Precedents Cited

1) Prior appeal framing immunity burdens and “arm of the state” analysis

The opinion repeatedly builds on the earlier appeal, Hennessey v. Univ. of Kan. Hosp. Auth., 53 F.4th 516 (10th Cir. 2022). There, the court held it was UKHA’s burden to prove it is an arm of the state for Eleventh Amendment purposes and faulted UKHA for failing to supply the necessary facts and factor-by-factor analysis. In the 2026 decision, that prior holding becomes outcome-determinative in two ways:

• Waiver posture: Having been invited to renew the defense with proper development, UKHA’s choice to abandon it supported the court’s waiver finding.
• Diversity posture: The earlier decision’s recognition that an “arm of the state” showing is needed to defeat diversity (because arms of the state are not “citizens”) underpinned the court’s refusal to re-open diversity without UKHA’s factual attack.

2) Standards governing summary judgment and affirming on alternative grounds

• Mauldin v. Driscoll, 136 F.4th 984 (10th Cir. 2025), supplied the de novo review framework for summary judgment.
• Lowther v. Children Youth & Fam. Dep't, 101 F.4th 742 (10th Cir. 2024), supported the court’s authority to affirm on any ground supported by the record, provided the appellant had a fair chance to address it—important because the panel affirmed primarily on KTCA immunity even though the district court decided foreseeability.

3) Diversity jurisdiction and facial attacks

• Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500 (10th Cir. 2023), was used to explain that a facial challenge requires accepting the complaint’s allegations as true.
• Moor v. Cnty. of Alameda, 411 U.S. 693 (1973), provided the foundational rule that political subdivisions are citizens for diversity unless they are the arm/alter ego of the state. The court noted Moor was “overruled on other grounds” by Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658 (1978), preserving Moor’s diversity principle.

4) Distinguishing federal Eleventh Amendment immunity from Kansas sovereign immunity

To clarify that UKHA’s abandonment of Eleventh Amendment immunity did not resolve Kansas-law sovereign immunity, the panel cited Jones v. Kan. Dep't of Corr., 376 P.3d 774 (Kan. Ct. App. 2016), for the distinction between Eleventh Amendment immunity and sovereign immunity codified in the KTCA.

5) Sovereign immunity as jurisdictional under Kansas law

• Purvis v. Williams, 73 P.3d 740 (Kan. 2003), and State ex rel. Schmidt v. Nye, 440 P.3d 585 (Kan. Ct. App. 2019), supported the panel’s central move: Kansas sovereign immunity is jurisdictional, and courts are compelled to address it.
• Zaragoza v. Bd. of Comm'rs, 571 P.3d 545 (Kan. 2025), was used to situate sovereign immunity as extending to Kansas “governmental entities” and to explain the KTCA’s role as a limited waiver from broad common-law immunity.

6) The KTCA waiver structure and exceptions

• Hill v. State, 448 P.3d 457 (Kan. 2019), supplied the KTCA’s baseline waiver formulation (quoting Kan. Stat. Ann. § 75-6103(a)).
• Schreiner v. Hodge, 504 P.3d 410 (Kan. 2022), was invoked for the proposition that the KTCA “essentially subject[s] governmental entities to vicarious liability” under respondeat superior—context for UKHA’s argument that a direct-liability negligent supervision claim may not fit the waiver.
• Estate of Belden v. Brown Cnty., 261 P.3d 943 (Kan. Ct. App. 2011), was cited to characterize negligent hiring/training/supervision theories as imposing direct (not vicarious) liability.

Although the panel flagged the tension between “direct liability” negligent supervision and the KTCA’s vicar-liability orientation, it did not resolve that doctrinal question because it affirmed on the KTCA discretionary function exception in Kan. Stat. Ann. § 75-6104(a)(5).

7) Foreseeability and negligent supervision elements on the merits

• Kan. State Bank & Tr. Co. v. Specialized Transp. Servs., Inc., 819 P.2d 587 (Kan. 1991), provided the governing negligent retention/supervision standard: employer liability may exist if the employer had reason to believe an undue risk of harm would result from employing the tortfeasor.
• Beshears ex rel. Reiman v. Unified Sch. Dist., 930 P.2d 1376 (Kan. 1997), was used for the proposition that foreseeability is usually for the jury but can be decided as a matter of law when only one reasonable conclusion exists.

8) Appellate briefing constraints

The panel cited Bronson v. Swensen, 500 F.3d 1099 (10th Cir 2007), to decline an underdeveloped reply-brief argument that mandatory protocols “exist or should exist” such that the discretionary function exception would not apply. This procedural citation is significant: the immunity holding rests not only on the KTCA text but also on the appellant’s failure to supply a developed Kansas-law limiting principle.

