Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 74571

• Decision Date: 06 June 1997
• Docket Number: No. 74571,74571
• Citation: 940 P.2d 84,23 Kan.App.2d 1038
• Parties: The CESSNA AIRCRAFT COMPANY and Sun Life Insurance Company of America, Appellees, v. METROPOLITAN TOPEKA AIRPORT AUTHORITY, Appellant.
• Court: Kansas Court of Appeals

Page 84

940 P.2d 84

23 Kan.App.2d 1038

The CESSNA AIRCRAFT COMPANY and Sun Life Insurance Company

of America, Appellees, v. METROPOLITAN TOPEKA AIRPORT AUTHORITY, Appellant.

No. 74571.

Court of Appeals of Kansas.

June 6, 1997.

Review Denied Sept. 23, 1997.

Syllabus by the Court

1. Summary judgment is only appropriate if the record conclusively shows that there is no issue as to any material fact and 2. When appellate review is sought in connection with a motion for directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence, the trial court's denial of the motion must be affirmed.

that the moving party is entitled to judgment as a matter of law. This court, like the trial court, must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party opposing the summary judgment motion, and if reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

3. To recover in a negligence action, the plaintiff must prove a duty was owed by the defendant to the plaintiff, a breach of that duty, and that the breach of duty was the proximate cause of damages sustained by the plaintiff. The existence of a duty is a question of law, subject to unlimited review by this court.

4. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts § 324A (1965). This doctrine applies to claims for property damage.

5. A duty can arise under Restatement (Second) of Torts § 324A (1965) on the basis of undertakings contained in a lease.

6. Generally, the Kansas Tort Claims Act makes governmental liability for tort claims the rule (K.S.A.75-6103[a] ), subject to numerous exceptions (K.S.A.75-6104). A governmental entity claiming immunity bears the burden of showing it fits within one of the exceptions to liability.

7. Based on the record in this case, the district court did not err in rejecting defendant's claims of immunity under K.S.A. 75-6104(c), (e), (k), and (n).

8. Errors regarding jury instructions do not warrant reversal unless they result in prejudice to the appealing party. Instructions are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not be reasonably misled by them, the instructions will be approved on appeal.

9. A party may not assign as error the giving or failure to give an instruction unless the party objects before the jury retires to consider its verdict. The objection must distinctly state the matter to which the party objects and the grounds for such objection unless the instruction is clearly erroneous.

10. To recover in a negligence action, the breach of duty must be the actual and proximate cause of the injury. Whether conduct in a given case is the cause in fact or proximate cause of plaintiff's injuries is normally a question of fact for the jury.

11. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.

12. Rulings on the admissibility of evidence fall within the sound discretion of the trial court. One attacking an evidentiary ruling must show an abuse of discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.

13. K.S.A. 60-608 provides that in cases with multiple defendants, the plaintiff may elect venue based on any one of the defendants against whom a substantial claim exists. K.S.A. 60-608 may be applied even if one of the multiple defendants is an airport authority.

14. Cumulative error warrants reversal when the various errors have so permeated and tainted the entire proceedings that a party has been deprived of the fair trial to which every litigant is entitled.

15. Charges for discovery depositions, not used as evidence, are ordinarily not taxable as costs. The burden of proving any exception to this rule rests upon the party claiming the costs.

16. Under the circumstances of this case, when a party fails to comply with the district court's order that all experts designated must be present for trial, the district court did not abuse its discretion in assessing certain deposition charges as costs.

Michael P. Oliver and Arlen L. Tanner, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, and Wayne T. Stratton and Steve A. Schwarm, of Goodell, Stratton, Edmonds & Palmer, Topeka, for appellant.

Robert W. Cotter, Patrick J. Kaine, and Kent M. Bevan, of Dysart Taylor Penner Lay & Lewandowski, P.C., Kansas City, for appellees.

Donald L. Moler, Jr., General Counsel, for amicus curiae League of Kansas Municipalities.

Before ROYSE, P.J., WAHL, Senior Judge, and STEVEN R. BECKER, District Judge, Assigned.

ROYSE, Judge.

Cessna Aircraft Company (Cessna) and Sun Life Insurance Company of America (Sun Life) brought this action against the Metropolitan Topeka Airport Authority (MTAA) to recover damages for aircraft destroyed in a hangar fire at Forbes Field Airport. The jury returned a verdict in favor of plaintiffs, and MTAA appeals.

MTAA is a governmental entity created pursuant to K.S.A. 27-317 et seq. MTAA operates two airports, Philip Billard Airport and Forbes Field Airport. Located within the confines of the Forbes Field Airport is hangar 626, an aircraft hangar built in the 1940's. On November 30, 1990, MTAA leased hangar 626 to a private corporation, Forbes Aviation d/b/a/ Million Air-Topeka (Million Air). Million Air subsequently subleased a portion of hangar 626 to Cessna for aircraft storage.

In 1993, Million Air hired Arnol Stegman d/b/a Steeplejack Services, Inc., to replace the roof on hangar 626. Stegman contracted with two individuals, Kelvin Lynn and Kelly McGlumphrey, to help with the roofing project.

Application of a rubber roof to replace the existing wooden roof on hangar 626 involved using a propane torch. During the evening of July 20, 1993, as Lynn and McGlumphrey worked on the roof, a fire started, which eventually engulfed the hangar and destroyed 13 airplanes--10 owned by Cessna and 3 which Cessna leased from Sun Life.

Cessna and Sun Life filed suit against MTAA, Million Air, Stegman, Lynn and McGlumphrey. Million Air settled with the plaintiffs prior to trial. The jury determined fault as follows: Million Air--37%; Stegman--12%; Lynn--7%; McGlumphrey--1%; and MTAA--43%. The jury determined Cessna had sustained damages totalling $15 million and Sun Life had sustained damages in excess of $5 million.

MTAA argues on appeal that the district court erred in denying its motions for summary judgment and for directed verdict. (There is no document labelled motion for directed verdict. At the conclusion of the evidence, MTAA's counsel asked the court to order a directed verdict based upon the arguments contained in its trial brief.)

Summary judgment is only appropriate if the record conclusively shows that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.J.W. v. State, 253 Kan. 1, 16, 853 P.2d 4 (1993). This court, like the trial court, must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party opposing the summary judgment motion, and if reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. P.W. v. Kansas When appellate review is sought in connection with a motion for directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence, the trial court's denial of the motion must be affirmed. See Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, Syl. p 1, 827 P.2d 1 (1992).

Dept. of SRS, 255 Kan. 827, 828-29, 877 P.2d 430 (1994).

Before dealing specifically with the issues MTAA raises on appeal, we note that MTAA's brief on appeal exceeds the 50-page limit imposed under Rule 6.07 (1996 Kan. Ct. R. Annot. 33). MTAA's use of Roman numerals in the nature of the case, issues, and statement of facts sections of its brief, while employing Arabic numerals in the argument section of its brief, is not a permissible way to bypass the 50-page rule. Nor did MTAA's motion to exceed the page limit comply with the requirements under Rule 6.07, that it be submitted prior to submission of the brief and include a specific total page request.

DUTY

MTAA argues on appeal that it did not owe any duty to plaintiffs under any exception to the general rule that a landlord is not liable to third parties for their damages occurring on a tenant's leasehold.

To recover in a negligence action, the plaintiff must prove a duty was owed by the defendant to the plaintiff, a breach...