Christiansen v. Silverbrand

Decision Date03 September 2021
Docket NumberNo. 122,928,122,928
Citation497 P.3d 1155
Parties Anita CHRISTIANSEN, Appellant, v. Howard SILVERBRAND, Individually and as Trustee of the Howard Silverbrand Living Trust, and Lisa Faith Silverbrand, Individually and as Trustee of the Howard Silverbrand Living Trust, Appellees.
CourtKansas Court of Appeals

Melinda G. Young, of Bretz & Young, LLC, of Hutchinson, for appellant.

Thomas J. Berscheidt, of Berscheidt Law Office, of Great Bend, for appellees.

Before Arnold-Burger, C.J., Atcheson and Hurst, JJ.

Arnold-Burger, C.J.:

The defendants in this case, Howard Silverbrand, individually and as trustee of the Howard Silverbrand Living Trust, and Lisa Faith Silverbrand, individually and as trustee of the Howard Silverbrand Living Trust (Silverbrand), moved for summary judgment in a slip and fall case brought by Anita Christiansen. Christiansen asserted that her injury was due to Silverbrand's poorly maintained parking lot. Silverbrand moved for summary judgment, asserting that Christiansen only admitted to slipping on ice in the parking lot, which was purportedly not its responsibility. Along with her response in opposition to the motion, Christiansen submitted an affidavit stating that she slipped on the ice before breaking her ankle on a crack/pothole in the parking lot. The district court struck the affidavit, holding that it contradicted Christiansen's prior statements attributing her injury to slipping on the ice. The court granted the motion for summary judgment. Because we find that Christiansen's affidavit was supplementary, not contradictory, we reverse the district court's decision granting summary judgment to Silverbrand.


In the winter of 2016, Christiansen was working as a mail carrier for the United States Postal Service (USPS) in Great Bend. The parking lot where her work vehicle needed to be parked was owned by Silverbrand. Silverbrand was responsible for all maintenance of the parking lot. Clearing ice from the parking lot was the responsibility of USPS.

As she exited her vehicle in the parking lot, Christiansen slipped and fell, breaking her ankle. She felt immediate and severe pain and yelled out for help, prompting a co-worker nearby to call an ambulance. Christiansen told the emergency medical technician (EMT) who arrived to treat her that she slipped on ice.

Christiansen filed a personal injury lawsuit against Silverbrand, alleging that their negligence in maintaining the parking lot was the direct and proximate cause of her injuries. In the petition, she alleged that "[her] shoe got caught in a large pothole causing her to fall to the ground" and sustain injuries.

Silverbrand ultimately moved for summary judgment. In the motion, Silverbrand generally asserted the uncontroverted facts showed that Christiansen slipped on ice in the parking lot. Because Silverbrand was not responsible for removal of ice from the parking lot, Silverbrand argued that "[a]llowing this case to go forward to a jury trial will not change the facts as they currently exist. At this stage, summary judgment is warranted." Silverbrand attached several exhibits to their motion, which all contained statements by Christiansen that she either slipped or slid on the ice. In particular, she told the EMT and a treating physician she had slipped on black ice in the parking lot. In a response to Interrogatory No. 5 asking to "[p]lease describe in detail how the injury occurred," she stated, "As I stepped out of my [long-life vehicle (LLV)] after moving it forward, my right foot slid on ice and I fell down." Likewise, at a deposition, the following exchange occurred:

"Q: Okay. The slickness was where your vehicles was parked, is that correct?
"A: No.
"Q: Where was it?
"A: The slickness?
"Q: Yeah.
"A: The only place I experienced is when I stepped out of that LLV.
"Q: Okay. You don't deny what you've said, you slipped on the ice when you stepped out, do you?
"A: No.
"Q: You don't deny that you told the ambulance attendant EMT—let's see.
His name is Reifsynder. No. Yes. Pardon Me. Yes, it is Reifsynder.
You don't deny telling the EMT attendant when he asked you what happened that you slipped on the ice, isn't that–
"A: Do I deny it? No."