9) Other cited procedural/jurisdictional authorities

• Luo v. Wang, 71 F.4th 1289 (10th Cir. 2023), for liberal construction of pro se filings without acting as advocate.
• N.H. Ins. Co. v. TSG Ski & Golf, LLC, 128 F.4th 1337 (10th Cir. 2025), for de novo review/prediction of Kansas Supreme Court law in diversity.
• Interstate Med. Licensure Compact Comm'n v. Bowling, 113 F.4th 1266 (10th Cir. 2024), for de novo review of subject-matter jurisdiction.

Legal Reasoning

1) The court reordered the decision-making sequence around jurisdiction

Although the district court granted summary judgment on foreseeability, the Tenth Circuit treated KTCA sovereign immunity as a threshold jurisdictional bar: because Kansas law deems sovereign immunity jurisdictional, the appellate court addressed it even though the trial court did not. This reflects a practical rule for litigants: in Kansas tort suits against governmental entities in federal court, KTCA immunity is not merely an affirmative defense—it may function as a gatekeeping jurisdictional question that appellate courts will reach to affirm.

2) Waiver of Eleventh Amendment immunity contrasted with mandatory consideration of KTCA immunity

The court emphasized two different “jurisdictional” regimes:

• Eleventh Amendment immunity: Jurisdictional but waivable; UKHA waived it by abandoning it on remand and on appeal.
• KTCA sovereign immunity: Jurisdictional under Kansas law; courts are compelled to address it once raised and developed.

3) Governmental-entity status of UKHA

The panel rejected the characterization of UKHA as “simply a hospital.” Relying on the University of Kansas Hospital Authority Act, it described UKHA as an instrumentality performing “an essential governmental function,” Kan. Stat. Ann. § 76-3304(a), and noted the UKHAA expressly makes UKHA subject to the KTCA, Kan. Stat. Ann. § 76-3315. This classification mattered because the KTCA’s waiver-and-exception scheme applies only if the defendant qualifies as a “governmental entity.”

4) Discretionary function exception as the decisive immunity doctrine

The court accepted UKHA’s framing that Hennessey’s negligent supervision claim, as pleaded and argued, challenged discretionary supervisory/policy choices—such as whether to adopt and implement chaperoning requirements or other protective measures for sedated/imaged patients. Under Kan. Stat. Ann. § 75-6104(a)(5), claims “based upon” the exercise or failure to exercise a discretionary function are barred “whether or not the discretion is abused.”

Crucially, the panel did not undertake a granular Kansas-case survey of what is “discretionary” versus “mandatory” in hospital-supervision contexts; instead, it held Hennessey failed to adequately develop an argument against the exception’s application. The result was an immunity affirmance grounded both in the statutory text and in appellate forfeiture principles.

5) Alternative merits holding: foreseeability remains a substantial hurdle

As an independent basis, the court affirmed on foreseeability. Applying Kan. State Bank & Tr. Co. v. Specialized Transp. Servs., Inc., it held UKHA lacked notice of McIntire’s propensity and the “structural” risk factors (patient sedation, isolation, duration) did not make sexual assault reasonably foreseeable. The court also discounted a prior assault by a different employee in a different area as too dissimilar to create notice, and treated Kan. Stat. Ann. § 65-2837(b)(30) and the Code of Conduct as speaking to duty/compliance expectations rather than foreseeability of sexual assault.

Impact

1. KTCA discretionary-function defense becomes a primary litigation front in negligent-supervision suits against Kansas public health entities. Plaintiffs alleging inadequate supervision/policies (e.g., chaperone rules, monitoring practices, staffing models) should anticipate an argument that such choices are “discretionary” and therefore barred by Kan. Stat. Ann. § 75-6104(a)(5).
2. Appellate courts may affirm on KTCA immunity even if the district court decided the case on merits. Because sovereign immunity is treated as jurisdictional under Kansas law, parties should brief it fully at all stages; inadequate development risks affirmance without reaching the merits.
3. Distinct treatment of immunities matters strategically. Defendants can waive Eleventh Amendment immunity by abandonment, but still prevail on KTCA immunity; plaintiffs cannot assume that defeating federal immunity resolves Kansas immunity.
4. Foreseeability evidence must connect risk to notice, not just opportunity. The opinion signals skepticism that “opportunity conditions” (sedation + isolation) alone establish foreseeability absent evidence of prior complaints, known propensities, or closely analogous incidents.

Although non-precedential, the decision is likely to be cited persuasively in the Tenth Circuit and Kansas-related federal cases for its procedural sequencing (sovereign immunity first), its waiver analysis, and its application of the KTCA discretionary function exception to negligent-supervision/policy claims.