                                             Slip Op.16-92

                  UNITED STATES COURT OF INTERNATIONAL TRADE

    FORD MOTOR COMPANY,

         Plaintiff,
                                               Before: Mark A. Barnett, Judge
    v.
                                               Court No. 13-00291
    UNITED STATES,

         Defendant.

                                 OPINION AND ORDER

[Plaintiff’s Motion for Summary Judgment is denied. Defendant’s Cross-Motion for
Summary Judgment is denied.]

                                                               Dated:October 5, 2016

Gordon D. Todd, Sidley Austin LLP, of Washington, DC, argued for plaintiff. With him
on the brief were Richard M. Belanger and Mark D. Hopson.

Beverly A. Farrell, Trial Attorney, International Trade Field Office, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of New York, NY, argued for
defendant. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Amy M. Rubin, Assistant Director, and Jason M. Kenner, Trial
Attorney.

         Barnett, Judge: Before the Court are cross motions for summary judgment.

Confidential Pl.’s Mot. for Summ. J. and Confidential Mem. of P. & A. in Supp. of Pl.’s

Mot. for Summ. J. (“Pl.’s MSJ”), ECF No. 96; Def.’s Mot. for Summ. J. and Def.’s Mem.

of Law in Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s Cross-Mot. for Summ.

J. (“Def.’s XMSJ”), ECF No. 91-1. 1 Plaintiff Ford Motor Company (“Plaintiff” or “Ford”)

1The ECF numbers for the briefs are not in sequential order because amended and
corrected versions were filed.
Court No. 13-00291                                                                    Page 2

contests the denial of protest number 1303-13-100060 challenging U.S. Customs and

Border Protection’s (“Customs”) liquidation of the subject imports, Model Year (“MY”)

2012 Ford Transit Connect vehicles with vehicle identification numbers (“VINs”)

containing either a number 6 or 7 in the sixth digit (hereinafter “Transit Connect 6/7"), 2

under subheading 8704.31.00 of the Harmonized Tariff Schedule of the United States

(“HTSUS”), as “motor vehicles for the transport of goods.” Compl. ¶¶ 7, 10-11, 25, ECF

No. 6 (alteration omitted); Def.’s XMSJ at 5. There is only one entry at issue, Entry

Number 300-8620018-3, which entered at the Port of Baltimore on December 26, 2011

and which Customs liquidated on May 3, 2013. Summons at 1, ECF No. 1.

                                        BACKGROUND

          I.      OVERVIEW

       In the 1960s, the United States and Europe were involved in a “trade war.” Def.’s

XMSJ at 2 n.1 (citing Def.’s Ex. 5). Europe increased the duty on chicken imported from

the United States and the United States responded by placing a twenty-five percent

tariff on trucks imported from Europe. Id. This retaliatory duty on trucks, colloquially

2 Plaintiff contends that “[t]he MY2012 vehicles in the subject entry are similar in all
material respects to MY2010-MY2013 Transit Connects, all of which [U.S. Bureau of
Customs and Border Protection] has liquidated consistent with the decision challenged
in this case.” Pl.’s MSJ at 3 n.1. The case before the Court, however, is limited to
MY2012 Transit Connect 6/7s and the Court will confine its ruling to the vehicles in the
covered entry. Digidesign, Inc. v. United States, 39 CIT __, __, 44 F. Supp. 3d 1366,
1371 (2015) (“the identification of specific entries in a plaintiff’s complaint in part defines
of the boundaries of the court’s subject-matter jurisdiction in a given action”); Am. Fiber
& Finishing, Inc. v. United States, 39 CIT __, __, 121 F. Supp.3d 1273, 1287 n.47
(2015) (the court lacks jurisdiction when the entry is neither listed on the summons nor a
part of the underlying protest).
Court No. 13-00291                                                                 Page 3

referred to as the “chicken tax,” was still in place when Ford began importing the subject

merchandise into the United States from its factory in Turkey in 2009. Id.; Confidential

Def.’s Statement of Material Facts as to Which There Are No Genuine Issues to Be

Tried (“Def.’s Facts”) ¶ 13, ECF No. 92-7; Confidential Pl. Ford Motor Co.’s Resp. to

Def.’s R. 56.3 Statement of Material Facts (“Pl.’s Resp. to Def.’s Facts”) ¶ 13, ECF No.

97-12. By contrast, the duty on imports of passenger vehicles is 2.5 percent. HTSUS

Heading 8703; see also Summons at 2.

         As detailed below, 3 Ford manufactures the Transit Connect 6/7s in Turkey and

imports them into the United States. While these vehicles are made to order and are

ordered as cargo vans, Ford manufactures and imports them with a second row seat,

declaring the vehicles as passenger vehicles subject to HTSUS 8703.23.00 and a 2.5

percent duty. 4 After clearing customs but before leaving the port, Ford (via a

subcontractor) removes the second row seat and makes other changes, delivering the

vehicle as a cargo van. Defendant United States (“Defendant,” “Customs,” or “CBP”)

determined that the inclusion of the second row seat is an improper artifice or disguise

masking the true nature of the vehicle at importation and that such vehicle is properly

3   See infra Section III.B.
4   Tariff provision 8703.23.00, HTSUS, covers:
          8703 Motor cars and other motor vehicles principally designed for the transport of
          persons (other than those of heading 8702), including station wagons and racing
          cars:
              Other vehicles, with spark-ignition internal combustion reciprocating piston
              engine:
                  8703.23.00 Of a cylinder capacity exceeding 1,500 cc but not exceeding
                  3,000 cc . . . 2.5%
Court No. 13-00291                                                                 Page 4

classified as 8704.31.00 and subject to a twenty-five percent duty. 5 Ford contends that

this is legitimate tariff engineering. See Pl.’s MSJ at 21.

       II.    PROCEDURAL HISTORY

       The sole entry at issue is Entry Number 300-86200183 which entered at the Port

of Baltimore on December 26, 2011 and Customs liquidated under tariff classification

8704.31.00.20, HTSUS, with a twenty-five percent duty rate on May 3, 2013. Summons

at 1. Ford timely and properly protested and claimed that the subject merchandise

should have been liquidated under tariff classification 8703.23.00.52, HTSUS, with a

duty rate of 2.5 percent, asserting that “CBP did not follow 19 U.S.C § 1315(d) or 1625

procedures in changing the classification.” Id. at 2. Ford timely commenced this case.

Id. Parties filed cross-motions for summary judgment and the Court held oral argument

in this case on June 8, 2016. See Oral Argument, ECF No. 104.

       III.   MATERIAL FACTS NOT IN DISPUTE 6

      The court’s rule regarding summary judgment requires the moving party to show

that “there is no genuine dispute as to any material fact and the movant is entitled to

5 Tariff provision 8704.31.00, HTSUS, covers:
       8704 Motor vehicles for the transport of goods:
            Other, with spark-ignition internal combustion piston engine:
                8704.31.00 G.V.W. not exceeding 5 metric tons . . . 25%
6 As discussed herein, in the statements of undisputed facts and responses thereto,

Parties sometimes objected to portions of a statement or the manner in which certain
facts were characterized. The Court attempted to distill the undisputed facts from these
various filings and released a draft of this section of the opinion to Parties on July 20,
2016 (ECF 105). Parties were invited to identify any of these facts that were, indeed,
disputed and to point to admissible evidence before the Court supporting such claim.
Both Parties provided limited comments (ECF Nos. 106 and 107) and the Court has
modified this section accordingly.
Court No. 13-00291                                                                  Page 5

judgment as a matter of law.” USCIT R. 56(a). Movants should present material facts

as short and concise statements, in numbered paragraphs and cite to “particular parts

of materials in the record” as support. USCIT R. 56(c)(1)(A). Parties submitted

separate facts, which contained mixtures of disputed and undisputed phrases or

sentences within a numbered paragraph. Upon review of Parties’ voluminous facts, the

Court finds the following undisputed and material facts. 7

              A.     Facts Regarding Jurisdiction

      As noted above, CBP liquidated Entry Number 300-8620018-3 under tariff

classification 8704.31.00, HTSUS, with a twenty-five percent duty rate on May 3, 2013.

Summons at 1; Compl. ¶¶ 4, 6-7; Answer ¶¶ 4, 6-7, ECF No. 19; Def.’s Facts ¶ 8; Pl.’s

7 The Court reviewed each party’s submissions of facts, supplemental facts, and the
responses thereto, line by line, to distill which facts were undisputed by parties. See
generally Confidential Pl. Ford Motor Co.’s R. 56.3 Statement of Undisputed Material
Facts Filed in Conjunction with Pl.’s Mot. for Summ. J. (“Pl.’s Facts”), ECF No. 96-1;
Confidential Def.’s Resp. to Pl. Ford Motor Co.’s R. 56.3 Statement of Material Facts
(“Def.’s Resp. to Pl.’s Facts”), ECF No. 92-6; Def.’s Facts; “Pl.’s Resp. to Def.’s Facts;
Confidential Pl.’s Resp. to Def.’s Facts; Pl. Ford Motor Co.’s Supplemental R. 56.3
Statement of Undisputed Material Facts (“Pl.’s Suppl. Facts”), ECF No. 97-1;
Confidential Def.’s Resp. to Pl. Ford Motor Co.’s Supplemental R. 56.3 Statement of
Material Facts (“Def.’s Resp. to Pl.’s Suppl. Facts”), ECF No. 94-1. In its supplemental
fact submission, Plaintiff lists three groupings of facts: 21 paragraphs of clarifications of
its original facts; 16 paragraphs of replies to Defendant’s responses to Plaintiff’s facts;
and 11 paragraphs of additional new facts. See generally Pl.’s Suppl. Facts. Defendant
requests that the Court deny Plaintiff’s “attempts to reply to the responses [Defendant]
provided, pursuant to USCIT Rule 56.3(b)” because “nothing in USCIT Rule 56.3
permits such ‘replies.’” Def.’s Resp. to Pl.’s Suppl. Facts at 21-22. The Court notes that
replies to responses to facts are not contemplated in USCIT Rule 56.3 and, therefore,
the Court disregards Plaintiff’s 16 paragraphs of replies in submission ECF No. 97-1.
Accordingly, Defendant’s request for an opportunity “to respond in writing” to
aforementioned replies is moot. Def.’s Resp. to Pl.’s Suppl. Facts at 22. For purposes
of this discussion, citations are provided to the relevant paragraph number of the
undisputed facts and response, and internal citations generally have been omitted.
Court No. 13-00291                                                                    Page 6

Resp. to Def.’s Facts ¶ 8. Ford timely and properly protested, claiming that the subject

merchandise should have been liquidated under tariff classification 8703.23.00, HTSUS,

with a duty rate of 2.5 percent. Summons at 2; Def.’s Facts ¶¶ 3-5; Pl.’s Resp. to Def.’s

Facts ¶¶ 3-5. Jurisdiction is uncontroverted in this case. Compl. ¶ 3; Answer ¶ 3; Pl.’s

Facts ¶ 244-49; Def.’s Resp. to Pl.’s Facts ¶ 244-49; Def.’s Facts ¶ 2; Pl.’s Resp. to

Def.’s Facts ¶ 2. The Court has subject matter jurisdiction pursuant to 28 U.S.C.

