had been arrested the previous evening for drug 

charges and had been released earlier in the day. Sergeant Schmidt radioed another 

Ottawa police officer to confirm the man's driver's license had been suspended. The 

sergeant then attempted to pull the Expedition over. The driver did not stop. Instead, he 

accelerated, leading Sergeant Schmidt and other officers on a high-speed chase through 
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the city. Sergeant Schmidt later agreed this event was "a felony fleeing and [e]luding 

situation."

The man drove northbound on Old US-59 Highway. He then entered US-59 

Highway, driving the wrong way up the exit-ramp, and headed north toward the Ottawa 

city limit, still without headlights. Sergeant Schmidt told the officers to continue to 

pursue the driver until Stafford Road, which is near Ottawa's northern city limit. The 

Ottawa officers observed the Expedition exit the highway via the southbound on-ramp at 

Stafford Road. When they exited the highway at Stafford Road via the proper ramp, they 

no longer could see the vehicle. 

Several Franklin County sheriff's deputies had overheard the chase on their radios 

and apparently began looking for the vehicle around the area where the Ottawa officers 

had lost sight of it. It did not take long before a Franklin County deputy found a crashed 

vehicle, fully engulfed in flames, in a ditch near the intersection of US-59 and Stafford 

Road. The Franklin County deputy approached the burning car and heard a voice calling 

for help. The deputy immediately radioed for emergency assistance. 

The deputy found the car's driver lying on the ground, suffering from what 

appeared to be fractures of all four of his limbs. Sergeant Schmidt, who had by that time 

arrived at the crash scene, and several Franklin County deputies began moving the driver 

away from the flaming vehicle and surrounding grass fire. 

When the EMS technicians arrived, they began assisting the driver. Knowing the 

driver had been recently arrested on drug charges, Sergeant Schmidt asked the man if he 

had taken any drugs the health care providers needed to be aware of; he responded that he 

had taken methamphetamine earlier that day. None of the law enforcement officers at the 

scene searched the driver. He also was never formally placed under arrest, though the 

parties later stipulated that Sergeant Schmidt had the authority to arrest the driver at the 
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scene of the crash even though it was outside the Ottawa city limits. (Sergeant Schmidt 

later testified that he advises Ottawa police officers not to take a suspect into custody if 

that individual needs medical care so the city does not have to pay the medical bills.) The 

driver was transported to the University of Kansas Medical Center by emergency 

helicopter. 

The driver remained in the hospital for 10 days. During that time, he was placed

on a police-hold by Wyandotte County for several outstanding warrants in that 

jurisdiction and guarded by Wyandotte County officers. Neither the City of Ottawa nor 

Franklin County placed a hold on him while he was in the hospital. The man's injuries

included two broken legs, a broken ankle, a broken arm, a broken wrist, a collapsed lung, 

and nine fractured ribs. He did not have any health insurance and did not receive 

Medicaid assistance. The total amount billed by the hospital for his treatment and care 

was $235,498.22. At the time, the Medicaid reimbursement rate was 30.5% of this billed 

amount, for a total of $71,826.95. 

Once he was discharged from the hospital, the man was immediately taken to the 

Wyandotte County jail based on his outstanding warrants (unrelated to the events that

landed him in the hospital). Ottawa police officers interviewed him while he was at the 

Wyandotte County jail, asking about the car chase and ensuing crash. He had little to no 

memory of the events surrounding his flight from the Ottawa police, the crash, and the 

treatment he received at the wreck. He was ultimately charged with fleeing and eluding

under K.S.A. 8-1568. 

The University of Kansas Hospital Authority (the Hospital) later filed suit against 

the City of Ottawa (the City) and Franklin County's Board of County Commissioners (the 

County), alleging one or both of these agencies were required to pay the man's hospital 

bill under K.S.A. 22-4612(a). This statute requires certain government agencies to pay 

the medical expenses a person incurs when he or she is in custody. The Hospital also 
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initially sued the Wyandotte County Board of County Commissioners but subsequently 

dismissed its claims against that entity.

The parties conducted discovery, taking depositions of many of the law 

enforcement officers who had participated in the chase or the rescue. The parties then 

stipulated to several facts regarding the night of the crash, including that Sergeant 

Schmidt had the authority to arrest the driver the night of the crash but did not search him 

or formally place him under arrest. 

All three parties filed motions for summary judgment. After considering the 

parties' arguments, the district court determined, as a matter of law, that the driver was in 

the City's custody under K.S.A. 22-4612(a) when the decision to obtain medical 

treatment was made. The district court explained that, but for the driver's injuries, the 

Ottawa police officers would have been required to arrest him after the car chase—as a 

result of his fleeing and eluding those officers. The court therefore granted summary 

judgment in the Hospital's favor against the City. But because the County deputies were 

not involved in the chase, did not observe the driver committing any felonies, and did not 

know who the driver was, the court granted summary judgment to the County on the 

Hospital's remaining claim. 

The City appealed the district court's adverse summary-judgment ruling, and the 

Hospital cross-appealed the court's grant of summary judgment in favor of the County.

DISCUSSION

K.S.A. 2019 Supp. 22-4612 requires certain government entities to pay the costs 

of medical care incurred by persons in their custody. That statute directs, subject to some 

exceptions, that "a county, a city, [or] a county or city law enforcement agency . . . shall 

be liable to pay a health care provider for health care services rendered to persons in the 
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custody of such agencies." K.S.A. 2019 Supp. 22-4612(a). In such instances, the 

government entity must pay "the lesser of the actual amount billed by [the] health care 

provider or the medicaid rate" for the billed treatment. K.S.A. 2019 Supp. 22-4612(a).

The Kansas Supreme Court has explained that K.S.A. 22-4612 conveys the 

legislature's intent to hold government agencies liable for medical costs incurred for the 

treatment people receive while in their custody. University of Kan. Hosp. Auth. v. Board 

of Comm'rs of Unified Gov't, 301 Kan. 993, 999-1000, 348 P.3d 602 (2015). This statute, 

in conjunction with K.S.A. 22-4613, is rooted in the principle that government agencies 

have a duty to treat people in their care humanely. See University of Kansas Hosp. Auth. 

v. Board of Wabaunsee County Comm'rs, 299 Kan. 942, 952, 327 P.3d 430 (2014); 

Pfannenstiel v. Doerfler, 152 Kan. 479, 483, 105 P.2d 886 (1940); see also K.S.A. 22-

4613(a) ("A law enforcement officer having custody of a person shall not release such 

person from custody merely to avoid the cost of necessary medical treatment while the 

person is receiving treatment from a health care provider," except in certain 

circumstances.). The test for determining whether this payment obligation arises is 

whether a person is in the agency's custody when the decision was made to obtain 

medical treatment. University of Kan. Hosp. Auth., 301 Kan. at 1006.

1. Custody is a fact-dependent question and broader than formal arrest.

The definition of "custody" has proved somewhat elusive. Black's Law Dictionary 

defines custody as "[t]he care and control of a thing or person for inspection, 

preservation, or security." Black's Law Dictionary 483 (11th ed. 2019); Black's Law 

Dictionary 467 (10th ed. 2014). And Webster's defines custody as "a guarding or keeping 

safe; care; protection; guardianship." Webster's New World College Dictionary 365 (5th 

ed. 2014).
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In University of Kan. Hosp. Auth., our Supreme Court reviewed the legislature's 

use of "custody" in chapter 22 of the Kansas Statutes and observed that "[a]t the least, 

under the plain meaning of the statutes, a person is in custody when under arrest." 301 

Kan. at 1003. Compare K.S.A. 2019 Supp. 22-2202(i) (defining custody) with K.S.A. 

2019 Supp. 22-2202(d) (defining arrest). But the court also found that a person may still 

be in "custody" under K.S.A. 22-4612(a) in the absence of physical restraints, posted 

guards, or even a formal arrest. See University of Kan. Hosp. Auth., 301 Kan. at 1004. In 

other words, an "arrest might not always be necessary." 301 Kan. at 1006.

In fact, Kansas courts have long recognized that the definitions of "custody" found 

throughout the Kansas statutes show the term should be read broadly. See State v. Hinkle, 

31 Kan. App. 2d 416, 417, 65 P.3d 1058 (2003). For example, the statutory sections 

governing "escape from custody" "encompass[] arrest or any other detention for law 

enforcement purposes." 31 Kan. App. 2d 416, Syl. ¶ 2 (citing K.S.A. 2002 Supp. 21-

3809[b][1]). Other cases have found that a person may be in custody, even if not arrested, 

when "there are significant restraints on his freedom of movement which are imposed by 

some law enforcement agency." State v. Louis, 240 Kan. 175, Syl. ¶ 2, 727 P.2d 483 

(1986); see also Louis, 240 Kan. at 183 (substantial competent evidence supported 

conclusion that a person was in custody when he had a blood sample taken at the hospital 

at the request of police officers).

And Kansas caselaw is awash with examples of indigent criminal offenders who 

were never formally arrested yet were still in custody for purposes of determining 

agencies' payment responsibilities. See Allen Memorial Hosp. v. Board of Butler County 

Comm'rs, 12 Kan. App. 2d 680, 685, 753 P.2d 1302 (1988) (intoxicated person was in 

custody when deputy accompanied him in an ambulance to the hospital); Dodge City 

Med. Center v. Board of Gray County Comm'rs, 6 Kan. App. 2d 731, 732-33, 634 P.2d 

163 (1981) (individual shot by sheriff during the commission of a felony and taken to the 

hospital was in custody because "[h]ad he not been injured there is no question but that 
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pursuant to duty the sheriff would have taken him to jail"); Mt. Carmel Medical Center v. 

Board of County Commissioners, 1 Kan. App. 2d 374, 379, 566 P.2d 384 (1977) (sheriff's 

deputy had statutory duty to obtain custody of escaped prisoner and thus "custody had 

been reestablished as a matter of law prior to the prisoner's being placed in the ambulance 

and transported to the hospital"). Although these cases were decided before the enactment 

of K.S.A. 22-4612, our Kansas Supreme Court has indicated they are instructive in 

determining what "custody" means for purposes of that statute. University of Kan. Hosp. 

Auth., 301 Kan. at 1004-06.

In Dodge City Med. Center, a sheriff's deputy came across a man committing a 

burglary. When the deputy demanded the man to surrender, the burglar opened fire. The 

deputy then returned fire and shot the burglar. The deputy then called an ambulance, and 

the man was taken to the hospital for treatment. "No formal arrest was made" at the time 

of the shooting "or at any time during [his] three-week stay in the hospital, nor was he 

under guard." 6 Kan. App. 2d at 731. The sheriff's department arrested him when he was 

discharged from the hospital, and the man was charged with various crimes relating to the 

burglary and shooting.

The district court held a trial on stipulated facts and ultimately found the man was 

in custody when he went to the hospital. This court affirmed, finding substantial 

competent evidence supported the district court's ruling. The Dodge City Med. Center 

court explained that the burglar "was apprehended in the commission of a felony. Had he 

not been injured there is no question but that pursuant to duty the sheriff would have 

taken him to jail and not to the hospital." 6 Kan. App. 2d at 732. The court continued:

"Had the deputy said 'you're under arrest' instead of merely calling for [the burglar's] 

surrender, or had the sheriff uttered those words any time before committing him to the 

doctor's care, the fact of custody would be clear. We cannot avoid reaching the same 

conclusion simply because those words, implied by all the circumstances, were not 

actually spoken." 6 Kan. App. 2d at 733.
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More recent cases have similarly recognized that a formal arrest is not always 

necessary to show a person is in custody. Instead, whether a person is in custody turns on 

the facts of each case. Thus, in Stormont-Vail Healthcare v. Board of Jackson County 

Comm'rs, No. 117,650, 2018 WL 2170117 (Kan. App.) (unpublished opinion), rev. 

denied 309 Kan. 1354 (2018), this court concluded that a man was in custody after 

fleeing from a law enforcement officer and eventually surrendering, even though he was 

not arrested before he received medical treatment for his injuries from the flight. A year 

later, we came to a different conclusion in a case involving the same parties but vastly 

different facts—finding a person was not in custody when an attempted burglar was shot 

by a homeowner, ran away, and was eventually apprehended by law enforcement (though 

the officers did not witness the attempted break-in). Stormont-Vail Healthcare v. Board 

of Jackson County Comm'rs, No. 118,428, 2019 WL 1303580 (Kan. App. 2019) 

(unpublished opinion). 

Under this line of cases, the fact that neither the County nor the City law 

enforcement officers formally arrested the driver here for his felonious conduct does not 

end our enquiry. Instead, we must determine whether the stipulated facts in this case 

support the district court's summary-judgment rulings.

2. Unresolved factual questions preclude summary judgment in favor of the Hospital. 

The instant case was presented on competing motions for summary judgment. The 

district court, having reviewed the uncontroverted facts, found the County deputies "were 

not involved in the chase," "did not observe any of the felonies committed," "were not 

aware if this individual was the driver who had committed those felonies," and "did not 

restrain" him. Thus, the court found the man was not in the County's custody. But 

because Sergeant Schmidt and the other Ottawa police officers observed the driver of the 

Expedition engaging in felonious fleeing and eluding of law enforcement officers, the 
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court found they had a duty to arrest him and "would have arrested him but for the fact 

that he was injured." The court therefore found the driver was in the City's custody for 

purposes of K.S.A. 21-4612(a).

A party seeking summary judgment must show that there are no disputed issues of 

material fact and that judgment may therefore be entered as a matter of law—essentially, 

that there is nothing the fact-finder could decide that would change the outcome. K.S.A. 

2019 Supp. 60-256(c)(2); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 

900, 220 P.3d 333 (2009). To fend off summary judgment, the opposing party must 

respond by pointing to evidence casting doubt on a material factual representation made 

in support of that motion. 289 Kan. at 900. If the opposing party does so, the motion for 

summary judgment should be denied, leaving the fact-finder to resolve the factual 

dispute. 289 Kan. at 900.

In ruling on a summary-judgment motion, the district court must view the 

evidence in the light most favorable to the opposing party, giving that party the benefit of 

every reasonable inference drawn from the evidentiary record. 289 Kan. at 900. The 

district court's task does not change simply because all parties have filed summaryjudgment motions on stipulated facts—each motion must be separately and independently

reviewed under these summary-judgment standards. See Wheeler v. Rolling Door Co., 33 

Kan. App. 2d 787, 790-91, 109 P.3d 1255 (2005). On appeal, we apply the same 

framework, reviewing each summary-judgment decision de novo. Martin v. Naik, 297 

Kan. 241, 246, 300 P.3d 625 (2013). And to the extent our analysis requires the 

examination, interpretation, and assimilation of various Kansas statutes, we similarly 

exercise unlimited review. University of Kansas Hosp. Auth., 299 Kan. at 951.

With these principles in mind, we first consider the district court's grant of 

summary judgment for the County. When the City appealed its adverse judgment, the 

Hospital cross-appealed the court's decision that the driver had not been in the County's 
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custody. The Hospital initially argued that summary judgment was not proper, as "both 

defendants had personnel on the scene" and "both had the authority to arrest." But during 

oral argument, the Hospital expressly waived its cross-appeal, indicating that going 

forward it would be focusing on the City's arguments. 

In light of this concession, we do not discuss in great detail the Hospital's previous 

arguments concerning the court's grant of summary judgment to the County. We only 

note that—as the district court found—it was undisputed that the County deputies did not 

witness any of the crimes committed by the driver of the Expedition, did not participate 

in the chase, and did not have any knowledge of his identity or previous arrest history, 

beyond what someone may have heard on the radio. While it is true that the County 

deputies had the authority to arrest him once they learned of his identity and conduct, 

discretionary authority is not the same as a legal duty to arrest (giving rise to implied 

custody). See Stormont-Vail Healthcare, 2019 WL 1303580, at *6. In short, the 

undisputed facts demonstrate the driver was not in the County's custody when medical 

care was sought. The County had no responsibility to pay the medical bills he incurred, 

and the district court correctly granted summary judgment in its favor.

Whether the driver was in the City's custody presents a more difficult question. 

The Hospital correctly notes that there are many facts that might point to such a 

conclusion. After all, the parties stipulate that Sergeant Schmidt observed the driver 

speeding through town without headlights, though it was evening. Sergeant Schmidt 

recognized the driver and confirmed the driver had a suspended license; the sergeant and 

other City police officers pursued the driver in a dangerous chase. The officers followed 

the driver to his final exit, though they did not observe the crash. Sergeant Schmidt 

arrived at the scene of the crash, arguably still in pursuit of the felonious actor and close 

enough in time that he was able to assist the deputy in removing the driver from the fire. 

In other words, there are certainly facts in this case—analogous to those discussed in 
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Dodge City Med. Center and our 2018 Stormont-Vail Healthcare decision—that tend to 

show the driver was in the City's custody.

At the same time, the City points to numerous facts and inferences that would 

contradict such a finding. The City argues that the police officers lost sight of the 

Expedition when it exited (via an on-ramp) US-59 Highway. The parties stipulated that 

these officers shortly thereafter "discontinued the pursuit" (although Sergeant Schmidt 

continued to the scene of the crash). And the driver was never formally arrested or 

physically restrained, nor did he expressly surrender. The stipulated facts do not resolve 

these factual disagreements; rather, their resolution would require more detailed factual 

development, assessment of witnesses' credibility, and weighing of the evidence—

determinations improper at the summary-judgment stage. 

At the summary-judgment hearing, the district court acknowledged the conflicting 

facts and inferences argued by both parties. But it concluded the City's potential liability 

did not require resolution of these contested facts because the Ottawa police officers had 

a legal duty under K.S.A. 8-2104 to arrest the driver after witnessing the driver's 

dangerous flight from law enforcement. 

In his deposition, Sergeant Schmidt acknowledged the driver's conduct at the time 

presented a "felony fleeing and [e]luding situation." Certainly, based on the facts before 

us, we readily appreciate the sergeant's judgment that the driver's actions would fall 

within the scope of K.S.A. 8-1568(b)(1). See K.S.A. 2019 Supp. 8-1568(c)(2) (defining 

such offenses as severity level 9, person felonies). In these circumstances, K.S.A. 8-

2104(d) requires an offender, once stopped by law enforcement, be taken into custody 

and before a judge:

"When any person is stopped by a law enforcement officer and is to be charged 

with violation of any statute defining a traffic violation which is a felony, the person shall 
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be taken without unnecessary delay before a judge of the district court as specified in 

subsection (d) of K.S.A. 8-2106, and amendments thereto."

Accord K.S.A. 8-2104(a)(2) (similarly requiring a person be taken into custody and 

before a judge when a person is stopped for and is to be charged with misdemeanor 

violations "of K.S.A. 8-1567 and 8-1568").

Under K.S.A. 8-2104(d), when a person is stopped by law enforcement for 

felonious traffic offenses, the law enforcement officer has a legal duty to arrest the 

offender—to take the offender into custody and bring him or her before a judge. That is, 

as in other instances where we have found implied custody without a formal arrest, the 

officer conducting the stop has no discretion whether to take the offender into custody. 

See Allen Memorial Hosp., 12 Kan. App. 2d at 685; Dodge City Med. Center, 6 Kan. 

App. 2d at 732-33; Mt. Carmel Medical Center, 1 Kan. App. 2d at 379; see also 

Stormont-Vail Healthcare, 2018 WL 2170117, at *2 (noting K.S.A. 8-2104[a][2] 

required the officer to take the offender into custody). 

This court addressed the misdemeanor component of this statute—K.S.A. 8-

2104(a)(2)—in our 2018 Stormont-Vail Healthcare decision. In that case, we concluded 

the police officer had a legal duty under the statute to take the offender into custody once 

he had surrendered, and the only reason the officer did not do so was to allow the 

offender to receive medical treatment. 

But while we can appreciate the similarity between the facts in that case and those 

presented here, there is at least one legally important distinction: In the 2018 case, the 

parties stipulated that the offender had surrendered to the police officer. The offender was 

therefore stopped by law enforcement, triggering the officer's legal obligation to take the 

offender into custody under K.S.A. 8-2104. Here, we have no such stipulation. Rather, 

although the parties agreed on numerous facts, the arguments before the district court and 
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on appeal evince a genuine factual disagreement regarding whether Sergeant Schmidt 

effectively stopped the driver when he arrived at the crash. Without resolving this 

question, we cannot determine whether the sergeant had any legal duty to take the driver 

into custody under K.S.A. 8-2104(d).

For these reasons, the district court erred when it granted summary judgment in 

favor of the Hospital. Although all parties presented this case as one that could be 

decided on the stipulated facts, the parties' stipulation does not resolve the two central 

questions here—whether the driver was "stopped" within the meaning of K.S.A. 8-

2104(d) and, if not, whether the driver was otherwise in the City's custody when he was 

taken to the Hospital. The case must be remanded to resolve these factual disputes.

We therefore reverse the district court's grant of summary judgment on the 

Hospital's claim against the City and remand the case for further proceedings as to that 

claim. We affirm the court's summary judgment in favor of the County.

Affirmed in part, reversed in part, and remanded with directions.