Bonnette v. Triple D Auto Parts Inc.

• Decision Date: 15 December 2017
• Docket Number: No. 116,578,116,578
• Parties: Christina BONNETTE, Appellant, v. TRIPLE D AUTO PARTS INC., Appellee.
• Court: Kansas Court of Appeals

55 Kan.App.2d 130

409 P.3d 865

Christina BONNETTE, Appellant,

v.TRIPLE D AUTO PARTS INC., Appellee.

No. 116,578

Court of Appeals of Kansas.

Opinion filed December 15, 2017

Matthew L. Bretz, of Bretz & Young, L.L.C., of Hutchinson, for appellant.

Terry J. Malone, of Dodge City, for appellee.

Before Schroeder, P.J., McAnany and Powell, JJ.

McAnany, J.:

Christina Bonnette appeals the district court's decision granting Triple D Auto Parts' motion for summary judgment. In its motion, Triple D asserted that Bonnette's personal injury claim was barred by the statute of repose because the dangerous condition that caused her injuries had been present for over 10 years. In granting Triple D's motion for summary judgment, the district court reasoned that Bonnette was injured over 20 years after Triple D completed the last act for which it could be held liable so the statute of repose barred the claim.

FACTS

Bonnette's person injury claim arises from an accident that occurred while she was patronizing Triple D's store in November 2013. Triple D purchased the store in 1990. The building has a single entrance and exit for customers. The exit has a single step down to the sidewalk. The step is approximately four inches tall, is the same color as the adjacent sidewalk, and is not marked with any type of a warning. The owner of Triple D, Jim Dowell, admitted the step is a hazard to anyone that does not know the step exists. The entrance to the store has been in the same configuration and has been in the same condition since the building was built in 1925.

Before her accident, Bonnette had patronized Triple D's store approximately five times per year over a 16–year period and, therefore, had safely navigated the step approximately 160 total times entering and leaving the store.

On the day of the accident, Bonnette had no trouble navigating the step when she entered the store. She spent approximately 10 minutes in the store shopping for keys. Upon leaving the store, she missed the step and fell onto the adjacent sidewalk, fracturing her left wrist in three places. When asked to explain why she fell, Bonnette said that she was looking straight ahead and did not see the step because it was the same color as the sidewalk.

In April 2015, Bonnette filed this personal injury action against Tripe D. In her petition she alleged that Triple D was negligent in the following respects: (1) failing to provide a safe place to shop; (2) failing to ensure the safety of its customers; (3) creating an unreasonably dangerous condition; (4) maintaining an unreasonably dangerous condition; (5) failing to provide adequate warning of the dangerous condition; and (6) failing to inspect the business premises.

In its answer, Triple D asserted the affirmative defense of the statute of repose. It then moved for summary judgment claiming that it was entitled to judgment as a matter of law because Bonnette's claim was barred by the statute of repose and, alternatively, because it had no duty to warn Bonnette of the dangerous condition which was open and obvious. Bonnette opposed Triple D's motion, asserting that her claim for breach of Triple D's duty to warn was not barred by the statute of repose and that Triple D owed her a duty to warn her of the dangerous condition because it was not obvious. Bonnette abandoned all other claims.

The district court granted Triple D's motion for summary judgment, reasoning that Bonnette was injured over 20 years after Triple D had completed the last act for which it could be held liable, so the statute of repose barred any claims. The district court did not rule on Triple D's contention that it had no duty to warn Bonnette of the dangerous condition because it was open and obvious. Bonnette asked the district court to reconsider its decision and to deny Triple D's motion. The district court reaffirmed its decision, stating that Bonnette's claim for failure to warn was the result of an action by Triple D as contemplated in K.S.A. 60-513(b) that occurred beyond the 10–year statutory period so any claim that she has against Triple D was barred. Bonnette's appeal brings the matter to us.

ANALYSIS

Bonnette first contends the district court erred in granting Triple's D's motion for summary judgment because, as a matter of law, the statute of repose does not bar her claim for failure to warn. She also contends Triple D owed her a duty to warn of this dangerous condition.

" ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]" Armstrong v. Bromley Quarry & Asphalt, Inc. , 305 Kan. 16, 24, 378 P.3d 1090 (2016).

STATUTE OF REPOSE

The first issue before us is whether the statute of repose bars Bonnette's claim as a matter of law. This is a matter of statutory interpretation which we review de novo. Davidson v. Denning , 259 Kan. 659, 667, 914 P.2d 936 (1996). Besides, on appeal we analyze Triple D's summary judgment motion de novo. Siruta v. Siruta , 301 Kan. 757, 766, 348 P.3d 549 (2015).

K.S.A. 60-513 is the statute of limitations applicable to tort actions such as this. Subsection (b) of the statute provides in pertinent part:

"[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action ." (Emphasis added.)

The last sentence in K.S.A. 60-513(b), "but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action," is commonly referred to as a statute of repose. As stated in Kerns v. G.A.C., Inc. , 255 Kan. 264, 268, 875 P.2d 949 (1994) :

"A statute of repose limits the time during which a cause of action can arise and usually runs from the act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time, even though the cause of action may not have yet accrued. By contrast, a statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time."

The statute of repose assures that a party will not be held liable beyond the 10–year statutory period. 255 Kan. at 268, 875 P.2d 949. The 10–year statutory period begins to run when the defendant completes the last act giving rise to the cause of action. Klose v. Wood Valley Racquet Club, Inc. , 267 Kan. 164, 167–68, 975 P.2d 1218 (1999). Once the 10–year period of repose has run, claims against the party are extinguished even if an action has not yet accrued and even if the plaintiff has not yet been injured. See 267 Kan. at 168, 975 P.2d 1218.

Here, the primary question before us is when Triple D completed the last action giving rise to Bonnette's cause of action. Triple D asserts that this happened when it purchased the building in 1990. Bonnette asserts that Triple D completed the last act giving rise to the cause of action in November 2013 when it failed to warn her of the dangerous step. Assuming at this point that Triple D had a duty to warn, we agree with Bonnette.

In Klose , our Supreme Court held the statute of repose barred the negligence claims against the landowner when the dangerous condition had been on the land for more than 10 years. 267 Kan. at 168, 975 P.2d 1218. Klose was participating in a tennis tournament at the defendant's tennis courts. While participating in the tournament, Klose ran into a cement wall injuring his leg. The cement wall was positioned closer to the court than permitted by the building code. The defendant built the tennis court in 1974, and the dangerous wall had been located in the same position undisturbed since that time.

Klose was not injured until some 20 years after the tennis court was built.

Klose brought a claim against the tennis court for premises liability and failure to warn him of the dangerous condition. The defendant moved for summary judgment claiming the suit was bared by the statute of repose because it had not taken any action that could have caused the injury after it built the wall in 1974. The district court granted the defendant's motion for summary judgment, concluding the statute of repose "precluded any cause of action based on proximity of the court and the wall" due to the court being unchanged in over 20 years. 267 Kan. at 167–68, 975 P.2d 1218. Our Supreme Court affirmed the district court, holding the statute of repose barred the claims that Klose had against the landowner for premises liability because the property had not been altered in over 20 years. In light of its holding regarding the statute of repose, the court declined to address Klose's claim against the landowner for failure to warn. In its final paragraph, the court noted:

"Klose makes two final contentions. The first seems to be that danger from the proximity of the court and the wall was not an open and obvious condition. The second is that [defenda

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