§ 1581(a). Compl. ¶ 3; Answer ¶ 3.

              B.     Facts Regarding Subject Merchandise

                     1.     Description of Subject Merchandise

      The subject merchandise consists of Transit Connect 6/7s. 8 Def.’s Facts at 1;

Pl.’s Resp. to Def.’s Facts ¶ 1. The Transit Connect 6/7 “was a multipurpose vehicle

manufactured in Turkey and imported into the United States from 2009-2013.” Pl.’s

Facts ¶ 1; Def.’s Resp. to Pl.’s Facts ¶ 1. The subject imports are “part of Ford’s U.S.

Transit Connect vehicle line.” Def.’s Facts ¶ 11; Pl.’s Resp. to Def.’s Facts ¶ 11.

Transit Connect 6/7s were “designated within Ford as the V227N.” Pl.’s Facts ¶ 1;

Def.’s Resp. to Pl.’s Facts ¶ 1. “The V227N vehicles [were] 9 LWB (long wheel base).”

Def.’s Facts ¶ 62; Pl.’s Resp. to Def.’s Facts ¶ 62. The V227N line “included a van

model (Transit Connect Van) in two trim levels and a Wagon model (Transit Connect

8 References to Transit Connects, without the “6/7” thereafter, are references to the
product line generally and not limited to the subject imports.
9 While acknowledging that Plaintiff used curly braces in its briefs to designate its

confidential information, the Court employs single brackets [ ] to designate explanatory
or omitted words or phrases. This opinion does not contain any confidential material.
Court No. 13-00291                                                                  Page 7

Wagon) in two trim levels,” but “only the Transit Connect Vans are at issue in this

action.”10 Def.’s Facts ¶¶ 15, 16; Pl.’s Resp. to Def.’s Facts ¶¶ 15, 16. All Transit

Connects are imported with second row seats, but the Transit Connect Vans are

delivered to the customer as a two seat cargo van. Def.’s Facts ¶ 17; Pl.’s Resp. to

Def.’s Facts ¶ 17.

      As imported into the United States, the subject merchandise had a Gross Vehicle

Weight Rating (“GVWR”) of 5005 pounds. Def.’s Facts ¶ 45; Pl.’s Resp. to Def.’s Facts

¶ 45. The Transit Connect 6/7s contained a Duratec 2.0L, four cylinder gasoline

engine, which is a spark-ignition internal combustion reciprocating piston engine with a

cylinder capacity of 1999 cc. Pl.’s Facts ¶ 36; Def.’s Resp. to Pl.’s Facts ¶ 36. In its

condition as imported into the United States, the Transit Connect 6/7s included: a steel

unibody construction with an interior volume of approximately 200 cubic feet, which

translates to just under 6m3; front-wheel drive; rear passenger seats with seat anchors;

and underbody bracing. Pl.’s Facts ¶¶ 38-39, 43, 45; Def.’s Resp. to Pl.’s Facts ¶¶ 38-

39, 43, 45. The Transit Connect 6/7s had Macpherson strut front suspension, ground

clearance of 8.2 inches, and over 50 inches of space from floor to ceiling in the rear.

Pl.’s Facts ¶¶ 41, 54-55; Def.’s Resp. to Pl.’s Facts ¶¶ 41, 54-55.

      At the time of importation into the United States, subject imports had “swing-out

front doors with windows, second-row sliding doors with windows, and swing-out rear

doors, some of which had windows.” Pl.’s Facts ¶ 49; Def.’s Resp. to Pl.’s Facts ¶ 49.

10 The Court’s understanding is that reference to a van is to a cargo model (as delivered
to the customer) and reference to a wagon is to a passenger model.
Court No. 13-00291                                                                      Page 8

The sliding side doors met federal safety standards for passenger vehicles. Pl.’s Facts

¶ 50; Def.’s Resp. to Pl.’s Facts ¶ 50. At the time of importation into the United States,

no Transit Connect 6/7s “had a panel or barrier between the first and second row of

seats.” Pl.’s Facts ¶ 52; Def.’s Resp. to Pl.’s Facts ¶ 52.

      As imported into the United States, the Transit Connect 6/7s included: second row

seats; seat belts for every seating position; permanent bracing in the side pillars of the

car body; child-locks in the sliding side doors; dome lighting in the front, middle, and

rear of the vehicle; a full length, molded cloth headliner; coat hooks in the second row;

and a map pocket attached to the rear of the front driver seat. Pl.’s Facts ¶¶ 44, 47-48,

51, 57-60; Def.’s Resp. to Pl.’s Facts ¶¶ 44, 47-48, 51, 57-60. The Transit Connect 6/7s

also had “front vents” and “front speakers.” Pl.’s Facts ¶ 68; Def.’s Resp. to Pl.’s Facts

¶ 68; Pl.’s Suppl. Facts at 7 11 (clarification of Pl.’s Fact ¶ 68); Def.’s Resp. to Pl.’s Suppl.

Facts at 6 (response to clarification of Pl.’s Fact ¶ 68); Def.’s Facts ¶ 118; Pl.’s Resp. to

Def.’s Facts ¶ 118.

      There were “two cupholders in the center console and a compartment at the rear

of the center console to create an optional third cupholder.” Pl.’s Suppl. Facts ¶ 255;

Def.’s Resp. to Pl.’s Suppl. Facts ¶ 255. The Transit Connect 6/7s had carpeted

11Based on Defendant’s response to Plaintiff’s first set of facts, Plaintiff provided
revised facts in a section titled “Clarification of Facts Originally Included in Ford’s
Statement of Undisputed Material Facts.” See Pl.’s Suppl. Facts at 7-10. While USCIT
Rule 56.3 does not address the opportunity to clarify original facts, Defendant did not
object to Plaintiff’s clarification of its original facts and, in fact, submitted responses
thereto. See Def.’s Resp. to Pl.’s Suppl. Facts at 2-21. Accordingly, the Court has
taken into consideration Plaintiff’s clarified facts, and Defendant’s responses thereto.
Court No. 13-00291                                                                    Page 9

footwells in front of the second row seat. Pl.’s Facts ¶ 53; Def.’s Resp. to Pl.’s Facts ¶

53; Pl.’s Suppl. Facts at 7 (clarification of Pl.’s Fact ¶ 53) & ¶ 255; Def.’s Resp. to Pl.’s

Suppl. Facts at 5 (response to clarification of Pl.’s Fact ¶ 53) & ¶ 255.

      The second row seats in the Transit Connect 6/7s did not include “headrests,

certain comfort wires, a tumble lock mechanism or accompanying labels,” and were

“wrapped in a cost reduced fabric.” Pl.’s Facts ¶ 44; Def.’s Resp. to Pl.’s Facts ¶ 44;

see also Def.’s Facts ¶ 114; Pl.’s Resp. to Def.’s Facts ¶ 114. The Transit Connect 6/7s

did not have rear (behind the front seats) vents, speakers, and handholds. Def.’s Facts

¶¶ 19-21; Pl.’s Resp. to Def.’s Facts ¶¶ 19-21; Def.’s Facts ¶ 118; Pl.’s Resp. to Def.’s

Facts ¶ 118. The subject imports did not have side airbags behind the front seats.

Def.’s Facts ¶ 18; Pl.’s Resp. to Def.’s Facts ¶ 18. The Transit Connect 6/7s did not

come with a cargo mat and the painted metal floor of the cargo area was left exposed.

Def.’s Facts ¶ 119; Pl.’s Resp. to Def.’s Facts ¶ 119.

      The XL trim line 12 of the Transit Connect 6/7s “did not have front map lights, a CD

player, a power equipment group (including windows, locks, exterior mirrors and remote

keyless-entry with fobs), 12V powerpoint in the rear[,] or cruise control.” Pl.’s Facts ¶

67; Def.’s Resp. to Pl.’s Facts ¶ 67. After importation into the United States, but before

leaving the port, the Transit Connect 6/7s “were labeled with Monroney labels,

commonly known as window stickers, Smog Labels and Loose Item/Ramp labels.” Pl.’s

12Ford also manufactured the XLT (and XLT Premium) trim line of the Transit Connect
6/7 that included such features. Plaintiff’s Ex. A ¶ 82 (Ex. 79, T-1227) (Transit Connect
Order Guide). Neither party, however, has indicated the trim line of the specific vehicles
covered by this entry.
Court No. 13-00291                                                                 Page 10

Facts ¶ 75; Def.’s Resp. to Pl.’s Facts ¶ 75; Def.’s Facts ¶ 123; Pl.’s Resp. to Def.’s

Facts ¶ 123; Oral Arg. Tr. 91:3-14 (stipulating “to the fact that Monroney labels, were in

fact, attached to the subject Transit Connect 6/7s after they cleared customs, but before

they left the port facility”).

       The Transit Connect 6/7s are finally “delivered to customers as two-seat cargo

vans.” Def.’s Facts ¶ 130; Pl.’s Resp. to Def.’s Facts ¶ 130.

                        2.       History of Subject Merchandise

       Ford derived the Transit Connect 6/7s from a line of vehicles designed and

manufactured in Europe with the V227 designation. Pl.’s Facts ¶ 2; Def.’s Resp. to Pl.’s

Facts ¶ 2. When considering whether to expand the European V227 line to the United

States, “Ford researched the European ISV [integrated style vans] market for

approximately six months, including researching who the competitors were and how big

the market was” and explored targeting “both personal and commercial customers—

such as cleaning services, florists, newspaper carriers, telephone repair, and food

delivery.” Pl.’s Facts ¶¶ 15-16; Def.’s Resp. to Pl.’s Facts ¶¶ 15-16. Plaintiff “identified

owners of the Chevrolet Astro/Safari, a minivan used for both passengers and cargo but

that was no longer in production, as possible customers for the Transit Connect.” Pl.’s

Facts ¶ 17; Def.’s Resp. to Pl.’s Facts ¶ 17.

       Ford initially considered whether it would be feasible to manufacture the vehicles

in the United States, but decided to import a vehicle built on the European V227

production line already in use at its Otosan plant in Kocaeli, Turkey, because it was

more efficient to use an existing line and the vehicle could be brought to market sooner.
Court No. 13-00291                                                                 Page 11

Pl.’s Facts ¶ 19; Def.’s Resp. to Pl.’s Facts ¶ 19. “Every Transit Connect manufactured

in Turkey was built on the same production line.” Pl.’s Suppl. Facts ¶ 258; Def.’s Resp.

to Pl.’s Suppl. Facts ¶ 258. Ford’s plant in Otosan used the vehicle identification

number as a plant inventory control number. Pl.’s Facts ¶ 35; Def.’s Resp. to Pl.’s Facts

¶ 35. Transit Connect 6/7s received a VIN “during the manufacturing process . . . then

going forward that’s how the vehicle [was] managed. That [was] the vehicle

identification from that point forward.” Def.’s Facts ¶ 31; Pl.’s Resp. to Def.’s Facts ¶ 31.

      The vehicles in Ford’s European V227 line included the “double-cab-in-van

(DCIV),” which was also called the European Tourneo Connect or Transit Connect,

“depending on the country where sold,” and the “Cargo Van.” Pl.’s Facts ¶¶ 9, 11;

Def.’s Resp. to Pl.’s Facts ¶¶ 9, 11. Ford based the subject merchandise on its

European V227 DCIV, not its Cargo Van. Pl.’s Facts ¶ 21; Def.’s Resp. to Pl.’s Facts

¶ 21. “When Ford began product planning for the Transit Connect it did not know what

the ‘take rate’—product mix—would be between retail or fleet, and cargo or passenger,

sales.” Pl.’s Facts ¶ 20; Def.’s Resp. to Pl.’s Facts ¶ 20. Before it could be imported

into the United States as the Transit Connect 6/7, the European V227 DCIV had to be

modified to meet U.S. safety standards, “including the Federal Motor Vehicle Safety

Standards (‘FMVSS’).” Pl.’s Facts ¶ 25; Def.’s Resp. to Pl.’s Facts ¶ 25. Ford modified

the European V227 DCIV to comply with all relevant U.S. safety standards and imported

the modified vehicle as the Transit Connect. Pl.’s Facts ¶¶ 26, 32; Def.’s Resp. to Pl.’s

Facts ¶¶ 26, 32.
Court No. 13-00291                                                                Page 12

      To meet U.S. safety standards, Ford “redesigned the underbody support structure

for the second row of seats.” Pl.’s Facts ¶ 29; Def.’s Resp. to Pl.’s Facts ¶ 29. Ford

also “added a side-impact beam to the sliding side door to meet FMVSS 214” and “a

side-impact foam block to the sliding side door to meet [the] Insurance Institute of

Highway Safety (‘IIHS’) standards.” Pl.’s Facts ¶ 28; Def.’s Resp. to Pl.’s Facts ¶ 28.

Other safety modifications included making changes “to the vehicle lighting, turn signals

and vehicle labels.” Pl.’s Facts ¶ 27; Def.’s Resp. to Pl.’s Facts ¶ 27. Ford designed

the Transit Connect 6/7s on the Ford Focus platform. Pl.’s Facts ¶ 4; Def.’s Resp. to

Pl.’s Facts ¶ 4.

       During the February 2008 Chicago Auto Show, “Ford displayed Transit Connect

models” and “conducted focus groups with potential customers in order to learn their

reactions to the Transit Connect.” Pl.’s Facts ¶ 90; Def.’s Resp. to Pl.’s Facts ¶ 90. The

following year at the same auto show, Ford displayed the following configurations of the

Transit Connect: two-passenger, four-passenger 13, and five passenger. Pl.’s Facts

¶ 91; Def.’s Resp. to Pl.’s Facts ¶ 91. “From May to June 2009, Ford conducted a 13-

city tour where potential customers were able to drive Transit Connects,” and “[i]n six of

the cities, Ford also did a press event for the Transit Connect.” Pl.’s Facts ¶ 97; Def.’s

13 Plaintiff urges that “in an effort to distinguish and acknowledge the physical
differences in the subject merchandise pre-conversion and post-conversion, [Ford] uses
the term ‘four-passenger wagon’ to describe the subject merchandise prior to the
removal of the second row seat.” Pl.’s Suppl. Facts at 6. However, “Ford’s MY2012
Specifications Brochure . . . demonstrated that Ford wagons and vans were different
models of the Transit Connect.” Def.’s Resp. to Pl.’s Suppl. Facts at 13. Furthermore,
the four-passenger configuration was discontinued after MY2010. See Def.’s Facts
¶ 23; Pl.’s Resp. to Def.’s Facts ¶ 23.
Court No. 13-00291                                                                   Page 13

Resp. to Pl.’s Facts ¶ 97; Pl.’s Suppl. Facts at 8 (clarification of Pl.’s Fact ¶ 97); Def.’s

Resp. to Pl.’s Suppl. Facts at 8-9 (response to clarification of Pl.’s Fact ¶ 97). “Ford

advertised the Transit Connects in magazines and on auto shopping websites.” Pl.’s

Facts ¶ 99; Def.’s Resp. to Pl.’s Facts ¶ 99.

       In mid-MY2010, Ford created a “cost reduced” second row seat “for use in

Transit Connect cargo vans only. The purpose of the seat was to reduce costs by

removing items from the second-row seats used in the Transit Connect passenger

wagons including but not limited to the tumble lock mechanism, headrests and

associated parts, certain comfort wires,” and wrapping the second-row seat “in a cost

reduced fabric.” Def.’s Facts ¶ 114; Pl.’s Resp. to Def.’s Facts ¶ 114.

      The Transit Connect was “a vehicle that could be readily adapted to suit different

customer demands.” Pl.’s Facts ¶ 20; Def.’s Resp. to Pl.’s Facts ¶ 20. “Each Transit

Connect was built to order.” Pl.’s Facts ¶ 33; Def.’s Resp. to Pl.’s Facts ¶ 33. Ford

“imported the Transit Connect in two trim series, XL, the base trim series, and XLT, the

upgraded trim series.” Pl.’s Facts ¶ 34; Def.’s Resp. to Pl.’s Facts ¶ 34. All the

differences between the various configurations and trim levels of the Transit Connect

2012 models that were available for sale are identified in the MY2012 Brochure,

procured by CBP from the Ford website in February 2012. Pl.’s Facts ¶ 69; Def.’s

Resp. to Pl.’s Facts ¶ 69.
Court No. 13-00291                                                                Page 14

                      3.     Post-Importation Processing 14 of Subject Merchandise

      After subject imports cleared Customs, but still within the confines of the port,

processing procedures were conducted on all Transit Connects and, additionally,

certain features were removed and/or altered in the Transit Connect 6/7s. “The port

processing procedures carried out on all Transit Connect vehicles included removing

Rap-Gard, a protective covering during shipment; disengaging Transportation Mode;

and checking for low fuel.” Pl.’s Facts ¶ 74; Def.’s Resp. to Pl.’s Facts ¶ 74. For Transit

Connect 6/7s, additional post-importation processing entailed:

               the second-row seat was unbolted and removed, along with
               the associated second row safety restraints. A steel panel
               was then bolted into the second row footwell to create a flat
               surface behind the first rows of seats. A molded cargo mat
               was placed over the floor behind the first row. Scuff plates
               were added inside the second-row doors. In some vehicles
               the sliding door windows were replaced with a solid panel.

Pl.’s Facts ¶ 78; Def.’s Resp. to Pl.’s Facts ¶ 78. Prior to the subject merchandise being

ordered or manufactured, “Ford had entered into a contract with its port processor” to

conduct the post-importation processing. Def.’s Facts ¶ 125; Pl.’s Resp. to Def.’s Facts

¶ 125.

         The following features remained in the Transit Connect 6/7s after the post-

importation processing: underbody second-row seat support; anchors and fittings for the

14 The Court notes that Defendant objects to the term “post-importation processing” as
“vague.” See, e.g., Def.’s Resp. to Pl.’s Facts ¶ 79. There is, however, no dispute that
rear seats are removed, along with other post-importation alterations, after importation
but while still at the port. The Court utilizes “post-importation processing” throughout
this opinion as a short-hand term recognizing the undisputed alterations and the
undisputed timing of those alterations.
Court No. 13-00291                                                                 Page 15

second-row seat, permanent bracing in the side pillars to support the removed safety

restraints; and the beam and foam in the side sliding doors for rear passenger crash

protection. 15 Pl.’s Facts ¶ 80; Def.’s Resp. to Pl.’s Facts ¶ 80; Pl.’s Suppl. Facts ¶ 255;

Def.’s Resp. to Pl.’s Suppl. Facts ¶ 255.

                     4.     CBP’s Investigations of Subject Merchandise

       “Between April 17, 2009, and 2013,” Ford imported the Transit Connects through

the Ports of Baltimore, Maryland, Jacksonville, Florida, Los Angeles-Long Beach,

California, and Port Hueneme, California. Pl.’s Facts ¶ 137; Def.’s Resp. to Pl.’s Facts

¶ 137. From March 1, 2010 through November 23, 2012, “there were 477 liquidations

of entries containing Transit Connect vehicles classified under subheading 8703.23.00,

HTSUS, with 446 entries as bypass liquidations, i.e., unreviewed, and 31 entries

reviewed by CBP personnel” without a physical inspection of the goods by an import

specialist. Def.’s Facts ¶ 139; Pl.’s Resp. to Def.’s Facts ¶ 139. As part of Customs’

compliance validation, Customs reviewed “Ford’s entry documents” for at least nineteen

entries, and of those nineteen validated entries, eight were “found to be compliant.”

Pl.’s Facts ¶¶ 142-43; Def.’s Resp. to Pl.’s Facts ¶¶ 142-43.

       In the winter of 2011 to 2012, CBP Supervisory Import Specialist Gerald Stroter

and Import Specialists Tamiko Bates and Jeremy Jackson conducted a Trade

Compliance Measurement Review as part of Tamiko Bates’ training at the Port of

15The anchor holes for the second row seat are plugged and no longer readily
accessible after post-importation processing. See Oral Arg. Tr. at 25:25-28:3.
Court No. 13-00291                                                                     Page 16

Baltimore. 16 Pl.’s Facts ¶ 151; Def.’s Resp. to Pl.’s Facts ¶ 151. One of the entries

covered in the Trade Compliance Measurement Review was of a Transit Connect 6/7.

Pl.’s Facts ¶ 152; Def.’s Resp. to Pl.’s Facts ¶ 152. Mr. Stroter noticed that “the

difference between the passenger version and the cargo version of the Transit Connect

appeared to be that the passenger version had a rear seat and the cargo version did

not.” Pl.’s Facts ¶ 155; Def.’s Resp. to Pl.’s Facts ¶ 155.

       As a result of the aforementioned review, Import Specialists “believed that the

[Transit Connect 6/7s] were being misclassified.” Pl.’s Facts ¶ 157; Def.’s Resp. to Pl.’s

Facts ¶ 157; Pl.’s Suppl. Facts at 8-9 (clarification of Pl.’s Fact ¶ 157); Def.’s Resp. to

Pl.’s Suppl. Facts at 14 (response to clarification of Pl.’s Fact ¶ 157). On February 6,

2012, Mr. Jackson submitted a QUICS query—“a mechanism by which import

specialists are able to circulate questions to the National Import Specialists . . .

regarding classification . . . but the response is advisory and is not binding”—describing

the Transit Connect 6/7 “based on what was shown on Ford’s website.” Pl.’s Facts ¶¶

158-59; Def.’s Resp. to Pl.’s Facts ¶¶ 158-59.

       On February 9, 2012, Mr. Stroter, Mr. Jackson, and CBP Officer Eric Dausch

went to the Port of Baltimore “to physically inspect a [Transit Connect 6/7],” and at this

time, Mr. Jackson “noticed that some Transit Connect vehicles had rear windows and

16 The fact that a review took place is not in dispute; however, Parties present two
different dates, within a month of each other, indicating when the review occurred.
Plaintiff asserted the review was conducted in December 2011, and Defendant asserted
the review was initiated on January 17, 2012. Pl.’s Facts ¶ 151 (citing Ex. M 60:11-
62:7); Def.’s Resp. to Pl.’s Facts ¶ 151 (citing Def.’s Ex. 20). The Court finds that this
difference is immaterial to the undisputed fact that a review took place.
Court No. 13-00291                                                                  Page 17

some did not.” Pl.’s Facts ¶¶ 160-61; Def.’s Resp. to Pl.’s Facts ¶¶ 160-61. Mr. Stroter

and Mr. Jackson learned that “vehicles with VIN’s containing the characters S6 or S7

. . . were consistently discovered to be 2-passenger cargo vans while those with the

characters S9 were identified as 5-passenger vehicles.” Pl.’s Facts ¶ 166 (internal

quotations omitted); Def.’s Resp. to Pl.’s Facts ¶ 166.

       That day, Mr. Jackson “emailed Richard Laman, the National Import Specialist

responsible for reviewing Jackson’s earlier QUICS message,” describing “the vehicles

that he physically inspected, and included the pictures that were taken of the vehicles

during his visit.” Pl.’s Facts ¶ 163; Def.’s Resp. to Pl.’s Facts ¶ 163. Mr. Jackson

viewed Mr. Laman “as responsible for setting the policy for how the Transit Connect

[6/7] would be classified.” Pl.’s Facts ¶ 163; Def.’s Resp. to Pl.’s Facts ¶ 163.

       On February 22, 2012, the Assistant Special Agent in Charge of U.S. Immigration

and Customs Enforcement in Baltimore was notified of the “Investigation into Proper

Classification of Ford Connect Vans.” Pl.’s Facts ¶ 169; Def.’s Resp. to Pl.’s Facts ¶

169. On February 23, 2012, the Port of Baltimore notified Ford that CBP had “initiated

an investigation into Ford Motor Company importations” and the “declaration of vehicles

classified under the Harmonized Tariff Schedule of United States (HTSUS) headings

8704 and 8703.” Pl.’s Facts ¶ 172; Def.’s Resp. to Pl.’s Facts ¶ 172.

       On February 24, 2012, CBP Officer Benjamin Syzmanski contacted Mr. Stroter

and informed him for the first time that cargo vans “are imported in [sic] as passenger

vans.” Pl.’s Facts ¶ 185; Def.’s Resp. to Pl.’s Facts ¶ 185. Mr. Syzmanski explained

that “the Transit Connect vans make entry into the port and then are fully released by
Court No. 13-00291                                                                 Page 18

CBP. Only after the vans have been released by CBP . . . does Ford move the vans to

a facility within the Baltimore Port limits and select vans are gutted/stripped/altered to

become cargo vans.” Pl.’s Facts ¶ 185 (internal quotations omitted); Def.’s Resp. to

Pl.’s Facts ¶ 185.

       On June 8, 2012, the Assistant Director for Trade Operations of the Port of

Baltimore, Thomas Heffernan, requested an Internal Advice from CBP’s Office of

Regulations and Rulings regarding the proper classification of the Transit Connect 6/7s.

Pl.’s Facts ¶¶ 87d, 216; Def.’s Resp. to Pl.’s Facts ¶¶ 87d, 216; Def.’s Facts ¶ 145; Pl.’s

Resp. to Def.’s Facts ¶ 145. On January 30, 2013, in response to Mr. Heffernan’s

request for Internal Advice, CBP Headquarters issued ruling HQ H220856 to the

Baltimore Field Office. Pl.’s Facts ¶ 237; Def.’s Resp. to Pl.’s Facts ¶ 237; Def.’s Facts

¶ 146; Pl.’s Resp. to Def.’s Facts ¶ 146. HQ H220856 held that the Transit Connect

6/7s were “properly classifiable as ‘Motor vehicles for the transport of goods,’ under

subheading 8704.31.00, HTSUS, dutiable at the rate of 25% ad valorem.” Def.’s Facts

¶ 147; Pl.’s Resp. to Def.’s Facts ¶ 147.

                          JURISDICTION AND STANDARD OF REVIEW

       The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(a).

Jurisdiction is uncontroverted in this case. Pl.’s Facts ¶ 244-49; Def.’s Resp. to Pl.’s

Facts ¶ 244-49.

       The Court may grant summary judgment when “there is no genuine issue as to

any material fact,” and “the moving party is entitled to judgment as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); USCIT R. 56(a). The court’s
Court No. 13-00291                                                                  Page 19

review of a classification decision involves two steps. First, it must determine the

meaning of the relevant tariff provisions, which is a question of law. See Bausch &

Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citation omitted).

Second, it must determine whether the merchandise at issue falls within a particular

tariff provision as construed, which is a question of fact. Id. (citation omitted). When no

factual dispute exists regarding the merchandise, resolution of the classification turns

solely on the first step. See id. at 1365-66; see also Carl Zeiss, Inc. v. United States,

195 F.3d 1375, 1378 (Fed. Cir. 1999).

         The court reviews classification cases de novo. See 28 U.S.C. §§ 2640(a),

2643(b). While the court accords deference to Customs classification rulings relative to

their ‘“power to persuade,’” United States v. Mead Corp., 533 U.S. 218, 235 (2001)

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)), it has “an independent

responsibility to decide the legal issue of the proper meaning and scope of HTSUS

terms,” Warner-Lambert Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005)

(citing Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1358 (Fed. Cir. 2001)).

It is “the court’s duty to find the correct result, by whatever procedure is best suited to

the case at hand.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir.

1984).
Court No. 13-00291                                                                   Page 20

                                         DISCUSSION

       The Court may grant summary judgment when “there is no genuine issue as to

any material fact,” and “the moving party is entitled to judgment as a matter of law.”

Anderson, 477 U.S. at 247; USCIT R. 56(a).

       I.     Material Facts

       In the Material Facts Not in Dispute Section above, the Court discussed the

undisputed facts presented by Parties that are material for the classification analysis.

To determine which facts are material for a classification analysis, the Court requires an

accurate and detailed description of the article, at the time of importation. It is a well-

settled tenet of customs law that “[i]n order to produce uniformity in the imposition of

duties, the dutiable classification of articles imported must be ascertained by an

examination of the imported article itself, in the condition in which it is imported.”

Worthington v. Robbins, 139 U.S. 337, 341 (1891). However, it is equally settled that

articles cannot escape a prescribed rate of duty “by resort to disguise or artifice.”

United States v. Citroen, 223 U.S. 407, 415 (1912). The Supreme Court carved out an

exception from classifying a good “in the condition in which it is imported” by explaining

that “when the article imported is not the article described as dutiable at a specified rate,

it does not become dutiable under the description because it has been manufactured or

prepared for the express purpose of being imported at a lower rate.” Id. at 415. The

Citroen court created a bright line test for classification cases: “[d]oes the article, as

imported, fall within the description sought to be applied?” Id.
Court No. 13-00291                                                                 Page 21

       With regard to the classification of vehicles, the Court of Appeals for the Federal

Circuit (“Federal Circuit”) has spoken to the distinction between passenger vehicles or

cargo vehicles. See Marubeni Am. Corp. v. United States, 35 F.3d 530 (1994). In

Marubeni, the court decided the proper classification of the 1989 and 1990, two door,

two-wheel and four-wheel drive, Nissan Pathfinder, when the sports utility vehicle first

entered the market. 35 F.3d at 532. The Marubeni court considered two possible

HTSUS headings—8703 and 8704—the same two headings at issue in the instant

case. Id. at 533. The Marubeni court held that the proper classification of the Nissan

Pathfinder was under heading 8703, encompassing motor cars and other motor

vehicles principally designed for the transport of persons, and affirmed the Court of

International Trade’s (“CIT”) decision. Id. at 532 (affirming Marubeni Am. Corp. v.

United States, 17 CIT 360, 821 F. Supp. 1521 (1993)). In so doing, the Federal Circuit

spoke to the test to determine “whether a vehicle is principally designed for a particular

purpose, not uniquely designed for a particular purpose,” by looking “at both the

structural and auxiliary design features, as neither by itself are determinative.” Id. at

535.

       As part of its structural design analysis, the Marubeni court reviewed the lower

court’s findings following a three week trial:

              [T]he Pathfinder was basically derived from Nissan's
              Hardbody truck line yet, the Pathfinder was based upon
              totally different design concepts than a truck . . . the reasons
              behind the design decisions, including the need for speed
              and economy in manufacturing to capture the changing
              market, a market into which Nissan was a late entrant.
              Specifically, the designers decided to adopt the Hardbody's
Court No. 13-00291                                                              Page 22

             frame side rails and the cab portion from the front bumper to
             the frame just behind the driver's seats so that they could
             quickly and economically reach the market. The front
             suspension system was also adopted from Nissan's truck
             line but the rear suspension was not. The fact that a vehicle
             is derived in-part from a truck or from a sedan is not, without
             more, determinative of its intended principal design
             objectives which were passenger transport and offroad
             capability.

             Substantial structural changes were necessary to meet the
             design criterion of transporting passengers. The addition of
             the rear passenger seat required that the gas tank be moved
             to the rear and the spare tire relocated. This effectively
             reduces the cargo carrying capacity. Of particular
             importance was the design of a new rear suspension that
             was developed specifically to provide a smooth ride for
             passengers. New and different cross beams, not present on
             the Hardbody frame, were added to the Pathfinder's frame to
             accommodate the above changes.

             Other design aspects that point to a principal design for
             passengers include: the spare tire and the rear seat when
             folded down intrude upon the cargo space; the cargo area is
             carpeted; a separate window opening in the pop-up tailgate
             accommodates passengers loading and unloading small
             packages without having to lower the tailgate. In contrast,
             the Hardbody truck bed can accommodate loading with a
             fork lift, clearly a design feature for cargo. . . . [T]he cargo
             volume is greatly reduced when the rear seat is up to
             accommodate passengers. Moreover, the axle and wheel
             differences are minor and consistent with the Pathfinder's
             off-road mission, particularly in the loaded condition. The
             Pathfinder has the same engine size as the Maxima
             passenger car.

Id. at 536-37. For its auxiliary design analysis, the Marubeni court noted:

             Auxiliary design aspects . . . that indicate passenger use over
             cargo use include: vehicle height was lowered 50 millimeters;
             the seat slides were improved yet similar to those on two door
             passenger sedans. Other auxiliary design features that point
             to transport of passengers include: rear seats that recline, are
Court No. 13-00291                                                               Page 23

             comfortable, and fold to make a fairly flat cargo bed but are
             not removable; rear seat stereo outlets, ashtrays, cubbyholes,
             arm rests, handholds, footwells, seat belts, child seat tie
             down hooks and operable windows. The CIT noted that there
             is not much more that can be done to accommodate
             passengers in the rear seat. Moreover, the testimony of the
             three primary design engineers as well as the
             contemporaneous design development documents support
             the finding that the Pathfinder was principally designed for the
             transport of persons.

Id. at 537. The Federal Circuit further acknowledged the trial court’s reliance on “three

primary design engineers” to assist in determining whether the Nissan Pathfinder was

principally designed for the transport of persons. Id. When interpreting these

competing headings, the Federal Circuit found that “the statutory language is clear that

a vehicle’s intended purpose of transporting persons must outweigh an intended

purpose of transporting goods.” Id. at 535.

       The article at issue in this case is the Transit Connect 6/7. Parties presented

numerous detailed and undisputed facts about the structural and auxiliary design

features of the Transit Connect 6/7s, both as imported and following post-importation

processing. Although there is general agreement and sufficient information before the

Court about most of these structural and auxiliary features, there is one significant

feature about which the Court lacks sufficient material, undisputed facts: the cost

reduced rear seat. 17 The Court notes that, in Marubeni, the Federal Circuit discusses

17The Court’s reference to the rear seat as “cost reduced” should not be inferred as a
judgment about the rear seat but rather an undisputed characterization of the version of
the second row seat that is installed in the Transit Connect 6/7s at issue at the time of
importation.
Court No. 13-00291                                                                  Page 24

the rear seat in both its structural and auxiliary analyses. The Court finds that a detailed

description and understanding of the cost reduced rear seat is material to the proper

conduct of a Marubeni analysis.

       II.    Genuine Issue

       While Parties provide some information about the cost reduced rear seat, there

remain questions about the nature of that seat that must be answered to allow the Court

to conduct a Marubeni analysis. Including the presence of the rear seat in an auxiliary

design list with height, footwells, seatbelts and child safety, Plaintiff contends that the

Transit Connect 6/7s’ cost reduced rear seat satisfies the Marubeni test merely because

it is included at the time of importation. See Pl.’s MSJ at 25-29. Though admitting that

its intention from the beginning is to remove the cost reduced rear seat immediately

after importation and before delivery to the customer, Ford asserts that “an importer’s

intention to modify goods after importation is irrelevant to classification.” Pl.’s MSJ at

22. Defendant responds that the Transit Connect 6/7s’ cost reduced rear seat was

never intended to be sat upon, pointing to the lack of “comfort wires” and indications

that it “sags a little” as support for its contention. Def.’s XMSJ at 18; Oral Arg. Tr. at

18:2-3.

       During oral argument, the Court asked Parties to more fully describe this cost

reduced rear seat. See Oral Arg. Tr. at 39: 7-11 (The Court asked Parties, “[t]he

comfort wires that are referred to with regard to the second row, what are we talking

about there? I don’t recall seeing an explanation of what they are.”). Plaintiff

acknowledged using the term “comfort wires” but admitted that “I’m not truly sure where
Court No. 13-00291                                                                Page 25

comfort wires came from, but I don’t think that any passenger comfort wires are actually

removed.” Id. at 40:9-12. In response, Defendant offered that “our understanding of

comfort wires are wires underneath the seat.” Id. at 41:6-7. Counsel was similarly

uncertain about the absence of the tumble lock mechanism from the cost reduced

second row seat. See, e.g., id. at 64: 21-25. Although the evidence is more clear that

the cost reduced rear seat excludes head rests and arm rests and is covered in a cost

reduced fabric that does not match the rest of the interior fabric, the Court is unclear

how the totality of these changes impacts the functionality of this seat and the overall

design of the vehicle, as imported. Additional information and evidence regarding this

seat will better enable the Court to determine whether the vehicle’s intended purpose of

transporting persons, as imported, outweighs an intended purpose of transporting

goods. See Marubeni, 35 F.3d at 535.

       The Court finds there are genuine issues of material fact as to the characteristics

of the cost reduced rear seat at the time of importation. Because there are genuine

issues of material fact, neither moving party is entitled to judgment as a matter of law.

See Anderson, 477 U.S. at 247; USCIT R. 56(a). Accordingly, the Court cannot decide

this case on summary judgment. Plaintiff’s motion and Defendant’s cross-motion are

both denied.
Court No. 13-00291                                                             Page 26

                                CONCLUSION AND ORDER

      For the reasons discussed above, the Court hereby DENIES both Plaintiff’s

motion for summary judgment and Defendant’s cross-motion for summary judgment.

The Court will schedule a teleconference with Parties to discuss next steps.

                                               /s/   Mark A. Barnett
                                               Mark A. Barnett, Judge

Dated: ________________
        October 5, 2016
      New York, New York


198 P.3d 182 (2008)
Cathy THOMAS, Administratrix of the Estate of Anthony D. Stapleton, et al., Appellants,
v.
The COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Kansas, et al., Appellees.
No. 98,586.
Court of Appeals of Kansas.
December 12, 2008.
*186 Robert R. Laing, Jr., of Kansas City, for appellants.
William A. Larson, of Larson & Blumreich, Chartered, of Topeka, for appellees.
Before MARQUARDT, P.J., STANDRIDGE, J., and BUKATY, S.J.
STANDRIDGE, J.
In this jail suicide negligence action, the plaintiffs appeal the district court's decision to grant summary judgment in favor of the defendants. We affirm in part, reverse in part, and remand with directions.

Facts
On October 22, 2002, Anthony D. Stapleton was taken into custody at the Shawnee County Department of Corrections Adult Detention Center (DOC). Stapleton was placed on suicide watch after he told jail staff that he had attempted suicide a few months prior to being incarcerated, that he felt he had "lost everyone," and that he wanted to die. Inmates in the suicide watch unit were considered an imminent risk for suicide and were required to be observed on a nearly continuous basis.
Jail staff moved Stapleton from suicide watch to the close observation unit after Stapleton reported that he was feeling much better and denied having any current suicidal ideation or plans. The close observation unit was intended for those inmates who were not imminently suicidal, but who possessed one or more suicide risk factors. DOC policy required officers in the close observation unit to conduct health and well-being checks every 15 minutes. Although close observation guards were not required to know whether an inmate had been suicidal in the past, guards were trained to treat all inmates in the close observation unit as if they possessed risk factors for suicide. Officers were also told that placement in the close observation unit represented that "someone possesses a risk factor, one or more risk factors, for suicide, but are not considered imminently suicidal."
After being placed in close observation, Stapleton was evaluated three times for risk of suicide, with the last evaluation occurring November 25, 2002. Each time he was evaluated, jail staff recommended that Stapleton remain in the close observation unit.
David Tipton was the guard on duty in the close observation unit on November 29, 2002. At approximately 9:05 a.m., Stapleton started an argument with another guard, Curtis Jones, over the size of Stapleton's jumpsuit. Jones called Matthew Biltoft, Tipton and Jones' supervisor, and stated that he thought Stapleton should be moved to suicide watch because Stapleton was a disciplinary problem. Jones' recommendation was consistent with the suicide prevention policy, which provided that a close observation inmate should be transferred to suicide watch if the inmate becomes seriously insubordinate or violent.
In addition to Jones, Tipton also told Biltoft that Stapleton should be transferred out of the close observation unit. In an affidavit filed after Stapleton's death, Tipton maintained that helike Jonesthought Stapleton should have been moved to suicide watch because Stapleton was a disciplinary problem. Tipton's stated reason for the transfer was disputed by Father Joseph Chontos, who spoke with Tipton after the suicide occurred. According to Chontos, Tipton thought the move to suicide watch was necessary not because Stapleton was a disciplinary problem, but because Stapleton was a threat to himself.
After speaking with Tipton and Jones, Biltoft arrived at the close observation unit and talked with Stapleton about the incident. Although Stapleton appeared to almost begin crying during the conversation, Stapleton later seemed to calm down and relax. Without conducting a formal suicide screening, Biltoft determined that Stapleton did not need to be transferred to suicide watch. Biltoft left the close observation unit.
At 10 a.m., Tipton saw that Stapleton had completed a shower and was proceeding to his room. According to Darrell Myrick, another inmate in the close observation unit, *187 Stapleton was walking towards his room from the shower and, when he was about 15 feet from Tipton, Stapleton stated out loud that he was going to kill himself. Tipton stated he did not hear Stapleton's statement. Myrick claimed that Tipton was watching television and was not paying attention to the inmates at the time.
Once inside his cell, Stapleton obstructed his cell window with an artificial screen, which violated DOC policy. Tipton stated that every module at the DOC in which Tipton worked had permitted the inmates to briefly cover their cell windows when the inmates were using the restroom; thus, Tipton took no action to remove the screen from Stapleton's window.
Between 10:16 a.m. and 10:20 a.m., Stapleton's roommate reported that he was unable to open the door to his room. Tipton checked the door and found that Stapleton had hanged himself with a sheet. Tipton notified emergency personnel and immediately administered first aid to Stapleton. Stapleton ultimately was pronounced dead.
After Stapleton's death, three suicide letters were found in Stapleton's cell. The earliest was dated November 3, 2002. According to the suicide prevention policy, frequent shakedowns of each cell, at least one time per shift on the first and second shifts, were required in the close observation unit. There was no record that a shakedown of Stapleton's cell was ever completed.
Following the suicide, Cathy Thomas, the administratrix of Stapleton's estate, and Jennifer Mendez, next of kin and guardian of Stapleton's son (collectively "Thomas"), filed a lawsuit grounded in negligence against Biltoft, Tipton, and Betsy Gillespie (Director of the DOC), as well as County Commissioners Ted Ensley, Marice Kane, and Victor Miller individually and the Board of Shawnee County Commissioners as an entity ("Shawnee County") (collectively "Defendants"). Defendants ultimately filed a motion for summary judgment, which the district court granted. Thomas appeals, arguing the district court erred in determining that each of the defendants were entitled to immunity from liability for any negligent acts.

Analysis
The parties are well acquainted with the standards for summary judgment, and we will not repeat them here. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002) (setting forth the standards for summary judgment). Where there is no factual dispute, appellate review of an order granting summary judgment is de novo. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008).
In order to establish liability for negligence against a defendant, including a governmental agency, the plaintiff must establish: (1) The defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff sustained damages. Burney v. Kansas Dept. of SRS, 23 Kan.App.2d 394, 397, 931 P.2d 26 (1997). Whether a duty exists is a question of law, and our review is unlimited. See Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993). If a duty exists, breach and causation are questions for the factfinder. See Calwell v. Hassan, 260 Kan. 769, 776, 925 P.2d 422 (1996).

A. Defendants' Duty To Stapleton
There is no affirmative duty to protect an individual unless one can establish a special duty is owed to the injured individual. See Potts v. Board of Leavenworth County Comm'rs, 39 Kan.App.2d 71, 80-81, 176 P.3d 988 (2008) (governmental agency owes duty to public at large and not to individual unless special relationship exists); Restatement (Second) of Torts § 314A (1964) (an individual has no duty to act for the protection of others unless a special relationship exists). Numerous Kansas cases have recognized that a custodial relationship is a special relationship which imposes on the custodian a special duty of care. Relevant to the issue of duty here, many of these cases relied on various sections within the Restatement (Second) of Torts to support the existence of such a relationship. A brief review of these cases will be helpful to our determination regarding whether Defendants owed a special duty *188 of care to Stapleton under the facts presented here.
In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), one of seven inmates who escaped from the penitentiary shot and severely wounded a police officer. The police officer sued the government, and the Kansas Supreme Court considered whether the government owed the officer a special duty to protect him from the escaped convicts. The court cited Restatement (Second) of Torts § 319 (1964), which provides that custodians who take control of a dangerous person owe a duty of reasonable care to prevent the dangerous person from harming others. Finding no Kansas decisions precisely on point, the court relied heavily on cases from outside jurisdictions to conclude that, pursuant to Restatement (Second) of Torts § 319, the State owed a duty of reasonable care to prevent the inmate from escaping and harming the officer. 234 Kan. at 559-64, 675 P.2d 57.
In Washington v. State, 17 Kan.App.2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992), Washington was in custody at the Lansing Correctional Facility when he got into a fight with Vaughn, another inmate. Both men were placed in special confinement. Vaughn made several threats against Washington in the presence of the prison guards. Upon release from special confinement, both men were assigned to the same cell block four cells away from each other, even though other empty cells were available. On this same day, Vaughn stabbed Washington in the eye, causing irreparable damage.
Washington sued the State for negligence, alleging that as agents of the State, the prison guards knew Vaughn would try to harm Washington, yet they assigned the two to the same cell block without warning and did not try to protect Washington. On appeal, a panel of our court concluded the State was under a special duty to prevent inmates from harming other inmates. In so concluding, the court applied Restatement (Second) of Torts § 320 (1964), which recognizes that, under certain circumstances, a person who has custody of another "is under a duty to exercise reasonable care so as to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm." Like Cansler, Washington did not cite any Kansas cases directly on point but observed that nearly all extra-jurisdictional courts to have considered the matter held prison officials to a duty of care to safeguard a prisoner in their custody or control from attack by other prisoners. 17 Kan.App.2d at 523, 839 P.2d 555.
In C.J.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993), the plaintiff, a 12-year-old boy, was confined in a juvenile detention center when he was assaulted, raped, and sexually molested by another older youth named Randy, who also was confined at the juvenile detention center. SRS had a well-documented history of Randy's abuse towards younger boys, including a label as "rapist" by one youth facility. C.J.W. sued the State for negligence. The trial court granted summary judgment in favor of the State, finding no legal duty existed on the part of the State to protect C.J.W. from Randy.
On appeal, the Kansas Supreme Court reversed: "We have no hesitancy in concluding that §§ 315, 319, and 320 of the Restatement (Second) of Torts apply to this case and that the State not only had a duty to warn [regarding] Randy's propensities to commit violence but also to take reasonable steps to protect plaintiff from Randy." 253 Kan. at 12, 853 P.2d 4.
In Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997), officers arrested and handcuffed the plaintiff at the scene of a domestic incident but failed to protect him from his girlfriend, who slit his throat as he sat on the curb while the officers completed reports. The Kansas Supreme Court held that the officers owed a duty to the plaintiff to protect him from his girlfriend while he was handcuffed and unable to defend himself. 263 Kan. at 158-63, 947 P.2d 31. In so holding, the court relied on the Restatement (Second) of Torts § 320.
In finding that a custodial relationship imposes upon the custodian a special duty of care, each of the Kansas cases referenced above relied on various exceptions to the general rule set forth in the Restatement *189 (Second) of Torts § 315 (1964) that, absent a special relationship, there is no affirmative duty to control the conduct of a third person to prevent such third person from causing physical harm to another. More specifically, the cases above relied on the special relationship exceptions set forth in Restatement (Second) of Torts § 319 (those in charge of a third person having dangerous propensities have duty to control conduct of such dangerous third person toward another), and Restatement (Second) of Torts § 320 (those having custody of another have duty to control conduct of third person toward the one in custody). Notwithstanding the fact that, like the Kansas cases described above, Defendants had custody and control of Stapleton in this case, we find application of an alternate section of the Restatement is better suited to the unique facts presented here.
Like the general rule set forth in Restatement (Second) of Torts § 315 that there is no affirmative duty to control the conduct of a third person toward another, Restatement (Second) of Torts § 314 (1964), stands for the even broader proposition that, as a general rule, there is no duty to act for the protection of others, regardless of whether a third person is involved ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). Restatement (Second) of Torts § 314A, however, goes on to identify special relationships that are excepted from this general rule and give rise to an affirmative duty to aid or protect:
"(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
"(2) An innkeeper is under a similar duty to his guests.
"(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
"(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other."
To a certain extent, subsection (4) of § 314A of the Restatement (duty to protect one in custody from unreasonable risk of physical harm) appears to overlap with § 320 (controlling conduct of third person toward one in custody). Given the facts presented here, however, only Restatement (Second) of Torts § 314A(4) appears applicable. This is because, in this case, the risk of harm to the one in custody did not come from a third person, but instead it came from the one in custody himself. The comments to § 314A(4) specifically explain that a duty exists under these unique circumstances: "The duty to protect the other against unreasonable risk of harm extends to risks arising ... from the negligence of the plaintiff himself." Restatement (Second) Torts § 314A, comment d.
No Kansas case has acknowledged the duty of a custodian to protect one in custody from physical harm as set forth in subsection (4) of the Restatement (Second) of Torts § 314A. With that said, numerous Kansas cases have acknowledged, pursuant to subsection (3) of the Restatement (Second) of Torts § 314A, the duty of one in possession of land to aid or protect members of the public invited onto the land. See D.W. v. Bliss, 279 Kan. 726, 732, 112 P.3d 232 (2005) (recognizing Restatement [Second] of Torts § 314A[3] imposes a duty upon one in possession of land); Gragg v. Wichita State Univ., 261 Kan. 1037, 1045-46, 934 P.2d 121 (1997) (same); Gardin v. Emporia Hotels, Inc., 31 Kan.App.2d 168, 171-72, 61 P.3d 732, rev. denied 275 Kan. 963 (2003) (same). Thus, although not in the same context, Kansas has recognized and implemented § 314A of the Restatement (Second) of Torts.
Moreover, and in a factual scenario very similar to the one presented here, two cases from the United States District Court for the District of Kansas have specifically applied Restatement (Second) of Torts § 314A(4) to hold that prison officials owed inmates the *190 duty to prevent self-harm. Estate of Sisk v. Manzanares, 262 F.Supp.2d 1162, 1185-87 (D.Kan.2002) (holding DOC and its personnel had independent legal duty to prevent prisoner from committing suicide); Griffin v. United States, 2000 WL 33200259 (D.Kan. 2000) (unpublished opinion) (holding United States Marshal Service had legal duty of care with respect to suicidal prisoner who escaped from custody and then committed suicide by jumping from the fourth floor atrium of United States courthouse). We note that in Griffin, Judge Vratil relied on the Kansas Supreme Court case of Cansler, 234 Kan. at 560-65, 675 P.2d 57, to conclude that Kansas would recognize Restatement (Second) of Torts § 314A(4) as applied to suicidal inmates. In support of this conclusion, Judge Vratil specifically noted that Kansas generally relied on the Restatement in cases involving tort duties arising out of special relationships. 2000 WL 33200259 at *5.
In light of the language used in the Restatement (Second) of Torts § 314A(4), as well as the cases referenced above that have favorably cited both this and other relevant sections of the Restatement (Second) of Torts, we find § 314A(4) applicable to the facts presented and conclude, as a matter of law, that Defendants had a duty to protect Stapleton. More specifically, we hold that Defendants, as Stapleton's custodian, had a legal duty to take reasonable action to protect Stapleton against the risk of self-inflicted physical harm. Finding the existence of a legal duty, we now move on to determine whether any of the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm, which necessarily triggers this legal duty to act.