Christiansen responded to Silverbrand's motion, asserting genuine factual disputes existed about whether the "parking lot created a dangerous condition, and whether [Silverbrand] acted reasonably in maintaining, inspecting and repairing their parking lot." She also generally argued that Silverbrand was not entitled to judgment as a matter of law because the lease agreement with the USPS required them to maintain and repair the parking lot, on top of a duty of reasonable care as the owners of the parking lot. According to Christiansen, she slipped on ice as she exited her vehicle but "her foot caught the inside edge of a large crack/pothole in the parking lot," which caused her ankle to snap. As support, Christiansen attached to her response an affidavit stating, in relevant part:

"8. As I was stepping out of my vehicle, my right foot started sliding on ice.
"9. My right foot slid a couple of feet and then my foot caught the edge of a large crack/pothole in the parking lot. Sec photo of the location of my fall attached as Ex. A.
"10. When my shoe caught the edge of the large crack/pothole, I heard and felt a snap in my ankle and then saw a white impression under the skin where the bone had broken and was pressing against the skin as if it would pop out.
"11. I slid due to the ice.
"12. My ankle broke due to my foot hitting the crack/pothole in the parking lot."

The district court held a pretrial hearing in February 2020 and heard argument from counsel at the outset on the motion for summary judgment. The district court took the matter under advisement and asked the parties to submit supplemental briefs on the issue of whether the court should consider Christiansen's "self-serving" affidavit as creating a controverted fact.

Silverbrand's supplemental brief argued that Kansas Supreme Court held in Mays v. Ciba-Geigy Corp. , 233 Kan. 38, Syl. ¶ 1, 661 P.2d 348 (1983), that "[g]enerally a party may not defeat summary judgment by filing a subsequent affidavit impeaching his previous testimony upon deposition." Thus, Silverbrand asked the district court to sustain the motion for summary judgment because Christiansen had not submitted evidence to create an issue of fact.

Christiansen argued in her supplemental brief that Mays did not support striking her affidavit because the facts of the cases were "vastly different." She asserted that her affidavit was not inconsistent or contrary to her prior statements because she has never denied that she slipped and fell on ice, and the affidavit "clarifies" and supports her allegation that her ankle broke as a result of hitting the crack/pothole in the parking lot. Christiansen also argued the deposition was inadequate because it only lasted 25 minutes and counsel never asked her to fully explain the facts supporting her allegations.

The district court ultimately granted Silverbrand's motion for summary judgment. The court noted Christiansen's affidavit was "the only evidence presented by the defendant to controvert the material fact in question" and that the affidavit "was at the very least [inconsistent] with prior statements that she gave to outside witnesses and to prior statements that she gave under oath." The court explained that Mays accurately stated the law but also mentioned more recent decisions citing Mays that addressed a similar issue. Deters v. Nemaha-Marshall Electric Cooperative Ass'n , 56 Kan. App. 2d 1170, 443 P.3d 1086 (2019) ; Smith v. Kansas Orthopaedic Center , 49 Kan. App. 2d 812, 316 P.3d 790 (2013).

The district court then explained that Christiansen had two "full" opportunities to describe the cause of the accident, yet both times she clearly stated she slipped on the ice and fell, injuring her ankle. The court also found that Christiansen's affidavit "tries to change that statement entirely by indicating that the ice was involved but it was the defect in the parking lot that caused her fall and injury." As a result, the court concluded the affidavit "is not a mere inconsistency but completely changes the liability of the defendant." In conclusion, the court decided to strike the affidavit and grant the motion for summary judgment.

Christiansen timely appealed.


Christiansen argues on appeal the district court erred in granting summary judgment because genuine disputes of material fact existed to preclude judgment as a matter of law. Her argument on appeal and against summary judgment turns on the affidavit she submitted in response to Silverbrand's motion for summary judgment. In particular, the question is whether the district court erred in striking the affidavit because it only created a factual dispute by contradicting her prior sworn statements. According to Christiansen, the affidavit was not contradictory and merely clarified or supplemented her prior incomplete testimony.

We review a district court's decision to strike an affidavit for an abuse of discretion.

Although this appeal stems from the district court's grant of summary judgment, the issue is whether the district court erred in striking Christiansen's affidavit. We review a district court's decision to strike what it deems to be a contradictory affidavit for an abuse of discretion. P.W.P. v. L.S. , 266 Kan. 417, 431, 969 P.2d 896 (1998). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. Biglow v. Eidenberg , 308 Kan. 873, 893, 424 P.3d 515 (2018).

A party cannot avoid summary judgment with an affidavit that contradicts prior sworn testimony.

As mentioned, the district court refused to consider the affidavit under the Kansas Supreme Court's longstanding rule that a party may not avoid summary judgment by presenting an affidavit...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT