Dumler v. Conway

• Decision Date: 25 October 2013
• Docket Number: No. 108,987.,108,987.
• Citation: 49 Kan.App. 567,312 P.3d 385
• Parties: Kelli B. DUMLER, Appellant, v. John CONWAY, and Wentz Enterprises, LLC, Appellees.
• Court: Kansas Court of Appeals

49 Kan.App. 567

312 P.3d 385

Kelli B. DUMLER, Appellant,

v. John CONWAY,andWentz Enterprises, LLC, Appellees.

No. 108,987.

Court of Appeals of Kansas.

Oct. 25, 2013.

Syllabus by the Court

1. The general rule of liability is that when someone lets out work to another and reserves no control over the work or the workers, the legal relationship of contractee and independent contractor exists. The contractee is not liable for the negligence or improper execution of the work by the independent contractor.

2. The statute of limitations for personal injury actions does not accrue 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. K.S.A. 60–513(a)(2) and (b).

3. The statute of limitations for personal injury actions contains no language requiring knowledge of the identification of the party who caused the injury. The only triggering events under the statute are (1) the act which caused the injury; (2) the existence of substantial injury; and (3) the injured party's awareness of the fact of injury.

Brian C. Wright, of Wright Law Office, Chartered, of Great Bend, for appellant.

Patrick J. Murphy and Bradley J. Raple, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, for appellee John Conway.

Mickey W. Mosier and Paula J. Wright, of Clark, Mize & Linville, Chartered, of Salina, for appellee Wentz Enterprises, LLC.

Before McANANY, P.J., GREEN and HILL, JJ.

HILL, J.

Kelli B. Dumler appeals the dismissal of her personal injury lawsuit. She was injured when her car struck some mud on the roadway adjacent to a field where ensilage was being harvested. Not knowing exactly who left the debris on the roadway, Dumler sued John Conway, the farmer who owned the field where the ensilage was being harvested. When Conway later raised the defense that he was not liable for the negligence of Wentz Enterprises, LLC, an independent contractor he had hired to harvest the ensilage, Dumler sued Wentz as well. The district court granted Conway summary judgment, holding he was not liable for Wentz' negligence. The court also granted summary judgment to Wentz based on the statute of limitations because more than 2 years had elapsed from the date of the accident and the date Dumler sued Wentz.

A car wreck occurs in rural Kansas at harvest time.

On November 10, 2008, Dumler was driving her vehicle on a highway in rural Osborne County. She lost control of her vehicle when her car encountered mud and field debris on the roadway. She incurred serious personal injuries and suffered property damage, as well. Two years later, on November 10, 2010, Dumler filed suit in the Osborne County District Court against John Conway, who owned the property near the scene of her accident. Dumler alleged that either Conway or his employees created the mud and debris on the roadway by crossing the road with farm machinery. Dumler alleged Conway should have known this was an unreasonable hazard and claimed he was negligent in failing to take reasonable steps to prevent the build-up of mud and debris on the roadway.

Initially, Conway moved to dismiss Dumler's claim, contending that on the date of Dumler's accident, he had hired an independent contractor, Wentz Enterprises, LLC to cut fodder to make ensilage on his farm. Conway asserted he had no control over the method or manner selected by Wentz to perform the job. Conway also claimed he did not drive any of his own vehicles or equipment across the roadway on the date of Dumler's accident. Conway argued that under Kansas law, he is not liable for the negligence of an independent contractor.

Soon after the filing of that motion, Dumler moved to amend her petition to assert a claim against Wentz. She claimed that before she filed suit against Conway, she had communications with Conway or his insurer on two occasions. Dumler said that at no time did either provide any information regarding the existence of Wentz. Dumler claimed she was “entirely unaware” of Wentz and said she believed Wentz may be responsible for her accident. The district court denied Conway's motion to dismiss and granted Dumler leave to amend her petition to add Wentz as a defendant.

Eventually, Wentz moved for summary judgment, arguing Dumler's claim must be dismissed because it was filed outside the applicable statute of limitations. Wentz alleged it received no notice of Dumler's initial petition in the case until April 2011. Further, it was not served with a summons and a copy of the petition until September 17, 2011. In its motion, Wentz contended that under Kansas law, the statute of limitations on negligence claims is 2 years. Wentz argued that here, the limitation period began to run on Dumler's claim on November 10, 2008 (the date of her accident), and the limitation period expired on November 10, 2010. Wentz argued Dumler did not make a claim against Wentz until September 14, 2011, well after the 2–year statute of limitations had expired.

Dumler countered by arguing that the statute of limitations did not begin running on her claim until she first became aware of Wentz' involvement in the case—that is when Conway filed his motion to dismiss. Dumler asserted that in order for her to have reasonably ascertained her fact of injury as required by the limitations statute, she needed to know who was responsible for causing her injury. Dumler did concede, however, that her amended petition naming Wentz did not “relat[e] back” to her original petition.

Not wanting to be left alone, Conway also moved for summary judgment, essentially repeating the arguments he made in his motion to dismiss— i.e., that Wentz was an independent contractor and under Kansas law one who hires an independent contractor is not liable for the negligence of that contractor.

In response to Conway, Dumler based her theory of liability on the Restatement (Second) of Torts § 413 (1964), one of the few exceptions to the general rule that an owner is not liable for the negligent acts of an independent contractor. She contends Conway should have recognized his contract harvester, Wentz, was likely to create a peculiar risk of physical harm to others by leaving mud and debris on the roadway adjacent to the field being harvested. And, because Conway either in his contract with Wentz did not require Wentz to take precautions or Conway himself failed to exercise reasonable care to provide in some other manner the taking of such reasonable precautions, Conway is liable for the physical harm caused by Wentz.

Dumler argued this exception applies because 1 year prior to Dumler's accident, one of Conway's workers was leaving excessive mud on the roadway near Conway's property and a Kansas Department of Transportation employee was dispatched to Conway's home to tell him he needed to remove the mud. The Department had received a report about the mud, and after the employee spoke with Conway, either Conway or his employee cleaned the mud from the roadway.

The district court granted summary judgment to both Conway and Wentz. Concerning Conway's motion, the court held the “peculiar risk doctrine” did not apply, so that Conway was not liable for the negligent acts of his independent contractor, Wentz. For Wentz' motion, the court held the statute of limitations began to run on Dumler's tort action on the date of her accident, so that Dumler's legal action against Wentz was filed outside the 2–year limitation period.

We repeat our rule on summary judgments.

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, summary judgment is appropriate. The district 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, the 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, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).

In this appeal we begin with Conway's summary judgment.

We are not convinced that § 413 applies here.

The general rule of liability is that when a contractee lets out work to another and reserves no control over the work or the workers, the relation of contractee and independent contractor exists. The contractee is not liable for the negligence or improper execution of the work by the independent contractor. Falls v. Scott, 249 Kan. 54, 59, 815 P.2d 1104 (1991). Dumler seeks application of an exception to this rule as stated in the Restatement (Second) of Torts § 413.

No Kansas appellate case has recognized a cause of action based upon § 413 of the Restatement (Second) of Torts. It is a rule of vicarious liability that, for policy reasons, an employer cannot shift the responsibility for the proper conduct of the work to the contractor. We repeat the section in its entirety:

“ § 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor

“One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the...