B. Did Thomas Submit Sufficient Evidence To Establish A Material Dispute Of Fact As To Whether Defendants Knew Or Should Have Known That Stapleton Was Subject To An Unreasonable Risk Of Physical Harm, Which Necessarily Triggers The Duty To Act?
In granting summary judgment, the district court concluded as a matter of law that none of the individual defendants were required to affirmatively act to protect Stapleton. More specifically, the court concluded that Thomas failed in the summary judgment pleadings to allege material facts indicating any of the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm, which necessarily triggers the duty to act. Because an entity can only act through its employees and agents, the court then concluded Shawnee County did not have a duty to act either. On appeal, Thomas claims the district court erred in coming to these conclusions.

1. Whether Any Individual Defendants Knew Or Should Have Known Of Unreasonable Risk
Restatement (Second) of Torts § 314A, comment e, explains that "[t]he duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not liable where he neither knows nor should know of the unreasonable risk." The question of whether any of the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm is a question of fact. See Turner v. Railway Co., 85 Kan. 6, Syl., 85 Kan. 6, 116 P. 482 (1911) (Where an employee inexperienced in placing a dead engine on a round table and is crushed between two engines, the question whether injured railroad employee knew or should have known of danger in moving dead engine on a round table is question of fact for the jury and not one of law for the court.). Although a question of fact, if Thomas failed in the summary judgment pleadings to allege any material facts indicating that the individual defendants knew or should have known that Stapleton was subject to an unreasonable risk of physical harm, then there simply was no factual dispute and summary judgment in favor of those individual defendants was warranted. See Seitz v. Lawrence Bank, 36 Kan.App.2d 283, 288, 138 P.3d 388, rev. denied 282 Kan. 791 (2006).

a. David Tipton (In His Individual Capacity)
Thomas claims Tipton was negligent in guarding, supervising, and observing Stapleton *191 immediately prior to Stapleton's suicide. In order to survive summary judgment on this claim, Thomas must come forward with evidence Tipton knew or should have known that there was a risk Stapleton would commit suicide.
The record on summary judgment reflects Stapleton received an initial mental health screening when he was first incarcerated at the DOC on October 22, 2002. Because the screening revealed no signs of a risk for suicide, Stapleton was placed in the general population. On October 23, 2002, Stapleton was again evaluated. This time, Stapleton divulged that he had attempted suicide within the last year by cutting his throat. As this information was communicated, Stapleton was crying and told the interviewer that he was upset and scared. Although Stapleton indicated he was not currently thinking about killing himself, the decision was made to move Stapleton out of general population and place him in the close observation unit. Pursuant to the DOC suicide prevention policy, the close observation unit is intended for those inmates whoalthough not imminently suicidalpossess one or more suicide risk factors.
On October 24, 2002, Stapleton was again evaluated. Stapleton stated he had no family, he felt no one cared about him, and he felt like he wanted to die. After this evaluation, the decision was made to move Stapleton out of the close observation unit and place him in suicide watch. The DOC suicide prevention policy describes suicide watch as "[c]ontinuous supervision provided to an inmate who is considered to be at imminent risk for suicide."
Four days later, on October 28, 2002, another suicide risk assessment was conducted. Stapleton's mood was improved, he was not crying, and he was more upbeat. Stapleton stated he was feeling better and asked to be moved out of suicide watch. Based upon the recommendation of the social worker, Stapleton was moved out of suicide watch and back to the close observation unit.
Stapleton remained in the close observation unit up to the time of his death on November 29, 2002. During this approximately 30-day period, Stapleton received three more suicide screenings: November 7, November 23, and November 25, 2002. Based on the fact that Stapleton was not moved to general population after any of these screenings, it appears the DOC continued to view Stapleton as an inmate who possessed one or more suicide risk factors.
To more closely monitor those inmates who have been recognized by the DOC as individuals who possess one or more suicide factors, the DOC suicide prevention policy required officers in the close observation unit to conduct health and well-being checks every 15 minutes. Although close observation guards were not required to know whether an inmate had ever been considered an imminent risk for suicide or had actually tried to commit suicide in the past, guards were trained to treat all inmates in the close observation unit as inmates who possessed one or more risk factors for suicide. Director Gillespie testified that although a mentally retarded inmatewho would be at greater risk of attracting predatorscould be housed in the close observation unit, it would be rare that someone other than an inmate with suicidal issues would be placed there.
In the 7 days leading up to Stapleton's death, Defendants evaluated Stapleton's risk of suicide on two separate occasions and affirmatively decided to keep Stapleton housed in the close observation unit (designated by policy as the appropriate housing unit for inmates who possess one or more suicide risk factors) and not transfer him to the general population (the appropriate housing unit for inmates who do not possess suicide risk factors). We find the fact that Tipton knew Stapleton was housed in a unit designated by official policy as one for inmates who possess one or more suicide risk factors is sufficient, in and of itself, to create a dispute of material fact regarding whether Tipton knew or should have known there was a risk Stapleton would commit suicide.
Although our finding that conspicuous placement in a housing unit for inmates who possess one or more suicide risk factors is sufficient, in and of itself, to survive summary judgment on this issue as to Tipton, we find further support of a disputed material *192 fact regarding whether Tipton knew or should have known of the risk Stapleton would kill himself based on the following evidence.
On the morning of the suicide, Tipton told his supervisor, Biltoft, that Stapleton should be transferred out of the close observation unit into suicide watch. In an affidavit filed after Stapleton's death, Tipton maintained that helike Jonesthought Stapleton should have been moved to suicide watch because Stapleton was a disciplinary problem. This information, however, was disputed by Father Joseph Chontos, who spoke with Tipton after the suicide occurred. According to Chontos' affidavit filed in conjunction with the summary judgment motion, Tipton thought the move to suicide watch was necessary, not because Stapleton was a disciplinary problem, but because Stapleton was a threat to himself. Further supporting Father Chontos' assertion is Tipton's emotional exclamation, blurted out as Tipton was trying to resuscitate Stapleton: "`I knew it, he should have went to [suicide watch].'" Viewed in a light most favorable to Thomas, we find this controverted testimony creates a dispute of material fact regarding whether Tipton knew or should of known of the risk Stapleton would kill himself.
Moreover, the record demonstrates that prior to the 10 a.m. headcount, but after Tipton had told Biltoft that Stapleton should be transferred to suicide watch, Tipton saw that Stapleton had completed a shower and was proceeding to his room. According to Darrell Myrick, an inmate in the close observation unit who also observed Stapleton walking from the shower to his room, Stapleton stated out loud that he was going to kill himself. Myrick testified Stapleton was only about 15 feet from Tipton at the time the statement was made but that Tipton was watching television and did not appear to be paying attention to the inmates at the time. Although Tipton denies hearing the statement, Myrick's sworn testimony regarding the limited amount of physical space between Tipton and Stapleton when the statement was made leads us to find further support of a disputed material fact regarding whether Tipton knew or should of known of the risk Stapleton would kill himself.

