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Kraus v. Hy-Vee11/9/2004
he design of the traffic control system at the intersection . . . and performing the job in a negligent manner. As such KCPL's alleged actions fall squarely within the definition of misfeasance.
Id.
And the court rejected the power company's third argument that any recovery had to be based on some sort of negligent breach of contract by KCPL. Id. at 596. The court said:
Again, KCPL is misconstruing the cause of action brought by Schmeck by treating the case as if it were based upon the contractual relationship between KCPL and the City. Although KCPL and the City did have a contract, Schmeck did not attack it or allege it served as the basis for a duty owed to her. Rather, Schmeck alleged KCPL went beyond its contractual obligations and engaged in the business of providing services to the City as a traffic engineering consultant by agreeing to study the traffic signal needs at the intersection and to formulate a proposal for meeting the requirements of the State and MUTCD. Thus, KCPL assumed part of the City's duty to keep its streets reasonably safe for their intended use.
Id. at 597.
The court held that the principles embodied in section 324A had long been recognized in Kansas and that those principles applied to the passenger's case. Id. at 597-98. In doing so, the court disagreed with the power company that it could not be liable because it had not yet done the work: "KCPL was performing the planning of the intersection and, thus, was actually engaged in 'doing the work.'" Id. at 598.
We believe that appellants in this case have stated a claim for relief against Transystems under the principles embodied in section 324A(c). Accordingly, we hold that the trial court should not have granted judgment on the pleadings in favor of Transystems and reverse that portion of the trial court's judgment. The case against Transystems is remanded for further proceedings.
III. CONCLUSION
Appellants have stated a claim for relief against MHTC under the dangerous condition exception to sovereign immunity. Appellants also have stated a claim against Transystems under principles embodied in section 324A(c) of the RESTATEMENT ( SECOND) OF TORTS. But appellants have failed to state claims for relief against either Hy-Vee or Hy-Vee Weitz. The judgment of the trial court is affirmed in part and reversed in part and the cases against MHTC and Transystems are remanded for further proceedings.
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