b. Matthew Biltoft (In His Individual Capacity)
Thomas claims Biltoft was negligent in guarding, supervising, and observing Stapleton immediately prior to Stapleton's suicide. There is no dispute that Biltoft, like Tipton, knew Stapleton was housed in a unit designated by official policy as one for inmates who possess one or more suicide risk factors. We find Biltoft's knowledge of this fact, in and of itself, is sufficient to create a dispute of material fact regarding whether Biltoft knew or should have known there was a risk Stapleton would commit suicide.
In addition to claims of negligence in dealing with Stapleton, Thomas also claims Biltoft breached his duty of care to Stapleton in that he was negligent in the supervision of jail employees. More specifically, Thomas claims Biltoft failed to properly supervise Tipton and failed to ensure that jail employees were conducting required daily shakedowns of cells in the close observation unit.
Kansas recognizes claims of negligent supervision. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 331, 961 P.2d 1213 (1998). Marquis declared that "[n]egligent supervision includes not only the failure to supervise but also the failure to control persons with whom the defendant has a special relationship, including the defendant's employees or persons with dangerous propensities. [Citations omitted.]" 265 Kan. at 331, 961 P.2d 1213. Our Supreme Court has also noted that the defendant must have reason to believe the employee's conduct would cause injury:
"When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because 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. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that *193 the harm is caused by the quality of the employee that the employer had reason to believe would be likely to cause harm." Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991).
Here, Thomas has failed to submit any evidence to establish that Biltoft knew or had reason to know that (a) jail employees failed to conduct required daily shakedowns; (b) Tipton conducted only partial health and well-being checks every 15 minutes; or (c) Tipton permitted inmates to cover the windows of their cells. Thus, Biltoft had no reason to believe that Tipton's employment, or the employment of any other employee in the jail over which Biltoft had supervisory authority, posed an undue risk of physical harm to Stapleton. Therefore, the district court correctly granted summary judgment in favor of Biltoft with respect to Thomas' claim of negligent supervision.

c. Betsy Gillespie (In Her Individual Capacity)
Thomas claims Gillespie breached the duty of care owed to Stapleton in negligently training, monitoring, and supervising her employees. More specifically, Thomas asserts Gillespie inadequately trained supervisors and guards regarding suicide prevention rules and inadequately monitored supervisors and guards with regard to enforcement of the suicide prevention rules. Fatal to these claims for negligent supervision and training on summary judgment, however, is the fact that again, Thomas has failed to submit any facts to support the allegation that Gillespie had any reason to believe the jail supervisors and guards were not properly trained and/or implementing suicide prevention rules. Thus, Gillespie had no reason to believe that jail supervisors and guards posed an undue risk of physical harm to Stapleton, and summary judgment in her favor on the negligent supervision and negligent training claims was appropriate.

d. Ted Ensley, Marice Kane, and Victor Miller (In Their Individual Capacities)
Thomas asserts Commissioners Ted Ensley, Marice Kane, and Victor Miller breached their duty of care to Stapleton in negligently hiring and retaining Gillespie as director of the DOC.
Kansas imposes tort liability for damages caused by the negligent hiring and retention of an employee whom the employer knew or should have known to be unfit or incompetent. Plains Resources, Inc. v. Gable, 235 Kan. 580, 590-91, 682 P.2d 653 (1984).
"[T]he employer must, by virtue of knowledge of his employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable." Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan.App.2d 302, 307, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978).
Thomas alleges the individual commissioners were negligent in hiring Gillespie because Gillespie did not have a formal education or background in suicide prevention. However, prior to being hired at the DOC, Gillespie worked for several years in corrections and served as the warden of the Larned Correctional Mental Health Facility. At Larned, Gillespie worked with mental health staff and became very involved with the management of mentally ill inmates, some of which had suicidal tendencies. Even if Gillespie had not had these experiences, Thomas fails to suggest how a lack of formal education or background in suicide prevention rendered Gillespie incompetent to be the director of the DOC. Simply put, we find Thomas has submitted no evidence to support the assertion that Commissioners Ensley, Kane, or Miller would have had any reason to believe when they hired her that Gillespie was not qualified to run the DOC.
Next, Thomas claims the individual commissioners were negligent in retaining Gillespie. In support of this claim, Thomas states that prior to Stapleton's death, the DOC experienced two inmate suicides during *194 Gillespie's tenure as director and that the individual commissioners failed to conduct a performance evaluation and/or required that Gillespie improve suicide prevention procedures. However, Gillespie testified that she maintained frequent contact with the commissioners following each suicide and discussed methods in which the suicide prevention policy could be enhanced. Moreover, Thomas has submitted no evidence to suggest that there were any deficiencies in the suicide prevention policy, only that the supervisors and guards failed to adequately adhere to the suicide prevention policies that were in place when Thomas died. Although the fact that there had already been two suicides in the DOC prior to Stapleton's may lead to an inference that there was a problem with the supervision of inmates, that inferencestanding on its ownis insufficient to create a material dispute of fact regarding whether Commissioners Ensley, Kane, or Miller had reason to believe that Gillespie was not qualified to run the DOC.
Based on the discussion above, we conclude as follows:
 Thomas submitted sufficient evidence to establish a dispute of material fact regarding whether Tipton knew or should have known of the risk Stapleton would kill himself.
 Thomas submitted sufficient evidence to establish a dispute of material fact regarding whether Biltoft knew or should have known of the risk Stapleton would kill himself.
 Thomas failed to present sufficient evidence to establish a dispute of material fact regarding whether Biltoft had reason to believe that Tipton's employment, or the employment of any other employee in the jail over which Biltoft had supervisory authority, posed an undue risk of physical harm to Stapleton.
 Thomas failed to present sufficient evidence to establish a dispute of material fact regarding whether Gillespie had reason to believe that jail supervisors and guards posed an undue risk of physical harm to Stapleton.
 Thomas failed to present sufficient evidence to establish a dispute of material fact regarding whether Commissioners Ensley, Kane, or Miller had any reason to believe, either when they hired her or thereafter, that Gillespie was not qualified to run the DOC.
Accordingly, we find the district court erred in granting summary judgment in favor of defendants Tipton and Biltoft (in their individual capacities) but appropriately granted summary judgment in favor of defendants Gillespie, Ensley, Kane, and Miller (in their individual capacities).

2. Shawnee County
In addition to suing each defendant personally in his or her individual capacity, Thomas also sued (a) Shawnee County as an entity; and (b) each individual defendant in his or her official capacity. Official-capacity suits against an employee, officer, or agent generally represent only another way of pleading an action against the entity for which the employee, officer, or agent works. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. [Citation omitted.]" Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Applying this principle to the case at hand, the court finds the suit against Tipton, Biltoft, Gillespie, Ensley, Kane, and Miller in their official capacities must be construed as a suit against Shawnee County.
Although common law dictates that a governmental entity cannot be sued without its consent, the Kansas Legislature provided this consent by enacting the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. Woodruff v. City of Ottawa, 263 Kan. 557, 561-62, 951 P.2d 953 (1997). Subject to certain limitations, the KTCA deems a governmental entity liable for the negligent acts of those employees acting within the scope of their employment. K.S.A.2007 Supp. 75-6103(a). Here, we have determined that Thomas failed to establish a factual basis for finding that the duty to act had been triggered *195 as to defendants Gillespie, Ensley, Kane, and Miller. Clearly, Shawnee County (as an entity) cannot be deemed liable for nonexistent negligent acts performed by these individuals.
On the other hand, we have determined that Thomas sufficiently established a factual basis for finding that the duty to act had been triggered as to defendants Tipton and Biltoft. Moreover, the facts demonstrate that both Tipton and Biltoft were acting within the scope of their employment. Thus, at least pursuant to the provisions of K.S.A. 2007 Supp. 75-6103(a), Shawnee County (as an entity) is liable for the negligent acts of Tipton and Biltoft.
Although liability is the general rule, the KTCA specifically sets forth exceptions to liability for negligent acts. See K.S.A. 2007 Supp. 75-6104. Shawnee County asserts two of these exceptions renders it immune from liability:
 K.S.A.2007 Supp. 75-6104(d) (personnel policy exception), which provides immunity for government employees who fail to enforce a written personnel policy protecting a person's health or safety unless a duty of care independent of such policy is owed to the specific individual injured; and
 K.S.A.2007 Supp. 75-6104(e) (discretionary function exception), which bars claims against a government entity or employee "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."
Significantly, and as explicitly set forth in the statute itself, the personnel policy exception is not applicable in those situations where the governmental defendant owes an independent legal duty to the injured party. Likewise, our Supreme Court has held that "the discretionary function exception [under K.S.A. 75-6104(e)] is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency must follow." Barrett v. U.S.D. No. 259, 272 Kan. 250, 263, 32 P.3d 1156 (2001); see Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993) ("If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable."); see also Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984) (holding that discretionary immunity does not apply where plaintiff alleged facts that, if true, constituted a breach of State's duty of reasonable care).
Notably, we already have determined that pursuant to the Restatement (Second) of Torts § 314A(4) (1964), Tipton, Biltoft, and Shawnee County (acting by and through its employees Tipton and Biltoft) owed an independent duty of reasonable care to prevent Stapleton from harming himself. Given this independent duty, we find Tipton, Biltoft, and Shawnee County's claims of immunity based upon enforcement of a written personnel policy and upon exercise of a discretionary function to be without merit. As such, we further find the district court erred in concluding that Tipton, Biltoft, or Shawnee County (as an entity) were immune pursuant to the exceptions set forth in K.S.A.2007 Supp. 75-6104(d) and (e). For these reasons, we remand for trial on the issues of breach, causation, and damages with regard to these three defendants.
Affirmed in part, reversed in part, and remanded with directions.